The WSJ($) editorial board has an interesting take on yesterday's 10 commandments cases:
And now for the dueling Ten Commandments decisions, in which the Justices cast themselves as religious interior decorators -- and finicky ones at that. In van Orden v. Perry, the Court allowed a six-foot granite monument to the Ten Commandments on the grounds of the Texas capitol. But in McCreary County v. ACLU of Kentucky, it decided that a display of framed copies of the Ten Commandments inside two Kentucky courthouses was going too far.
What gives? Only Stephen Brayer would seem to know the secret logic behind this split decision, since he was the swing Justice in the two cases. Reading through the majority opinions, it seems that the difference boils down to such "context" dependent issues as the fact that the granite monument was old -- it had been there since 1961 -- while the Kentucky commandments were of newer vintage and therefore possibly a product of the dreaded religious right.
As Justice Scalia wrote in a particularly blistering dissent in McCreary: "What distinguishes the rule of law from the dictatorship of a shifting Supreme Court majority is the absolutely indispensable requirement that judicial opinions be grounded in consistently applied principle." By refusing to offer such a principle here, the Supremes have guaranteed even more church-state appeals. We'd add that this is a subject where a plain-language reading of the First Amendment -- which prohibits Congress only from establishing a state religion or "prohibiting the free exercise thereof" -- would be immensely clarifying.
