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The court will hear a pair of high-profile religion disputes. Both cases involve the Ten Commandments--an issue as controversial as the Pledge of Allegiance question that the court considered, and ducked, last year. The cases echo the recent controversy over former Alabama Supreme Court Chief Justice Roy Moore's unsuccessful attempt to maintain a Ten Commandments monument in the state judicial building.
In McCreary County v. ACLU, the Supreme Court will consider whether two Kentucky counties may prominently display the Ten Commandments in courthouse lobbies. After the ACLU objected, the counties added additional documents, such as the Declaration of Independence, and claimed that the Commandments were part of a historical exhibit. The U.S. Court of Appeals for the Sixth Circuit ruled that the display violated the First Amendment's Establishment Clause, which prohibits government establishment of religion.
On the same day, the court also will hear a citizen's demand, in Van Orden v. Perry, that Texas remove a six-foot high monument of the Ten Commandments that has been on the grounds of the Texas Capitol for more than forty years. Pointing to the monument's long history on the grounds and the presence of other monuments, the U.S. Court of Appeals for the Fifth Circuit rejected the demand.
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Challengers to the Commandments argue that they convey a religious message. The challengers contend that several Commandments are overtly religious ("Thou shalt have no other gods before me"), that they reflect only the Judeo-Christian tradition, and that there even are different versions of the Commandments for Protestants, Catholics, and Jews. Defenders maintain that the Commandments are central to western history and to the founding of the nation. It is an irony of the court's religion cases that religious advocates defend the presence of religious symbols by emphasizing their secular meaning.
Like Ted Williams hitting a home run in his last at bat, the cases may give Rehnquist an opportunity for a final victory that would be a personal vindication and a capstone to his legacy. Since joining the court in 1972, Rehnquist has been one of its staunchest advocates for broad government discretion on religious matters. He has attacked the concept of a "wall" between church and state. He dissented from a decision in 1980 (Stone v. Graham) that struck down a Kentucky law requiring the posting of the Ten Commandments in schools. The new cases give him a chance to permit such displays.
They also give him a chance to dump a controversial precedent. The "Lemon test," from the court's Lemon v. Kurtzman decision in 1971, requires that government actions meet three tests--they must have a secular purpose, they must not have a primary effect of advancing or inhibiting religion, and they must not excessively entangle the government with religion. Conservatives decry the standard as both too restrictive and too malleable. Even some who support a "wall" between church and state object that Lemon is unpredictable. For Rehnquist, repudiating Lemon would be a sweet parting shot.
The key to the outcome may be Rehnquist's former law-school classmate and fellow Arizonan-Sandra Day O'Connor. On religion cases, O'Connor and Anthony Kennedy are the swing votes. They sometimes join the champions of a "wall" between church and state (Justices Stevens, Souter, Breyer, and Ginsburg), as they did in a case striking down prayer at high-school football games. But they also sometimes join the critics of such a "wall" (Rehnquist and Justices Scalia and Thomas), as they did in a case allowing school vouchers for parochial schools. O'Connor and Kennedy could determine whether the new Commandments cases become a long-sought crowning triumph for Rehnquist.
Rehnquist also has an opportunity for a legacy-shaping decision on property rights. In a case to be argued today (Kelo v. New London), the issue is the government's authority to "take" property from private citizens. The case has the pathos of a Hollywood script. It features an action by New London, Conn., to condemn the home of an 87-year-old woman, who has lived in the house her entire life, so that it can proceed with an economic development project. The city also has condemned the home of the lady's son, who lives next door and who was given the house by his grandmother as a wedding present.
The case presents an important issue about the role of courts in government property decisions. As part of the development project, New London condemned 90 acres of waterfront property, including the family homes, so that it can lease the property to a private developer for $1 per year. Under the Fifth Amendment, government may "take private property for public use" only if it pays "just compensation." The question here is whether "economic development" is a "public use" that permits taking private property, even if the government pays for it.
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