Ten Commandments and the Establishment Clause:

The Court ruled 5-4, in an opinion written by O'Connor, that they can't be displayed.

This should make for some fun reading & blogging. BTW: Even though I am a secularist, I don't find this case to be an easy one. Based on current Establishment Clause precedent, I think the case is rightly decided. But then again, I'm not sure if such precedent is entirely proper.

But on the other hand I do disagree with the notion that only the Free Exercise Clause should be incorporated, that the Establishment Clause properly is a federalism only provision that prevents Congress from establishing a national religion and prohibits Congress from otherwise interfering with state establishments.

Rather as I have written before, the natural rights theory that undergirds the religion clauses is that man has unalienable free and equal rights of conscience. Whereas incorporating the Free Exercise clause protects freedom of conscience, it does not fully protect equality of conscience. And something else has to do that. It could be the Establishment Clause, the Equal Protection clause, or the Privileges or Immunities Clause.

But ultimately if a particular move by a government doesn't violate anyone's freedom or equality of conscience, I don't think government should be forbidden from doing it, even if it results in an intermingling of Church & State. Vouchers are the perfect example: If they are available on a generally applicable, neutral basis, -- if they can go to a Christian school, Muslim school, Scientologist school, Socialist school, Atheist school, Prep school, etc., then they are fine.

Now, how does the Ten Commandments issue relate to the norm that I have just posited? I'm not fully sure yet.

Update: It appears that there was a split. The Kentucky display was struck down, 5-4, while the Texas display was upheld, 5-4.