A People's History of the Supreme Court

by Peter Irons

  The cases before the Court in 2005 came from very different communities. McCreary and Pulaski counties, which adjoin each other, are close to the Tennessee border in southeastern Kentucky and are overwhelmingly rural, white, low income, and Christian, with Southern Baptists predominating. Austin, in contrast, is a booming, cosmopolitan city with more than two hundred thousand residents, the center of Texas state government, surrounded by high-tech industries and high-income suburbs, and the home of the University of Texas.

  The Ten Commandments displays in these communities were also very different. In 1999, McCreary and Pulaski county officials, prodded by the Kentucky legislature, placed framed copies of the Commandments on their courthouse walls. The governing bodies of both counties passed resolutions authorizing the displays as recognitions of “our Christian heritage.” One Pulaski resident, Paul Lee, a World War II veteran, saw the courthouse display and promptly called the ACLU office in Louisville. “Our forefathers saw fit to say that church is separate from the state and vice versa,” he said, “and I want to keep it that way.” In McCreary, two residents, David Howe and Louanne Walker, also volunteered to become ACLU plaintiffs. Howe was a retired disk jockey and Walker was the cousin of Jimmie Greene, who headed McCreary’s governing board and became a defendant in the case. “I was kind of shocked,” Greene said about his cousin’s stand. “You know, this is a small county,” Walker replied, “and I’d say most of the people are in favor of having the Ten Commandments posted in the courthouse. I’m not against the Ten Commandments. I’m just a firm believer in separation of church and state.”

  Confronted with the ACLU lawsuit, county officials in both McCreary and Pulaski first responded by surrounding the Ten Commandments with other documents, including excerpts from the Declaration of Independence, the Mayflower Compact, and a quote from Abraham Lincoln praising the Bible. But these all contained references to God, and a federal judge ordered the counties to remove them. At that point, a Religious Right legal group, Liberty Counsel, founded by the Reverend Jerry Falwell, offered the counties free legal representation. Liberty Counsel’s legal director, Mathew Staver, urged his clients to broaden the displays with copies of the Bill of Rights, the lyrics to the “Star Spangled Banner,” and the Magna Carta, and to label the displays as “Foundations of American Law.” But the federal district judge again ruled against the counties, and the U.S. Court of Appeals for the Sixth Circuit upheld that decision.

  The Austin display of the Ten Commandments differed both in age and in location. In 1961, the Fraternal Order of Eagles had donated a six-foot granite monument, etched with the Commandments, and with a cross and a Star of David on its base. State officials placed it in a grassy area between the Capitol and state supreme court buildings. The grounds also included seventeen other plaques and statues, commemorating events and prominent figures in Texas history, although none were close to the Commandments monument.

  The Texas display stood for more than forty years before anyone complained. The man who did was Thomas Van Orden, a former lawyer who had lost his license after falling into a crippling depression and failing to file papers for his clients. One journalist wrote that Van Orden “sleeps nightly in a tent in a wooded area; showers and washes his clothes irregularly; hangs out in a law library; and survives on food stamps and the good graces of friends who give him a few bucks from time to time.” Van Orden had lost his career and family, but not his legal skills. Passing the Ten Commandments monument one day in 2002 on his way to the state law library, he decided to file a lawsuit against it in federal court, with Governor Rick Perry as the first defendant, using the library’s books and computers to draft a complaint. “I wrote myself to the Supreme Court,” he later said. Representing himself, Van Orden lost in both the federal district and appeals courts, which held the Ten Commandments monument did not “endorse” religion. Determined to reach the Supreme Court, Van Orden—unlike Michael Newdow—decided that he needed an experienced advocate, and called Erwin Chemerinsky, a noted Duke University law professor. Chemerinsky, who had earlier advised Newdow on his briefs, had never heard of Van Orden, but agreed to argue his case. “I have nothing but the greatest admiration and respect for him,” Chemerinsky said of his client. “He’s extremely intelligent and articulate, and I think he did an excellent job of briefing and arguing the case” in the lower courts.

  Court watchers in the media and the legal community were divided over whether the Court would uphold or strike down the Ten Commandments displays in the Kentucky and Texas cases, and the justices did not tip their hands during the oral arguments, peppering the lawyers on both sides with questions that focused on the histories of the displays. As it turned out, two separate majorities decided the two cases in June 2005, with their divergent outcomes reflecting the Court’s difficulty in finding a consistent judicial standard in Establishment Clause cases. Rather than finding any “bright line” to guide their interpretation, the justices—as they had in earlier cases—looked to the “context” and “setting” of public displays of religious symbols and sentiments.

  Ruling in McCreary County v. ACLU of Kentucky, the title for the two Kentucky cases, five justices agreed that the “purpose” behind the courthouse displays was to endorse the religious message of the Commandments. Writing for himself and Justices Ginsburg, Breyer, and Stevens, Justice Souter held that subsequent displays of more secular documents did not erase the clearly religious purpose of the first, which displayed “an unmistakably religious statement dealing with religious obligations and with morality subject to religious sanction.” Souter dismissed the revised displays as a “litigating position” adopted by county officials who “were simply reaching for any way to keep a religious document on the walls of courthouses constitutionally required to embody religious neutrality.”

  The Court’s swing votes, Justices O’Connor and Kennedy, swung in opposite directions in these cases. Justice O’Connor joined the McCreary County majority with a separate concurring opinion. “It is true that many Americans find the Commandments in accord with their personal beliefs,” she wrote, tacitly acknowledging public support for their display. “But we do not count heads before enforcing the First Amendment.” The fact that virtually all McCreary and Pulaski county residents were Christians, although O’Connor did not mention this fact, could not allow that religious majority to proclaim their beliefs on courthouse walls. The Constitution’s religion clauses, she concluded, “protect adherents of all religions, as well as those who believe in no religion at all.”

  Although Chief Justice Rehnquist had not attended the oral arguments because of illness, he read the transcripts and joined Justices Thomas and Kennedy in Justice Scalia’s dissent in the McCreary County case. Reflecting his view that the Establishment Clause did not protect religious minorities or non-believers from majoritarian sentiment, Scalia denounced “the demonstrably false principle that the government cannot favor religion over irreligion” in public places. It was “entirely clear from our Nation’s historical practices,” he wrote, “that the Establishment Clause permits this disregard” of those who do not accept “monotheistic” beliefs.

  The majority coalition shifted to the other side in the Texas case, Van Orden v. Perry, with five justices upholding the Ten Commandments monument on the Texas Capitol grounds. This case produced seven opinions among the nine justices, another reflection of judicial discord over the Establishment Clause. Chief Justice Rehnquist, joined by Scalia, Thomas, and Kennedy, wrote a brief plurality opinion that conceded the “religious significance” of the Commandments. But that did not prohibit their public display. “Simply having religious content or promoting a religious message consistent with a religious doctrine does not run afoul of the Establishment Clause,” Rehnquist wrote.

  The swing vote in the Van Orden case, it turned out, was that of Justice Breyer, who switched sides from McCreary County in a concurring opinion. The factor that most influenced Breyer was tha
t the Texas monument had stood for more than forty years before Thomas Van Orden challenged its display. “Those forty years,” Breyer wrote, “suggest that the public visiting the capitol grounds has considered the religious aspect of the tablets’ message as part of what is a broader moral and historical message reflective of a cultural heritage.” In contrast, the plaintiffs in McCreary County had promptly objected to the courthouse displays. This was about as fine a distinction between the cases that anyone could find, with Breyer playing the role of Solomon in proposing to split the Establishment Clause baby in half, satisfying hardly anyone on either side, both on the Court and in the American public.

  Among the four dissenters, Justice Souter replied most directly to Breyer’s reliance on the forty years that had passed before Van Orden challenged the Ten Commandments monument. Breyer seemed to suggest, Souter wrote, “that forty years without a challenge shows that ... the religious expression is too tepid to provoke a serious reaction. I doubt that a slow walk to the courthouse, even one that took forty years, is much evidentiary help in applying the Establishment Clause.” Justice Stevens, on his part, decried Rehnquist’s “simplistic commentary on the various ways in which religion has played a role in American life,” and denounced “the plurality’s wholehearted validation of an official state endorsement of the message that there is one, and only one, God.”

  Forced to remove their courthouse displays, Kentucky officials reacted with dismay. “My heart was just broken, and I’m not ashamed to admit I cried over it,” said Jimmie Greene, who authorized the McCreary County display in 1999. His cousin, Louanne Walker, who had sued to take it down, had a different reaction: “It was really a wonderful day,” she said on learning of the decision. “Surprising, but wonderful.” Mathew Staver, who argued and lost the Kentucky case, promised to keep up the fight for religious symbols in public places. “The battle is far from over,” he vowed. On his part, Thomas Van Orden kept silent about his loss in the Texas case, although his lawyer, Erwin Chemerinsky, saw in the two rulings “an important victory” for church and state separation. “The government is still limited in what it can do with religious symbols on government property,” he said. But until new cases reach the Supreme Court, what those limits might be remains in doubt.

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  “The Values We Share with a Wider Civilization”

  The Supreme Court’s 1986 decision in Bowers v. Hardwick had upheld a Georgia law that imposed criminal penalties for engaging in the sexual act of sodomy. Although the law applied to both heterosexual and homosexual couples, the Court’s ruling was limited to gays, and agreed with the state’s claims that “homosexual sodomy is immoral and unacceptable.” Decided by the narrow vote of five to four, the Bowers decision initially dispirited gays and lesbians, but they quickly rebounded and launched campaigns to repeal state sodomy laws and pass legislation that protected them from discrimination. Building on earlier victories of the civil rights and women’s movements, this relatively small and often despised minority had amazing success during the decade after the Bowers decision, especially in adding “sexual orientation” to laws that banned discrimination against blacks and women. But gays and lesbians also faced a backlash from Religious Right groups, which denounced giving “special protection” to a group they considered “immoral and unacceptable.”

  The result of one political battle between the gay movement and its opponents reached the Court in 1995, from the state of Colorado. The state’s four million residents were almost evenly split between rural and urban areas, and equally divided between Democrats and Republicans, with voters in the sprawling suburbs around the state capital of Denver often deciding the outcome of electoral contests. In the early 1990s, Colorado’s gay activists and their liberal allies—centered in Denver, Boulder, and Aspen—had persuaded those cities to add “sexual orientation” to their antidiscrimination ordinances.

  Religious Right groups responded with a statewide petition campaign that drew enough signatures to place a proposed constitutional amendment on the 1992 ballot. Known as Amendment 2, it barred the state and all Colorado cities and towns from enacting any laws “whereby homosexual, lesbian, or bisexual orientation, conduct, practices, or relationships” would entitle members of these groups to “claim any minority status” or bring “any claim of discrimination” before state agencies or courts. After a heated campaign on both sides, suburban Denver voters tipped the balance, passing Amendment 2 by a narrow 53 percent margin.

  Ironically, Colorado’s Democratic governor, Roy Romer, had opposed Amendment 2, but he wound up—by virtue of his office—as the lead defendant in a lawsuit brought by gays and lesbians to nullify the vote; Richard Evans, a gay employee in the Denver mayor’s office, was the lead plaintiff. The Colorado Supreme Court struck down the amendment, holding that it infringed the rights of homosexuals to participate in the political process on the local level, at which the antidiscrimination laws had been passed.

  The case of Romer v. Evans confronted the Supreme Court with new issues of constitutional law. State and local governments were not required to protect any group—blacks, women, or gays—from discrimination. But once they had, could voters remove any of these groups from the laws’ protections, out of animus toward its members? Under the Bowers precedent states could punish homosexual sodomy, but could homosexual “orientation” be the subject of constitutional proscription? And what distinguished gays—using the term to include lesbians and bisexuals as well—from blacks as deserving of legal protection against discrimination? Any efforts to remove blacks from the protection of antidiscrimination laws would certainly have sparked a political uproar and legal rebuff, but gays were still subject in many states to criminal prosecution for their “immoral” practices.

  The plaintiffs in Romer took heart from the slow but steady increase in tolerance of gays among the public, although evangelical Christians and older, rural voters refused to join the trend of acceptance. Lawyers for the Romer plaintiffs also hoped that changes on the Supreme Court since Bowers was decided in 1986 would help their cause. Three members of the five-vote majority in Bowers had since retired, but so had three of the four dissenters. Replacing these six justices were two who were predictably conservative, Antonin Scalia and Clarence Thomas; two who were considered moderates, Anthony Kennedy and David Souter; and two who generally took liberal positions, Ruth Ginsburg and Stephen Breyer. Predicting votes on novel constitutional issues is risky, and neither side in Romer felt confident of its outcome.

  During the oral arguments in November 1995, the lawyers on both sides must have felt like shooting-gallery targets, as the justices fired more than seventy-five questions at each during their half-hour turns at the Court’s lectern. Timothy Tymkovich, Colorado’s solicitor general, went first and faced a barrage of questions about the purpose of Amendment 2. Under long-standing Supreme Court doctrine, laws must reflect, at a minimum, a “rational basis” for their passage, pursuing a “legitimate state interest” with the “least restrictive” impact on the groups it affects. “What is the rational basis of this statute,” Justice John Paul Stevens asked Tymkovich, who put the blame on gays, rather than conservative voters. “It was a response to political activism by a political group that wanted to seek special affirmative protections under the law,” Tymkovich replied. Stevens noted that the resort town of Aspen had voted overwhelmingly to protect gays from discrimination. “What is the rational basis for the people outside of Aspen telling the people in Aspen they cannot have that statute,” he continued. Voters outside Aspen, Tymkovich replied, made “a political response to what they might have perceived as laws going too far or being too intrusive,” adding that the “moral” views of the amendment’s backers provided a “rational basis” for their nullification of local antidiscrimination laws.

  Not surprisingly, the more liberal justices fired the toughest questions at Tymkovich. Jean Dubofsky, a Boulder lawyer who argued for Richard E
vans and his fellow plaintiffs, fielded her toughest questions from Justice Scalia, who laid a trap in her path. “Are you asking us to overrule Bowers v. Hardwick?” Dubofsky, who fervently opposed Bowers, focused her attack on Amendment 2 and left Bowers for a later challenge. “No, I am not,” she replied. Scalia sprung his trap. “Well, we said there that you can make homosexual conduct criminal. Why can a state not take a step short of that and say, we’re not going to make it criminal, but on the other hand, we certainly don’t want to encourage it, and therefore we will neither have a state law giving it special protection, nor will we allow any municipalities to give it special protection?” Dubofsky hemmed and hawed until Justice Stevens came to her aid. “But isn’t it also true that this law applies to this class of people even if they abstain from the prohibited conduct,” he noted. “That’s correct,” Dubofsky replied gratefully, “and it could also apply to people who aren’t gay, but are perceived to be gay and are discriminated against on that basis.”

  The Court’s swing votes in most civil rights cases, Justices O’Connor and Kennedy, had asked few questions during oral arguments in Romer, but they both joined the six-to-three majority that struck down Amendment 2 in June 1996. Kennedy, in fact, wrote the Court’s opinion, and leveled a judicial blast at Colorado’s conservative voters. “The amendment withdraws from homosexuals, but no others,” he wrote, “specific legal protection from the injuries caused by discrimination, and it forbids reinstatement of these laws and policies.” The amendment, he added, “seems inexplicable by anything but animus toward the class that it affects; it lacks a rational relationship to legitimate state interests.”