Justice Stephen Breyer, appointed by President Clinton and generally considered part of the Supreme Court's liberal bloc, provided the swing votes on the Ten Commandments decisions Monday.
He was OK with them in Texas but not in Kentucky.
I've provided lengthy commentary already about these cases, but Breyer's thinking deserves a bit more scrutiny because he alone can provide the decisive voice on future cases of this type.
Yet his voice is hardly decisive at all.
He can go either way, depending on the circumstances.
Let's go back over the facts that led him to view the Ten Commandments monument on the Texas Capitol grounds as acceptable (he didn't write anything in the Kentucky case but signed on to the majority opinion):
The monument contains "a religious message but also a secular moral message."
But isn't that true of the commandments wherever they're displayed?
The monument was donated by "a private civic (and primarily secular) organization..."
So where it comes from matters as much as its content?
"The physical setting of the monument ... suggests little or nothing of the sacred. ... The setting does not readily lend itself to meditation or any other religious activity."
Well, what if somebody did stand there are pray or meditate? Would that transform the monument into an unconstitutional establishment of religion?
"As far as I can tell, 40 years passed in which the presence of the monument, legally speaking, went unchallenged (until the single legal objection raised by petitioner.)
So maybe the Kentucky displays would have been OK, too, if no one had filed a lawsuit?
"And, in today's world, in a Nation of so many different religious and comparable nonreligious fundamental beliefs, a more contemporary state effort to focus attention upon a religious text is certainly likely to prove divisive in a way that this longstanding, pre-existing monument has not."
Is Breyer saying that if the Texas monument had been set up in 2001 instead of 1961, it would have been less constitutional because -- what? -- the constitution has changed since then? How about if it had only been there since 1971? OK? Then how about 1981? Maybe? 1991? Uh, not sure about that?
But wouldn't it be a whole lot better to say whether you think any public display of the Ten Commendments on public property amounts to an improper establishment of religion or not? (I think not because no religion is being established, and the nation in many ways since its founding has acknowledged the existence of God; i.e. "endowed by their Creator," "In God We Trust.")
Come on, Justice Breyer. You're paid to make decisions. The other eight did -- four squarely on one side, four on the other.
You're tangled up in a Breyer patch of your own making.