The Supremes perform a completely absurdist balancing act on the 10 Commandments case as one of the their final acts of the term (Split rulings on Ten Commandments displays: Courthouse exhibits crossed line, but outdoor tablet OK). In a pair of 5-4 decisions, with O’Connor the swing vote in both, they’ve ruled that the 10 C’s can be OK on government properties, but they can’t be inside courtrooms, because, you know, that’s going too far.
You want unprincipled tension? In the courthouse case, Souter writes for the good guys (who get the majority on this one by the grace of Sandy’s whim) that “the touchstone for our analysis is the principle that the First Amendment mandates government neutrality between religion and religion, and between religion and nonreligion… When the government acts with the ostensible and predominant purpose of advancing religion, it violates the central Establishment clause value of official religious neutrality”. I love him.
But in the State Capitol Case (where the Theocratic Bloc wins, again by Sandy blowing in the wind), half-dead theocrat Rehnquist writes that “Of course, the Ten Commandments are religious — they were so viewed at their inception and so remain. The monument therefore has religious significance… [but] Simply having religious content or promoting a message consistent with a religious doctrine does not run afoul of the Establishment clause.”
Fucking assholes. The good guys are hanging on by a thread here. We’re now depending when obvious, explicit and admitted promotion of religion goes “a little too far”.
UPDATE: Sorry, the first news I saw incorrectly reported the vote; as a commenter noted, Breyer actually swung to the dark side in the Texas case — which is, frankly, a bit odd in my view. Sorry, Sandy! I still love you! (OK, not really; but she got this one right.) Still, a fragile and absurd balancing act, with the majority opinions almost directly contradicting each other.