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Supreme Court splits on Ten Commandments

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In a concurring opinion in the Texas case, Justice Breyer illustrated how close that case was for him. "The circumstances surrounding the monument's placement on the capitol grounds and its physical setting provide a strong, but not conclusive, indication that the Commandments' text as used on this monument conveys a predominantly secular message," he says.

"The determinative factor here, however, is that 40 years passed in which the monument's presence, legally speaking, went unchallenged," Breyer writes. "Those 40 years suggest more strongly than can any set of formulaic tests that few individuals ... are likely to have understood the monument as amounting ... to a government effort to establish religion."

The First Amendment's establishment clause bars the government from taking actions that promote or endorse religion or a particular religious faith.

Some legal scholars hold the view that the establishment clause requires a strict separation between church and state. They say religion is best protected by minimizing potential government entanglements. Others say strict enforcement of separation can force government into a posture of hostility toward religion and the religious.

The high court has carved out a middle position in this ongoing and increasingly heated debate.

Nonetheless, analysts say the two decisions and the sharp split within the court set the stage for more church-state litigation with increasing focus on the context and history of the display. But ultimately the decisions may provide a road map for officials seeking to defend such displays.

"It leaves us litigating each and every one of these cases individually," says Douglas Laycock, a church-state expert and law professor at the University of Texas Law School. "Everyone can manipulate the facts," he says. "The lesson for state governments is, disguise your purpose."

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