At issue | May 25 Herald-Leader editorial, "Religious freedom isn't free; but will anyone pay political price?"
The editorial said McCreary and Pulaski made bad decisions not only in initially posting the Ten Commandments in the courthouses but in later modifying the postings to include other secular, historical documents. That was an attempt to meet what the county courts understood to be acceptable, constitutional standards for such displays.
The paper implies that both counties were knowingly trying to violate the religious establishment clause of the Constitution and its obvious and clear meaning.
There is nothing obvious and clear here, and the decisions made were reasonable.
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The court, itself, was deeply divided, making its decision by a 5 to 4 vote. In the same year, 2005, the same court ruled in Van Orden v Perry that a similar, very large display of historic and religious documents on the grounds of the Texas state capitol, including a six-foot-high monolith containing a version of the Ten Commandments, was constitutional.
In that case's majority opinion, the court noted that across the country numerous governmental grounds and buildings for many years have displayed copies of the Ten Commandments that are constitutional remembrances of the nation's religious heritage. As Justice Anthony Scalia noted in his McCreary dissent: "If religion in the public forum had to be entirely nondenominational, there could be no religion in the public forum at all. One cannot say the word 'God,' or 'the Almighty,' one cannot offer public supplication or thanksgiving, without contradicting the beliefs of some people ..."
So what distinguishes one case from the other?
In the McCreary case, the two counties' originally stated purpose was to promote the Judeo-Christian faith. This was the sticking point. It did not matter that both counties redesigned their displays so as to be more secular in the eyes of the court. The court knew what their original purpose had been.
The high court said it did not mean to prohibit forever these two counties from putting up a similar display when their motives were more pure.
But it gave no indication as to how long the counties might have to wait before it would assume that they had repented and corrected their thinking or how the court would judge they had done so.
Again, the determining factor was not the eventual display — the action deemed constitutional in other places — but what the counties, initially at least, intended.
Identical actions. Different court rulings. The United States Supreme Court had made a ruling unique in court history that it could determine the constitutionality not of actual actions and their effects, but of thoughts. What the court said about what people thought or had thought or might still be thinking was what mattered.
Far from continuing to make bad decisions, the two Kentucky counties did as others had done across the nation to remain in constitutional compliance.
There was no historical or legal reason or precedent for thinking a court would determine a case based solely on what it thought people thought.
The Supreme Court and the American Civil Liberties Union have reasoned themselves into a very dark place as thought police.
They have produced a result that is the antithesis of First Amendment freedoms and of the ACLU's very reason for being.
By insisting in this instance on draining counties of funds to pay court costs, the ACLU is using the power of governmental courts to warn all Americans of the long-term, fearful costs of wrong thinking as detected or defined by the ACLU.