Why the commandments make for such messy law.
Thus, a massive sculpture of the image of the Buddha or of Christ being taken down from the cross in the sculpture garden of a public art museum would plainly not violate the First Amendment. But exactly the same sculpture, called a "monument" to Buddha or to Jesus and placed on the steps of a county courthouse, would raise serious constitutional issues.
One difficulty with an emphasis on context is that such an emphasis is necessarily very fact-specific, requiring courts to weigh variables case-by-case, inevitably leading to results that seem erratic and lend themselves easily to caricature. Two prior Supreme Court cases dealing with the displays of crèches on public property, for example, appear to have been influenced by the extent to which the figures of the infant Jesus, Mary, Joseph, angels, shepherds, and wise men are accompanied by congeries of less religious significance—namely Rudolph, Frosty, or Santa. In the case of the Ten Commandments displays, the accompanying hosts are more dignified—typically including neighboring displays of the Declaration of Independence, the Star Spangled Banner, the National Motto, or the Mayflower Compact. The Texas monument includes Hebrew script, an American eagle, two Stars of David, a symbol of Christ, the Greek letters Chi and Rho superimposed on each other, and the symbol of pyramid with an eye, similar to that on a one-dollar bill. This really isThe Da Vinci Code!
Such detailed inquiries about context may make the case law, and even the court's concerns, appear trivial, especially when addressing questions of such vast national consequence. But for the justices in the middle on this issue, the answers are anything but. Their ultimate opinions will be nuanced, thoughtful, and complex. Let's hope the public debate on this issue will be the same.
Rod Smolla is dean of the University of Richmond School of Law.