When I studied the First Amendment circa 2007, we struggled to reconcile two Establishment Clause cases decided on the same day. In McCreary County, the Court held that a display of the Ten Commandments posted on the wall of a courthouse was unconstitutional. And in Van Orden v. Perry, the Court held that a large stone monument of the Ten Commandments on the grounds of the Texas Capitol could remain. Justices O'Connor and Breyer cast the deciding votes in each case. In the latter decision, Justice Breyer worried what would happen if the people saw a large edifice on state property being demolished.
At the same time, to reach a contrary conclusion here, based primarily upon on the religious nature of the tablets' text would, I fear, lead the law to exhibit a hostility toward religion that has no place in our Establishment Clause traditions. Such a holding might well encourage disputes concerning the removal of longstanding depictions of the Ten Commandments from public buildings across the Nation. And it could thereby create the very kind of religiously based divisiveness that the Establishment Clause seeks to avoid. Zelman, 536 U. S., at 717–729 (Breyer, J., dissenting).
The rule, as we learned it, is the Constitution permits taking down a piece of paper but does not permit demolishing a heavy stone monument.
