According to How Appealing, they're going to hear a ten commandments case, so we might get a bit of clarification on that issue. This article has more:
The high court will hear appeals early next year involving displays in Kentucky and Texas.
In the Texas case, the justices will decide if a Ten Commandments monument on the state Capitol grounds is an unconstitutional attempt to establish state-sponsored religion.
A homeless man, Thomas Van Orden, lost his lawsuit to have the 6-foot tall red granite removed. The Fraternal Order of Eagles donated the monument to the state in 1961. The group gave scores of similar monuments to American towns during the 1950s and '60s, and those have been the subject of multiple court fights.
Separately, the justices will consider whether a lower court wrongly barred the posting of the Ten Commandments in Kentucky courthouses.
McCreary and Pulaski county officials hung framed copies of the Ten Commandments in their courthouses and later added other documents, such as the Magna Carta and Declaration of Independence, after the display was challenged.
Sounds like they'll be hitting the two primary issues: purpose of a modern display, and whether it can fall under the Lemon test as applied to christmas displays. (We called it the teddy bear rule in my con law class after the Lynch v. Donnelly case). The Lemon test:
First, the statute must have a secular legislative purpose; second, its principal or primary effect must be one that neither advances nor inhibits religion; finally, the statute must not foster "an excessive government entanglement with religion."
The Lynch twist - from a pro-atheism website, but it gets the analysis right from what I recall:
Chief Justice Burger's opinion for the Court in Lynch began by expanding on the religious heritage theme exemplified in the earlier decision of Marsh v. Chambers, in which prayers before a legislative session were upheld. Evidence that "[w]e are a religious people whose institutions presuppose a Supreme Being" was supplied by reference to the national motto "In God We Trust," the affirmation "one nation under God" in the pledge of allegiance, and the recognition of both Thanksgiving and Christmas as national holidays.
In this context, the Court decided that the city's inclusion of the creche in its Christmas display had a legitimate secular purpose in recognizing "the historical origins of this traditional event long [celebrated] as a National Holiday," and that its primary effect was not to advance religion:
The display is sponsored by the city to celebrate the Holiday and to depict the origins of that Holiday. These are legitimate secular purposes. The District Court's inference, drawn from the religious nature of the creche, that the city has no secular purpose was, on this record, clearly erroneous.
The benefit to religion was called "indirect, remote, and incidental," and in any event no greater than the benefit resulting from other actions that had been found to be permissible, for example the provision of transportation and textbooks to parochial school students, various assistance to church-supported colleges, Sunday closing laws, and legislative prayers. Key to this decision and the many following lower court decisions on religious displays during religious holidays is the existence of a secular purpose. So long as one can be reasonably found, the display will be found constitutional. . . .
In this decision, the Court specifically refused to adopt an absolutist stance regarding the separation of church and state. According to Chief Justice Burger, the Establishment Clause does not demand a "strict separation of church and state," but instead demands accommodation between the two.
Each Establishment Clause case is to be independently checked to determine whether the intent is secular or religious. Religion in general may be advanced by the government in some cases so long as there is no administrative entanglement with religion. Key in this case was the fact that the religious display was surrounded by secular symbols, creating what has become known as the "plastic reindeer rule."
In addition, Justice O'Connor gave a new explanation to the Lemon test, which became known as the "endorsement" test:
The Establishment Clause prohibits government from making adherence to a religion relevant in any way to a person's standing in the political community. Government can run afoul of that prohibition in two principal ways. One is excessive entanglement with religious institutions, which may interfere with the independence of the institutions, give the institutions access to government or governmental powers not fully shared by nonadherents of the religion, and foster the creation of political constituencies defined along religious lines. The second and more direct infringement is government endorsement or disapproval of religion. Endorsement sends a message to nonadherents that they are outsiders, not full members of the political community, and an accompanying message to adherents that they are insiders, favored members of the political community. Disapproval sends the opposite message.
The purpose prong of the Lemon test asks whether government's actual purpose is to endorse or disapprove of religion. The effect prong asks whether, irrespective of government's actual purpose, the practice under review in fact conveys a message of endorsement or disapproval. An affirmative answer to either question should render the challenged practice invalid.
So the questions to be analyzed will by why the displays were erected, and whether putting up that Magna Carta and other historical documents can save such a display.
In another interesting religion case,
"The Supreme Court agreed Tuesday to consider the constitutionality of a federal law that requires state prisons to accommodate inmate religions, from Christianity to Satanism.
The case does not question inmates' rights to practice their religions but asks whether a state must grant a request for a particular diet, special haircut or religious symbols."
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