Just finished reading Justice Bryer’s concurrence (at page 20 in this PDF) in the Judgement in the TX 10 Commandments case. The Fundies got the shaft from the SCOTUS.
The KY case was a solid decision, and got right up in the Right wing fundamentalists’ faces- the purpose of the display of the 10 commandments in the KY courthouses was to establish religion. Moreover, Justice O’Connor’s fact analysis actually expands the scope of what is germaine to the determination of invidious establishing intent.
Some folks are pissed at Bryer for going along in the TX case, but he makes some good points about needing to allow some loophole for historical and traditional occurences of religion in public life. He concurrs only in the Judgement, so Rehnquist’s opinion is just that- it doesn’t carry the weight of a majority opinion.
In fact Bryer’s opinion ratifies O’Connor’s opinion in the KY case, making it a solid 5 votes against any Christian Right imposed religious imagery.
What Bryer has done (and I think justly) is created a grandfater clause for long established religious intrusions into public life as a sop to cerebrus.
This could be the makings of a wedge between mainstream Christians who like a little ritual deism in public life (and/or are siply fond of public rituals as they know them) and the Fundies who want to insert new and explicitly religiousm messages into the public sphere.