In okaying a display of the Ten Commandments on the grounds of the Texas State Capitol while disallowing their display in two county courthouses in Kentucky, the Supreme Court yesterday was holding state and local governments to the standard of the federal First Amendment, which prohibits Congress passing any law respecting an establishment of religion.

This aspect of the fight might well have come as a surprise to the actual authors of the First Amendment, which was a prohibition on Congress, not on the states. To give just one example, in Massachusetts, the cradle of the Revolution, citizens were taxed to support Protestant religious institutions even after the First Amendment was ratified. It wasn’t until 1831 that the Protestant church was disestablished there.

The present conflict arises from the 14th Amendment, passed after the Civil War, which had the effect of incorporating as restrictions on the states the restrictions originally imposed on Congress. This is still a matter of some legal debate. Justice Thomas resists the idea. He pointed out in a dissent yesterday that “If the Establishment Clause does not restrain the states, then it has no application here, where only state action is at issue.”

The policy virtues of such an approach are “the laboratory of the states.” Bible belt states could post the Ten Commandments on every streetlamp, while more secular-leaning states, or those with larger populations of Buddhists and Hindus or atheists, could avoid public posting of the commandments.

The drawbacks of such an approach are equally clear. The reason the 14th Amendment was passed after the Civil War was the realization that some freedoms, like the freedom from slavery, are so fundamentally American that they should not depend on what state one is in. Our own view tends to place the freedom from established religion as a similarly fundamental one.

The reason that the court issued such a complex and nuanced decision is it is possible to see that while the display of the Ten Commandments is not always a violation of the establishment clause, it could be a violation. Even the Great Scalia, who would have allowed the display in the Kentucky courthouses, acknowledged in a footnote that his argument “is not to say that a display of the Ten Commandments could never constitute an impermissible endorsement of a particular religious view.”

Beyond the court ruling, there is a difference between what is legal and what is wise. One of the Kentucky displays lumped the text God gave Moses together with the lyrics of “The Star Spangled Banner” and the preamble to the Kentucky Constitution as part of a “Foundations of American Law and Government Display.” On the Texas Capitol grounds, the Ten Commandments are joined by 16 other monuments, including one to Confederate Soldiers, one to a volunteer fireman, and one to the Texas Cowboy.

It’s enough to call forth a thought for Solomon, who ordered the baby cut in half. Here we’d say that if the price of religious inclusion in public life is to be this sort of bowdlerization and trivialization, the wiser of the religious movements will come to the view – as many have already – that they’d just as soon keep their precious symbols out of the grasp of the state, no matter what the high court says is legal.