For a useful analysis of the upcoming Supreme Court cases and their constitutional backdrop, go here. The Pew Forums analysts argue that, unsurprisingly, Justices Sandra Day OConnor and Stephen Breyer hold the balance of power, with the result that many arguments are pitched to appeal to OConnors highly contextual "endorsement" test. Heres the concluding paragraph:
In Van Orden and McCreary County, the constitutionality
of government displays of the Ten
Commandments will very likely be determined
by the contextualists’ judgment and deciding votes.
Justice O’Connor defends her contextualism as the
most appropriate balance between respect for the
religious sentiments of the majority and protection
for the liberties of religious minorities and nonbelievers.
Perhaps she is correct; but this approach
has its own costs, as the last 15 years of litigation in
the lower courts over holiday displays have shown.
If determining the constitutionality of such displays,
whether of holiday religious symbols or texts like
the Ten Commandments, depends on considering
the “unique circumstances” of each display, controversies
of this type will remain a recurrent feature
of our law and public life.