"The pre-eminent purpose for posting the Ten Commandments on schoolroom walls is plainly religious in nature. The Ten Commandments are undeniably a sacred text in the Jewish and Christian faiths, and no legislative recitation of a supposed secular purpose can blind us to that fact. The Commandments do not confine themselves to arguably secular matters, such as honoring one's parents, killing or murder, adultery, stealing, false witness, and covetousness.... Rather, the first part of the Commandments concerns the religious duties of believers: worshipping the Lord God alone, avoiding idolatry, not using the Lord's name in vain, and observing the Sabbath Day" (Stone v. Graham, 1980).
Justice Rehnquist, as he then was, dissented: "The Establishment Clause does not require that the public sector be insulated from all things which may have a religious significance or origin. This Court has recognized that 'religion has been closely identified with our history and government,' ... and that '[t]he history of man is inseparable from the history of religion'" (ibid., citations omitted). Those same arguments reverberate in this Term's Ten Commandments decision, but the split is today sharper, and the Court more sharply divided. The increased division is reflective of the nation's culture wars, the increased religious diversity of American society, and the growing divide between secular and faith-based theories of governance.
Anyone (including this writer) who predicted that the rather commonsensical ruling in Stone would be conclusive was a false prophet. Ten Commandments litigation has become a growth industry for lawyers specializing in the First Amendment. Dozens of lawsuits have been filed over the past five years challenging Ten Commandments displays by government or by private parties given special access to government land. Purely private displays are, of course, not affected by this litigation.
Two of these cases--Van Orden v. Perry (Texas) and McCreary County v. ACLU (Kentucky)--were decided today by the Supreme Court. The Court held the display in Kentucky was unconstitutional, because its purpose was to make a religious statement. The Texas display was held constitutional because there was no evidence of a religious purpose and the display did not otherwise violate the Constitution. The decisions leave in place the ban on Ten Commandments displays in schools. But they clarify little else. The various opinions of the Justices reflect continuing divisions over how to assess the constitutional significance of religious displays, to the point where lower court judges are left without clear guidance in those cases where the religious purpose is not ostentatiously announced. More important, there is now a clear split on the Court over whether the Establishment Clause permits a government to express a preference for religion over non-religion, especially monotheistic (Christianity, Judaism, Islam) over non-monotheistic faiths. That issue will likely be a flashpoint in future confirmation battles.
Although the burst of litigation over Commandments displays is relatively new, Ten Commandments displays are not. Many of the individual Ten Commandments displays are almost 50 years old, but are now being challenged for the first time. There is also a spurt of new Ten Commandments displays, including one involving an Alabama judge who has embroidered them on his judicial robes. The most notorious of the recent display cases involved a deliberately provocative 5,000-pound granite monument placed in the Alabama Supreme Court building by former Alabama Supreme Court chief justice Roy Moore. A federal appeals court ordered it moved. The chief justice refused. It was removed anyway. The United States Supreme Court pointedly refused to intervene.
It would be hard to say that these challenges are a result of a sudden upsurge in violations of the Ten Commandments themselves, or that the displays are being challenged by persons who do not want to be reminded that they are sinners. The murder rate keeps dropping. It is doubtful that adultery is more common now than it was 20 or 40 years ago. With the exception of small groups of Jewish and Christian believers, the Sabbath is no more scrupulously observed today than at any time during the past 50 years.
Texas and the Commandments: Van Orden v. Perry
Just before the 1956 release of his remake of The Ten Commandments, fabled movie producer Cecil B. DeMille learned that a Minnesota juvenile judge and the Fraternal Order of Eagles had joined to erect Ten Commandments monuments in public places. The judge believed that the teenagers he saw in his courtroom lacked any idea of right and wrong. Exposure to the commandments, he believed, would set such teens straight.