2016-07-27
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Twenty-five years ago the Supreme Court held in Stone v. Graham that public schools could not post the Ten Commandments in classrooms for the asserted purpose of demonstrating the origins of American law. The Court said:

"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.

The Eagles joined with the judge only after persuading themselves that despite having picked the Lutheran version of the commandments-which differs both in numbering and interpretation from the version of the commandments adopted by the Jewish, Catholic, and other Christian traditions-the display would be nonsectarian. (Jews, for example, count "I am the Lord" as the first commandment; the monument treats that verse as a prologue and omits the phrase "which have brought thee out of the land of Egypt.") DeMille saw an opportunity to help promote his movie. Over the next few years he helped pay for many of these displays. One of these Ten Commandments monuments was erected on the grounds of the Texas' Capitol in 1961. When Texas redesigned its Capitol grounds in 1993, sharply reducing the number of monuments displayed, the commandments monument remained.

The monument's presence at the Capitol went unchallenged until a nonpracticing lawyer, Thomas Van Orden, alleged that by displaying the commandments in this fashion the state was improperly "promoting the Commandments as a personal code of conduct." He argued that the reasonable observer would see the display as favoring the Jewish and Christian faiths over others and over atheism. Texas denied that the monument's purpose or effect was religious. It asserted that the monument celebrated only "the large [secular] role of the Decalogue in the development of Texas law."

The United States District Court for the Western District of Texas and the United States Court of Appeals for the Fifth Circuit agreed with Texas. The appellate court accepted Texas' claim that the monument celebrated the commandments' influence on American law, but that "to say this is not to diminish the reality that it is a sacred text to many, for it is also a powerful teacher of ethics, of wise counsel urging a regiment of just governance among free people. The power of that counsel is evidenced by its expression in the civil and criminal laws of the free world. No judicial decree can erase that history and its continuing influence on our laws-there is no escape from its secular and religious character. There is no constitutional right to be free of government endorsement of its own laws."

The appellate court did not explain how the commandment against idolatry influences secular law.

The Kentucky Case: McCreary County v. ACLU
The Kentucky Ten Commandments monument is more recent, and its history more complex, than its Texas counterpart. The case before the Supreme Court was one of three consolidated in the lower courts, each challenging a display of the commandments in a different Kentucky county. The one the Court reviewed involved two courthouse displays. The third case involved a school display. (The school board sought Supreme Court review of a part of the decision adverse to its display, the Court pointedly refused to consider that part of the original case.)

The display in McCreary County began only with a framed copy of the Ten Commandments. (The Court does not explain which version was used.) When the ACLU filed suit challenging the display, the county quickly posted a potpourri of equally sized documents around it, which, like reindeer and Santa Claus around a municipal crèche, supposedly reinforced the secular character of the display.

When these odd documents (including, for example, Lincoln's 1863 call for a national day of prayer, and the national motto "In God We Trust") predictably failed to impress the court--because if anything, they reinforced, not minimized, the religious character of the display--the county erected instead a display that included equally sized framed copies of the Ten Commandments, the entire "Star-Spangled Banner" (the never-sung and almost wholly unknown fourth stanza includes the phrase "And this be our motto: 'In God is our trust'"), the Magna Carta, the Declaration of Independence, the Mayflower Compact, the Bill of Rights, the preamble to the Kentucky constitution ("We the people of the Commonwealth of Kentucky, grateful to Almighty God for [our]... liberties and invoking the continuance of these blessings. ... ") and Lady Liberty.

The display also bore an explanatory note declaring that the Ten Commandments "have profoundly influenced the formation of Western legal thought and the formation of our country." It did not explain how the documents--other than the Declaration of Independence's reference to the "Creator" and "Nature's God" (almost certainly not the God responsible for the commandments) were relevant to the commandments. This ragtag collection also did not impress the district court and the court of appeals, both of which found that these additional documents did not relate to the Ten Commandments in any significant way, and did not obscure the County's continuing religious purpose. They therefore ordered the commandments removed.

A dissenting judge argued that the purpose of the display was to illustrate the role that religion played in the foundation of American government, and that the court was not entitled to question Kentucky's claim that this was in fact its purpose.

Today's Supreme Court decisions defy easy and quick explanation, both because the decisions are not fully consistent with each other and because the multiplicity of opinions by the nine justices complicate analysis. The Chief Justice, in announcing the Texas decision--which generated opinions by all but Justices Kennedy and Ginsburg--jokingly remarked that he hadn't known that the Court had so many justices.) Moreover, in addition to a vigorous debate over the meaning of the Establishment Clause, the opinions range over the facts of the cases, and the meaning of the Court's precedents, the history of the Establishment Clause, the religious beliefs of the Founders, and the extent to which history ought to control constitutional interpretation.

Some quick points about the decisions:

1. Where sponsors of a religious display announce their intentions to make a specifically religious statement, the display will likely be unconstitutional. There was much such evidence in the Kentucky case, and little of it in Texas (because the display was fifty years old). The result will be either (a) that potential sponsors of religious displays will be silent about their real (religious)motivations; or (b) absent the ability to make such proclamations it will be less attractive to erect religious symbols on public land or with other official sponsorship.

2. The McCreary (Kentucky) decision revitalizes the purpose branch of the often criticized three part test of Lemon v. Kurtzman by insisting that government actions have a secular purpose "not secondary to its religious purpose." This is a substantial enhancement of this part of the test, which in recent years has been satisfied if government identified any secular purpose, no matter how insignificant.

3. All the justices agreed that displays of the Ten Commandments are not always impermissible. Beyond the question of purpose, it is hard to identify a clear rule for determining when an officially sponsored religious symbol is constitutional and when it is not. Presumably, it helps that a symbol is not overtly identified with one faith or another. (The Ten Commandments will be easier to defend than a crucifix or a mezuzah.) The older a display and the absence of controversy over its display is also relevant to its constitutionality. (The Texas display is one of hundreds erected by Cecil B. DeMille and the Fraternal Order of the Eagles in conjunction with the release of the movie "The Ten Commandments." Most of these monuments are likely to pass muster under today's decisions.)

4. The most interesting part of the decision was the sharp division of the Justices on the question of whether the Constitution demands that government be neutral between monotheistic religions (which Justice Scalia described as Judaism, Christianity and Islam) and other faiths. At least five Justices said it must; three (Rehnquist, Scalia, Thomas) think not. (Justice Kennedy's views are uncertain because he did not join that much of Justice Scalia's opinion in the Kentucky case discussing this issue; but did join Chief Justice Rehnquist opinion in the Texas case making the same point.) Even the Scalia group does not believe government can coerce monotheism; the question debated is whether it may express a preference for it. Justice Scalia argued that the Founders expressed a clear preference for his reading, but nothing I know of supports Justice Scalia's equating the standing of Islam and Judaism with Christianity in the minds of the Founders. Twenty years ago, Justice Rehnquist alone took the position that the government could favor religion. Now it commands at least three, perhaps four votes on the Court--and the stern opposition of five other Justices. The division will no doubt be crucially important when the next vacancy occurs on the Court.

5. Two cases from the Fourth Circuit presently on their way to the Supreme Court will test the Court's commitment to the no-favoritism-for-monotheism principle. In both, Wiccans sought to offer prayers at town council meetings. On Justice Souter's view their exclusion would be unconstitutional but not on Justice Scalia's. These cases, should the Court hear them, will test the newly reiterated no-favoritism principle.

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