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Ten Commandments, nine justices, zero winners
Inside the First Amendment

By Charles C. Haynes
First Amendment Center senior scholar

When is a religious message no longer a religious message?

That silly-sounding question is what the Supreme Court will attempt to answer when it rules on the two Ten Commandments cases argued on March 2: Van Orden v. Perry from Texas and McCreary County v. ACLU from Kentucky.

Will the Court uphold the constitutionality of both displays of the Ten Commandments in government settings? Strike one down, but allow the other? Rule both unconstitutional? With the nine justices so deeply divided, any of the above is possible.

But this much is clear from past decisions: A majority of the Supreme Court will not allow government to endorse the religious message of the Ten Commandments. One or both of these displays will survive if, and only if, five justices agree that the overall message is more historical and civic than religious.

That’s why the Supreme Court will slice and dice the facts in each case, looking closely at both the purpose behind the displays and the message the displays convey.

Consider the Ten Commandments monument in Texas. It’s located on the 22-acre State Capitol grounds — along with 16 other monuments (none of which has religious content). Donated in 1961 by the Fraternal Order of Eagles, the monument is one of many distributed by the Eagles around the nation.

Lower courts found the monument constitutional, holding that Texas accepted the display with the “secular purpose” of honoring the Eagle’s work with youth. Opponents appealed, arguing before the Supreme Court that by erecting the monument, the state of Texas endorsed the religious message on it.

In McCreary County, the courts went the other way. At issue are displays containing the Ten Commandments posted in two Kentucky county courthouses. When first put up in 1999, the Decalogue was the only document. But after a legal challenge, county officials added other documents about the role of religion in American history. When that still didn’t pass muster, the counties tried to cure the constitutional problem by adding other historical documents such as the Mayflower Compact and framed lyrics of “The Star-Spangled Banner.”

A district court rejected the attempts to fix the display, and ordered the commandments removed. A panel of the 6th U.S. Circuit Court of Appeals upheld the lower court, finding that the counties had a religious rather than secular purpose in posting the displays.

Judging from the questions and comments from the justices during oral arguments on March 2, it’s difficult to predict how the majority of the Supreme Court will vote on either case.

Five justices may well uphold the Texas monument because it’s one of 17 monuments in a museum-like setting. Or, less likely, five may decide that a free-standing Ten Commandments monument on government property sends a message of state endorsement of religion.

A majority of the Court may well decide that the Kentucky display is constitutional because the commandments are now part of a display that is about the foundations of our history and law. Or the majority might decide that in light of the history behind the display, the purpose remains religious — despite repeated efforts to make it constitutional by adding other documents.

My best guess — for what it’s worth — is that the four justices who are likely to see both displays as permissible state acknowledgements of America’s religious heritage (Chief Justice William Rehnquist, Justices Anthony Kennedy, Clarence Thomas and Antonin Scalia) will persuade the swing justice (Justice Sandra Day O’Connor) to join them. But to get O’Connor’s vote, the four will pay a price. Since O’Connor is concerned about preventing what she calls “government endorsement of religion,” she’ll require that the opinion make clear that the contexts of both displays keep them from rising to the level of endorsement.

Whatever the outcome at the Supreme Court, nobody will be a “winner.”

The removers — those who want to scrub all references to religion from public property — won’t be satisfied, even if the Court strikes down both displays. Why? Because the reasoning used by the Court will be very fact-specific, leaving plenty of room for the Ten Commandments to be included in future government-sponsored displays that can be viewed as secular in purpose and message.

And the restorers — those who advocate a return to a “Christian America” — won’t be satisfied, even if the Court upholds both displays. Why? Because, again, the majority of justices won’t allow a government-sponsored Ten Commandments display — solo, without any diluting context — that sends a message endorsing religion.

Of course, the biggest losers will be the rest of us — the majority of Americans who are weary of these endless conflicts and lawsuits. To our despair, the removers will continue to find monuments in other public places that they want removed. And the restorers won’t stop inventing ways to use government to promote their religious vision of the nation.

Most of us, I suspect, don’t want the state to promote religion. But neither do we want to strip all references to religion from public property. Sadly, we can’t control what the litigious few are determined to do.

If the Ten Commandments weren’t already etched in stone, I would be tempted to appeal to a Higher Power for an 11th: Thou shalt not use the Word of the Lord thy God to advance thine own agenda.


Supreme Court splits on 2 Ten Commandments cases

Justices rule 5-4 that Kentucky courthouse displays cross church-state line, but allow outdoor Decalogue monument on Texas Capitol grounds.

Indiana county can keep Ten Commandments marker
Federal judge rules monument meets constitutional test set by Supreme Court in Texas case. 09.11.05

Court unlikely to resolve commandments disputes forever
By Tony Mauro Oral arguments suggest eventual ruling will resolve two cases but not whole controversy. 03.03.05

Context is key to sorting out Commandments rulings
By Tony Mauro Sharply divided Court finds older monuments likely OK; newer, sectarian-driven displays may be challenged. 06.28.05

High court on Ten Commandments: messy but wise decisions
By Charles C. Haynes Justices' messages on displays involving government property is: It depends. And that may be exactly what we need. 07.10.05

Establishment clause

Ten Commandments, other displays & mottos

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