Like a secular Moses descending from the mountaintop, the U.S. Supreme Court appears finally ready to lay down the law on government displays of the Ten Commandments.
After 24 years of silence, the high court announced on Oct.12 that it would hear not just one, but two cases dealing with the Ten Commandments: Van Orden v. Perry from Texas and McCreary County v. ACLU from Kentucky.
Since the Court last agreed to tackle this emotionally charged issue, an explosion of lawsuits around the nation has led to a bewildering array of lower court decisions. Four federal appeals courts have found displays of the Ten Commandments constitutional but three appeals courts have ruled the other way.
Now the Supreme Court will attempt to end the confusion, if not the controversy.
The last and only time the Court ruled on displays of the Ten Commandments under the First Amendment was in the 1980 case Stone v. Graham. Without hearing oral argument, five justices voted to strike down a Kentucky statute requiring the posting of the Ten Commandments on the wall of every public school classroom.
Rejecting Kentucky’s claim that the purpose of posting the commandments was secular, not religious, the 1980 Court decided that the “pre-eminent purpose for posting the Ten Commandments on schoolroom walls is plainly religious in nature.”
Twenty-four years later, government officials in Kentucky or at least in McCreary and Pulaski Counties are back to try again. This time the Ten Commandments are part of a display in courthouses that include a variety of documents (Declaration of Independence, Magna Carta, national motto, etc.) that Kentucky officials describe as having “played a significant role in the foundation of our system of law and government.”
The Kentucky counties lost in the 6th U.S. Circuit Court of Appeals, largely because they failed to convince the judges that there was a secular purpose for displaying the commandments. That court’s decision was less about the content of the display (who could deny that biblical law is one source of our legal system?) and more about the history of how and why the display was created in the first place.
The two counties originally posted the Ten Commandments alone, only adding other documents (all of which mentioned God or the Bible) after a lawsuit was filed challenging the display. When the second display was also ruled unconstitutional, county officials tried yet again this time with an expanded display that they hoped would pass constitutional muster. By a 2-1 vote, a 6th Circuit panel didn’t buy it, ruling that the “predominate purpose for the displays was religious.”
Meanwhile, another three-judge panel this one from the 5th Circuit went the other way, deciding that a Ten Commandments monument on the grounds of the Texas State Capitol was constitutional.
Unlike the recent Kentucky displays, the Texas monument has been in place for more than 40 years. Donated by the Fraternal Order of Eagles of Texas in 1961, the monument was accepted by the state Legislature with the “secular purpose” of honoring the Eagles’ work with youth or so Texas argues. Opponents of the display contend that by erecting the monument, the state endorsed the religious message of the Decalogue.
By a 3-0 vote, the 5th Circuit panel sided with the state, finding nothing in the legislative record to suggest that Texas intended to promote religion by installing the monument. Moreover, the judges pointed out that the Ten Commandments is one of 17 monuments on the Capitol grounds – part of a designated National Historic Landmark that is dedicated to the display of “statues, memorials, and commemorations of people, ideals and events that compose Texan identity.”
What will the Supreme Court decide?
Although difficult to predict, a majority of the Court may well uphold both lower court decisions, agreeing that Kentucky was promoting religion while Texas was not. The core principle might be this: The government has no business endorsing a religious message even when the endorsement is surrounded by other historical documents and messages. On that principle, the Court could rule that the actions of Kentucky officials revealed an agenda to promote the Ten Commandments, but the actions of Texas officials (in 1961) showed no such aim.
It’s also possible that the Court will allow both displays, ruling that Kentucky officials cured the constitutional problem by surrounding the Ten Commandments with a variety of other historical documents. And the Texas monument is part of a museum-like setting that does not convey a message of state endorsement of religion. If the Court goes this way, it will be treating these displays much like the historical figures (Moses, Caesar Augustus, Mohammed, John Marshall and other “lawgivers”) in a frieze on the south wall of the courtroom where the Supreme Court itself meets.
However the Supreme Court rules, the controversy will not end. Some Americans will continue to search for creative ways to post the Ten Commandments in government buildings because they want the government to promote a religious vision of the nation.
Other Americans will continue to find ways to remove all plaques, monuments and displays that they view as state endorsements of religion.
But even if the Supreme Court can’t end the conflict, let’s hope that the justices can remind all Americans of the First Amendment principles at stake in this debate.
Biblical law is one source (but not the only source) of our legal system. Should that be part of what students learn when they study history and government in schools? Can it be included in any legitimate historical display or discussion? Of course.
But should government officials use the fact that biblical law has played a role in our legal system to endorse the Ten Commandments or any other part of the Bible? Should passages from the Bible or from any other scriptures be promoted in government settings? Of course not.
Let’s hope a majority of the Supreme Court will have the courage to explain the difference and a majority of the American people will have the wisdom to accept it.