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Ten Commandments cases split

By: dmc-admin//July 6, 2005//

Ten Commandments cases split

By: dmc-admin//July 6, 2005//

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The U.S. Supreme Court issued its long-awaited decisions on the Ten Commandments on June 27, holding that a monument that had stood in a public square for decades was constitutional, but holding that the Establishment Clause was violated by a recently erected display that included them.

In doing so, the court effectively reversed the governing law in Wiscon-sin and the rest of the Seventh Circuit, in which longstanding monuments have been disapproved, and recent displays approved.

Public Displays

In the first case, McCreary County v. ACLU of Kentucky, the court held that displays erected in 1999 in two Kentucky Courthouses violated the Establishment Clause. The displays, entitled “The Foundations of American Law and Government Display,” consisted of nine framed documents of equal size, with one setting out the Commandments, and explicitly identified as the “King James Version.”

The display was held unconstitutional by the district court, the Sixth Circuit, and the Supreme Court, in a decision by Justice David H. Souter. Justice Sandra Day O’Connor wrote a concurring opinion, and Justice Antonin Scalia wrote a dissent, joined by three other justices.

Applying the test of Lemon v. Kurtzman, 403 U.S. 602 (1971), the court found that the purpose of the display was to promote religion, and was not secular.

The ultimate display was not the original one proposed; two previous displays were enjoined in federal court. The first consisted of just the Ten Commandments, and the second consisted of the Ten Commandments, and eight other documents, with highlighted references to God as their sole common element.

Accordingly, even though the ultimate display featured the Ten Commandments with other nonreligious documents — The Magna Carta, the Declaration of Independence, the Bill of Rights, the lyrics of the Star Spangled Banner, the Mayflower Compact, the national motto, the Preamble to the Kentucky Constitution, and a picture of Lady Justice — the court found the history of the display showed its true religious intent.

Souter wrote, “The [second] display’s unstinting focus was on religious passages, showing that the Counties were posting the Commandments precisely because of their sectarian content. That demonstration of the government’s objective was enhanced by serial religious references and the accompanying resolutions’ claim about the embodiment of ethics in Christ Together, the display and resolution presented an indisputable, and undisputed, showing of an impermissible purpose.”

What the court held

Case: McCreary County v. ACLU of Kentucky, No. 03-1693; Van Orden v. Perry, No. 03-1500

Issue: Does display of the Ten Commandments on government property violate the Establishment Clause?

Holding: Monuments erected decades ago do not violate the Establishment Clause, but recent displays erected during controversy over the Ten Commandments were erected to promote religion, and do violate the clause.

O’Connor agreed: “Given the history of this particular display of the Ten Commandments, the Court correctly finds an Establishment Clause violation.”

Scalia dissented on three grounds: “first, [] the Court’s oft repeated assertion that the government cannot favor religious practice is false; second, [the majority] opinion extends the scope of that falsehood even beyond prior cases; and third, [] even on the basis of the Court’s false assumptions the judgment here is wrong.”

Scalia concluded, “the first displays did not necessarily evidence an intent to further religious practice; nor the did the second displays, … and there is in any event no basis for attributing whatever intent motivated the first and second displays to the third. Given the presumption of regularity that always accompanies our review of official action, the Court has identified no evidence of a purpose to advance religion in a way that is inconsistent with our cases. The Court may well be correct in identifying the third displays as the fruit of a desire to display the Ten Commandments, but neither our cases nor our history support its assertion that such a desire renders the fruit poisonous.”

Monuments

In the second case, Van Orden v. Perry, the court found no Establishment Clause violation where a monument was donated by the Eagles Club to the State in 1961. The monument sat on the grounds surrounding the capitol building, along with 21 historical markers and 16 other monuments.

A Texas resident brought suit in federal court, alleging the monument violated the Establishment Clause. Both the district court and the Fifth Circuit held that the monument did not contravene the Clause, finding the State had a valid secular purpose in recognizing and commending the Eagles for their efforts to reduce juvenile delinquency. The court concluded that a reasonable observer would not conclude that the monument conveyed the message that the State endorsed religion.

The Supreme Court affirmed. Chief Justice William Rehnquist wrote the lead opinion, joined by three other justices, and Justice Stephen G. Breyer wrote a concurrence. Four justices dissented.

Unlike in McCreary, the lead opinion did not apply the Lemon test, stating, “whatever may be the fate of the Lemon test in the larger scheme of Establishment Clause jurisprudence, we think it not useful in dealing with the sort of passive monument that Texas has erected on its Capitol grounds. Instead, our analysis is driven both by the nature of the monument and by our Nation’s history.”

The court began by detailing the “unbroken history of official acknowledgement by all three branches of government of the role of religion in American life from at least 1789,” and the long history of public di
splays of the Ten Commandments.

Rehnquist wrote, “Texas has treated her Capitol grounds monuments as representing the several strands in the State’s political and legal history. The inclusion of the Ten Commandments monument in this group has a dual significance, partaking of both religion and government. We cannot say that Texas’ display of this monument violates the Establishment Clause”

Both Justices Scalia and Clarence Thomas wrote concurrences that would go farther than the lead opinion in upholding the constitutionality of the monuments, but Justice Breyer’s concurrence upheld the monument on narrower grounds.

Breyer began by noting the fact-intensive nature of Establishment Clause cases, stating, “If the relation between government and religion is one of separation, but not of mutual hostility and suspicion, one will inevitably find difficult borderline cases. And in such cases, I see no test-related substitute for the exercise of legal judgment.”

Applying that legal judgment, Breyer wrote, “here the tablets have been used as part of a display that communicates not simply a religious message, but a secular message as well. … And the monument’s 40-year history on the Texas state grounds indicates that [the latter message] has been its effect.”

Breyer noted that the Eagles is a secular organization that consulted with a committee composed of members of several faiths to find a nonsectarian text.

Breyer emphasized that the monument stood unchallenged for 40 years before the petitioner brought suit: “Those 40 years suggest that the public visiting the capitol ground has considered the religious aspect of the tablets’ message as part of what is a broader moral and historical message reflective of a cultural heritage.”

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Case Analysis

Breyer distinguished McCreary, noting the “short (and stormy)” history of the display: “that history there indicates a governmental effort substantially to promote religion, not simply an effort primarily to reflect, historically, the secular impact of a religiously inspired document. And, in today’s world, in a Nation of so many different religious and comparable nonreligious fundamental beliefs, a more contemporary state effort to focus attention upon a religious text is certainly likely to prove divisive in a way that this longstanding, pre-existing monument has not.”

Breyer concluded that to remove a longstanding monument that had never provoked divisiveness before “could thereby create the very kind of religiously based divisiveness that the Establishment Clause seeks to avoid.”

Justices John Paul Stevens, O’Connor, and Souter wrote dissents.

Stevens wrote, “The judgment of the Court in this case stands for the proposition that the Constitution permits governmental displays of sacred religious texts. This makes a mockery of the constitutional ideal that government must remain neutral between religion and irreligion. If a State may endorse a particular deity’s command to ‘have no other gods before me,’ it is difficult to conceive of any textual display that would run afoul of the Establishment Clause.”

Rejecting the relevance of the passage of 40 years without objection, Souter wrote, “Suing a State over religion puts nothing in a plaintiff’s pocket and take a great deal out, and even with volunteer litigators to supply time and energy, the risk of social ostracism can be powerfully deterrent. I doubt that a slow walk to the courthouse, even one that took 40 years, is much evidentiary held in applying the Establishment Clause.”

Click here for Case Analysis.

David Ziemer can be reached by email.

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