The Supreme Court on Wednesday hears two cases on what it means when the government displays the Ten Commandments.
The two cases could affect dozens of lower court decisions across the country on whether posting the Ten Commandments on public property violates the First Amendment. One question the justices must decide is whether such displays are primarily historical or if they are intended to endorse a particular religion.
In one case, Van Orden v. Perry, a lower court ruled that a 6-foot-high granite Ten Commandments monument on the grounds of the Texas Capitol does not violate the First Amendment. The 42-year-old monument, one of thousands placed around the country in the 1950s and 1960s by the Fraternal Order of Eagles, is constitutional, the court ruled, because a reasonable person would not conclude its placement was intended to endorse religion rather than a secular message.
The other, McCreary County v. ACLU, involves two Kentucky counties and a school district, which erected framed copies of the Ten Commandments in county courthouses and schools, and later modified the displays to include secular and historical documents to insulate them from a lawsuit. In that case the 6th U.S. Court of Appeals ordered the displays removed, agreeing with a lower court that their “predominate purpose” was religious.
The cases are at the center of a swirling controversy over religious symbolism in public life. In one of the higher-profile disputes, former Alabama State Chief Justice Roy Moore was forced from office after refusing to remove a Ten Commandments monument from the state judicial building.
Despite high interest in Wednesday’s cases, it is unlikely any ruling by the high court would resolve all the issues at stake. The court could uphold both lower-court rulings, for example, declaring some but not all of the Ten Commandments displays unconstitutional.
For the last three decades, courts have relied on a three-part test established in Lemon v. Kurtzman in deciding whether state-sponsored religious displays are contrary to the First Amendment. Under the Lemon test, courts must decide whether the government activity in question has a secular purpose, whether its primary effect advances or inhibits religion and whether it fosters an excessive entanglement with religion. To be upheld as constitutional, a challenged activity must pass all three requirements.
In a friend-of-the-court brief in the Texas case, the Virginia-based Rutherford Institute argued that the Austin display was not an establishment of religion but instead a commemoration of “history and culture” of the state.
Barry Lynn of Americans United for the Separation of Church and State, which has filed briefs in both cases before the Supreme Court, doesn’t buy the historical argument.
“Thou shalt not merge religion and government,” Lynn, a United Church of Christ minister, said in a statement. “Promoting religion is the job of houses of worship, not government. Our legal system especially must avoid even the appearance of bias on the basis of religion.”
Some, however, view the Ten Commandments as a wedge issue in trying to establish the United States as a Christian nation.
The Southern Baptist Convention in 1997 passed a resolution supporting public displays of the Ten Commandments in government offices and courthouses and urged the Ethics & Religious Liberty Commission to support a Religious Freedom Amendment to the U.S. Constitution that would “prohibit this and other types of discrimination against persons based on their religious expression or belief.”
Bob Allen is managing editor of EthicsDaily.com.