By Stephen M. Crampton, Chief Counsel, AFA Center for Law and Policy
August 2005 – The long-awaited decisions in two Ten Commandments cases at the U.S. Supreme Court have been announced, and matters are no clearer now than before the rulings.
In McCreary County, Kentucky v. ACLU, the displays in two county courthouses in Kentucky were ruled unconstitutional, while in Van Orden v. Perry, the monument on the Texas State Capitol grounds was found constitutional. Both cases were decided by a razor-thin 5-4 majority.
But what about the numerous displays in other states and municipalities around the nation? And what about communities that wish to erect a display in the future?
Unfortunately, these recent cases may only confuse an already tangled mess of rules, tests, and seemingly contradictory decisions, leaving Americans without any bright-line test by which to determine the constitutionality of future displays.
The facts of each case
The Court decided two different cases involving different factual settings for the Ten Commandments displays. At issue in Van Orden v. Perry was a six-foot-tall granite monument containing the Ten Commandments and sitting on the grounds of the Texas State Capitol.
Donated in 1961 by the Fraternal Order of Eagles, the monument is one of 17 monuments and 21 historical markers on the Capitol grounds. Among other monuments on the site are a 16-foot-tall replica of the Statue of Liberty, dedicated in honor of the Boy Scouts; a memorial to Texans who died at the Alamo; and a 44-foot-tall monument to the John B. Hood Texas Brigade of the Confederate Army.
The Texas Capitol and its grounds are listed on the National Registry of Historic Places and designated as a protected National Historic Landmark. They meet the federal definition of a museum, and are maintained by the State Preservation Board and cared for by a professional curator. Guided tours are offered, both inside and outside the Capitol. Inside, a large Six Flags Over Texas display on the floor of the Capitol rotunda features the Mexican eagle and serpent – a religious symbol of Aztec prophecy.
In McCreary County, Kentucky v. ACLU, two displays entitled “Foundations of American Law and Government” were challenged. The displays, hung in two county courthouses, consisted of 11 equal-sized framed documents. These included the Declaration of Independence, the Mayflower Compact, the Magna Carta, the Bill of Rights, and the Ten Commandments.
Explanatory notes were provided for the documents. The explanation for the Ten Commandments display stated that the Commandments have “profoundly influenced Western legal thought,” and “provide the moral background” for the Declaration of Independence and the foundation for our legal tradition.
The Texas ruling
In an opinion written by Chief Justice William Rehnquist, the Supreme Court ruled in Van Orden v. Perry that the 45-year-old monument was a passive display that admittedly contained religious meaning, but also had historical meaning. Therefore, Rehnquist reasoned, the display did not violate the Establishment Clause of the First Amendment.
The Establishment Clause, which was at the heart of the disputes, states simply: “Congress shall make no law respecting an establishment of religion. … ” (Because of other court rulings through the years, the Establishment Clause has been expanded to include state, county and municipal governments as well as Congress.)
The Chief Justice, joined by Justices Antonin Scalia, Clarence Thomas, and Anthony Kennedy, also suggested a new test for such passive displays. Rehnquist wrote that in such circumstances, “The analysis should be driven by both the monument’s nature and the Nation’s history.” Because our nation has enjoyed “an unbroken history of official acknow-ledgement” of religion, the Texas display was not atypical.
Thus, the mere fact that the Ten Commandments have religious content did not mean they automatically violated the Establishment Clause, the ruling said. There are limits to how far the government can go in posting a religious display, of course, but this one does not exceed those limits.
As an example of a government action that crossed the line of constitutionality, Rehnquist’s decision specifically mentioned an older Kentucky statute that required the posting of the Ten Commandments in every schoolroom. That state law was found unconstitutional by the U.S. Supreme Court in Stone v. Graham (1980).
Chief Justice Rehnquist thus seemed to concede that a display of the Ten Commandments in a public school (at least in an indoor setting) would present constitutional concerns. But he would not extend that rule to the legislative chamber, suggesting instead that it would be permissible in that setting to erect some sort of religious display, or engage in activity with some religious content.
The deciding vote in Van Orden was cast by Justice Stephen Breyer, who is not normally found on the same side of such a contentious religious issue as Rehnquist, Scalia and Thomas. As the swing vote, Justice Breyer’s reasoning may prove to be crucial in future cases. He eschewed reliance on any previous test enunciated by the Court, choosing instead to premise his conclusion on his “legal judgment.” In the end, he found the lack of political divisiveness over the display during its 45-year history to be the critical factor.
The Kentucky ruling
In McCreary County, the majority opinion written by Justice David Souter focused almost exclusively on the purpose of the counties in erecting the displays, because the displays had something of a checkered history.
The counties had initially posted the Ten Commandments on the courthouse walls by themselves, then, after a lawsuit, passed a resolution calling for a more extensive exhibit, which added several historical documents. The displays were revised still a third time after a federal court rejected the counties’ attempts to broaden the display with the additional historical documents.
Souter focused his ruling on the reasons given by county officials for posting the Ten Commandments. In one county, the judge executive who presided over the hanging ceremony called the Commandments “good rules to live by,” and told the story of an astronaut who became convinced that “there must be a divine God.” The judge executive’s pastor was also present, and told the press the posting was “one of the greatest things the judge could have done to close out the millennium.”
After the original lawsuit was filed, the counties authorized expansion of the displays, but more religious language was forthcoming. The resolution authorizing the expansion explained that “the Founding Fathers had an explicit understanding of the duty of elected officials to publicly acknowledge God as the source of America’s strength and direction.” Officials also declared that the Ten Commandments were the precedent legal code for Kentucky law.
When the federal court enjoined this second display as unconstitutional, the counties hired new lawyers and revised the display again. Their stated purpose in erecting the third display was “to demonstrate that the Ten Commandments were part of the foundation of American Law and Government” and “to educate the citizens of the county regarding some of the documents that played a significant role in the foundation of our system of law and government.”
This explanation established a secular purpose for the display, which should have satisfied the Court. Previously, the rule used by the U.S. Supreme Court was that a secular purpose of any sort – such as educating citizens as to the foundations of our legal system – was sufficient to satisfy constitutional concerns. But in McCreary the Court appeared to suggest a new test: the “predominantly religious purpose” test.
Justices Souter, John Paul Stevens, Kennedy and Breyer struck the Kentucky displays on the basis that a reasonable observer, aware of the past postings and pronouncements by county officials, would believe that the counties were improperly attempting to advance religion. Justice Sandra Day O’Connor, in her concurrence, echoed this theme.
The opinions in these two cases underscore the growing jurisprudential divide separating the two wings of the Court. On one side are Rehnquist, Scalia, and Thomas, who consistently vote to permit religious displays in the public square.
On the other side are Stevens, Souter, Ginsburg, and most often Kennedy, who would rule virtually all public religious displays unconstitutional. In fact, Stevens, joined by Justice Ruth Bader Ginsbrug, wrote in dissent in the Texas case that there is a “strong presumption against the display of religious symbols on public property.”
Most Court watchers anticipate at least one justice will soon be replaced, and perhaps two. If so, this ideological divide may change somewhat, but one thing is certain: We will not see a unanimous opinion anytime soon where matters involving the public display of religion are concerned. 
WHAT ABOUT FUTURE DISPLAYS?
Although the Court rulings did not establish any clear guidelines, there are a few lessons to be learned.
• The easier cases to defend will of course be those involving older displays. Communities should highlight the long period during which no legal controversy existed, and emphasize the consistency of the display with our nation’s rich history of official acknowledgment of religion.
• Given the Court’s preoccupation with the purpose behind a display, it will also be necessary to minimize expressions of religious purpose or effect and maximize the secular purposes (e.g., solemnization, honoring war heroes, beautification, etc.).
• For communities seeking to erect new displays, a defense will be more difficult, but the general guidelines are the same. They should downplay any religious purpose, being careful to control comments to the media. If at all possible, they should include some secular items nearby, and include a broad diversity of groups as sponsors or endorsers of the display.
