Holy Moses: What Do We Do With the Ten Commandments? - Haynes Maier and Eric R. Mull

• Citation: Vol. 57 No. 2
• Publication year: 2006

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Holy Moses: What Do We Do With the Ten Commandments?

In McCreary County v. ACLU,¹ the United States Supreme Court held displays of the Ten Commandments in two county courthouses unconstitutional because the displays violated the Establishment Clause of the United States Constitution.² However, in Van Orden v. Perry,³ the United States Supreme Court held that a display of the Ten Commandments on the Texas State Capitol grounds did not violate the Establishment Clause.⁴ This obvious contradiction does little to resolve the uncertainty of current Establishment Clause jurisprudence. In McCreary the Court reaffirmed the Establishment Clause test⁵ articulated in Lemon v. Kurtzman,⁶ while at the same time rejecting the test in Van Orden.⁷ Clearly, having religious content or promoting a message consistent with a religious doctrine does not run afoul of the Establish- ment Clause.⁸ Courts have the choice of using the Lemon test or inquiring into a religious display's history, purpose, and context, or some combination of both.

I. Factual Background

A. McCreary County v. ACLU

In the summer of 1999, McCreary County and Pulaski County, Kentucky ("Counties") erected large, framed copies of an abridged text of the Ten Commandments in each of their respective courthouses. In McCreary County, the Commandments were placed in the courthouse in response to the county legislative body requiring that the display be posted in a high traffic area. In Pulaski County, the Commandments display included a ceremony presided over by the county judge-executive and the pastor of the county judge-executive's church.⁹ In November 1999 the American Civil Liberties Union ("ACLU") sued the Counties under 42 U.S.C. Sec. 1983 to enjoin the displays on the ground that the displays violated the Establishment Clause of the First Amendment.¹⁰

Before the district court responded, the Counties adopted similar resolutions calling for an expansion of the exhibit to show that the Commandments are Kentucky's "precedent legal code."¹¹ The resolutions noted several grounds for taking this position, including the state legislature's acknowledgment of Christ as the "Prince of Ethics."¹² The displays around the Commandments were modified to include eight smaller historical documents, all of which contained religious references. After this second display, the district court entered a preliminary injunction ordering that the displays be removed. The district court followed the Lemon v. Kurtzman¹³ test, finding that the original display lacked a secular purpose because the Commandments were distinctly religious.¹⁴ Further, the district court found that the second display lacked a secular purpose because the Counties narrowly tailored the selection of foundational documents displayed along with the Commandments to those specifically referring to Christianity.¹⁵

After changing counsel, the Counties revised the exhibits once again, this time with neither new resolutions nor with the repeal of the past resolutions. The new display, entitled "The Foundations of American Law and Government Display," consisted of nine framed documents of equal size. One of the framed documents contained the Commandments quoted at greater length than the previous displays. Along with the text of the Commandments, the display contained an explanation about how the Commandments have profoundly influenced the formation of Western legal thought in the United States. The Counties' professed intent behind the third display was to show that the Commandments were part of the foundation of American Law and government, and to educate county citizens about the documents.¹⁶ Despite this professed intent, on motion by the ACLU, the district court included this third display in the injunction. The district court found that under Stone v. Graham,¹⁷ the Counties' proclamation of the Commandments' founda-tional value contained a religious, rather than secular purpose.¹⁸ Further, the court found that the Counties' educational intent failed upon an examination of the litigation's history.¹⁹

In affirming the district court, the Sixth Circuit stressed that under Stone, "displaying the Commandments bespeaks a religious object unless they are integrated with other material so as to carry 'a secular message.'"²⁰ The court concluded that no integration existed in the Counties' third display because of a lack of demonstrated analytical or historical connection between the Commandments and the other documents.²¹ The United States Supreme Court granted certiorari.²²

B. Van Orden v. Perry

In 1961 the Fraternal Order of Eagles of Texas, a national social, civic, and patriotic organization, donated a monument measuring six feet high and three feet wide to "The People and Youth of Texas. . . ."²³ The primary content of the monument is the text of the Ten Commandments. Above the text of the Ten Commandments is an eagle holding an American flag, an eye inside of a pyramid, and two small tablets. Below the text are two Stars of David and the Greek letters Chi and Rho.²⁴ The monument was erected by the Eagles on the Texas State Capitol grounds between the capitol and the supreme court building. It is included among seventeen other monuments and twenty one historical markers commemorating the "'people, ideals, and events that compose Texan identity'" on the twenty-two acre property.²⁵

Petitioner Thomas Van Orden is a native Texan and an Austin resident, as well as a former attorney. He testified that he encountered the monument on frequent visits to the Capitol grounds for the purpose of using the law library in the supreme court building beginning in 1995. Six years later, Van Orden brought suit "under Rev. Stat. Sec. 1979, 42 U.S.C. Sec. 1983 seeking both a declaration that the monument's placement violates the Establishment Clause and an injunction requiring its removal."²⁶

After a bench trial, the district court held that there was no violation of the Establishment Clause where the State had a valid secular purpose in recognizing the Eagles for their efforts to reduce juvenile delinquency, and the "reasonable observer, mindful of the history, purpose and context, would not conclude that this passive monument conveyed the message that the State was seeking to endorse religion."²⁷ The Fifth Circuit Court of Appeals affirmed the district court's holding.²⁸ The United States Supreme Court granted certiorari.²⁹

II. Legal Background

A. Introduction—Constitutional Framework

The First Amendment of the United States Constitution provides that "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof. . . ."³⁰ These clauses of the First Amendment impose two restrictions, one of which is the Establishment Clause, which requires a degree of separation between church and state. Although the degree of separation cannot be determined, the struggle for religious liberty in Virginia during the 1780s may be helpful in supplying the key to understanding the Establishment Clause.³¹ First, the long dispute in Virginia had caught the attention of the other states, several of which were influenced by its outcome to eliminate their own religious establishments. Therefore, the victory for religious liberty in Virginia created a national climate of opinion favorable to the separation of church and state. Even more important, the leaders of the anti-establishment forces in Virginia played a major role in the creation and adoption of the Bill of Rights. As a result, it can be argued that the views these leaders expressed during the Virginia campaign in favor of a strict separation of church and state were incorporated into the First Amendment religion clauses.³²

B. Cases Defining Establishment of Religion

The Supreme Court had little occasion to construe the Establishment Clause for almost 150 years after its conception, until the religion clauses were incorporated in Everson v. Board of Education.³³ Since then, however, the Court has decided more than eighty religion cases. In Everson the Court upheld a New Jersey statute that covered the cost of bus transportation for students attending either public or private (including sectarian) schools.³⁴ Justice Black contended that the statute did not violate the First Amendment because of the public purpose it served as determined by the legislature passing the legisla-tion.³⁵ In so holding, both the majority and dissenters agreed that the Establishment Clause was meant to erect a "wall of separation" between church and state.³⁶ Justice Black summarized the Court's position by stating: "[t]he 'establishment of religion' clause of the First Amendment means at least this: Neither a state nor the Federal Government can set up a church. . . . Neither a state nor the Federal Government can, openly or secretly, participate in the affairs of any religious organizations or groups and vice versa."³⁷ Therefore, the Court defined the Establishment Clause as (1) imposing restrictions on state activity as stringent as those imposed on the national government, and (2) requiring strict neutrality not only among religions, but also between religion and irreligion. Though the New Jersey legislation was within New Jersey's power, the Court did note that "it approaches the verge of that power" to enact legislation.³⁸ Therefore, though the court was erecting a high wall of separation between church and state, the factors weighing against establishment were the public benefit and the secular means provided by such bus transportation.³⁹

One of the most difficult Establishment Clause questions faced by the Justices of the Supreme Court has been the validity of governmental aid to programs that benefit both sectarian and nonsectarian institutions. Everson illustrates the difficulties posed by this question. On one side of the debate, the state reimbursement for the cost of transporting children to sectarian schools in Everson clearly facilitates attendance...