7/12/05 -- The U.S. Supreme Court ruled June 27 in a pair of split decisions that a public display of the Ten Commandments is permissible in certain circumstances but not in others.
In McCreary County, Ky., v. American Civil Liberties Union of Kentucky, the Court ruled 5-4 that displays of the Ten Commandments inside two Kentucky courthouses is unconstitutional. But in Van Orden v. Perry, the Court allowed the display of a six-foot granite monument on the Ten Commandments on the grounds of the Texas Capitol, also in a 5-4 ruling.
NSBA had submitted a friend-of-the-court brief urging the Supreme Court to adopt a consistent standard that would give school districts clearer guidelines to help them resolve church-state conflicts.
In response to the decisions, NSBA Executive Director Anne L. Bryant said, “We are concerned that the Court’s lack of clarity will continue to leave our schoolchildren at the mercy of litigious groups, on both sides of the issue, that love to make public schools their favorite legal battleground.”
In general, the court found that Ten Commandments displays are more likely to be legal if they have stood for many years without complaint and if their primary purpose is to honor the nation’s legal, rather than religious, traditions. They are also more likely to be acceptable if they are located in wide, open areas accessible to the public, rather than schoolhouses filled with young students.
“The court has found no single mechanical formula that can accurately draw the constitutional line in every case,” wrote Justice Stephen G. Breyer, who cast the decisive vote in both cases.
But that means that interpreting whether specific displays are constitutional will depend on the particular facts in each case. And that, in turn, means more litigation is likely on questions involving church and state. “The divisiveness of religion in current public life is inescapable,” Justice David H. Souter wrote.
The Kentucky case involves the display of framed copies of the King James version of the Ten Commandments in the McCreary County and Pulaski County courthouses.
The American Civil Liberties Union (ACLU) filed suit, charging the displays violated the Establishment Clause of the First Amendment, which prohibits government endorsement of religion.
The counties then modified their displays to add other documents demonstrating the nation’s “Christian heritage,” including the national motto, “In God We Trust”; President Lincoln’s declaration of a national day of prayer in 1863; and a copy of a resolution from the Congressional Record declaring 1983 the “Year of the Bible.”
After a federal court ruled in 2000 that those displays had the effect of endorsing religion, the counties added several secular historic documents, such as the Bill of Rights and the lyrics to “The Star-Spangled Banner.”
The 6th U.S. Appeals Court, based in Cincinnati, found that display of historical documents unconstitutional, calling it a “sham” because its real intent was religious.
Souter agreed, noting that the counties’ true purpose was “to emphasize and celebrate the Commandments’ religious message.”
The Texas case involves an exhibit of the Ten Commandments donated to the state government by the Fraternal Order of Eagles in 1961. It was installed about 75 feet from the state capitol in Austin.
Thomas Van Orden, a former lawyer who is now homeless, challenged the display on constitutional grounds in 2002. Both the district and appeals courts ruled against him, as did the Supreme Court.
The plurality opinion, written by Chief Justice William Rehnquist, and Justices Antonin Scalia, Anthony M. Kennedy, and Clarence Thomas, states that “the Ten Commandments have an undeniable historical meaning.” Just because a public display has “religious content” or promotes “a message consistent with religious doctrine,” doesn’t mean it is unconstitutional.
Breyer, who voted to uphold the display but disagreed with the plurality opinion, argued that the context of the display is important. The display in Kentucky had provoked protests and litigation as soon as it was put up in 1999, while the monument in Texas had stood for 40 years without complaint.
That the Texas display “has stood apparently uncontested for nearly two generations,” Breyer wrote, “helps us understand that as a practical matter of degree this display is unlikely to prove divisive.”
Referring to the Kentucky displays, he wrote, “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 [in Texas] has not.”
Scalia wrote a dissenting opinion in the Kentucky case -- joined in full by Rehnquist and Thomas and joined in part by Kennedy -- calling the ruling inconsistent with the Founding Fathers’ views and said it “ratchets up this court’s hostility to religion.”
Souter, who wrote the majority opinion in the Kentucky case, wrote that strict official “neutrality” toward religion is the best antidote to the contemporary culture wars. In addition to Breyer, that opinion was joined by Justices John Paul Stevens, Sandra Day O’Connor, and Ruth Bader Ginsburg.
"We are centuries away from the St. Bartholomew’s Day Massacre and the treatment of heretics in early Massachusetts,” Souter wrote, “but the divisiveness of religion in current public life is inescapable. This is no time to deny the prudence of understanding the [First Amendment] to require the government to stay neutral on religious belief, which is reserved for the conscience of the individual.”
O’Connor, who voted in both cases with the group that found the displays unconstitutional, said even though many Americans find the Ten Commandments in accord with their personal beliefs, “we do not count heads before enforcing the First Amendment.”
The nation has been more successful in avoiding religious violence than other counties because we have kept religion “a matter for the individual conscience, not for the prosecutor or bureaucrat,” O’Connor wrote. “Those who would renegotiate the boundaries between church and state must therefore answer a difficult question: Why would we trade a system that has served us so well for one that has served others so poorly?”
Noting that the justices submitted 10 separate opinions on the two cases, NSBA General Counsel Julie Underwood says: “If the Supreme Court itself struggles this much with these issues, just imagine the challenge for America’s school boards. These decisions tell us that the Court will continue to approach these issues on a case-by-case basis, rather than giving school districts clear and consistent guidance.”
A day after the Supreme Court ruled, it let stand two decisions by the 6th U.S. Circuit Appeals Court that prohibited display of the Ten Commandments.
One of the rulings involved Ten Commandments monuments in front of each of the four high schools in the Adams County/Ohio Valley school district. The 6th Circuit had found the monuments unconstitutional, even though the school district had later added displays on the Magna Carta and other historical documents.
In the other case, the appeals court found that a framed poster of the Ten Commandments in a county courtroom was unconstitutional.