Monday, June 27, 2005

Ten Commandments and First Amendment

The Supreme Court issued 2 decisions on whether the display of the Ten Commandments violates the First Amendment's prohibition against the establishment of religion. The 2 decision reach opposite conclusions, suggesting that facts and context matter greatly in these kinds of cases. Each case was decided by 5-4, with Justice Breyer switching sides.

Chief Justice Rehnquist wrote the opinion in the Texas case, Van Orden v. Perry, holding that the Ten Commandments display did not violate the establishment clause.

The 22 acres surrounding the Texas State Capitol contain 17 monuments and 21 historical markers commemorating the "people, ideals, and events that compose Texan identity." [citation omitted]. The monolith challenged here stands 6-feet high and 3½-feet wide. It is located to the north of the Capitol building, between the Capitol and the Supreme Court building. Its primary content is the text of the Ten Commandments. An eagle grasping the American flag, an eye inside of a pyramid, and two small tablets with what appears to be an ancient script are carved above the text of the Ten Commandments. Below the text are two Stars of David and the superimposed Greek letters Chi and Rho, which represent Christ. The bottom of the monument bears the inscription "PRESENTED TO THE PEOPLE AND YOUTH OF TEXAS BY THE FRATERNAL ORDER OF EAGLES OF TEXAS 1961." [citation omitted] The legislative record surrounding the State's acceptance of the monument from the Eagles, a national social, civic, and patriotic organization, is limited to legislative journal entries. After the monument was accepted, the State selected a site for the monument based on the recommendation of the state organization responsible for maintaining the Capitol grounds. The Eagles paid the cost of erecting the monument, the dedication of which was presided over by two state legislators. ... Forty years after the monument's erection and six years after Van Orden began to encounter the monument frequently, he sued numerous state officials in their official capacities ..., seeking both a declaration that the monument's placement violates the Establishment Clause and an injunction requiring its removal.


Of course, the Ten Commandments are religious--they were so viewed at their inception and so remain. The monument, therefore, has religious significance. ... And the Ten Commandments have an undeniable historical meaning ... . Simply having religious content or promoting a message consistent with a religious doctrine does not run afoul of the Establishment Clause. [citations omitted]

The placement of the Ten Commandments monument on the Texas State Capitol grounds is a far more passive use of those texts than was the case in Stone, where the text confronted elementary school students every day. Indeed, Van Orden, the petitioner here, apparently walked by the monument for a number of years before bringing this lawsuit. The monument is therefore also quite different from the prayers involved in Schempp and Lee v. Weisman. 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 of the First Amendment.
In the other case, McCreary County v. ACLU of Kentucky, Justice Souter wrote the opinion, finding the Ten Commandments display there violates the First Amendment's establishment clause.

Executives of two counties posted a version of the Ten Commandments on the walls of their courthouses. After suits were filed charging violations of the Establishment Clause, the legislative body of each county adopted a resolution calling for a more extensive exhibit meant to show that the Commandments are Kentucky's "precedent legal code" [citations omitted]. The result in each instance was a modified display of the Commandments surrounded by texts containing religious references as their sole common element. After changing counsel, the counties revised the exhibits again by eliminating some documents, expanding the text set and addingother, and adding some new ones.

The issues are whether a determination of the counties' purpose is a sound basis for ruling on the Establishment Clause complaints, and whether evaluation of the counties’ claim of secular purpose for the ultimate displays may take their evolution into account. We hold that the counties’ manifest objective may be dispositive of the constitutional enquiry, and that the development of the presentation should be considered when determining its purpose.
The 2 written opinions seem to say that government violates the establishment clause when the Ten Commandments is displayed only with texts containing religious references but not when the Ten Commandments is displayed with a variety of monuments having historical references. However, the opinions of the Court in each case were supported by 4 justices, with a fifth justice concurring in the result but not joining the opinion of the Court. This failure of the Supreme Court to find majority support for a line of reasoning suggests that we will see many more years of litigation in this area with no more clarity than we had before.

(Hat tip to SCOTUSblog.)


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