Why Ten Commandments displays on government property are unconstitutional; the Supreme Court hears oral arguments in two Ten Commandments cases. What is this issue about and why should we care?

On December 13, 2004, seventeen national religious and secular organizations filed a joint friend of the court brief to the U.S. Supreme Court addressing the two Ten Commandments cases the Court is scheduled to begin hearing March 2, 2005, with a ruling expected sometime in the fall. The signatories to the brief are the American Humanist Association (publisher of the Humanist), the American Ethical Union, the Association of Humanistic Rabbis, Atheist Alliance International, the Covenant of Unitarian Universalist Pagans, Equal Partners in Faith, the Humanist Society, the Humanist Institute, HUUmanists, the Institute for Humanist Studies, the International Humanist and Ethical Union, Internet Infidels, the National Center for Science Education, the Secular Coalition for America, Skeptics Society, the Society for Humanistic Judaism, and the Unitarian Universalist Association.

The first case, Thomas van Orden v. Texas Governor Rick Perry, deals with whether a six-foot-tall red granite monument depicting the Ten Commandments, erected on the grounds of the state capitol of Texas, is an unconstitutional attempt to establish state sponsored religion. The second case, McCreary County v. American Civil Liberties Union of Kentucky, involves the "Foundations of Law" displays in the McCreary and Pulaski county courthouses that include the Ten Commandments alongside nine historical and legal documents as a "sampling of documents that influenced American law and government."

The amicus brief filed by the AHA, et al., provides important arguments for the Court to consider. As AHA President Mel Lipman points out, "This brief shows the perspective of those who are disenfranchised by public displays of the Ten Commandments. Endorsing a sectarian point of view isn't the business of government. Neither the age of unconstitutional displays nor the proximity of them to constitutional ones should have a bearing on the fact that state sponsored religious displays are unconstitutional."

Since maintaining separation of church and state is vital to a free society, it's important to review the arguments set forth by the brief and see how they work to preserve fairness and liberty.

The Establishment Clause

As civil libertarians are aware, the First Amendment begins with the words "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof." These two outwardly competitive mandates are referred to as the establishment clause and the free exercise clause, respectively. Aside from their unelaborated text, no further guidance was offered by the framers to instruct the government on how to undertake the difficult task of protecting religious freedoms while simultaneously ensuring government neutrality.

Since 1971, however, U.S. courts have used the test developed out of the Court's decision in Lemon v. Kurtzman as the paramount guiding framework to determine whether government conduct is constitutional under the establishment clause. Under what is called the Lemon test, as originally formulated, reviewing courts are required to consider three important points: whether the government activity in question has a secular purpose, whether the activity's primary effect advances or inhibits religion, and whether the activity fosters an excessive entanglement with religion. In these cases, the AHA brief argues that the first and second prongs of the Lemon test are violated by the Ten Commandments displays in both Kentucky and Texas. Essentially what this means is that the facts demonstrate that the government posted the Ten Commandments primarily for religious reasons and that the effect of posting them in the manner done has the primary effect of advancing religion. Indeed, the thrust of the brief's argument is that, because of both a constitutionally impermissible "purpose" and "effect" under Lemon, the Court should declare these government actions unconstitutional.

While it may seem that the government has clearly acted outside the scope of Lemon, however, there is always a chance that the Court could change the rules of the game. One of the issues it will decide with these cases is whether the Lemon framework should continue to even be used to decide establishment cases. Church-state separation proponents argue that Lemon provides a workable and dynamic approach because it embodies all of the values for which the establishment clause stands. I mention this now because the rest of this article--like the bulk of the brief--assumes that the Court will stay with the Lemon test in its analysis, thus making it clear that the state actors in Kentucky and Texas violated the establishment clause by posting the Ten Commandments in the way they did.

With respect to the public posting of the Ten Commandments, the Supreme Court has only decided one case that is "directly on point." In 1981 it held in Stone v. Graham that posting the Ten Commandments on classroom walls was unconstitutional because the purpose for posting them was plainly religious, despite the fact that the defendants had offered the claim that the Ten Commandments were the "fundamental legal code of Western civilization." As will be discussed below, this is conceptually identical to some of the purposes currently offered. Stone does not, however, state that it is never okay to post the Ten Commandments in schoolrooms, or anywhere else for that matter. Rather, the Court ruled that "an appropriate study of history, civilization, ethics, comparative religion, or the like" could render their posting constitutional and it's likely that this "exception" will be key to deciding whether or not the practices at issue in the current cases violate the establishment clause. The AHA brief argues that the displays before the Court in these cases don't, and weren't even meant to, qualify under this exception. It further argues that the historical evidence that exists to support the government's supposed purposes for posting the Ten Commandments is insufficient to allow them to qualify under this exception. Before we get into the actual arguments, however, it's helpful to understand to specific facts of the cases in question.

Case Backgrounds

In McCreary County the issue is the posting of the Ten Commandments on Kentucky county courthouse grounds and in school classrooms. In this case, the Ten Commandments were posted and reposted three times during the course of the litigation in an effort to make them constitutionally permissible. The first time, they were displayed alone and weren't part of "larger educational, historical, or retrospective exhibits." The second time, the commandments were surrounded by the complete text of other items (such as the national motto "In God We Trust") and by excerpts from others that specifically celebrated religion (such as a proclamation by President Ronald Reagan designating 1983 as the "Year of the Bible"). After being ordered by the Sixth District Circuit Court to immediately remove these modified displays and refrain from erecting any similar ones in the future, the Kentucky authorities posted a third version. The new "courthouse version" included the entire "Star Spangled Banner," Declaration of Independence, Mayflower Compact, Bill of Rights, Magna Carta, National Motto, Preamble to the Kentucky Constitution, Ten Commandments, a statue of Lady Justice, and a one-page prefatory document entitled "The Foundations of American Law and Government Display." The new "schoolhouse version" included all of these documents (aside from the prefatory document) and the school board resolution allowing the commandments to be displayed.

The third versions of the displays contain the Kentucky authorities' most recent "formal" or proffered justifications for posting the Ten Commandments. The prefatory description for the courthouse displays states:

   [This] display contains documents that
   played a significant role in the foundation
   of our system of law and government
   .... The Ten Commandments
   have profoundly influenced the formation
   of Western legal thought and the
   formation of our country. That influence
   is clearly seen in the Declaration
   of Independence, which declared that,
   "We hold these truths to be self-evident,
   that all men are created equal,
   that they are endowed by their Creator
   with certain unalienable Rights, that
   among these are Life, Liberty, and the
   pursuit of Happiness." The Ten Commandments
   provide the moral background
   of the Declaration of
   Independence and the foundation of
   our legal tradition.

The schoolhouse displays included the following justification:

   We believe these ... documents positively
   contribute to the educational foundations
   and moral character of students in
   our schools.... It is our opinion that
   these ... documents, taken as a whole,
   are valuable examples of documents that
   may instill qualities desirable of the
   students in our schools, and have had
   particular historical significance in the
   development of this country.

The district court found that all of the modified displays violated the Constitution and ordered their removal.

Van Orden v. Perry is different from McCreary in a couple of ways. In this case, the Ten Commandments are displayed on a single granite monument that stands six feet tall and three and a half feet wide. It--like hundreds of other such monuments displayed on public property around the country--was a gift from the Fraternal Order of Eagles. Texas accepted this particular monument in 1961 and placed it on the capital grounds. In addition to the Ten Commandments text, the monument contains several symbols that are etched into it. These include an eye inside a pyramid, closely resembling the symbol displayed on the one-dollar bill; two Stars of David; depictions of two tablets with ancient Hebrew script; a symbol representing Christ (made up of two Greek letters, Chi and Rho, superimposed on each other); and an American eagle grasping the American flag. Just below the text of the commandments, the monument bears the inscription: "Presented to the People and Youth of Texas by the Fraternal Order of Eagles of Texas 1961."

The purported purpose for posting this monument was to "recognize and commend a private organization for its efforts to reduce juvenile delinquency." In 1993, several years after the purported secular purpose was offered, the monument was repositioned on the direct line between the legislative chambers, the executive office of the governor, and the Supreme Court to continue "to reflect the role of the Commandments in the making of law." Unlike the Sixth Circuit Court in McCreary, here the Fifth Circuit determined that the Ten Commandments monument is constitutional under Lemon and it has allowed it to remain on the capitol grounds.

The Religious Intent of the Government's Position

In order to decide whether the government activity in question has a predominantly secular purpose under Lemon, the courts have had to decipher "sham" secular purposes from "sincere" ones by employing comprehensive examinations of proffered and actual purposes. This analysis itself is at issue now, as is shown by the Court's framing of the issues it will be deciding. The Court will rule on whether "a prior display by the government in a courthouse containing the Ten Commandments that was enjoined by a court permanently taints and thereby precludes any future display by the same government when the subsequent display articulates a secular purpose and where the Ten Commandments is a minority among numerous other secular historical documents and symbols."

While the AHA brief doesn't argue that future efforts to display the Ten Commandments will be "permanently tainted," it does support the Supreme Court precedent that reasonably asks the courts to examine the content, context, and history of the displays in order to distinguish sham secular purposes from sincere ones. This is important because, as the situation in McCreary demonstrates, it isn't difficult to concoct a secular purpose in order to oppose removal of a religious display. This examination is also necessary in situations like Van Orden, where the purpose for erecting a specifically religious monument must be evaluated in the context of the conduct and activity occurring after a proposed secular purpose is offered.

But even the most cursory analysis of the content, context, and history of the displays at issue shows that the government's proffered secular purposes are a sham and that religious purposes predominate. In Van Orden, the desire to "commend an organization for its work to combat juvenile delinquency" is shown to be a sham because, although it's an outwardly secular interest, it's accomplished by religious means. At best this makes the government's proffered purpose constitutionally suspect, especially in light of the plainly religious (specifically monotheistic) nature of the Ten Commandments. Also, it's important to consider the government's stated purpose for relocating the monument to "reflect the role of the Commandments in the making of law" as indicative of their true purposes. This relocation has no connection whatsoever to the original supposed effort to honor a private organization and constitutes further evidence of the religious motivations for erecting and maintaining the display on public property in the first place.

In McCreary it's undisputed that the original purpose was religious. It wasn't until correctly ordered by the Sixth District Court to remove the displays that the government suggested it was trying to show that the Ten Commandments provide the "moral background of our Declaration of Independence" and "the foundation of American law and government." As stated before, this is conceptually identical to the outwardly secular assertions of purpose that were rejected by the Supreme Court in Stone. Beyond this clear evidence of religious motivation, however, the final modified displays reveal that the government failed even to exert an effort to educate citizens about the purported civic, legal, or historical value of the Ten Commandments. All that it did was--without any historical proof, substantiated commentary, or plausible support--display the religious text among other documents that do have civic or patriotic value. These non-efforts shouldn't qualify for the Court's approval as "an appropriate study of history, civilization, ethics, comparative religion, or the like."

The larger reason that these displays shouldn't qualify as "an appropriate study" is that the government's purported historical purposes are difficult or impossible to effectuate given what is known about U.S. history. The most fundamental expressions of the American system of government--the Declaration of Independence, the Constitution, and the Bill of Rights--all explicitly reject the religious ideology propounded in the Ten Commandments. Thomas Jefferson, the author of the Declaration of Independence, rejected claims that Christianity influenced the common law. It's also understood that the reference to God in the Declaration of Independence didn't refer to the God who gave Moses the Ten Commandments but, rather, to the "watchmaker" God of eighteenth-century deism. Furthermore, the Constitution and the Bill of Rights reject the encroachment of religious influence even more strongly than the Declaration does. Neither even mentions God, let alone refers to the Ten Commandments. Furthermore, the first four commandments (of most versions of the Decalogue) would plainly violate the Constitution because the state can't prohibit idolatry, the worship of other gods, or blasphemy--nor can it mandate respect for the Sabbath--without violating the First Amendment's establishment, free exercise, or free speech clauses.

While some of the original colonies did try to experiment with legal codes based on the Ten Commandments, these approaches were isolated and unsuccessful and were quickly abandoned in the early 1700s in favor of systems based on English common law. Such unsuccessful efforts clearly don't qualify as a "profound influence on the formation of Western legal thought" or provide proof of the "moral background of the Declaration of Independence and the foundation of our legal tradition." What history does show is that the Ten Commandments influenced some of the founding fathers in their private lives, which they kept separate from their public offices, and which gave rise to the secularized constitutional notion that church and state should be separate. It's this notion that is violated by the government's efforts to promote religion through the inappropriate public display of the Ten Commandments.

Posting the Ten Commandments Advances Religion

In order to determine whether a government action has the primary effect of advancing religion, the courts ask whether an objective observer (or a "reasonable person") would perceive the action as a state endorsement of religion. This part of the Lemon test is designed to find out whether the government has conveyed a message that a religion is favored, preferred, or promoted over other beliefs. In addition to the government's failure to integrate the Ten Commandments displays into an appropriate educational curriculum, as noted above, there are several things that would lead a reasonable person to conclude that these displays constitute state endorsement of a specific faith.

All of the displays at issue involve the Ten Commandments being interwoven with secular objects and placed on public property that is necessarily used by theists and nontheists alike. Rather than neutralizing the religious impact of the Ten Commandments, as the government suggests, this conveys the message that Christian and Jewish religious messages have a community value equal to civic and patriotic messages and that the government endorses those religious messages just as it does the civic and patriotic messages. For instance, in Van Orden there is an etching of a bald eagle gripping an American Flag right above the Ten Commandments. This specifically links religion and civil government (without any explanation of the alleged links between religion and civil government, which could arguably save the display under Stone). Also, the monument is located within the vicinity of secular historical monuments, further increasing the likelihood that a reasonable person might believe that the state is endorsing the religious message embodied in the monument. This same problem is apparent in McCreary, where the Ten Commandments are displayed with several secular documents without being successfully integrated into their secular subject matter.

For the reasonable person, the perception of government endorsement isn't ameliorated by the fact that the displays were privately funded because "the mere posting of the copies under the auspices of the legislature provides the official support of the State" under Stone. And from a logical standpoint, how could one suggest that the essence of a foundational article of faith for Christian and Jewish adherents could somehow be rendered religiously neutral by allowing a private individual or entity to finance its display?

Then there is the matter of the government acting to endorse one religion over another or to endorse religion generally. Both the establishment clause and the "effects" prong of the Lemon test exist to prevent the government in a pluralistic society from doing this. Government posting of the Ten Commandments on public grounds constitutes a government endorsement of certain religious sects to the exclusion of religious minorities and nontheists--and the posting of any one version of the Ten Commandments endorses certain religious denominations to the exclusion of others that rely on materially different versions of the commandments.

The exclusion of religious minorities and nontheists is apparent upon a reading of the first line of the Ten Commandments, which states, "I am the Lord thy God," and which illustrates both the monotheistic and the sectarian character of the displays. Similarly, because there are at least five different versions of the commandments, not to mention variant translations and abridgements, the posting of any one of them to the exclusion of the others indicates that the government is exercising an unconstitutional denominational preference. It not only infringes upon the sectarian differences among various Christian denominations that were central to the origins of our republic but it also conveys the message from the state that the Protestant version is "correct" and the Muslim, Jewish, and Catholic versions aren't. It is precisely for reasons such as these that the Constitution's drafters enacted the First Amendment and why the U.S. government should avoid giving its imprimatur to any version of the Ten Commandments.

Why This Matters

There is a tendency among some people to regard court cases of this sort as petty hair-splitting on small matters and work that distracts activists from more pressing concerns. There are two reasons why this view is mistaken.

First, activists naturally tend to specialize. Some are involved in the field of church-state separation, some with abortion rights, some with the integrity of science education, some with the environment, some with war, some with nursing home reform, and so on. One can't reasonably place all activist concerns on a single list, number these concerns in the order of their importance, and expect all activists to unite in tackling and solving the first problem before moving onto the second. People gravitate to the forms of activism that interest them personally in much the same way that people gravitate toward particular careers. Thus there are a plethora of activist causes, great and small, at work at any given point in time.

Second, activists are most effective in securing success if they address a problem while it is still small. It benefits no one, and indeed causes great harm, to wait for it to become large enough to attain a higher position on some national or global priority list. Thus James Madison wrote in his 1785 Memorial and Remonstrance Against Religious Assessments, penned in opposition to a bill in the Virginia General Assembly intended to provide for teachers of the Christian religion, that "it is proper to take alarm at the first experiment on our liberties. We hold this prudent jealousy to be the first duty of Citizens."

Where promoters of government support for religion are concerned, little things have a way of becoming big things. Each small action in this direction is used to justify the next larger action. Thus the legal appearance of "In God we trust" on currency has been applied as an argument toward legitimizing those same words being posted in courthouses and public schools. By the same token, it can be expected that if a Ten Commandments monument can be placed on government property then a Ten Commandments lesson can be mandated in the public school curriculum and perhaps even a reference to the Ten Commandments added to the Pledge of Allegiance. Over time this process could result in the virtual establishment of religion, potentially leading to a theocratic state, one of the very things the First Amendment was written to prevent. Thus church-state activists work to nip every such effort in the bud.

Jacob Rolls, a 2004 graduate of American University's Washington College of Law, drafted the AHA brief for which Betty Hileman is the attorney of record. Useful ideas for the brief were provided by Michael Newdow. The complete text of the brief can be read online at www.americanhumanist.org/ TenCommandmentsBrief.pdf.