A Closer Look at the Supreme Court Decisions in the Ten Commandments Cases
On June 27, 2005, the Supreme Court of the United States decided two critically important cases involving the display of the Ten Commandments. Both cases were decided by a deeply divided court with votes of 5-4. In the Texas case (Van Orden v. Perry) the Justices upheld the constitutionality of a Ten Commandments monument donated by the Fraternal Order of Eagles displayed outside the state capitol some 40 years ago. In the Kentucky case (McCreary County v. ACLU) the high court concluded that posting the Commandments inside a courthouse was unconstitutional.
Justice Stephen Breyer played a pivotal role in both cases. He voted against the display in Kentucky and cast the deciding vote in the Texas case which will keep thousands of monuments in place across America.
Justice Breyer wrote the opinion which was vital in keeping the Fraternal Order of Eagles Ten Commandments monument constitutional. The Supreme Court may have tests for religion cases, but, in reality, it interprets the Establishment Clause and the Free Exercise clause on a case by case basis, and does not always follow case law. Therefore, it often appears to contradict itself. In Van Orden, the display of the Ten Commandments on the state capitol is constitutional, but in McCreary, the portrait of the Ten Commandments inside the courthouse is unconstitutional. The words and the message appear to be identical. How is it possible the Supreme Court found one legal and one illegal?
This contradiction is the irony Justice Antonin Scalia discusses in his McCreary dissent. He feels the Supreme Court, and the United States Government, moreover, should follow its own precedent and historical traditions. Rightfully so, Justice Scalia thinks the current Supreme Court jurisprudence, with respect to religious cases, is inconsistent with the intentions of the America Constitution. Justice Scalia wonders how the Thanksgiving Proclamation, IN GOD WE TRUST, One Nation Under God, the inaugural prayer, and prayers to open legislative sessions are upheld and acceptable, yet the Ten Commandments in a Kentucky courtroom are unconstitutional.
From Justice John Paul Stevens:
Though this Court has subscribed to the view that the Ten Commandments influenced the development of Western legal thought, it has not officially endorsed the far more specific claim that the Ten Commandments played a significant role in the development of our Nations foundational documents (and the subsidiary implication that it has special relevance to Texas). Although it is perhaps an overstatement to characterize this latter proposition as idiotic, see Tr. of Oral Arg. 34, as one Member of the plurality has done, at the very least the question is a matter of intense scholarly debate. Compare Brief for Legal Historians and Law Scholars as Amicus Curiae in McCreary County v. American Civil Liberties Union of Ky., O. T. 2004, No. 03-1963, with Brief for the American Center for Law and Justice as Amici Curiae. Whatever the historical accuracy of the proposition, the District Court categorically rejected respondents suggestion that the States actual purpose in displaying the Decalogue was to signify its influence on secular law and Texas institutions. App. to Pet. for Cert. A-32.
From Justice Stephen Breyer:
One must refer instead to the basic purpose of those [Religious] Clauses. They seek too assure the fullest possible scope of religious liberty and tolerance for all. They seek to maintain that separation of church and state that has long been critical to the peaceful dominion that religion exercises in this country, where the sprit of religion and the spirit of freedom are productively united, reign[ing] together but in separate spheres on the same soil.
Government must neither engage in nor compel religious practices, that it must effect no favoritism among sects or between religion and nonreligion, and that it must work deterrence of no religious belief,
The government must avoid excessive interference with, or promotion of, religion.
But the Establishment Clause does not compel the government to purge from the public sphere all that in any way partakes of the religious. Such absolutism is not only inconsistent with our national traditions, but would also tend to promote the kind of social conflict the Establishment Clause seeks to avoid.
Neither can this Courts other tests readily explain the Establishment Clauses tolerance, for example, of the prayers that open legislative meetings; certain references to, and invocations of, the Deity in the public words of public officials; the public references to God on coins, decrees, and buildings; or the attention paid to the religious objectives of certain holidays, including Thanksgiving.
If the relation between government and religion is one of separation, but not of mutual hostility and suspicion, one will inevitably find difficult borderline cases. And in such cases, I see no test-related substitute for the exercise of legal judgment.
While the Courts prior tests provide useful guideposts and might well lead to the same result the Court reaches todayno exact formula can dictate a resolution to such fact intensive cases.
The case before us is a borderline case.
In certain contexts, a display of the tablets of the Ten Commandments can convey not simply a religious message but also a secular message (about proper standards of social conduct). And in certain contexts, a display of the tablets can also convey a historical message (about a historic relation between those standards and the law).
Here the tablets have been used as part of a display that communicates not simply a religious message, but a secular message as well. The circumstances surrounding the displays placement on the capitol grounds and its physical setting suggest that the State itself intended the latter, nonreligious aspects of the tablets message to predominate.
The group that donated the monument, the Fraternal Order of Eagles, a private civic (and primarily secular organization), while interested in the religious aspect of the Ten Commandments, sought to highlight the Commandments role in shaping civic morality as part of that organizations efforts to combat juvenile delinquency.
The tablets, as displayed on the monument, prominently acknowledge that the Eagles donated the display, a factor which, though not sufficient, thereby further distances the State itself from the religious aspect of the Commandments message.
It (together with the displays inscription about its origin) communicates to visitors that the state sought to reflect moral principles, illustrating a relation between ethics and law that the States citizens, historically speaking, have endorsed.
As far as I can tell, 40 years passed in which the presence of this monument, legally speaking, went unchallenged.
Those 40 years suggest that the public visiting the capitol grounds has considered the religious aspect of the tablets message as part of what is a broader moral and historical message reflective of a cultural heritage.
For these reasons, I believe that the Texas display serving a mixed but primarily non-religious purpose, not primarily advanc[ing] or inhibit[ing] religion and not creating an excessive government entanglement with religionmight satisfy this Courts more formal Establishment Clause tests.
At the same time, to reach a contrary conclusion here, based primarily upon the religious nature of the tablets text would, I fear, lead the law to exhibit a hostility toward religion that has no place in our Establishment Clause traditions. Such a holding might well encourage disputes concerning the removal of longstanding depictions of the Ten Commandments from public buildings across the Nation. And it could thereby create the very kind of religiously based divisiveness that the Establishment Clause seeks to avoid.
From Justice Antonin Scalia:
"On September 11, 2001 I was attending in Rome, Italy an international conference of judges and lawyers, principally from Europe and the United States. That night and the next morning virtually all of the participants watched, in their hotel rooms, the address to the Nation by the President of the United States concerning the murderous attacks upon the Twin Towers and the Pentagon, in which thousands of Americans had been killed. The address ended, as Presidential addresses often do, with the prayer God bless America. The next afternoon I was approached by one of the judges from a European country, who, after extending his profound condolences for my country's loss, sadly observed How I wish that the Head of State of my country, at a similar time of national tragedy and distress, could conclude his address God Bless _____. It is of course absolutely forbidden."
A model spread across Europe by the armies of Napoleon, and reflected in the Constitution of France, which begins France is [a]secularRepublic. Religion is to be strictly excluded from the public forum. This is not, and never was, the model adopted by America. George Washington added to the form of Presidential oath prescribed by Art, II sec. 1, cl. 8 of the Constitution, the concluding words so help me God.
Nor have the views of our people on this matter significantly changed. Presidents continue to conclude the Presidential oath with the words so help me God. Our legislatures, state and national, continue to open their sessions with prayer led by official chaplains. The sessions of this court continue to open with the prayer God Save the United States and this Honorable Court. Invocation of the Almighty by our public figures, at all levels of government remains commonplace. Our coinage bears the motto IN GOD WE TRUST and our Pledge of Allegiance contains the acknowledgment that we are a Nation Under God. As one of our Supreme Court opinions rightly observed, We are a religious people whose institutions presuppose a Supreme Being:
The same week that Congress submitted the Establishment Clause as part of the Bill of Rights for ratification by the States, it enacted legislation providing for paid chaplains in the House and Senate.
Those who wrote the Constitution believed that morality was essential to the well-being of society and that encouragement of religion was the best way to foster morality.
[W]ith all of this reality (and much more) staring it in the face, how can the Court possibly assert that the First Amendment mandates governmental neutrality between religion and non religion.
Todays opinion forthrightly (or actually, somewhat less than forthrightly) admits that it does not rest upon consistently applied principle.
If religion in the public forum had to be entirely nondenominational, there could be no religion in the public forum at all. If the opinions of the Supreme Court were consistent in its neutrality between religion and non religion, One cannot say the word God, or the Almighty, one cannot offer public supplication or thanksgiving, without contradicting the beliefs of some people that there are many gods, or that God or the gods pay no attention to human affairs.
As bad as the Lemon test is, it is worse for the fact that, since its inception, its seemingly simple mandates have been manipulated to fit whatever result the Court aimed to achieve.