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1308262322000

I. INTRODUCTION
Over the last two decades, there has emerged a growing realization among all sectors of society that we have failed to instill in our children either the ability or the desire to distinguish between right and wrong. Our youth are, by their own account, morally destitute. The absence of virtue and moral restraint is becoming more and more evident as our culture embraces moral relativism, and parents attempt to raise children under the misguided belief that our society possesses some independent moral compass. Many legislators and educators realize that efforts to inculcate virtue apart from a common standard or at the very least some consensus as to what conduct and character traits are desirable is an exercise in futility. There is a growing desire to display the Ten Commandments in all public venues because they traditionally have represented a moral floor for acceptable behavior and served as an antecedent to obedience to law. The absence of their influence in today's culture is increasingly noted by eminent sources, including educators, legislators, jurists and parents, making the case for the return of character education in our schools.

Use of the Ten Commandments for their civic and moral significance should be not only permissible, but indispensable in encouraging age-old maxims of good citizenship. As the United States Supreme Court once stated, "this is a religious nation." The Court has discussed the historical role of religion in our society and concluded that "[t]here is an unbroken history of official acknowledgment by all three branches of government of the role of religion in American life from at least 1789." Lynch v. Donnelly, 465 U.S. 668, 674 (1984). Regrettably, however, courts have become increasingly hostile to public acknowledgement of the foundational role that the Judeo-Christian religion in general, and the Ten Commandments in particular, have played in the nation's heritage. In the past few years especially, courts have repeatedly struck down public displays of the Ten Commandments, all in the name of the Establishment Clause.

II. UNITED STATES SUPREME COURT DECISIONS
ADDRESSING RELIGIOUS DISPLAYS ON GOVERNMENT PROPERTY

A. STONE v. GRAHAM

The Supreme Court's only case addressing the display of the Ten Commandments in a public place is Stone v. Graham, 449 U.S. 39 (1980). In Stone, the Supreme Court struck down a Kentucky statute mandating the display of the Ten Commandments in public schools. The statute provided that plaques bearing the Ten Commandments, measuring sixteen inches by twenty inches, and purchased with private contributions, be displayed in every elementary and secondary classroom of the state. Ky. Rev. Stat. Ann. 158.178 (Banks-Baldwin 1980). The plaque included the following notation concerning the purpose of the display: "The secular application of the Ten Commandments is clearly seen in its adoption as the fundamental legal code of Western Civilization and the Common Law of the United States." Id. 158.178 (2). Without the benefit of oral argument or briefs on the merits, the Supreme Court held that the statute violated the Establishment Clause because such use of the Ten Commandments had "no secular legislative purpose." "The pre-eminent purpose for posting the Ten Commandments . . . is plainly religious in nature," and the Ten Commandments "do not confine themselves to arguably secular matters." 449 U.S. at 41.
The Court offered minimal analysis and simply labeled the Ten Commandments "an undeniably sacred text," comparing the posting of the Ten Commandments to the daily Bible reading held unconstitutional in Abington Sch. Dist. v. Schempp, 374 U.S. 203 (1963). Stone, 449 U.S. at 41. But the Court then suggested that the constitutional problems disappear if "the Ten Commandments are integrated into the school curriculum, where the Bible may constitutionally be used in an appropriate study of history, civilization, ethics, comparative religion, or the like." Id. at 42. Thus, on the one hand, the Court condemned the posting of the Ten Commandments as serving "no such educational function," and on the other hand, approved of them, religious provisions included, for use as part of a course in schools. Id. at 42. At least indirectly then, the Court acknowledged the importance of context in a display of the Ten Commandments.
In his dissent, Justice Rehnquist described the majority's decision as "a cavalier summary reversal," id. at 47, and stated that the majority's "summary rejection of a secular purpose articulated by the legislature and confirmed by the state court is without precedent in Establishment Clause jurisprudence." Id. at 43.
Since Stone v. Graham, various Supreme Court Justices have commented in other contexts about displays of the Ten Commandments. In County of Allegheny v. ACLU, 492 U.S. 573 (1989), Justice Stevens said:

[A] carving of Moses holding the Ten Commandments, if that is the only adornment on a courtroom wall, conveys an equivocal message, perhaps of respect for Judaism, for religion in general, or for law. The addition of carvings depicting Confucius and Mohammed may honor religion, or particular religions, to an extent that the First Amendment does not tolerate any more than it does the permanent erection of a large Latin cross on the roof of city hall. Placement of secular figures such as Caesar Augustus, William Blackstone, Napoleon Bonaparte, and John Marshall alongside these three religious leaders, however, signals respect not for great proselytizers but for great lawgivers. It would be absurd to exclude such a fitting message from a courtroom, as it would to exclude religious paintings by Italian Renaissance masters from a public museum.

Id. at 652-53 (quotations omitted).
Just recently, however, in voting to deny review in Books v. City of Elkhart, 532 U.S. 1058 (2001), Justice Stevens indicated his approval of the Seventh Circuit's decision to strike down a display of the Ten Commandments in front of a municipal building. Id. at 1059. He was troubled by the fact that the first two commandments addressing man's relationship to God were in "significantly larger font" in the display. "The graphic emphasis placed on those first two lines is rather hard to square with the proposition that the monument expresses no particular religious preference." Id.
Since his dissent in Stone, Justice Rehnquist has also addressed the constitutionality of Ten Commandments displays. In 1997, he reportedly made a statement, justifying the presence of Mohammad in the north wall frieze of the United States Supreme Court courtroom: "The depiction of Mohammad was intended only to recognize him, among many other lawgivers, as an important figure in the history of law; it is not intended as a form of idol worship. It is part of an architectural and aesthetic unit that has been in place more than sixty years." See Suhre v. Haywood County, 55 F. Supp. 2d 384, 394 (W.D.N.C. 1999) (attributing the quote to Justice Rehnquist).
In dissenting from the Court's denial of review in Books v. City of Elkhart, Justice Rehnquist, joined by Justices Scalia and Thomas cautioned against expanding Stone outside the public school context. Establishment Clause concerns are heightened "where the State exerts great authority and coercive power over students through mandatory attendance requirements. Those concerns are absent here, where the Ten Commandments monument stands outside the city's Municipal Building." Id. at 1061 (internal quotation omitted). Justice Rehnquist continued:
[W]e have never determined, in Stone or elsewhere, that the Commandments lack a secular application. To be sure, the Ten Commandments are a sacred text in the Jewish and Christian faiths, concerning, in part, the religious duties of believers. Undeniably, however, the Commandments have secular significance as well, because they have made a substantial contribution to our secular legal codes.

Id.

B. LYNCH v. DONNELLY And ALLEGHENY COUNTY v. ACLU Subsequent to Stone v. Graham, the Supreme Court decided two other cases involving the display of religious symbols on government property. Unlike Stone v. Graham, Lynch v. Donnelly, 465 U.S. 668 (1984) and Allegheny County v. ACLU, 492 U.S. 573 (1989) were decided in accordance with the Supreme Court's normal deliberative process - with full briefing and oral argument. More importantly, they establish what Stone merely hinted at, which is that context is the linchpin when evaluating the constitutionality of religious symbols on government property. In other words, religious symbols that might, standing alone, raise Establishment Clause concerns, are permissible when presented in the context of a broader, secular display. Consequently, Lynch and Allegheny County arguably provide a better analytical framework for evaluating the constitutionality of Ten Commandments displays, though lower courts often downplay their significance.
In Lynch v. Donnelly, the Court employed the much-maligned Lemon test and upheld the constitutionality of a creche included in a Christmas display. With respect to Lemon's requirement of a secular legislative purpose, the Court stated that a display has no secular purpose only if "there [is] no question that the [display] or activity was motivated wholly by religious consideration." 465 U.S. at 680 (1984)). Holding that the display in Lynch served a legitimate secular purpose, the Court underscored the historical context in ascertaining the purpose behind displays:

The city . . . has principally taken note of a significant historical religious event long celebrated in the Western World. The creche in the display depicts the historical origins of the traditional event long recognized as a National Holiday. . . . The display is sponsored by the City to celebrate the Holiday and to depict the origins of that Holiday. These are legitimate secular purposes.

Id. at 680-81.
Moving to the second prong of the Lemon test, the Court held that the display did not advance religion in a way more significant than any number of other government benefits or endorsements previously found to be constitutional:

[T]o conclude that the primary effect of including the creche is to advance religion in violation of the Establishment Clause would require that we view it as more beneficial to and more an endorsement of religion, for example, than expenditure of large sums of public money for textbooks supplied throughout the country to students attending church-sponsored schools, Board of Educ. v. Allen, 392 U.S. 236 (1968); expenditure of public funds for transportation of students to church-sponsored schools, Everson v. Board of Educ., 330 U.S. 1 (1947); federal grants for college buildings of church-sponsored institutions of higher education combining secular and religious education, Tilton v. Richardson, 403 U.S. 672 (1971); noncategorical grants to church-sponsored colleges and universities, Roemer v. Board of Public Works, 426 U.S. 736 (1976); and the tax exemptions for church properties sanctioned in Walz v. Tax Comm'n, 397 U.S. 664 (1970). It would also require that we view it as more of an endorsement of religion than the Sunday Closing Laws upheld in McGowan v. Maryland, 366 U.S. 420 (1961); the release time program for religious training in Zorach v. Clauson, 343 U.S. 306 (1952); and the legislative prayers upheld in Marsh v. Chambers, 463 U.S. 783 (1983).
465 U.S. at 681-82.
The Court emphasized further the passive nature of the creche as a symbol of the nation's religious heritage, stating that "the fears and political problems that gave rise to the Religion Clauses in the 18th Century are of far less concern today." Id. at 686 (internal quotation omitted).

We are unable to perceive the Archbishop of Canterbury, the Bishop of Rome, or other powerful religious leaders behind every public acknowledgment of the religious heritage long officially recognized by the three constitutional branches of government. Any notion that these symbols pose a real danger of establishment of a state church is farfetched indeed.
Id.
In a concurring opinion in Lynch, Justice O'Connor introduced her "endorsement" test. 465 U.S. at 688 (O'Connor, J., concurring). She suggested that whether a government's actions inappropriately advance or inhibit religion depends upon whether they can reasonably be interpreted as governmental endorsement or disapproval of religion. Id. at 692. The Court embraced and further refined Justice O'Connor's concept of endorsement as it applies to government religious displays in Allegheny v. ACLU, 492 U.S. 573 (1989).
In Allegheny, the Court examined two holiday displays on public property: 1) a creche bearing a banner that proclaimed "Glory to God in the highest," standing alone on the Grand Staircase of the county courthouse; and 2) a menorah displayed as part of a larger winter holiday exhibit in front of the City-County building, which included a Christmas tree and a sign saluting liberty. Id. at 598. The Court held that the creche display violated the Establishment Clause, but that the menorah and Christmas tree display did not. Id. at 600. In applying Justice O'Connor's endorsement test, the Court focused on content and context, examining the physical setting of the displays. "The government's use of religious symbolism is unconstitutional if it has the effect of endorsing religious beliefs, and the effect of the government's use of religious symbolism depends upon its context." Id. at 597. The appropriate standard for judging the context of the display was what a reasonable observer would think. Id.
Applying this standard to the creche, the Court determined that "it sends an unmistakable religious message." Id. at 598. "The creche stands alone" such that "nothing in the context of the display detracts from the creche's religious message." Id. The creche's location on the Grand Staircase, the main and most beautiful part of the building, was also problematic since "[n]o viewer could reasonably think that it occupies this location without the support and approval of the government." Id.
By contrast, the Court held that the menorah was constitutional because the accompanying Christmas tree and the sign saluting liberty neutralized the religious dimension of the menorah display and emphasized its secular dimensions. Id. at 616-19. Justice Blackmun, the only Justice who dissented in Lynch, agreed that the inclusion of a menorah in a holiday display did not endorse Judaism, and acknowledged that the Christmas holiday had attained a sort of "secular status" in our society. 492 U.S. at 616.

The Court's analyses in Lynch and Allegheny ought to carry significant weight in determining the constitutionality of any religious symbol on public property. They arguably limit the precedential value of the Court's decision in Stone v. Graham, because unlike Stone, they set forth a full analytical framework for evaluating all religious displays, including the Ten Commandments. Nevertheless recently, many courts have relied more upon the Court's superficial analysis in Stone, than upon Lynch and Donnelly in evaluating Ten Commandments displays, with the unfortunate result being that such displays are struck down, irrespective of context.


III. LOWER FEDERAL COURT DECISIONS ADDRESSING THE CONSTITUTIONALITY OF TEN COMMANDMENT DISPLAYS IN
PUBLIC PLACES

A. 1990s Cases

Until recently, courts largely followed the teachings of Lynch and Donnelly and evaluated the constitutionality of Ten Commandments displays by looking at the context of such displays. Thus, Ten Commandments displays were struck down only where they were the sole object in the governmental display. For example, in Harvey v. Cobb County, Georgia, 811 F. Supp. 669 (N.D. Ga. 1993), aff'd, 15 F.3d 1097 (11th Cir. 1994), a Georgia federal court held that a three-by-five foot framed panel of the Ten Commandments displayed alone on a courthouse wall had the effect of endorsing religion. The court enjoined the display because, like the creche in Allegheny, the Ten Commandments was hung high on a prominent wall with no "countervailing secular passages or symbols" to detract from its religious message. Harvey, 811 F. Supp. at 678. Nevertheless, the court described how the Ten Commandments could be displayed in a public place, consistent with the Supreme Court's Establishment Clause jurisprudence and even stayed the injunctive order for four months to give the county, "an opportunity to develop an educational display including the Ten Commandments panel." Id. at 678-79.
The court expressly stated that an appropriate educational display which included the Ten Commandments would pass constitutional muster. Id. at 678. The court's example of such a display would include "all the various moral, historical, and political influences on our legal system such as the Code of Hammurabi, the Code of Justinian, and passages from early English cases." Id. The court also cited Justice Stevens' concurrence in Allegheny, 492 U.S. at 652, in which the Justice provided an example of an appropriate display that could include a carving of Moses holding the Ten Commandments, Confucius, Mohammed, and "secular figures such as Caesar Augustus, William Blackstone, Napoleon Bonaparte, and John Marshall alongside." Thus, the central holding of Harvey turned on context: a plaque of the Ten Commandments may be displayed as part of an exhibit designed to inform the public about a topic to which the Ten Commandments are relevant.
Similarly, in State v. Freedom from Religion Found., 898 P.2d 1013 (Colo. 1995), the Colorado Supreme Court upheld the display of a Ten Commandments monument on the grounds of the State Capitol. The monument in the Colorado case was situated in an outdoor park in downtown Denver, among a number of other monuments and tributes commemorating various historical events, characters, and concepts. Id. at 1015-16. Concluding that the display was appropriately included in such a forum, the court reiterated the secular significance of the Ten Commandments:

All the experts who testified at trial agreed that, at least to the extent that the Commandments established ethical or moral principles, they were expressions of universal standards of behavior common to all western societies. It was agreed that these moral standards, as influenced by the Judeo-Christian tradition, have played a large role in the development of the common law and have formed a part of the moral background for the adoption of the national constitution.
898 P.2d at 1024. The court held that the display "fits within the melange of historical commemorative accounts found in Lincoln Park." Moreover, "the display of monuments in Lincoln Park teaches a history of rich cultural diversity--due to our past it would be inaccurate to ignore a history that includes religion." Id. at 1025.
In Suhre v. Haywood Cty., 55 F. Supp. 2d 384, 399 (W.D.N.C. 1999), the court upheld the constitutionality of a display featuring the Ten Commandments next to a substantially larger sculpture of Lady Justice in a county courtroom. The court ruled that the display did not violate the Establishment Clause because the display as a whole did not convey a religious message.
One federal appellate court did uphold a display with the Ten Commandments alone, but the case was decided before Stone, as well as Lynch and Donnelly. See Anderson v. Salt Lake City Corporation, 475 F.2d 29, 34 (10th Cir. 1973) (rejecting an Establishment Clause challenge to an illuminated, permanent display of a monument depicting the Ten Commandments on the grounds of a courthouse, and holding that the monument was merely a "depiction of a historically important monument with both secular and sectarian effects," presented primarily for its historical significance). Moreover, in Summum v. Callahan, 130 F.3d 906, 913 n.8 (10th Cir. 1997), the Tenth Circuit questioned the continued validity of Anderson in light of Stone.
B. Books v. City of Elkhart and Progeny
Beginning with Books v. City of Elkhart, 235 F.3d 292 (7th Cir. 2000), however, courts have minimized the role of context in evaluating the constitutionality of Ten Commandments displays. Books involved a display of the Ten Commandments that also included the "all-seeing eye," an American Eagle grasping an American flag, two stars of David, two Greek letters - Chi and Rho, and a small scroll indicating that the monument was presented by the Fraternal Order of Eagles. The monument was located on the lawn of the municipal building, and nearby were a war memorial and a freedom monument. The plaque on the freedom monument read: "Behold, friend you are now on hallowed ground for here burns freedom's holy light." Id. at 295-96. The trial court upheld the constitutionality of the display, ruling that a reasonable observer would find that the monument was part of the City's overall collection of displays of historical and cultural significance. 79 F. Supp. 2d 979, 1006 (N.D. Ind. 1999).
The court of appeals reversed, however, holding that the display lacked a secular purpose, and that a reasonable observer would perceive a governmental endorsement of religion from the display. 235 F.3d at 307. The court's decision that the display lacked a secular purpose was based primarily on statements made by various clergy at the dedication of the monument in 1958.

The participation of these influential members of several religious congregations makes it clear that the purpose for displaying the monument was not only to provide youths with common code of conduct to guide their participation in the civil community but also to urge the people of Elkhart to embrace the specific religious code of conduct taught in the Ten Commandments. We cannot escape the conclusion that the purpose in displaying this monument was to promote religious ideals.

Id. at 303. The court also inferred that religious purposes motivated the display from the content of the Ten Commandments themselves. "[W]e do not think it can be said that the Ten Commandments, standing by themselves, can be stripped of their religious, indeed sacred, significance and characterized as a moral or ethical document." The court found the religious nature of the text enhanced by the Jewish and Christian symbols at the bottom of the tablet. Id. at 302.
In similar vein, the court of appeals held that the display in Books advanced religion because a reasonable observer would perceive a governmental endorsement of religion.

Here, in front of the building that houses the governmental departments of the City, stands a religious message. This granite monument is a permanent fixture on the grounds of the seat of government. As viewed by the passer-by or by an individual approaching the building, the monument certainly cannot be fairly characterized as a component of a comprehensive display of the cultural heritage of the people of Elkhart. Rather, it stands, as the City intended it to be when it dedicated the monument on Memorial Day in 1958, as a sole and stark reminder of the specific injunctions contained in the Commandments. Indeed, the surrounding area enhances the dignity and the primacy of the Commandments. Above the door of the Municipal Building are the Latin words "Dedicatum Justitia." Those who view the Ten Commandments are thus informed that the role of the government in that location is to do justice; the only "law" displayed for doing justice is the monument bearing the Ten Commandments. The only other display on the lawn of the Municipal Building is the War Memorial that reminds the onlooker that the space in front of the Municipal Building is "hallowed ground." The person approaching the seat of government is thus informed that, at that location, the government goes about the business of doing justice, that the only "law" displayed is the Commandments, and that these Commandments are displayed on land designated by the government as "hallowed ground."

Id. at 306 (citations omitted).

The court gave lip service to the Supreme Court's analyses in Lynch and Allegheny, but the court's conclusions are arguably irreconcilable with those cases. As the dissent argued, the display in Books is actually less religious than the display in Lynch. The creche in Lynch is solely a religious symbol, while the Ten Commandments are both religious and secular because six of the commandments form the basis of the nation's laws. Id. at 317 (Manion, J., dissenting). Judge Manion explained further:

True, there were many more holiday displays present in Lynch than are located in the 25-foot-wide courtyard at issue here, but Elkhart's display still includes more than the total of three involved in Allegheny. In Allegheny, in addition to the menorah, there stood only a Christmas tree and a sign stating "Salute to Liberty." Compared to Allegheny's constitutional "salute to liberty" display, Elkhart's cultural and historical display more fully neutralizes the religious dimension of the Ten Commandments. In short, if the menorah was constitutional in Allegheny, the Ten Commandments display must be in this case.

Id. at 317.

The court of appeals' secular purpose analysis in Books is also more reflective of Stone than Lynch or Allegheny. As did the Court in Stone, the Seventh Circuit court summarily rejected the government's articulated secular purpose for the display, ignoring the Supreme Court's teaching that 1) government actors may have religious motives for enacting a law or policy, provided they also have a legitimate secular purpose, see, e.g., Board of Education of Westside Community Sch. v. Mergens, 496 U.S. 226, 249 (1990) (plurality), and 2) only one secular purpose need exist. See Lynch v. Donnelly, 465 U.S. at 681 n.6. Moreover, the Seventh Circuit focused primarily on the statements of private citizens at the monument's dedication almost a half century ago, long before a ban on governmental endorsement of religion was read into the Establishment Clause. The court virtually ignored the purposes articulated by the Elkhart City Council for retaining the monument once the ACLU challenged its constitutionality.
Specifically, the City Council decided to retain the Ten Commandments monument because as one of the earliest codes of conduct, the Ten Commandments had a significant impact on the development of the fundamental legal principles of Western Civilization. The City Council also noted that "the monument contains symbols that reflect the cross cultural and historical significance of the Ten Commandments" and that the monument serves as a recognition of those roots. See id. at 313 (Manion, J., dissenting). Yet, as the dissent observed:
The court acknowledges the validity of Elkhart's asserted secular purposes, stating "the text of the Ten Commandments no doubt has played a role in the secular development of our society and can no doubt be presented by the government as playing such a role in our civic order." Yet the court concludes that "the purpose in displaying the Ten Commandments monument was not secular." How can the court on one hand recognize the legitimacy of this purpose and on the other conclude that Elkhart lacks a legitimate secular purpose for leaving the Ten Commandments monument in place? Apparently, the court just doesn't believe that the City of Elkhart's statement of secular purposes is sincere and not a sham. [A]bsent some evidence that the [City] Council's stated reasons for its decision are insincere, we should defer to those asserted justifications. This is in keeping with the well settled maxim that courts are "reluctant to attribute unconstitutional motives to the States, particularly when a plausible secular purpose for the State's program may be discerned from the face of the statute." Mueller v. Allen, 463 U.S. 388, 394-95 (1983). This is true whether the governing body is a state legislature or a city council.

Id. at 313-14.

Whether the City of Elkhart's Ten Commandment monument was truly a part of a secular display may be debatable. The other items in the Elkhart display were largely unrelated to the Ten Commandments monument, although the same might be said about the menorah display in Allegheny. In a subsequent case, however, the Seventh Circuit strayed even further away from the Supreme Court's holdings in Lynch and Allegheny when it struck down a display featuring the Ten Commandments as well as a number of other historical texts.
In Indiana Civil Liberties Union v. O'Bannon, 259 F.3d 766 (7th Cir. 2001), the display included the Bill of Rights from the United States Constitution and the Preamble to the Indiana Constitution. The historical documents were to be on the reverse side of the granite tablets containing the Ten Commandments. The display was on the Indiana statehouse grounds, which included several other monuments, such as a marker honoring the women of Indiana, two friezes depicting civil war scenes, a marker describing the statehouse's history, and statues of Christopher Columbus, George Washington, a coal miner, and two Indiana governors. 259 F.3d at 768-69. The court nevertheless held the display unconstitutional.
Although the record evidence included a statement from Indiana's governor about the historical significance of the display , and, unlike Books, there were no religious statements from clergy in support of the display, the court held that there was no secular purpose for the display. "The Ten Commandments is still an inherently religious text, and we conclude that the State has not articulated a valid secular justification for planning to erect the monument." Id. at 771. Two facts bothered the court: 1) the planned monument retained the first four "religious commandments" as well as the secular ones, and 2) the text of the other historical documents "stands apart." Therefore "the monument's physical design belies any suggestion that these texts are presented as a whole to remind viewers of the core values and legal ideals of our nation." Id. at 772.
The court also concluded that a reasonable person would think that the display endorsed religion. Although admitting that the statehouse grounds were somewhat "akin to a museum" because of all the other statues and monuments, the court found many faults with the design of the display: 1) the letters on the Ten Commandments were 3/8s of an inch larger than the letters of the Bill of Rights; 2) the relationship between the three historical documents was unclear; and worse, 3) notwithstanding the allegedly unclear relationship between the documents, a "reasonable observer" still might think that the state was impermissibly attempting to "link law and religion" because the Bill of Rights and the preamble to the Indiana Constitution were so close in proximity to the Ten Commandments. Id. at 773. So, on the one hand the display was flawed because the text of the secular historical documents stood apart from the Ten Commandments. On the other hand, the display was flawed because the secular documents were too close to the Ten Commandments.
If the Seventh Circuit's analysis is followed to its logical conclusion, there is no appropriate context for a display of the Ten Commandments. Even if a display including other foundational documents is accompanied by a lengthy explanation of the relationship between them, the display may still be unconstitutional because there would then be a fatal attempt to "link law and religion." Indeed, if a display linking law and religion is unconstitutional, then the frieze depicting Moses with the Ten Commandments on the wall of the United States Supreme Court is also unconstitutional.
Not surprisingly, since Books and O'Bannon, most federal district courts have struck down Ten Commandments displays. In a set of companion cases, a Kentucky federal judge, employing logic very similar to the O'Bannon court's, held unconstitutional several Ten Commandments displays. See Doe v. Harlan County School District, 96 F. Supp. 2d 667 (E.D. Ky. 2000); ACLU v. McCreary County, 96 F. Supp. 2d 679 (E.D. Ky. 2000); ACLU v. Pulaski County, 96 F. Supp. 2d 691 (E.D. Ky. 2000); ACLU v. McCreary County, 145 F. Supp. 2d 845 (E.D. Ky. 2001). The displays in all the cases were nearly identical, and each display had been altered four times in an attempt to bring them into compliance with the judge's notions of what was constitutional. ACLU v. McCreary County, 145 F. Supp. 2d at 846-47. Each effort failed, and the judge indicated in the last of her opinions that it would be impossible for the defendants in those cases to erect a permissible display containing the Ten Commandments. See id. at 849-852.

The final display erected by all defendants was entitled "The Foundations of American Law and Government." The display included the full text of the Magna Carta as enacted in 1215 A.D., the Declaration of Independence, the Bill of Rights of the Constitution of the United States, the Star Spangled Banner, the Ten Commandments, and the Mayflower Compact of 1620; a picture of Lady Justice and an explanation of its significance; the National Motto of the United States ("In God We Trust") emblem and the Preamble to the Kentucky Constitution. The display also explained each of the documents' historical and legal significance.
The defendants' stated purpose for the display was: 1) to erect a display containing the Ten Commandments that is constitutional; 2) to demonstrate that the Ten Commandments were part of the foundation of American Law and Government; 3) to include the Ten Commandments as part of the display for their significance in providing "the moral background of the Declaration of Independence and the foundation of our legal tradition;" 4) "to educate the citizens of the county regarding some of the documents that played a significant role in the foundation of our system of law and government;" and 5) "to create a limited public forum on designated walls within the school district for the purpose of posting historical documents which played a significant role in the development, origins or foundations of American or Kentucky law." 145 F. Supp. 2d at 848.
With obvious disdain for what should been considered an exemplary display, the court held that the defendants' amended displays failed both the purpose and effect prongs of the Lemon test. Because the antecedent displays were more religious in tone, the court ruled that the defendants' initial "defiance imprinted the defendants' purpose, from the beginning, with an unconstitutional taint." The court concluded that the defendants' purpose in including the Ten Commandments in the display "was improper and violative of the Establishment Clause because it sends the ancillary message to nonadherents 'that they are outsiders, not full members of the political community, and an accompanying message to adherents that they are insiders, favored members of the political community.'" Id. at 850 (quoting Lynch v. Donnelly, 465 U.S. 668, 688 (1984) (O'Connor, J., concurring).
Similarly, the court dismissed the argument that no reasonable observer would perceive a government endorsement of religion in the display.
The composition of the current set of displays accentuates the religious nature of the Ten Commandments by placing them alongside American historical documents. Given the religious nature of this document, placing it among these patriotic and political documents, with no other religious symbols or moral codes of any kind, imbues it with a national significance constituting endorsement. The Ten Commandments are completely different from the remainder of the displays. The reasonable observer will see one religious code placed alongside eight political or patriotic documents, and will understand that the counties promote that one religious code as being on a par with our nation's most cherished secular symbols and documents. This is endorsement. The Seventh Circuit has adopted similar reasoning; when considering the effect of a Ten Commandments monument, the Books court found that "the placement of the American Eagle gripping the national colors at the top of the monument hardly detracts from the message of endorsement; rather, it specifically links religion . . . and civil government." Books, 235 F.3d at 307. The counties have not, despite their avowed efforts, erected the type of "appropriate educational display" which might "try to include all the various moral, historical, and political influences on our legal system such as the Code of Hammurabi, the Code of Justinian, and passages from early English cases." Harvey v. Cobb County, 811 F. Supp. 669, 678 (N.D. Ga. 1993).

Id. at 851-52.

Other federal district courts have also struck down Ten Commandments displays, although without the hostility so evident in the Kentucky cases. In ACLU Nebraska Foundation v. City of Plattsmouth, 186 F. Supp. 1024 (D. Neb. 2002), the court held unconstitutional a Ten Commandments monument in a public park containing no other statues or monuments.
Although clearly not happy to do so, the court followed the Seventh Circuit's decision in Books v. City of Elkhart.
Similarly, in Free Thought Society v. Chester County, 191 F. Supp. 2d 589 (E.D. Pa. 2002), a Pennsylvania trial court held unconstitutional a Ten Commandments plaque mounted on a courthouse wall. As in City of Plattsmouth, the plaque was by itself with no other symbols or displays. 191 F. Supp. 2d at 590. See also ACLU v. Hamilton County, 2002 WL 971791 (E.D. Tenn. May 3, 2002) (holding unconstitutional isolated plaques containing Ten Commandments on municipal courthouse walls).
Only one federal district court has upheld a Ten Commandments display since the Seventh Circuit's decisions in Books and O'Bannon. In Summum v. City of Ogden, 152 F. Supp. 2d 1286 (N.D. Utah 2001), a Utah district judge ruled that a Ten Commandments monument erected in a public park did not violate the Establishment Clause. The display at issue was identical to the one in Books, but there were no other secular monuments in the park, as was the case in Books. The court followed the Tenth Circuit's decision in Anderson v. Salt Lake City Corporation, 475 F.2d 29, 34 (10th Cir. 1973), even though the Tenth Circuit subsequently questioned, in light of Stone v. Graham, the validity of its decision in Anderson. See Summum v. Callahan, 130 F.3d 906 (10th Cir. 1997). The Utah district court ruled that because the Tenth Circuit had not explicitly overruled Anderson, it was still good law, and the court was bound to follow it. 152 F. Supp. 2d at 1294. The court quite obviously agreed, however, with the Tenth Circuit's reasoning in Anderson:

Apart from considerations of stare decisis, the Tenth Circuit Court of Appeals' holding in Anderson was rooted in a sound understanding of history. As the Anderson court noted, the Ten Commandments is at one and the same time, a secular symbol and an ecumenical symbol. The "Ten Commandments," while a sacred text to some and an ethical code of conduct to others, is also a landmark in the history of the development of Western law. Because they have generally been characterized in history as a "religious text" does not change their secular history. Indeed, many great civilizations have premised their theory of law as being divinely inspired. For example, the pillar-code of Hammurabi, the foundation of law in Babylonia, is said to have been delivered to King Hammurabi by Shamash, the Sun God - God of law. The Hindu Code of Manu is said to have been authored by the divine hand.
.
Blackstone wrote that "the law of nature ... dictated by God himself ... is binding ... in all countries and at all times; no human laws are of any validity if contrary to this; and such of them as are valid derive all their force, and all their authority, mediately or immediately, from this original." W. Blackstone, 1 Commentaries, 41 (1765), reprinted in Harold J. Berman, Religion and Law: The First Amendment in Historical Perspective, 35 Emory L.J. 777, 789 (1986). The fact that our own U.S. Congress opens every morning it is in session with a prayer, and the fact that our courts make reference to God in opening the day's session and in oaths, pays homage to the evolving history of law.

Indeed, the very words that many are trying to eradicate from the governmental domain were included deliberately to demonstrate our nation's recognition of God. The country's coinage began reflecting references to God in 1864 at the direction of the Secretary of the Treasury, Salmon P. Chase, after receiving a letter from the Reverend M.R. Watkinson of Pennsylvania. Watkinson suggested in his letter that the Union risked being misinterpreted by posterity absent a public recognition of God on our nation's coinage. Watkinson, wrote, "What if our Republic were now shattered beyond reconstruction? Would not the antiquaries of succeeding centuries rightly reason from our past that we were a heathen nation?" Chase directed the U.S. Mint to declare a national recognition of God to be included on our national coins. "In God We Trust" became the new motto at his suggestion. See Brian Burrell, The Words We Live By 189 (1997).

152 F. Supp. 2d at 1294 (some citations omitted).


IV. IMPLICATIONS FOR A POLICY OR LAW CREATING A TEN COMMANDMENTS DISPLAY
Other than the Utah district court's decision in Summum v. City of Ogden, recent case law casts substantial doubt upon the continued viability of any display of the Ten Commandments. As demonstrated in Books, O'Bannon, and the Kentucky cases, context is minimized, if not altogether ignored, in evaluating the constitutionality of such displays. Nevertheless, the right display considered by the right appellate court may produce a decision upholding the display, and a conflict with the Seventh Circuit. And once that happens, the likelihood that the Supreme Court will agree to resolve the issue increases substantially.
Until such time, however, municipalities hoping to successfully defend a Ten Commandments display should adher

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