The Ten Commandments form a bright strand in the fabric of America’s heritage and legal development. It is the position of the ACLJ that the historical and moral value of the Ten Commandments to American society and culture merit public recognition, and that such recognition by the government does not “establish” a religion under the First Amendment.
This iconic symbol in American legal history and society has come under fire over the last half-century. Organizations like the ACLU and the Freedom From Religion Foundation claim that the public display of the Ten Commandments on government property is a government “establishment” of religion under the First Amendment of the United States Constitution. The ACLJ is dedicated to defending the constitutionality of the public display of the Ten Commandments as a foundational document in our national heritage and society.
The Public Display of the Ten Commandments on Government Property May be Constitutional if Done Properly
The Supreme Court has established 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. For example, on June 27, 2005, the Supreme Court 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, 545 U.S. 677 (2005)), 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, 545 U.S. 844 (2005)), the high court concluded that posting the Commandments inside a courthouse was unconstitutional because the history of the display indicated a religious purpose for its display.
Under the Supreme Court’s interpretation of the First Amendment in these cases, the public display of the Ten Commandments on government property may serve a valid secular governmental purpose and is not an inherent endorsement of a religion. Van Orden, 545 U.S. 687-89. But, if there is a predominately religious purpose for displaying the Ten Commandments, the Court has held that it may violate the First Amendment to allow such a display. McCreary County v. ACLU, 545 U.S. 844 (2005).
According to some lower courts, a display in a courthouse that does not indicate a predominantly religious purpose, and that includes the Ten Commandments along with other historical documents such as the Declaration of Independence and the Magna Carta does not violate the First Amendment, and is consistent with the Supreme Court’s ruling in McCreary County. See ACLU v. Grayson County, 591 F.3d 837 (6th Cir. 2010) (holding that a courthouse display of nine historical documents, including the Ten Commandments, that was sponsored by a reverend, did not violate the Establishment Clause); see also, ACLU of Kentucky v. Mercer County, 432 F.3d 624 (6th Cir. 2005) (holding the same for a similar courthouse display of ten foundational documents).
While the Court decides these issues on a case by case basis, it seems that the display of the Ten Commandments in courthouses and capital buildings does not violate the Court’s view of the First Amendment when there is a secular purpose for the display, the display is paid for by private parties, and the display includes other equally prominent foundational documents.
In the public school context, the Court held in Stone v. Graham, 449 U.S. 39 (1980) that the state could not require privately donated Ten Commandments displays to be put on the walls of its schools. Since then, the Supreme Court has yet to rule on the issue of the Ten Commandments in public schools. Presumably, given the recognized historical value of the Ten Commandments, the Court should not prohibit their display in the absence of a clear showing that the display has the effect of endorsing a particular religion. A display would be most likely to be upheld if it was in the context of other historical documents holding significance in American legal history.
The Supreme Court also has recognized that it is important for the government to accommodate and acknowledge religion as part of our national heritage, and that the Ten Commandments played an important role in our nation’s history. In 1892, the Supreme Court stated that "this is a religious nation." Church of the Holy Trinity v. United States, 143 U.S. 457, 470 (1892). 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). In Abington v. Schempp, 374 U.S. 203, 212 (1963), the Court recognized that “religion has been closely identified with our history and government.” Such recognition is nowhere more affirmatively expressed than in Zorach, in which where the Court stated that "[w]e are a religious people whose institutions presuppose a Supreme Being." 343 U.S. at 313. Nevertheless, this country has witnessed a long struggle over governmental acknowledgments of the religious identity of the American people.
No, this is misinformation. I think displaying the Ten Commandments in the context of historical U.S. documents is very helpful and very good, especially if the display is an American history exhibit or an exhibit on the development of Western law. But, other world documents do not have to be included in the display. In fact, there are some District Court cases that have actually said that the Bill of Rights, the Constitution, the Magna Carta and the Ten Commandments are all part of the cornerstone of western civilization. The Supreme Court has even recognized that you can study the Ten Commandments in a classroom setting, as long as it's done in a secular way-in other words, as a study of the impact they had on Western civilization. The courts have been very clear on that. We have seen an explosion of these "Ten Commandments" cases across America. We just have to be vigilant and litigate each of these cases, including taking them to the Supreme Court. When looking at the issue of the Ten Commandments, you have to be aware that in the schools it's particularly sensitive, and the ACLU is really looking at those kinds of cases. So, if the Ten Commandments are displayed with the Bill of Rights, the Magna Carta, and/or the Constitution, that's the best of the arguments. But you have to be cautious in that area.
I want to be honest and straightforward here. The law is not clear on this issue; the courts are split. About half of the courts go our way in support of the displays and half are opposed. The ACLU says that the Ten Commandments displays amount to a government endorsement of religion, which violates the U.S. Constitution. While I think the display of the Ten Commandments is constitutional, I think we're going to have a difficult time at the Supreme Court. I think the Court will give us some room to get some type of displays of monuments depicting what is clearly the historical basis of law and Western civilization. In 1776 when we declared our independence from Great Britain, Thomas Jefferson and Benjamin Franklin proposed biblical depictions on the official seal for the United States, including Pharaoh on a chariot following the Israelites out of Egypt and Moses with his hands outstretched towards Heaven, depicting God's protection of the Israelites. Our country's founding generation viewed the plight of the Israelites in biblical times as similar to the plight of Americans in our Declaration of Independence stage in 1776. This religious understanding and symbolism is part of who we are, and we are going to continue to aggressively fight for it in the courts.
I don't think Ten Commandments displays conflict with the Establishment Clause. The portion of the Hebrew Scriptures called the Ten Commandments, or the Decalogue, is an integral part of the legal heritage of Western civilization. To require its removal from the walls of American courthouses and other public settings because it refers to the God of Israel as a source of fundamental legal obligations would be similar to requiring the removal of the Declaration of Independence because it refers to "Nature's God" and to "the Creator" and to "divine providence" as the source of the equality of all persons and of the universal rights of life, liberty and the pursuit of happiness. We look at the Ten Commandments historically. The founding fathers were entirely familiar with, and strongly influenced by, the great treatise of William Blackstone entitled Commentaries on the Laws of England, published in 1765, in which he wrote that there are two main sources of human law, namely, a law of nature, which "God has enabled human reason to discover," and a divine law, "whose doctrines are to be found only in holy scripture." "Upon these two foundations," Blackstone wrote, "depend all human laws; that is to say, no human laws should be suffered to contradict these."
The Ten Commandments case is a perfect example that if you take church/state separation too far, what you have is a hostility reflected toward religion, which is inappropriate. That's exactly what Justice Breyer said in his concurring opinion in the Texas case: "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." That's a very important aspect of this decision, and fortunately he sided with us on that. But the Court is very, very closely divided on these cases, as you can tell.