Defending the Decalogue (Again) in the Latest Ten Commandments Case at the Supreme Court


Geoffrey Surtees

August 11, 2017

5 min read

American Heritage



Today, we filed an amicus brief with the Supreme Court in support of the City of Bloomfield, New Mexico and a Ten Commandments monument that is displayed on public property outside of their city hall.

The ACLJ has represented local governments, officials, and private parties in numerous lawsuits across the country involving the Ten Commandments. One of these cases went all the way to the U.S. Supreme Court, where the Court unanimously held that a city’s display of the Commandments in a public park does not mean that private parties have the right to erect a countervailing religious monument in that same space.

Even in the face of all this and similar litigation, the Supreme Court has yet to make clear where and when the government may display the Commandments consistent with the Establishment Clause.

Over twelve years ago, when the Supreme Court had the opportunity to resolve the issue once and for all, it didn’t do so. On the very same day (June 27, 2005), the Court issued two different decisions with two opposing conclusions. In one case, Van Orden v. Perry, the Court held that a Ten Commandments monument on the capitol grounds of Texas was constitutional. In the other, McCreary County v. ACLU, the Court held that displays of the Commandments hanging on the walls of two county courthouses were not.

It shouldn’t be surprising that these conflicting decisions have provided very little guidance to lower courts that continue to wrestle with similar cases. Since Van Orden and McCreary were decided, those courts have allowed some Commandments displays and have disallowed others. As Justice Gorsuch wrote while a judge on the Tenth Circuit: “appellate judges seeking to identify the rule of law that governs Establishment Clause challenges to public monuments . . . have their hands full after McCreary and Van Orden.”

The brief we filed today argues that the Supreme Court should take the opportunity in this case to resolve its conflicting rulings issued in 2005. (Justice White famously said that a new member on the Court “changes everything,” and five justices have joined the Court since that time.)

Not only do the lower courts continue to need guidance regarding the legality of historical and religious displays, so too do state and local governments. Localities that wish to honor our country’s legal heritage by displaying the Commandments remain perplexed on how to do so in a constitutional manner based on the Van Orden/McCreary conflict. And failure to get it right can come at great cost. After the Supreme Court decided McCreary, the two Kentucky counties were ordered by the district court to pay over $400,000 in legal fees and costs.

In settling the conflict between Van Orden and McCreary, however, the Court doesn’t have to write on a blank slate. Just a few years ago, the Court issued its watershed decision in Town of Greece v. Galloway. In that case, a town’s practice of beginning council meetings with an invocation was challenged by a group of individuals who felt excluded and offended by the prayers.  

The Court applied two criteria in determining whether the town’s religious activity satisfied the Constitution: historical foundations (i.e., whether legislative prayer is consistent with the views of the Founders) and coercion (i.e., whether the individuals in that case were coerced, beyond mere offense, into participating in a religious exercise).

The Court held that because legislative prayer (even if sectarian) is a longstanding practice in this country, and because no one was coerced into participating in the prayers, the town council’s invocations were permissible under the Establishment Clause.

(The ACLJ not only filed an amicus brief in Town of Greece, it has, more recently, filed amicus briefs in support of legislative prayer in both California and Ohio.)

As we argue in the brief in this case, there is no reason not to use those very same criteria in deciding the constitutionality of a public display of the Commandments (or any other passive monument, for that matter).

Such an approach would not only provide lower courts with more objective criteria in deciding legal challenges to religious-historical displays, it would create a jurisprudential standard consistent with the views of the Founders and traditions of our country. As the Supreme Court recognized in 1984, there is an “unbroken history of official acknowledgment by all three branches of government of the role of religion in American life.”

With respect to the facts of this particular case, there should be little doubt that the Ten Commandments monument standing in Bloomfield, New Mexico satisfies Town of Greece’s history and coercion criteria. As the Court explained in Van Orden, even though the Ten Commandments are unquestionably religious, they also have “an undeniable historical meaning.”  And a passive display of the Commandments, such as Bloomfield’s, does not coerce or pressure anyone into doing anything. As Justice Kennedy observed many years ago, “the risk of infringement of religious liberty by passive or symbolic accommodation [of religion] is minimal.”

For decades, individual members of the Supreme Court have been remarking on the confusing and confounding teachings of the Court when it comes to the Establishment Clause.  Justice Alito, for example, noted five years ago that the “Court’s Establishment Clause jurisprudence is undoubtedly in need of clarity.”

Now is the time for the Court to provide it.

Whether the Supreme Court decides to intervene in this case remains to be seen. We will keep you posted every step of the way.