Court hears cases concerning display of Ten Commandments_101804

Posted: 10/15/04

Court hears cases concerning
display of Ten Commandments

By Robert Marus

ABP Washington Bureau

WASHINGTON (ABP)–The Supreme Court has agreed to wade into one of the day's most explosive church-state issues–whether displays of the Ten Commandments on public buildings ever can be constitutional.

The justices consented last week to hear appeals arising from conflicting lower-court decisions in two Ten Commandments cases.

In Van Orden vs. Perry, a Texas resident is challenging a lower court's ruling from late 2003. In it, a three-judge panel of the 5th U.S. Circuit Court of Appeals ruled unanimously that a massive granite Ten Commandments monument on the grounds of the Texas Capitol in Austin did not violate the First Amendment's ban on government establishment of religion.

In that ruling, Judge Patrick Higginbotham, writing for the court, said the commandments monument had a secular purpose in teaching about the history of the development of the state's legal system and could not be viewed by a reasonable observer as an endorsement of religion.

“Even those who would see the Decalogue as wise counsel born of man's experience rather than as divinely inspired religious teaching cannot deny its influence upon the civil and criminal laws of this country,” Higginbotham wrote.

He also noted the monument's long history–it had been donated to the state more than 40 years ago by the Fraternal Order of Eagles–and its placement amid other monuments on the building's grounds emphasized its secular importance.

“We are not persuaded that a reasonable viewer touring the Capitol and its grounds, informed of its history and its placement, would conclude that the state is endorsing the religious rather than the secular message of the Decalogue,” he said.

In the second case, McCreary County, Ky., vs. ACLU, a divided panel of the 6th U.S. Circuit Court of Appeals found in late 2003 that much newer Ten Commandments displays in courthouses and a school district in three Kentucky counties violated the First Amendment.

The majority of the justices said the displays were not erected with a sufficiently secular purpose and that they appeared to endorse religion, even though they had later been modified to incorporate legal and historical documents beyond the commandments.

These cases mark the first time since 1980 that the high court has dealt with the issue of Ten Commandments displays on government property.

That year, the court decided Stone vs. Graham, in which they found unconstitutional a Kentucky law requiring public schools to post the commandments on the walls of each classroom.

Since then, the lower federal courts have developed a hodge-podge of rules on allowing Ten Commandments displays in public settings–with some displays found acceptable when they were included as a part of a larger exhibit on the development of Western law and some displays found unconstitutional.

The Texas and Kentucky cases provide an opportunity for the justices to break new ground in legal definitions of what sorts of religious displays can be allowed on government property.

According to one Baptist advocate of church-state separation, the case could also lead the court to clarify a test it has used in similar cases in the past–whether a “reasonable observer” would surmise from a display that the state was endorsing a particular kind of religious belief.

“The case has the potential to clarify the lines of what is acceptable, and to reaffirm the 'reasonable-observer' standard for deciding government endorsement of religion,” said Holly Hollman, general counsel for the Washington-based Baptist Joint Committee for Religious Liberty.

Nonetheless, she added, government displays of religious texts are fraught with danger.

“We should be more concerned with following the Ten Commandments rather than merely posting them on government property,” Hollman said. “To display them in a courthouse and hope for the best seems to be a poor strategy for promoting religious values.”