With the U.S. Supreme Court’s decision last week to hear two appeals involving displays of the Ten Commandments on government property, public educators may get fresh guidance on the emotionally charged questions of whether and how religious documents can be showcased in schools.
Aiming to address discord in the lower courts on the issue, the high court agreed on Oct. 12 to review a decision that allowed a granite monument of the commandments on the grounds of the Texas Capitol and a ruling that struck down displays of the Decalogue at two county courthouses in Kentucky.
The justices took no action on an appeal involving Ten Commandments displays in the Harlan County, Ky., public schools, a dispute that had been consolidated in the lower courts with the courthouses suits. Legal analysts’ views varied last week on what the high court’s move bodes for that Harlan County appeal and for a separate Supreme Court appeal by an Ohio school district of a ruling declaring its Ten Commandments display unconstitutional.
“The honest, true answer is: Who knows?” said Jeffrey M. Gamso, who is representing the plaintiffs in the Ohio case, which the justices are expected to discuss privately later this month. Several lawyers involved in the various Ten Commandments cases before the court viewed it as likely that the court would hold onto the school cases until it decides the statehouse and courthouse appeals. Among the justices’ other options would be to decline to consider the school-related appeals altogether, or to take up at least one of them separately—a scenario some regard as unlikely.
1980 Precedent
Whatever they decide on the pending school cases, last week’s action means the justices will revisit a subject they haven’t dealt with directly since 1980, when they struck down a Kentucky law requiring copies of the commandments to be posted in all public school classrooms.
In its 5-4 decision in Stone v. Graham, the majority rejected arguments that the law had a valid secular purpose because of the commandments’ purported role as “the fundamental legal code of Western civilization” and the U.S. legal system. Without holding arguments in the case, the court summarily reversed a lower-court decision upholding the statute, ruling that it violated the First Amendment’s prohibition against a government establishment of religion.
“This is not a case in which 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,” the majority concluded in its unsigned 1980 opinion. “Posting of religious texts on the wall serves no such educational function.”
Instead, the court held, the only effect, if any, would be “to induce the schoolchildren to read, meditate upon, perhaps to venerate and obey, the commandments. However desirable this might be as a matter of private devotion, it is not a permissible state objective under the establishment clause.”
Two current members of the court participated in the 1980 case. Justice John Paul Stevens was in the majority, while Chief Justice William H. Rehnquist, then an associate justice, wrote a dissent stating that the “establishment clause does not require that the public sector be insulated from all things which may have a religious significance or origin.”
With Stone v. Graham focused squarely on schools, lower courts have reached different conclusions when applying it to other contexts. Those splits were presumably a factor in the high court’s decision last week to consider the courthouse disputes, known as McCreary County v.ACLU of Kentucky (Case No. 03-1693), and the Texas appeal in Van Orden v. Perry (No. 03-1500).
Mathew D. Staver, a lawyer representing both the Harlan County school district and the other Kentucky counties whose courthouse displays are being challenged, said he had not lost hope that the high court would take the school case.
When the 5,300-student district first posted the commandments in schools in 1999, the framed copies were hung as stand-alone displays. After the Kentucky branch of the American Civil Liberties Union brought suit, the district twice added other historical documents to the displays in an attempt to stay within constitutional bounds. The district also set up a process allowing applicants to seek approval to post other historical texts.
Mr. Staver, the president and general counsel of Liberty Counsel, a Longwood, Fla.-based public-interest law firm, argues that the district would be infringing on the public’s right to free speech if it barred the Ten Commandments or other texts simply because they reflected religious views.
Private Speech?
“Harlan County deals with private speech on public property,” he said. “There is no free-speech issue in the courthouse cases. That’s a huge distinction.”
But David A. Friedman, a lawyer for the ACLU of Kentucky, called Mr. Staver’s argument “hopelessly dead wrong.” He said the U.S. Court of Appeals for the 6th Circuit, in Cincinnati, had rightly concluded that the displays are “government speech” and therefore run afoul of the establishment clause. Mr. Friedman said it was unlikely that the high court would take up the Harlan County case separately. “Our assumption is that they will just let it sit there,” he said.
Even if the justices let the rulings in the school cases stand, how they resolve the other appeals is bound to be scrutinized by educators. “Certain things are clear from Stone v. Graham, but certain things are clearly not answered,” Mr. Friedman said.
The school case the justices did not act on last week was Harlan County v.ACLU Kentucky (No. 03-1698). The Ohio appeal, Adams County/Ohio Valley School Board v. Baker (No. 04-65), is slated for private discussion by the court later this month. The statehouse and courthouse cases will likely be scheduled for oral argument early next year, with decisions by next July.
