Law & Courts

Supreme Court Sends Mixed Message on Ten Commandments Displays

By Caroline Hendrie — June 27, 2005 7 min read

Includes updates and/or revisions.

The U.S. Supreme Court’s split decisions on June 27 in a pair of cases concerning displays of the Ten Commandments on government property did not fundamentally alter the legal landscape for public schools, but neither did they leave it untouched, legal observers say.

On the last day of their 2004-05 term, the justices held 5-4 that displays of the Decalogue in two county courthouses in Kentucky were motivated primarily by a desire to advance religion and therefore violated the U.S. Constitution’s prohibition on government-established religion. In a companion case, they held by a different 5-4 lineup that a 40-year-old granite monument of the Ten Commandments on the grounds of the Texas state Capitol did not cross the constitutional line and can remain.

One effect of the rulings, which together yielded 10 separate opinions, was to leave in place the high court’s 1980 decision in Stone v. Graham, in which it struck down a Kentucky law requiring public schools to post copies of the Ten Commandments.

Another was to underscore the case-by-case nature of the Supreme Court’s approach to deciding church-state controversies. Disappointing some schools groups and others, a majority of the nine justices signaled that specific context weighs heavily when it comes to judging just how far public bodies can roam in the realm of religion.

To some education law experts, the fractured nature of the day’s rulings suggests that courts of law are not the best place to look for guidance on how to resolve the competing claims of those who seek a greater role for religion in public education and those who want it curbed.

“If these cases gave the Supreme Court of the United States so much trouble, what do we expect school boards to do?” said Thomas Hutton, a staff lawyer for the National School Boards Association. “If there’s one lesson in this for everybody, it’s that the courts perhaps are not the place to work out these differences at an acceptable cost.”

In a friend-of-the-court brief in favor of no party in the Kentucky case, the Alexandria-based NSBA and several other education groups had asked the court to clarify for public schools just where to draw the line between unconstitutional government endorsement of religion, on the one hand, and impermissible hostility to it on the other.

Schools Cases Cited

Writing for the majority in McCreary County v. American Civil Liberties Union of Kentucky (Case No. 03-1693), Justice David H. Souter invoked a string of school-related Supreme Court cases as support for what he said was the overriding importance of the principle that government remain neutral toward religion.

The courthouse displays originally featured framed copies of only the Ten Commandments. After the Kentucky ACLU sued, the displays were changed to include other historical documents. That sequence of actions, Justice Souter said, made clear that a religious purpose behind the displays was paramount.

“We are centuries away from the St. Bartholomew’s Day massacre and the treatment of heretics in early Massachusetts, but the divisiveness of religion in current public life is inescapable,” the opinion says. “This is no time to deny the prudence of understanding the establishment clause [of the First Amendment] to require the government to stay neutral on religious belief, which is reserved for the conscience of the individual.”

He was joined by Justices John Paul Stevens, Sandra Day O’Connor, Ruth Bader Ginsburg, and Stephen G. Breyer.

In a concurring opinion in the McCreary case, Justice O’Connor cited West Virginia State Board of Education v. Barnette, in which the Supreme Court ruled in 1943 that public schools couldn’t compel students to recite the Pledge of Allegiance.

“It is true that many Americans find the commandments in accord with their personal beliefs,” Justice O’Connor wrote. “But we do not count heads before enforcing the First Amendment.”

Justice Antonin Scalia argued in his dissent in the McCreary case that the Constitution in no way prohibits government from posting the Ten Commandments and that the majority’s effort to parse county officials’ motives was misguided. He was joined by Chief Justice William H. Rehnquist and Justice Clarence Thomas, and in part by Justice Anthony M. Kennedy.

In his opinion in the Texas case, Chief Justice Rehnquist said that even though the Ten Commandments display there was constitutional, the Stone v. Graham decision made it clear that "[t]here are, of course, limits to the display of religious messages or symbols.”

That 25-year-old ruling underscores that the high court has been particularly vigilant in monitoring compliance with the establishment clause in elementary and secondary schools, the chief justice wrote in his plurality opinion announcing the judgment of the court in Van Orden v. Perry (No. 03-1500). Justices Scalia, Kennedy, and Thomas joined his opinion.

Still, he said, neither that case nor any afterward has suggested that Stone‘s holding would extend to the grounds of state capitols. Moreover, he added, "[t]he placement of the Ten Commandments monument on the Texas State Capitol grounds is a far more passive use of those texts than was the case in Stone, where the text confronted elementary school students every day.”

A Way Around?

Despite the many references in the Texas case to public schools, some legal experts said they thought the Kentucky ruling was of greater significance to K-12 educators. That is partly because the Kentucky cases involved efforts to neutralize constitutional concerns by displaying the Ten Commandments along with other documents with religious references that have historical and civic significance.

“The real question in the public school setting has been, is there a way around Stone v. Graham?” said Charles C. Haynes, a senior scholar at the Freedom Forum’s First Amendment Center in Arlington, Va.

“The effort has been to say, ‘Let’s find a way to put them up in classrooms as part of an historical display,’ and I think this Kentucky decision makes that effort much more difficult,” he said. In modifying their original, stand-alone displays to include other historical documents, McCreary and Pulaski counties took an approach similar to Kentucky’s Harlan County school district, whose classroom displays of the Ten Commandments were also challenged in court by the ACLU in 1999. As in the county courthouse cases, the school district started by hanging up single, framed copies of the commandments, but then twice modified the displays to include additional documents in response to the lawsuit.

The Harlan County case had been consolidated with the courthouse cases in the U.S. Court of Appeals for the 6th Circuit, in Cincinnati, which ruled in favor of the ACLU in both challenges. The cases were then appealed separately to the Supreme Court.

After deferring action on Harlan County v. ACLU of Kentucky (No. 03-1698), the high court announced on June 28—the day after the McCreary and Van Orden rulings—that it would not take up that schools case for full review.

Also on June 28, the court denied review to two other cases in which a federal appellate court had struck down Ten Commandments monuments outside four high schools in Ohio. The cases were Adams County/Ohio Valley School Board v. Baker (No. 04-65) and Johnson v. Baker (No. 03-1661).

The Adams County displays originally featured only stone replicas of the Ten Commandments tablets, but were then supplemented with small monuments with text from other historical documents, such as the Magna Carta, the U.S. Constitution, and the Declaration of Independence.

The Kentucky and Ohio cases, like most of the current schools-related cases around the country, have arisen from a recent drive by religious groups for more displays of the commandments in or near government buildings. But the Texas monument was part of a wave of similar displays erected decades ago, making the ruling in that case potentially less directly relevant to public education, Mr. Haynes and Mr. Hutton suggested.

The Texas monument was donated by the Fraternal Order of Eagles in 1961 as part of a national push to combat juvenile delinquency, and its vintage was clearly a factor as the justices weighed its constitutionality. Justice Breyer, who provided the swing vote in the case, said in his concurring opinion, for example, that the lack of controversy surrounding the display for four decades suggested that “the public visiting the capitol grounds has considered the religious aspect of the tablets’ message as part of what is a broader moral and historical message reflective of a cultural heritage.”

“The display is not on the grounds of a public school, where, given the impressionability of the young, government must exercise particular care in separating church and state,” Justice Breyer wrote. “This case also differs from McCreary County, where the short (and stormy) history of the courthouse commandments’ displays demonstrates the substantially religious objectives of those who mounted them, and the effect of this readily apparent objective upon those who view them.”

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