When the U.S. Supreme Court hears oral arguments next week in two disputes over government displays of the Ten Commandments, some school law experts will be listening almost as closely as if the words were rolling down from Mount Sinai.
What they’re hoping to hear, moreover, extends well beyond the issue of religious texts or symbols on public property. In the view of some education groups, the cases offer a chance for the justices to dispel widespread confusion on the full panoply of church-state controversies that regularly bedevil the nation’s public schools.
“The crux of it is we need some clear and consistent authority,” said Julie Underwood, the general counsel of the National School Boards Association, which submitted a friend-of-the-court brief along with two other public school groups in one of the Ten Commandments cases. “If they continue to waffle on their analysis, the confusion is going to continue.”
The cases in question, which are slated for back-to-back, one-hour arguments on March 2, involve appeals of a pair of conflicting lower court decisions.
McCreary County v. American Civil Liberties Union of Kentucky (Case No. 03-1693) seeks the reversal of a ruling by the U.S. Court of Appeals for the 6th Circuit, in Cincinnati, that struck down displays of the Decalogue in two county courthouses.
Van Orden v. Perry (No. 03-1500) concerns a decision by the U.S. Court of Appeals for the 5th Circuit, in New Orleans, which found that a granite monument featuring the Ten Commandments on the grounds of the Texas State Capitol was constitutional.
In both cases, the Bush administration has weighed in on the side of keeping the displays. Acting Solicitor General Paul D. Clement is expected to help argue the case of Kentucky’s McCreary and Pulaski counties, both of which had commandments displays that were challenged by the ACLU.
Meanwhile, lawsuits over displays of the Ten Commandments on school grounds have percolated through the lower federal courts, including one that formerly was consolidated with the McCreary case at the 6th Circuit appellate level. That case and another from Ohio are awaiting action by the high court, which has delayed acting on them for months as it considers the appeals in McCreary and Van Orden. (“Justices Accept Two Cases on Ten Commandments,” Oct. 20, 2004.)
With next week’s arguments, the Supreme Court is revisiting a subject it hasn’t dealt with directly since 1980, when the court struck down a Kentucky law requiring that copies of the commandments be posted in all public school classrooms.
In its 5-4 decision in Stone v. Graham a quarter-century ago, 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. The high court ruled that the law violated the First Amendment’s prohibition against a government establishment of religion.
‘Endorsement Test’ Sought
In the current cases, the NSBA and its allies argue that what’s at stake is more than the Ten Commandments.
“Questions regarding the role of religion in public schools are pervasive and frequent across the nation,” says the brief, one of dozens filed in the two cases. “How much religious music can be included in a school concert? How may schools recognize religious holidays? Can students distribute religious fliers in school? How far can teachers go in professing their personal religious beliefs within the school?”
To give schools clearer guidance on those and other questions, the groups urge the justices to articulate a single test for deciding conflicts involving claims that government has violated the First Amendment’s religion clauses. That test, they say, should hinge on judicial analysis of whether government entities have effectively endorsed religion by the actions at issue.
Without that kind of consistent standard, the brief argues, schools will keep getting dragged into court.
“There are few contexts where the appropriate role of religion in public life has engendered more divisiveness among citizens than in the public schools, making it virtually impossible for education officials to take any action that is not viewed by one side or the other as crossing the constitutional line,” says the brief, which the NSBA, located in Alexandria, Va., submitted along with the Reston, Va.-based National Association of Secondary School Principals and the Horace Mann League, a national membership group that aims to perpetuate the ideals of the 19th-century public education crusader Horace Mann.
The groups submitted their brief in the McCreary case in support of neither party. While the three organizations have long supported the principle that church and state should remain separate, their court papers say, “public schools are not of one mind” when it comes to in-school displays of the Ten Commandments.
“Some believe that displaying the document adds an appropriate historical context to the study of American law and government,” the brief says. “Others believe that any such posting would cross the line, introducing a clearly religious document into the public arena.”
One lawyer who has defended Ten Commandments displays said he doubts adopting an “endorsement test,” as the NSBA brief urges, would be much help to schools.
“It still comes down to a subjective judgment by one person, namely the U.S. District Court judge in whatever jurisdiction you happen to live in, about whether a display sends an impermissible message of endorsement of religion,” said Francis J. Manion, a senior lawyer with the Washington-based American Center for Law and Justice.
Mr. Manion, who is based in New Hope, Ky., represents an Ohio school district in its appeal to the Supreme Court of a decision by the 6th Circuit appeals court striking down Ten Commandments displays on the grounds of four high schools. The high court has not acted on that appeal in Adams County/Ohio Valley School Board v. Baker (No. 04-65), just as it has held off on the Kentucky schools case, Harlan County v. ACLU of Kentucky (No. 03-1698).
“We’re assuming they’re just holding them till they decide McCreary, and then we’ll have to figure it all out,” Mr. Manion said.
