[GCFL-discuss] Ten Commandments: Hype and Reality

Sat Nov 19 19:29:22 CST 2005

What was the difference between the Kentucky and Texas cases?

The biggest difference is how the Supreme Court decided them. The reasons
WHY they were decided differently, I can best answer with quotes from the
decisions. I am a persistent advocate that concerned citizens should read
the actual decisions for ourselves, rather than letting lawyers and
advocacy groups, plus the media, "interpret" them for us.

One case was McCreary v. ACLU of Kentucky. The other case was Van Orden
v. Perry.

Van Orden is a law student in Texas, who uses the library at the Texas
state capitol. Perry is the governor of Texas. McCreary is a county
official in one of the two counties sued.

The two counties in Kentucky had created a long paper trail which made it
more than obvious that there intention was to make Judeo-Christian
religion the officially endorsed faith of the county government. The
Supreme Court ruled the displays at issue must be removed. It also said
that of course they could come up with a new approach that would "pass
constitutional muster" as the legal phrase goes.

The Texas case is best summarized in the opening words of the court's
decision:

"Among the 21 historical markers and 17 monuments surrounding the Texas
State Capitol is a 6-foot-high monolith inscribed with the Ten
Commandments. The legislative record illustrates that, after accepting
the monument from the Fraternal Order of Eagles--a national social,
civic, and patriotic organization--the State selected a site for it based
on the recommendation of the state organization that maintains the
capitol grounds. Petitioner, an Austin resident who encounters the
monument during his frequent visits to those grounds, brought this 42 U.
S. C. §1983 suit seeking a declaration that the monument's placement
violates the First Amendment's Establishment Clause and an injunction
requiring its removal. Holding that the monument did not contravene the
Clause, the District Court found that the State had a valid secular
purpose in recognizing and commending the Eagles for their efforts to
reduce juvenile delinquency, and that a reasonable observer, mindful of
history, purpose, and context, would not conclude that this passive
monument conveyed the message that the State endorsed religion. The Fifth
Circuit affirmed. 
Held: The judgment is affirmed."
The five-justice majority actually followed two slightly different
reasons for affirming the lower court judgments. I can do no better than
to quote the court's own summary of each:
"The Chief Justice, joined by Justice Scalia, Justice Kennedy, and
Justice Thomas, concluded that the Establishment Clause allows the
display of a monument inscribed with the Ten Commandments on the Texas
State Capitol grounds. Reconciling the strong role played by religion and
religious traditions throughout our Nation's history, see School Dist. of
Abington Township v. Schempp, 374 U. S. 203, 212-213, with the principle
that governmental intervention in religious matters can itself endanger
religious freedom requires that the Court neither abdicate its
responsibility to maintain a division between church and state nor evince
a hostility to religion, e.g., Zorach v. Clauson, 343 U. S. 306, 313-314.
While the Court has sometimes pointed to Lemon v. Kurtzman, 403 U. S.
602, for the governing test, Lemon is not useful in dealing with the sort
of passive monument that Texas has erected on its capitol grounds.
Instead, the analysis should be driven by both the monument's nature and
the Nation's history. From at least 1789, there has been an unbroken
history of official acknowledgment by all three branches of government of
religion's role in American life. Lynch v. Donnelly, 465 U. S. 668, 674.
Texas' display of the Commandments on government property is typical of
such acknowledgments. Representations of the Commandments appear
throughout this Court and its grounds, as well as the Nation's Capital.
Moreover, the Court's opinions, like its building, have recognized the
role the Decalogue plays in America's heritage. See, e.g., McGowan v.
Maryland, 366 U. S. 420, 442, 462. While the Commandments are religious,
they have an undeniable historical meaning. Simply having religious
content or promoting a message consistent with a religious doctrine does
not run afoul of the Establishment Clause. See, e.g., Lynch v. Donnelly,
supra, at 680, 687. There are, of course, limits to the government's
display of religious messages or symbols. For example, this Court held
unconstitutional a Kentucky statute requiring the posting of the Ten
Commandments in every public schoolroom. Stone v. Graham, 449 U. S. 39,
41-42. However, neither Stone itself nor subsequent opinions have
indicated that Stone's holding would extend beyond the context of public
schools to a legislative chamber, see Marsh v. Chambers, 463 U. S. 783,
or to capitol grounds. Texas' placement of the Commandments monument on
its 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. Indeed, petitioner here apparently walked by the monument for years
before bringing this suit. Schempp, supra, and Lee v. Weisman, 505 U. S.
577, distinguished. Texas has treated her capitol grounds monuments as
representing several strands in the State's political and legal history.
The inclusion of the Commandments monument in this group has a dual
significance, partaking of both religion and government, that cannot be
said to violate the Establishment Clause. Pp. 3-12. 
     Justice Breyer concluded that this is a difficult borderline case
where none of the Court's various tests for evaluating Establishment
Clause questions can substitute for the exercise of legal judgment. See,
e.g., School Dist. of Abington Township v. Schempp, 374 U. S. 203, 305
(Goldberg, J., concurring). That judgment is not a personal judgment.
Rather, as in all constitutional cases, it must reflect and remain
faithful to the underlying purposes of the First Amendment's Religion
Clauses--to assure the fullest possible scope of religious liberty and
tolerance for all, to avoid the religious divisiveness that promotes
social conflict, and to maintain the separation of church and state. No
exact formula can dictate a resolution to fact-intensive cases such as
this. Despite the Commandments' religious message, an inquiry into the
context in which the text of the Commandments is used demonstrates that
the Commandments also convey a secular moral message about proper
standards of social conduct and a message about the historic relation
between those standards and the law. The circumstances surrounding the
monument's placement on the capitol grounds and its physical setting
provide a strong, but not conclusive, indication that the Commandments'
text as used on this monument conveys a predominantly secular message.
The determinative factor here, however, is that 40 years passed in which
the monument's presence, legally speaking, went unchallenged (until the
single legal objection raised by petitioner). Those 40 years suggest more
strongly than can any set of formulaic tests that few individuals,
whatever their belief systems, are likely to have understood the monument
as amounting, in any significantly detrimental way, to a government
effort to establish religion. See ibid. The public visiting the capitol
grounds is more likely to have considered the religious aspect of the
tablets' message as part of what is a broader moral and historical
message reflective of a cultural heritage. For these reasons, the Texas
display falls on the permissible side of the constitutional line. Pp.
1-8. "

In the McCreary case, the court summarized the issues as:
"Executives of two counties posted a version of the Ten Commandments on
the walls of their courthouses. After suits were filed charging
violations of the Establishment Clause, the legislative body of each
county adopted a resolution calling for a more extensive exhibit meant to
show that the Commandments are Kentucky's "precedent legal code," Def.
Exh. 1 in Memorandum in Support of Defendants' Motion to Dismiss in Civ.
A. No. 99-507, p. 1 (ED Ky.) (hereinafter Def. Exh. 1). The result in
each instance was a modified display of the Commandments surrounded by
texts containing religious references as their sole common element. After
changing counsel, the counties revised the exhibits again by eliminating
some documents, expanding the text set out in another, and adding some
new ones.
     The issues are whether a determination of the counties' purpose is a
sound basis for ruling on the Establishment Clause complaints, and
whether evaluation of the counties' claim of secular purpose for the
ultimate displays may take their evolution into account. We hold that the
counties' manifest objective may be dispositive of the constitutional
enquiry, and that the development of the presentation should be
considered when determining its purpose."
A federal district court had ruled:
"that the original display lacked any secular purpose because the
Commandments are a distinctly religious document, and that the second
version lacked such a purpose because the Counties narrowly tailored
their selection of foundational documents to those specifically referring
to Christianity. After changing counsel, the Counties revised the
exhibits again."
"When the government acts with the ostensible and predominant purpose of
advancing religion, it violates the central Establishment Clause value of
official religious neutrality, there being no neutrality when the
government's ostensible object is to take sides. Corporation of Presiding
Bishop of Church of Jesus Christ of Latter-day Saints v. Amos, 483 U. S.
327, 335. A purpose to favor one faith over another, or adherence to
religion generally, clashes with the "understanding ... that liberty and
social stability demand a ... tolerance that respects the religious views
of all citizens." Zelman v. Simmons-Harris, 536 U. S. 639, 718. Pp.
11-12."
Both cases are available online. findlaw.com is a good source. The
Kentucky case was decided on narrower grounds, and the reasoning is more
complex. Mostly that is because of the arguments the two counties
presented, and the long history of the case. . Four justices would have
ordered both displays removed, four justices would have allowed both to
stay, and the key vote was Justice Breyer. He voted to allow the Texas
display, and prohibit the Kentucky display.
If the "Ten Commandments Day" had been proposed as a celebration of the
one decision, and denouncing the other, it would have had a plausible
basis, although I agree with both decisions. Of course an honest
appraisal of each case would not have supported the alarmed language the
named organizers have chosen to use. By making it sound as if the court
has simply quashed all public display of the Ten Commandments, the
campaign is telling a bold faced lie.
By the way, the court's decisions only affect government displays. Any
church, synagogue, mosque, individual, family, business, remains free to
display any religious text or symbols they want. That isn't
establishment, it is free exercise. It might be good for business, it
might be bad for business, but its not establishment, because its not
being done by government.
Siarlys
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