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Constitution Day: Displays of the Ten Commandments in Public Areas
September 15, 2005
Recent U.S. Supreme Court Cases on the Religion Clauses of the First Amendment
By Phyllis Farley Rippey, Political Science
VanOrden v. Perry
and McCreary County v. American Civil Liberties Union of Kentucky
Cases decided in the 2004 Term and Announced June 27, 2005
Constitutional meaning, like beauty, is in the eye of the beholder. The two recent Supreme Court cases deciding the constitutionality of displays of the Ten Commandments in a Kentucky county courthouse and in Texas on official state grounds remind us how often different people looking at the same Constitution can see remarkably different things. In one of these two cases, five justices of the United States Supreme Court looked at a stone monument with the Ten Commandments engraved on its face and sitting on the Texas capitol grounds and not only saw no constitutional problem with the display but did not actually recognize the monument as a statement of a religious code. In the second case, five justices ordered the removal of the Ten Commandments from a county building as an unconstitutional endorsement of religion by the state.
In VanOrden v. Perry, the Court puts the monument of the Ten Commandments in its historical and physical context to make the determination that its presence on state grounds was constitutional. The Court held this to be the case because what motivated its creation historically was a secular purpose (discouraging juvenile delinquency) and as one of 21 other monuments and 17 markers to various good causes (ranging from honoring the fallen of World War II and recognizing the contributions of pioneer women) it did nothing to advance religion or entangle government with religion since it was simply a passive display. In this way, the Court gave a nod to its own Lemon Test for constitutionality under the no establishment clause that it had developed in Lemon v. Kurtzman and at the same time reiterated its position in School District of Abington Township v. Schempp that the Court must neither abdicate its responsibility to maintain a division between church and state nor evince a hostility to religion.
A different majority on the Court, no doubt, intended no hostility to religion in McCreary County v. ACLU of Kentucky but it, nevertheless, found the display of the Ten Commandments on the walls of the county courthouse to be unconstitutional. Here, too, context mattered. McCreary County had brought the Ten Commandments into its county building and in so doing, this time the Court found that it gave the religious code not only shelter from the elements but the imprimatur of the state which is forbidden by the no establishment clause.
These two cases were decided by the same court, forming two different five to four majorities with Justice Breyer providing the deciding vote in each case. Four justices would allow both Texas and Kentucky to display the Ten Commandments as they chose. Four others would deny both states the authority do so no matter what motivated the display and no matter its placement. And one justice saw it both ways. What do these two contradictory holdings of the Court tell us about current First Amendment jurisprudence? Although the two opinions are clearly out of step with each other, they are in step with the tack the Court has taken over the years in its interpretation of the religion clauses. In the 67 cases governed by the First Amendment since the first time the Court turned its attention to this part of the Constitution in 1943, the Court has come down on the side of separation 28 times, on the side of accommodation 34 times and offered up three opinions that attempted to bridge the two.
Critics of the Courts separation position argue that, far from being a neutral position, it is actually reflective of hostility to religion. On the other side, critics of the Courts accommodationist position argue that the attempt to favor the free exercise claim is, in effect, state establishment of religion. Not surprisingly, the Courts attempt to steer a course between the two, produces inconsistent and less than lucid holdings that not only please few, provides little guidance as to what the Constitution allows to be placed on government grounds and county walls.
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Posted By: Darcie Shinberger, University Relations
Phone: (309) 298-1993 * Fax: (309) 298-1606