Forward-Leaning Spirit

This post is written in conjunction with the “Religion and Law in the U.S.” course dialogue project and is directed by Grace Yia-Hei Kao.

PhD student Matt Bussell

On June 27, 2005 the United States Supreme Court ruled on two court cases dealing with displays of the Ten Commandments: McCreary County v. ACLU (http://supreme.justia.com/cases/federal/us/545/03-1693/) and Van Orden v. Perry (http://www.law.cornell.edu/supct/html/03-1500.ZS.html).  Instead of resolving the debate about the constitutionality of Ten Commandments displays, the Supreme Court complicated the discussion even more as they found display constitutional and the other unconstitutional.  With these two cases the focus of Ten Commandments litigation shifted from the content of the display to agents involved in the disputes (primarily the government officials responsible for the display and the opponents of the display).  The content focus approach offers clear guidelines to public officials about the physical characteristics, placement and overall content of displays but fails to account for culture and historical nuances in different regions.  The agent focused approach allows courts greater flexibility to uphold some religious monuments but the courts have to determine who motives are relevant and an applicable timeframe for evaluating government actions.

In Van Orden v. Perry (2005) a Ten Commandments monument on the ground of the Texas state capital was found to be constitutional.  In his concurring opinion as the swing vote, Justice Breyer argued that placement of the monument amongst other, secular, monuments, along with its historical placement 40 years ago without any indication of conflict in between its placement and this case allowed the display to be constitutional.  Breyer used a divisiveness test in Van Orden, which has historically been used to remove religious displays from the public square, to preserve the Texas display.  Key to Breyer’s argument is that while the Ten Commandments display does have some religious content, in its present context it “conveys a predominantly secular message” and “suggests little or nothing sacred.”

However, in McCreary v. ACLU (2005) the Ten Commandments displays in McCreary and Pulaski counties in Kentucky were ruled unconstitutional.  McCreary and Pulaski counties had three different displays of the Ten Commandments: first they placed the Ten Commandments in their court houses as a stand-alone display, second in response to litigation they placed citations from secular documents that all mentioned God in a display with the Ten Commandments and finally they placed the Ten Commandments in a display of historically significant for the development of American democracy such as the Magna Carta and the Declaration of Independence.  In writing the opinion of the court, Justice Souter claims that the government’s secular purpose must also be the preeminent purpose, not just secondary to a primary religious intent.  The evolution of the displays in the two county courthouses revealed that the intent of the displays was religious, not secular.  Although the Ten Commandments do have a secular function and history, the court found that the reasons for displaying the Ten Commandments were secondary to their religious purpose.

With the split decision on Ten Commandments displays in McCreary and Van Orden, it appeared as if historical monuments would be preserved but new displays of the Ten Commandments would be heavily scrutinized.  However, less than a year after these decisions, the 6^th Circuit Court upheld Mercer county’s display of the Ten Commandments that was identical to it neighboring McCreary and Pulaski counties’ historical display (see http://www.ca6.uscourts.gov/opinions.pdf/05a0477p-06.pdf and http://www.ca6.uscourts.gov/opinions.pdf/06a0146p-06.pdf).  This identical display was found by 6^th Circuit court because there had been no ceremony involving clergy at the unveiling of the display as there had been in McCreary and this display was not tainted by the ruse of avoiding a stand-alone display.  Had the courts focused on the content of the various displays instead of the agents involved in their placement, the court would have been compelled to find the Mercer County display unconstitutional as it essentially copied the final display from McCreary and Pulaski counties.

Judge Moore with his Ten Commandments monument at the Alabama Supreme Court.

Perhaps what is most striking about the shift away from evaluating the content of the displays to the agents involved in the disputes is that the advocates of Ten Commandments displays who are most honest about why they want them in the public forum, their religious content, are found unconstitutional while those who argue for a sham secular purpose are found to be constitutional.  For example, Judge Roy Moore, better known as the “Ten Commandments Judge,” defended his placement of a Ten Commandments display as the centerpiece of the Alabama Supreme Court atrium by claiming that the Ten Commandments are the moral foundation of American law.  Judge Moore was up front about his religious motivations for posting the Ten Commandments while others attempt to justify their religious desire for the display of the Ten Commandments based on secular purpose.  Perhaps instead of focusing their attention on imposing their religious beliefs onto the public square, these sham defenders of the Ten Commandments should pay more attention to obeying the ninth commandment: “Thou shall not bear false witness against thy neighbor.”

Matt Bussell is a Ph.D. student at Claremont Graduate University in Philosophy of Religion and Theology.  His current focus is on how the Reformed tradition has used the Moral Law as a source for understanding piety, justice and political engagement.  He holds degrees from Calvin College, Columbia Theological Seminary and Duke University Divinity School.

CST student Saul Barcelo

This post is written in conjunction with the “Religion and Law in the U.S.” course dialogue project and is directed by Grace Yia-Hei Kao.

For the last  59 years, skiers in the Whitehead Ski Resort in Montana have had the privilege of skiing along Jesus Christ for no extra cost.  However, that could change in the near future, thanks to the Freedom From Religion Foundation who filed a lawsuit asking for the removal of the statue of Jesus (Freedom From Religion Foundation v. Chip Weber, Flathead National Forest Supervisor United States Forest Service). The main argument of this anti-religion group based in Madison WI, is the fact that this statue, erected back in 1953 on federal property by a Catholic nonprofit group called ‘The Knights of Columbus,” is in violation of the Establishment Clause.

Photo by Carley Jane (Flickr)

Originally, the statue of Jesus was built as a religious shrine by World War II veterans coming home, who wanted to replicate similar shrines seen on European mountains during the war.  According to the anti-religion group, “The continued presence of the statue of Jesus Christ, intended as a religious shrine, gives the unmistakable appearance of governmental endorsement of religion, as does the defendant’s orchestrated justification for maintaining a religious monument on public land. The presence of a religious shrine on federal property constitutes a governmental approval of an inherently religious message” (see the article “Jesus Statue In Montana Must Go, Group Says”).

Last year, the Forrest Services agreed to remove the statue but unfortunately for the FFRF, with the amount of pressure received from the religious right, the statue of Jesus won’t be going anywhere. Supporters of the statue have convinced Chip Weber, supervisor of Flathead National Forest, to list the statue of Jesus on the National Historic Register to avoid legal actions in the future.  Still, Freedom From Religion Foundation says that according to the Montana Historic Preservation Office, listing of properties “associated with important persons or events or religious values,” are prohibited.   To go around this hurdle, supporters of the statue of Jesus labeled it “as something other than a religious shrine or war memorial.” After months of immense pressure where the Forest Service saw overwhelming support to keep the statue of Jesus at the original location, it was decided to “reauthorize the special permit to the Knights of Columbus on Jan. 31, 2012…”  This permit was issued for only ten years, however it is important to remember that ruling on this lawsuit is still pending and The United States District Court for the District of Montana Missoula Division could overturn the permit issued to The Knights of Columbus and if a violation of the Establishment Clause is found, the statue could be removed.

AP Photo/Missoulian, Linda Thompson

Although the case is awaiting a verdict, the court most likely will be reviewing other cases that deal with religious symbols in public places. To complicate matters, the legal system has not ruled consistently in previous cases and so there is no final resolution that indicates if displaying religious symbols like menorahs, crosses, and representations of the Ten Commandments in public spaces are constitutional. In other words, it won’t be easy.

A case worth mentioning due to some similarities and the possible direction the case could take is Salazar v. Buono, which has to do with the legality of the Mojave Desert Latin cross built as a memorial by Veterans of Foreign Wars on federal preserve in honor of those killed in combat.  This case became more complicated when Congress made the land where the cross was standing private property. Still, the court ruled 5-4 in favor of Frank Buono, acknowledging a violation of the Establishment Clause.  To arrive at their conclusion, the court used the Lemon Test, which has been available for other Establishment Clause cases since Lemon v. Kurtzman in 1971.  And most likely this test will be used in the FFRF v. Weber case.  The Lemon Test has three prongs, which could help the court decide if the statue of Jesus erected on federal land is unconstitutional. The test asks if the actions taken by government are 1. Secular, 2. Advance or inhibit religion, or 3. Excessive entanglement with religion. In this case, it is most likely the second prong that will be more influential in this ruling, since the Freedom From Religion Foundation argues that the statue of Jesus in federal property continues to advance one particular religion: Catholicism.

It is not clear if next winter when skiers take the ski lift to the summit of Whitehead ski resort the statue of Jesus will be waiting for them.  One thing is certain though: the heated debate over the separation of church and state will continue to be discussed in different courts around the country. Even though there are legal provisions that should mark the limitations of religion in public spaces, there will always be different interpretations made by experts of the law.  In other words, there will be some type of inconsistency.

Saul Barcelo is a first year M.A. student in the Ethics, Politics and Society program at CST. He has an M.A. in Clinical Ministries from Loma Linda University and he currently works as a full time Chaplain at the Loma Linda University Children’s Hospital.