Displaying the Ten Commandments in the Public Sphere: Even When it is Unconstitutional it is Constitutional (by Matt Bussell)

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.

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.

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.