June 28, 2005

Church-State Experts React to Ten Commandments Decisions

More Challenges to Decalogue Displays Are Likely

A closely divided Supreme Court yesterday issued two decisions on the legality of Ten Commandments displays in public buildings and on public property. The court struck down the Decalogue displays in two Kentucky courthouses but upheld the constitutionality of a Ten Commandments monument on the grounds of the Texas state capitol building.

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Advocates on both sides of the issue expressed disappointment with the rulings. The court “reaffirms the bedrock principle [that religion should not be excluded from the public square] in one case, but then pays it only lip service in the other,” said Jared Leland, media and legal counsel with the Becket Fund for Religious Liberty, a religious freedom advocacy group that supported the right to display the Decalogue. “And in the process, it adds more confusion to an already confused area of First Amendment law.”

Douglas Laycock, a professor of law at the University of Texas at Austin who opposed the displays, also expressed disappointment in the lack of clarity from the court, arguing that the decisions “mean we will be litigating these cases one at a time for decades.”

With these decisions, the court continues its recent tradition of tackling religious display issues – including those involving Christmas crèches—on a case-by-case basis. “In these and similar recent cases, it’s hard to find a clear line between the acceptable acknowledgement of religion and the unacceptable endorsement of religion,” said David Masci, a senior fellow at the Pew Forum on Religion & Public Life. “As a result, we’ll probably see more cases like these in the future.”

In the Kentucky case, McCreary County v. American Civil Liberties Union, the court ruled 5-4 that the placement of Ten Commandments displays in two county courthouses was an example of the government acting “with the ostensible and predominant purpose of advancing religion.” In particular, the majority said, “the reasonable observer could only think that the counties meant to emphasize and celebrate the religious message.”

Justice David Souter wrote the majority opinion, with Justices Stephen Breyer, John Paul Stevens, Ruth Bader Ginsburg and Sandra Day O’Connor joining. The court’s more conservative wing – Chief Justice William Rehnquist and Justices Clarence Thomas, Antonin Scalia and Anthony Kennedy – defended the constitutionality of the Kentucky displays.

The decision in the second case, Van Orden v. Perry, was also 5-4, with Justice Breyer joining the conservatives in support of the Texas monument. Chief Justice Rehnquist, writing for the majority, defended the placement of the monument, which has been on the Capitol grounds since 1961. “While the Commandments are religious, they have an undeniable historical meaning,” he wrote. “Simply having religious content or promoting a message consistent with a religious doctrine does not run afoul of the Establishment Clause.”

According to Laycock, the decisions may ultimately benefit those who favor displaying the Ten Commandments in public areas. “On the whole, this is a big win for the supporters of these displays,” he says. “The displays that have been around for a long time, which is a lot of them, now have something of a grandfather clause.”

Even those who want to put up a new Ten Commandments display in a public space can take heart from these rulings, Laycock says. The message of McCreary and Van Orden, he claims, is to “conceal your religious purpose, put some secular stuff nearby, obfuscate, and your chances are good.”

While the decisions may help ensure that both old and new copies of the Ten Commandments remain in public areas, some experts say newer religious minorities might have trouble winning court backing for public displays that in some way honor their religious traditions.

“Such faith communities will have a very difficult time connecting their religious sentiments to American traditions, or masking their religious precepts with a pretense of secular purpose,” says Ira “Chip” Lupu, a professor at the George Washington University Law School. “The result is that any such faith groups—
Muslims, perhaps—will be disadvantaged in their ability to gain the imprimatur of local government. Many Americans may be happy about that, but such a state of affairs is hardly consistent with the concept that all faiths in America are equal before the law.”

A recent survey conducted by the Forum and the Pew Research Center for the People & the Press in August 2004 finds that Americans overwhelmingly support displaying the Ten Commandments on public property, with more than seven-in-ten saying they believe such displays are proper. Despite this broad support for displaying the commandments, important differences exist in the way members of different religious groups view this issue. View a summary of the poll findings.

In February, the Forum published an in-depth backgrounder on the commandments cases, which provides legal and historical analysis of the issues in Van Orden and McCreary County. View the backgrounder. An addendum to the backgrounder analyzing the court’s decisions and their possible impact on future cases will soon be available on the Forum’s Web site, www.pewforum.org.

On Feb. 24, 2005, the Forum hosted a discussion on the merits of the case, featuring Professor Laycock and Jay Sekulow, chief council for the American Center for Law and Justice. Read the full transcript of the discussion.

The Pew Forum on Religion & Public Life delivers timely, impartial information to national opinion leaders on issues at the intersection of religion and public affairs; it also serves as a neutral venue for discussions of those matters. The Forum is a project of the Pew Research Center, a nonpartisan “fact tank” that provides information on the issues, attitudes and trends shaping America and the world.