July 27, 2005

Analysis of Ten Commandments Decisions

On June 27, 2005, the Supreme Court issued sharply divided decisions in two cases involving constitutional challenges to government-sponsored displays of the Ten Commandments. In McCreary County v. American Civil Liberties Union of Kentucky (03-1693), a 5-4 majority held that two Kentucky counties had “predominantly religious” purposes in posting the Ten Commandments in their courthouses, and thus violated the First Amendment’s Establishment Clause. However, in Van Orden v. Perry (03-1500), an even more sharply divided court held that a Ten Commandments monument on the grounds of the Texas State Capitol did not run afoul of the Establishment Clause.

The court’s opinions in these cases, described in detail below, highlight profound differences among the justices in their understandings of the Establishment Clause. These differences have resulted in close and fragmented rulings in a wide range of Establishment Clause cases, ranging from aid to parochial schools (Mitchell v. Helms, 2000; Zelman v. Simmons-Harris, 2002), to prayer at public school events (Lee v. Weisman, 1992; Santa Fe v. Doe, 2000), to religious holiday displays on public property (Allegheny County v. ACLU, 1989), and now to government-sponsored displays of the Ten Commandments.

Justice Sandra Day O’Connor’s resignation from the court, announced on July 1, promises to make Establishment Clause jurisprudence even more complex. Because of sharp divisions within the court and the prospect of even more resignations, it is impossible to predict with any certainty how the High Court might rule on future public displays of the Ten Commandments. Until a future Supreme Court revisits the issue, however, the McCreary County and Van Orden decisions will provide the standard for judging the constitutionality of existing or future Commandments displays.