A Wall of Separation - The Ten Commandments (Part One)
In about a week, Oklahoma will vote on whether or not to repeal the ‘Blaine Amendment’ in our state constitution by passing SQ 790. According to proponents, the primary impetus behind this change is the re-installment of a ginormous graven image of the Ten Commandments on Capitol grounds. In practice, passage would open up a legion of church-state issues – including, but not limited to, the voucher-palooza much of current leadership has been craving for so long.
But what about the stated purpose? Is it constitutional to post the Ten Commandments on public grounds? Is it constitutional to prevent it, if someone else wants to put them there? The short answer to both questions is… Yes. Sort of. But not really. So, no. Well… maybe.
The First Amendment contains two specific clauses pertaining to religion. The first says that “Congress shall make no law respecting an establishment of religion” – the government can’t do anything to push a particular faith or favor religion over non-religion. This is known as the “Establishment Clause.” The second bit says “…or prohibiting the free exercise thereof” – meaning that the government also can’t discourage faith or punish religion over non-religion. This is called the “Free Exercise Clause.”
As anyone who’s ever had good friends go through an ugly argument knows, neutrality is far more difficult in practice than it sounds in theory. “Staying out of it” isn’t always possible. Responsible government, then, makes a good faith effort to avoid straying far into either danger – an imperfect balancing act at best, and one often complicated by strong emotions on all sides.
It’s difficult to say which has historically done the greater damage - a government that oppresses religion or a government that supports it. The first tends to end very badly for temporal authority; the latter tends to undermine the faith so favored.
So what has the highest court in the land said about the Ten Commandments on public property? Quite a bit, actually…
In Stone v. Graham (1980), the Supreme Court determined that posting the Ten Commandments in public school classrooms without context or educational purpose violated the Establishment Clause, and was thus unconstitutional. While it’s perfectly appropriate – even essential – to teach about faith as part of history, or to better understand literature, culture, or art, the disconnected posting of Bible verses is a big no-no.
But that’s school. Children are essentially a captive audience, and minors at that. What about government properties primarily utilized by grown-ups, who can drive and buy wine coolers and really ought to have better musical tastes by then? Do the rules change?
The Ten Commandments made the news in 2003 when a Chief Justice in Alabama and county officials in Tennessee posted copies of the Ten Commandments in their respective buildings – buildings paid for and maintained by government dollars for public purposes. Neither ended up in the Supreme Court, but defiant defenders of the displays clashed with civil libertarians verbally and emotionally. Add TV cameras and other local press, and… shenanigans!
The Alabama Justice lost his position over his refusal to remove the monument. In Tennessee the issue bounced around a bit until the county sheriff agreed to relocate the Commandments from the lobby to his office – still government property, but less ‘public,’ I suppose.
The issue picked up speed in 2004-2005.
Two different counties in Kentucky posted copies of the Ten Commandments in their courthouses. The ACLU sued, as they are wont to do, on the grounds that such displays violated the Establishment Clause. The counties responded that they weren’t displaying the Commandments as religious statements – pshaw! They were acknowledging “the precedent legal code upon which the civil and criminal codes of… Kentucky are founded." Duh.
The District Court – the lowest level of federal court, where these sorts of cases almost always begin – applied what's known as “The Lemon Test.” This was an informal checklist established in Lemon v. Kurtzman (1971) and often utilized thereafter to determine whether or not a government action violated church-state separation. It’s not a hard-and-fast rule by any means – several Justices over the years have openly rejected it – but it does come up fairly regularly in these sorts of cases, and it made sense for the local district court to utilized it here.
The Lemon Test:
1. A law must have a secular legislative purpose.
2. Its principal or primary effect must be one that neither advances nor inhibits religion.
3. The law must not foster "an excessive government entanglement with religion.”
The district court didn’t get past the first question. There was no secular legislative purpose, so bang – you lose. Thanks for playing, Kentucky – sucks to suck.
Not a people to go down easily, the counties revised their displays. They added a title, “The Foundations of American Law and Government," and additional documents – excerpts from the Magna Carta, the Declaration of Independence, the Star Spangled Banner, etc. There was even a nice picture of Lady Justice, blindfold and all, holding the very scales Kentucky hoped to tip in their favor through these modifications.
The presentation emphasized the role of faith and the ‘Almighty’ in the development of the United States. They were largely ‘secular’ documents, but the cumulative message was one of divine guidance and inspiration.
This second effort didn’t make it to the Supremes. The Sixth Circuit Court of Appeals shot it down, explaining that the addition of other items without any particular connection to the Ten Commandments didn’t change the religious nature of the display.
Don’t worry, though, kids – Kentucky will be making yet another attempt before we’re through.
On the same day the Supreme Court announced its decision in McCreary County v. ACLU of Kentucky (2005), it addressed a similar case from Texas - Van Orden v. Perry (2005). Court-watchers were surprised to learn that while Kentucky’s displays were unconstitutional, a seemingly similar display in Austin, Texas, was determined to be acceptable. What was the difference?
The Texas display included an imposing six-foot monument inscribed with the Ten Commandments, so it wasn’t a matter of subtlety. This particular item, however, was located on the extensive grounds surrounding the State Capitol – grounds filled with sundry other icons related to the history and cultures of Texas. It had been donated forty some years before by the “Fraternal Order of Eagles,” a very non-religious civic organization, with additional support from Cecil B. DeMille – the producer/director behind “The Ten Commandments” and numerous other Hollywood blockbusters.
The Ten Commandments monument itself incorporated traditional American iconography – an eagle grasping the American flag and an eye inside of a pyramid – as well as two Stars of David and the superimposed Greek letters Chi and Rho, which represent Christ. Surrounded by various war veterans, heroes of the Alamo, representative homesteaders, and even a replica of the Statue of Liberty, It was firmly established as an element of Texas culture and history.
Essentially, the question came down to context and intent. The Kentucky displays were clearly part of a pattern to test church-state limits and nudge religion into the public sphere as a matter of principle or political maneuvering, while the Texas display was reflective of the religious – and generally audacious – nature of Texans.
Not that it was as clear-cut as the explanation makes it seem. Both cases were decided by split 5-4 votes, and 8 Justices voted the same way both times. The difference was a single Justice, Stephen Breyer. He saw a difference in the two which eight other Justices did not – thus shaping jurisprudence and history for the foreseeable future.
Kentucky made one more run at it in 2010. They claimed to have “fixed” the problems with their original display and that it was no longer unconstitutional. What makes this claim… well, weird, is that the display itself hadn’t actually changed. Instead, Kentucky argued that their motivation – a significant reason they’d lost five years before – had evolved. Now they merely wished to include the Commandments as part of a “commemoration of historical documents.” The same display had magically become constitutional, because… history and culture! Like Texas!
In short, they wanted ‘backsies’. (As a back-up argument, they hoped the Court would consider getting rid of that ‘Lemon’ thing no one liked.)
The Sixth Circuit Court didn’t buy this “new context” even a little. Kentucky could not come back five years later and pretend none of the history associated with their efforts had occurred and none of their prior arguments had been made. Justice may be blind, but that didn’t mean it had mandatory short-term memory loss. (And we’ll decide when we’re through with the Lemon Test, thank you very much.)
Sorry, Kentucky – if you want to see the Ten Commandments displayed, you’ll have to go to Austin.
Related Post: Wall of Separation – The Ten Commandments (Part Two)
Related Post: Building A Wall of Separation (Church & School)
Related Post: Missing the Old Testament