Quick look at Van Orden v. Perry, McCreary County v. ACLU

Monday, June 27, 2005

Van Orden v. Perry
Background: At issue in Van Orden v. Perry is a granite monument, set on the grounds of the state Capitol in Austin, Texas, that displays the Ten Commandments along with other symbols including an American eagle holding an American flag, and a Star of David. It was donated in 1961 by the Fraternal Order of Eagles, which gave similar monuments to government entities nationwide. It is one of 16 monuments that also dot the Capitol grounds. Thomas Van Orden, a homeless man and a lawyer, challenged the monument as an unconstitutional establishment of religion that conveyed government endorsement of Judeo-Christian beliefs. The state claimed the monument, placed among the other memorials, has a secular purpose of recognizing the state’s many historical influences and events. A district judge ruled for the state, as did the 5th U.S. Circuit Court of Appeals. “A reasonable viewer would not see this display either as a State endorsement of the Commandment's religious message or as excluding those who would not subscribe to its religious statements,” the appeals court ruled in November 2003.

Ruling: The Supreme Court, by a 5-4 vote, affirmed the lower court and said the establishment clause allows the Austin display. Both “the monument’s nature and the nation’s history” dictate this result, Chief Justice William Rehnquist wrote for the majority. Although the Ten Commandments are religious, the ruling said, acknowledging their historical role in a passive way as Texas has done is permissible. In an important concurrence, Justice Stephen Breyer said the Texas monument presented a “difficult borderline case” that he resolved in favor of the monument. The decisive factor for Breyer was that the monument went unchallenged for more than 40 years. Because of that length of time, Breyer concluded, it is apparent that few people viewed it as a sign of official establishment of religion in Texas.

Verbatim: “Of course, the Ten Commandments are religious — they were so viewed at their inception and so remain. The monument, therefore, has religious significance. According to Judeo-Christian belief, the Ten Commandments were given to Moses by God on Mt. Sinai. But Moses was a lawgiver as well as a religious leader. And the Ten Commandments have an undeniable historical meaning … . Simply having religious content or promoting a message consistent with a religious doctrine does not run afoul of the Establishment Clause … . Texas has treated her Capitol grounds monuments as representing the several strands in the State's political and legal history. The inclusion of the Ten Commandments monument in this group has a dual significance, partaking of both religion and government. We cannot say that Texas' display of this monument violates the Establishment Clause of the First Amendment.”

Lineup: Chief Justice William Rehnquist was joined by Justices Antonin Scalia, Anthony Kennedy, Clarence Thomas, and Stephen Breyer. Dissenting were Justices John Paul Stevens, Ruth Bader Ginsburg, Sandra Day O’Connor and David Souter.

McCreary County v. ACLU
Background: In McCreary County v. ACLU, the Ten Commandments displays in dispute hang on the walls of county courthouses in Kentucky. When the American Civil Liberties Union challenged the displays in federal court, county officials modified the displays to include other historical documents, many of which made some kind of religious reference. But the ACLU persisted, and a district court judge ordered the displays removed. Court officials instead modified the displays again, adding other, more neutral documents and images. During the dispute, county governing boards passed a resolution that seemed to affirm the religious nature of the displays. The 6th U.S. Court of Appeals ruled that the modified displays violated the establishment clause, finding that they “manifest a religious purpose because they utterly fail to integrate the Ten Commandments with a secular subject matter.”

Ruling: The Kentucky displays violate the establishment clause of the First Amendment, because of the plainly religious purpose behind placing them on the courthouse walls. Even though the displays were modified, the religious purpose remains, said Justice David Souter for the majority. Souter said it was possible for later actions to “erase” the original intent, but said the purpose needs to be taken seriously, and in this case it dictates that the displays be removed. Souter also reiterated the Court’s past doctrine that the First Amendment requires government to be neutral on religion. In an impassioned dissent, Justice Antonin Scalia’s reply to Souter’s neutrality argument by saying, “Who says so?” In Scalia’s view, the text of the Constitution and the history of the nation make it clear that government can favor religion.

Verbatim: “The touchstone for our analysis is the principle that the ‘First Amendment mandates governmental neutrality between religion and religion, and between religion and nonreligion.’ … When the government acts with the ostensible and predominant purpose of advancing religion, it violates that central Establishment Clause value of official religious neutrality, there being no neutrality when the government's ostensible object is to take sides … . This is not to deny that the Commandments have had influence on civil or secular law; a major text of a majority religion is bound to be felt. The point is simply that the original text viewed in its entirety is an unmistakably religious statement dealing with religious obligations and with morality subject to religious sanction. When the government initiates an effort to place this statement alone in public view, a religious object is unmistakable.”

Lineup: Justice David Souter wrote for the majority, joined by Justices John Paul Stevens, Sandra Day O’Connor, Ruth Bader Ginsburg and Stephen Breyer. Justice Antonin Scalia dissented, joined by Chief Justice William Rehnquist, and Justices Clarence Thomas and Anthony Kennedy.

Impact of both cases
It may take awhile for legal experts to sort out and reconcile the two seemingly contradictory rulings. But it is clear that the Supreme Court has declined to abandon its traditional “Lemon test,” derived from Lemon v. Kurtzman, for assessing establishment clause claims. Reversing Lemon has been a longtime goal of the religious right. Another common thread in both cases is that “context matters.” Some Ten Commandments displays can be ordered taken down because of the clearly religious intent behind putting them up; others can be permitted, because of historical factors and a long period of acceptance. The Ten Commandments depiction inside the Supreme Court chamber is probably the paradigm of an acceptable display. It was mentioned in several places in both decisions. On a frieze above the justices, Moses is seen holding the tablets with the Ten Commandments, but he is among 17 lawgivers both secular and religious. Ten Commandment displays with that kind of context and a long history appear safe, though litigation is likely to continue.