The recent hearings at the U.S. Supreme Court revealed the complexities surrounding the constitutionality of government displays of the Ten Commandments. Justice Sandra Day O’Connor acknowledged the difficulty in drawing a clear line on this issue, highlighting the importance of the two hours of arguments in the cases being closely observed by education law experts.
The cases brought before the Court on March 2 involved the display of the Ten Commandments on government property. The justices explored various perspectives and opinions on the matter, while situated beneath a courtroom frieze depicting Moses and other ancient lawgivers. The last time the Supreme Court addressed this issue was in its 1980 ruling in Stone v. Graham, in which a Kentucky law mandating the display of the commandments in public schools was struck down.
In the first case argued, Duke University law professor Erwin Chemerinsky argued that a granite monument containing a Protestant version of the commandments on the grounds of the Texas State Capitol violates the U.S. Constitution’s prohibition of establishing religion. Chemerinsky contended that displaying a religious text prescribing rules for behavior alienates nonbelievers and those of other faiths, infringing upon their constitutional rights. Justice Antonin Scalia, however, countered this argument by stating that the monument represents the government’s authority derived from God, a view shared by the majority of Americans. Justice Anthony M. Kennedy criticized opponents of the Texas monument for lacking balanced dialogue and having an excessively negative attitude towards religion. The U.S. Court of Appeals for the 5th Circuit had previously deemed the monument constitutional.
Regarding the Texas commandments monument, Justice John Paul Stevens proposed that the state could enclose it with a fence, transfer the underlying land, and include a disclaimer disavowing state endorsement of its content. However, acting U.S. Solicitor General Paul D. Clement, aligning with Texas Attorney General Greg Abbott, argued that such actions would display government hostility towards religion. Justice Ruth Bader Ginsburg inquired whether similar displays of the commandments in other government settings would also be deemed acceptable. Clement replied that the constitutionality of displaying the Ten Commandments in schools is a more complex matter, unless the Supreme Court wishes to reconsider its ruling in Stone v. Graham.
The issue of context was also significant in the arguments over the Kentucky case, McCreary County v. American Civil Liberties Union of Kentucky. The case involved displays in two Kentucky courthouses that were invalidated by the U.S. Court of Appeals for the 6th Circuit in 2003. In response to the ACLU’s challenge, the counties surrounded the commandments with other political and patriotic texts and symbols. David A. Friedman, the ACLU’s lawyer, contended that these additional documents were merely an attempt to conceal the religious purpose behind the displays, likening it to wrapping the Ten Commandments in the flag.
Justice David H. Souter appeared to agree with the argument made by Mathew D. Staver, a lawyer from Longwood, Florida, who presented the case for McCreary and Pulaski counties in Kentucky. Justice Souter referred to the current lawsuit as mere "litigation dressing," implying that it is a formality rather than a substantive matter. In response, Staver argued that the counties chose to comply instead of engaging in a legal battle, and that government officials should be allowed to rectify any constitutional violations they may have made. Staver urged the court to focus on the perception of the current display rather than its original intent, asserting that it is crucial to determine whether a reasonable observer would interpret it as a government endorsement of religion. He further suggested that if the law does not recognize the shift from religious to secular purposes by public bodies, the Bible would have to be completely banned from public schools, as it historically formed part of a Christian curriculum.
Staver said, "You couldn’t teach the Bible in a historical context."
Building upon this argument, Justice Souter inquired whether it would be appropriate for public schools to solely teach the Protestant version of the Ten Commandments. He emphasized that it would be intellectually responsible, if not for church-state reasons, for public schools to highlight the variations between different versions of the commandments, which the displays in the counties failed to do. Many observers expressed hope that the court’s decisions in these cases would provide clear guidance on the display of the Ten Commandments and potentially address other church-state conflicts. Given the contentious and intricate nature of the issue, Julie Underwood, the general counsel of the National School Boards Association, anticipated that a ruling would not be reached until the end of the court’s term in the summer.
