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Mr. VanEngen, a member of the Protestant Reformed Church of Hull, Iowa, is a practicing attorney.

Although the issue of the separation of church and state has long been debated in American society, recent years have seen a noticeable increase in legal challenges to previously accepted practices. For instance, the constitutionality of the Pledge of Allegiance has been under attack because of the inclusion of the phrase “under God,” although that phrase has been in the Pledge for over 50 years. Similarly, many public buildings and courthouses have displayed the Ten Commandments for decades, but in recent years groups such as the American Civil Liberties Union (ACLU) have mounted efforts to have them removed. After many years of silence on the issue of public display of the Ten Commandments, the United States Supreme Court issued two rulings on the issue this past summer. This article will examine the background behind those cases, the rulings themselves, and their implications.

Legal Precedent and Factual History of the Cases

Both of the recently decided cases, Van Orden v. Perry¹ and McCreary County v. American Civil Liberties Union of Kentucky,² involve the sole issue of whether a display of the Ten Commandments on public property violates the Establishment Clause of the First Amendment to the Constitution. Groups on both sides of the issue waited anxiously for the Court’s guidance on whether such monuments can remain. The last time the Court had ruled specifically on a display of the Ten Commandments was twenty-five years ago in the case of Stone v. Graham.³ In that case, the Court ruled that a display of the Ten Commandments located in a public school in Kentucky violated the Establishment Clause because the display had a religious rather than secular purpose, when the test defined inLemon v. Kurtzman was applied.4 The Lemontest, established ten years earlier, had delineated a three-prong approach to evaluating state-sponsored actions involving religion: 1) the action must have a secular legislative purpose, 2) its primary effect must not be either to advance or to inhibit religion, and 3) it must not foster excessive government entanglement in religion. Although one would expect that this would mean that such displays would be frowned upon in any government-sponsored setting, that does not always hold true. Although the Supreme Court has found prayer in public schools to be a violation, legislatures including the United States Congress are able to open with prayer. The question in the recent cases was whether the prohibition on display of the Ten Commandments applied to public facilities such as courthouses and state-capitol grounds. The Supreme Court had declined to address the question of Ten Commandment displays since the Stone case, even in the face of major media coverage in the case of Chief Justice Roy Moore of the Alabama Supreme Court. Judge Moore was ousted from office for refusing to remove a monument of the Ten Commandments from his courthouse.5

In the McCreary case, two counties in Kentucky had set up displays of the Ten Commandments in the hallway of the county courthouse. The displays explicitly identified the text as coming from the King James Version, and referred toExodus 20:3-17. After suits were filed, the counties passed resolutions explaining, among other things, that the Ten Commandments are Kentucky’s “precedent legal code,” that the Ten Commandments were codified in Kentucky’s civil and criminal codes, and that the county judges agreed with Alabama Chief Justice Roy Moore. Under the resolution, the displays were changed to add other historic documents such as the “endowed by their Creator” passage from the Declaration of Independence, and the national motto of “In God We Trust.” After an injunction issued, the display was changed again to include the Ten Commandments and eight other documents of equal size. This time the display also included items with no religious references, such as the Star Spangled Banner and a picture of Lady Justice.

When the ACLU supplemented its pleadings to enjoin the third display, the counties responded by explaining that the purpose of the new version was “to demonstrate that the Ten Commandments were part of the foundation of American Law and Government,” and to “educate the citizens of the county regarding some of the documents that played a significant role in the foundation of our system of law and government.” The District Court found that proclaiming the foundational value of the Ten Commandments had a religious, rather than a secular purpose, and therefore ruled that the display should be removed. The ruling was upheld by the Court of Appeals for the Sixth Circuit, and was again appealed to the Supreme Court.

The Van Orden case, on the other hand, was quite simple. The case involved a stone monument of the Ten Commandments, which was placed on the Texas statehouse grounds by the Eagles Club in 1961. The monument stood in that location, along with 17 other monuments and 21 historical markers. Van Orden, a former attorney, passed the monument on a daily basis for six years on his way to do research, and eventually sued to have the monument removed. The district court found no Constitutional violations in the display, and the Court of Appeals for the Fifth Circuit agreed. Van Orden then appealed to the Supreme Court.

The Court’s Ruling

The Supreme Court found that the displays in the McCreary case violated the Establishment Clause because they had a religious purpose, but that the display in Van Orden was allowable. Reconciling these cases is somewhat difficult, since they reach opposite conclusions although they contain the same basic set of facts—a monument to the Ten Commandments placed on state property. The key to distinguishing the cases seems to lie in the history of the placement of the displays and their contextual surroundings, not in the actual Ten Commandments themselves. Jus
tice Souter points out in the majority opinion in the McCreary case that although the counties argued that the displays were to show the foundation of state laws, they were put up and displayed in such a way as to point directly to Christianity as a religion. When the original display was put up in one county, the county judge invited his minister to speak, and the displays referred specifically to the Bible, rather than just the Ten Commandments, by referencing the King James Version and citingExodus 20:3-17. Subsequent modifications of the displays included other historical patriotic documents, but highlighted references to God and the Bible in those documents. The Ten Commandments were not incorporated into a broader, secular display as had been suggested in the Stone case.

The Court found that by the time the other secular documents were incorporated into the third display, the religious objective in erecting the display was already obvious, and the Ten Commandments in the third display quoted Scripture even more directly. Although the counties had argued that “purpose” was unknowable and should be disregarded as a consideration, the Court found that the circumstances clearly indicated a government purpose to endorse Christianity, in violation of the first prong of the Lemon test.

In the Van Orden case, the majority noted that the state had simply accepted the donation of the monument, and the factual legislative history does not seem to exhibit a desire to promote religion. The state had a valid secular purpose in recognizing the Eagles for their efforts to reduce juvenile delinquency. The majority also noted that the Court had been inconsistent in applying the Lemon test to past cases.

However, the deciding factor for Justice Breyer, who cast the deciding vote, was the length of time the display had remained unchallenged. He stated “Those 40 years suggest more strongly than can any set of formulaic tests that few individuals, whatever their system of beliefs, are likely to have understood the monument as amounting in any significantly detrimental way, to a government effort to favor a particular religious sect.” Breyer also noted that a photograph of the statehouse grounds as a whole suggested nothing of the sacred.

Current Status of the Law under Van Ordenand McCreary

Because of the Supreme Court’s divided rulings on these two cases, it is difficult to discern exactly what the status of the law is regarding displays of the Ten Commandments or other displays of religion on public property. Rather than a “bright line rule” that will allow easy determination of the constitutionality of a display, the Court’s decisions will require a careful, case-by-case examination of the context and facts of each case. Where there is disagreement, the courts will need to be called in to do this analysis. To some extent, the future direction of the law in this area will be determined by the makeup of the Court, rather than prevailing precedents.

Often one can gain some understanding of how a future case will be decided by examining how the justices voted and why, but such analysis is difficult in this case. The majority in each case was a slim five to four margin, with the deciding vote in each case cast by Justice Steven Breyer, and the other eight justices voting for the same outcome in each case. In both cases, Justice Sandra Day O’Connor voted to remove the displays. Justice O’Connor has since resigned from the Supreme Court, and her replacement has not been determined at the time of this writing. Justice William Rehnquist, who wrote the majority opinion in Van Orden and voted to retain the displays in both cases, has since passed away and has been replaced by Chief Justice John Roberts. Although Roberts is generally somewhat “conservative” and therefore possibly tolerant of religious displays, it remains to be seen what his position will be.

Further complicating the analysis is the fact that the Justices did not reach the same conclusion by the same means. Some used different reasoning and filed concurring opinions rather than simply joining in the majority opinion or dissent. For instance, in the Van Orden case, the decision to retain the display was made up of a majority opinion and three separate concurring opinions by Justices Scalia, Thomas, and Breyer. As can be seen from this discussion, the balance of viewpoints is very delicate, making the selection of Justice O’Connor’s replacement and future justices very important.

The four Justices finding a violation of the Establishment Clause seem to wish to construe any action involving religion in the public arena very narrowly, and the four favoring retention of the monuments seem to wish to allow relatively broad exercise. The majority in McCreary, in finding the displays unconstitutional, accused the dissenters of holding the view that “government should be free to approve of the core beliefs of a favored religion over the tenets of others, a view that should trouble anyone who prizes religious liberty.”

The Justice who appears to be least firmly entrenched at this point is Justice Breyer, who seems to base his vote mostly on context and on the length of time a practice has been allowed to continue. The emphasis on length of time provides little assurance for one trying to gage the legality of an action before it is taken. The best measure of legality of action afterMcCreary and Van Orden, then, seems to be an indepth analysis of the motives of those involved and whether they made any mention of religion, either in general or as a particular belief, as well as whether the action or its result “points” to religion, such as the highlighted passages of documents in the McCreary case.

Evaluation and Conclusion

While it is sad that people are so disturbed by the very sight of the Ten Command
ments, the rulings in these cases really do believers no direct harm. To the extent that the underlying cases demonstrate hostility towards Christianity, they are cause for watchfulness on the part of believers. But the prohibition, if any, applies only to the use of the government or public property for religious purposes. The role of government is not to further the cause of the gospel—that is solely the role of the church. Reformed believers have long held to the strict separation of the church and state so that the gospel is untainted as it goes forth. Any religious message conveyed by the government is not likely to be the pure, unadulterated truth.

Many religious leaders across the country have voiced concern that these decisions, especially the McCreary decision, are losses for churches and for the free exercise of our religion. But without strict separation between church and state, a large, nominally-Christian denomination or other religion could gain a majority vote in society, and use the government to force their religious views, not only on atheists, but also on small denominations such as the Protestant Reformed Churches. Although a clear rule would be convenient, the line between Free Exercise of Religion and Establishment of Religion is very fine. Incorporation of religion into government function would also necessitate government regulation of religion. If nothing else, the Court’s majority opinion in Van Orden assures us that, for the present time at least, the Court is concerned about impinging on the ability of citizens to express freely their faith.

What is more disturbing is the aspect of these cases, and of virtually all other cases dealing with the Establishment Clause, that the Court did not address. In nearly all such cases, the Court looks at traditional religious beliefs or practices, but fails to recognize that many “secular” institutions are either idolatrous or blatantly antichristian. For instance, in the long standing debate over the teaching of creation in public schools, no one seems to question whether evolution is part of a “religion” in the legal sense. The theory is antithetically opposed to what God reveals concerning Himself in Scripture, and yet it is deemed a neutral, secular teaching. The same is true for the many expressions of humanistic, man-centered philosophy that are freely expressed in public school curricula, courthouses, parks, and other public forums.

Finally, an additional area of concern is the attempt to “secularize” Christianity to the extent that it passes legal muster. Such an attempt can only ultimately lead to state-endorsed, nominally-Christian institutions, such as the Reformed fathers struggled against in Europe and elsewhere. Although those who fought for the retention of the Ten Commandment displays may have been well intentioned, their defense that the Ten Commandments merely teach the foundations of civic law strips those Commandments of their true significance. Even the ACLU recognized this in their press release after the decisions were rendered, when it stated, “Ultimately, we show more respect for the Ten Commandments when we do not deny their inherently religious message.”6

The Ten Commandments are not a historic religious relic and should not be portrayed as such just so they can be publicly displayed. As the Heidelberg Catechism tells us, God demands the strict preaching of those commandments so that we can know our sinful nature and seek remission of sins, and so that we can pray to God for the grace of the Holy Spirit, to be renewed more and more after the image of God.7 No display of the Ten Commandments alone can convey this truth, and to deny this inherent truth of the Ten Commandments so that their bare text can be displayed in public places does a disservice to the cause of the gospel and Christ’s church. Rather than deny the religious nature of our actions when others challenge our free exercise of faith in the public realm, it is better to argue as Justice Scalia did in his dissent in McCreary, by noting that many of those who wrote the Constitution publicly exercised their faith, not hesitating to refer to God in speeches, such as George Washington’s first Thanksgiving Proclamation.

In conclusion, our focus should be on maintaining our ability to worship in the purest form possible, without trying to use the government to promote an empty symbolism of religion or, worse yet, allowing the creation of a state-sponsored religion.

1. Van Orden v. Perry, 125 S.Ct. 346 (2005).

2. McCreary County v. American Civil Liberties Union of Ky, 125 S.Ct. 310 (2005).

3. Stone v. Graham, 449 U.S. 39 (1980).

4. Lemon v. Kurtzman, 403 U.S. 602 (1970).

5. Jeffrey Gettleman, Alabama Panel Ousts Judge Over Ten Commandments, New York Times, November 14, 2003 §A, at 16.

6. Press Release, American Civil Liberties Union, High Court Upholds Religious Liberty (June 27, 2005).

7. Heidelberg Catechism, Question and Answer 115.