Can the Ten Commandments be Posted on Government Property?

Can the Ten Commandments be Posted on Government Property?

by Michelle Kaminsky, Esq., December 2009

This year's presidential race placed God on the political stage like never before. And, polls show George W. Bush can largely thank Evangelical Christians for his reelection. What this historic election indicates is that religious values may have struck the loudest chord in 2004.

The presidential campaign may be over, but the debate over religion and politics shows no sign of quieting. Religious values will once again take center stage—this time in the judiciary—when the Supreme Court decides whether the Ten Commandments can be posted on government property. Supporters for displaying the Commandments argue that the stone tablets have a firm place in American history. Opponents, on the other hand, view the display has a clear attempt to force religion into a place it does not constitutionally belong.

In February, the Supreme Court will review two different lower court decisions concerning the Ten Commandments. The first case, Van Orden v. Perry, centers on a six-foot tall red granite statue of the Ten Commandments placed near the Texas State Capitol. In this instance, the three-judge panel unanimously agreed the monument was not a problem. In fact, they called it a "nonsectarian version" of Moses' stone tablets that had both religious and secular messages.

Such views were not shared by at least one district court in Kentucky. In the second case the Supreme Court is set to hear this winter, McCreary County v. ACLU of Kentucky, the Kentucky court demanded that framed copies of the Ten Commandments be taken down immediately in the McCreary and Pulaski County Courthouses as well as in the HarlanCounty schools. The display, the court argued, was unconstitutional and "blatantly religious."

Attempts by officials in McCrearyCounty to modify the display—such as adding other historical documents like the Bill of Rights and the Declaration of Independence—did little to change the court's position. The court ruled the second display equally unconstitutional and took further offence at the suggestion that America's legal tradition was based on the Ten Commandments.

It should be noted that the plaintiff in this case, the ACLU of Kentucky, had earlier offered to withdraw its suit if the counties agreed to erect a "free speech" wall on which groups of all beliefs including Nazis and Satanists could express themselves without government interference. The counties declined the offer, choosing instead to have their case heard by the Supreme Court.

This February will not be the first time the Supreme Court has dealt with the issue of the Ten Commandments. In 1980, the Court banned the display of the Commandments in public school classrooms. And in 2001, the Supreme Court let a ruling stand that found an Indiana Ten Commandments monument an unconstitutional entangling of church and state.

But the Court's historical rulings are not necessarily an indicator for how it will decide come February. Supreme Court Justices are anything but unified or consistent in their views. In reference to the 2001 Indiana case, Chief Justice William H. Rehnquist and Justices Antonin Scalia and Clarence Thomas stated they found nothing unconstitutional in the display. On the other hand, Justice John Paul Stevens noted the monument's first line, "I am the Lord thy God" is "rather hard to square with the proposition that the monument expresses no particular religious preference."

The divergent rulings on the Ten Commandments to some extend reflect the larger divisions in this country between those who'd prefer a strictly secular government and those who'd like to see God play a bigger role in our public lives. Perhaps then the one thing we can count on in the coming years is more debate.