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DECISIONS OF THE U.S. SUPREME COURT CONCERNING THE TEN COMMANDMENTS IN 2005

The U.S. Supreme Court rulings

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A brief background of the two cases:

bulletMcCreary County v. ACLU of Kentucky (03-1693): This case originally involved a display of the Ten Commandments by itself, in court buildings and public schools in the Kentucky counties of McCreary, Pulaski and Harlan. Later, the Decalogue was supplemented by many Christian displays and a few secular displays.
bulletVan Orden v. Perry (03-1500): This case involves a six-foot tall granite monument containing the Ten Commandments which was placed on the grounds of the Texas State Capitol at Austin in 1961 by the Fraternal Order of Eagles. It includes the Ten Commandments, and various Judeo-Christian religious symbols. No material from any other religions or from secular sources is included.

Because of the similarity between the two cases, they were heard together.

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The Supreme Court decision in the Kentucky cases:

The decision of the Court was not surprising. They ruled that the courthouse displays were unconstitutional because they were clearly intended to promote religion. The 5 to 4 vote was surprising to some observers; it was much closer than some expected. Those in the majority were Justices David Souter, John Paul Stevens, Sandra Day O'Connor, Ruth Bader Ginsburg and Stephen Breyer,

The court said that displays of the Ten Commandments are not intrinsically unconstitutional. However each case must be interpreted individually to determine whether it represents a governmental promotion of religion. Justice Souter, writing for the majority, said: "The reasonable observer could only think that the counties meant to emphasize and celebrate the Commandments' religious message. 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." Justice Antonin Scalia disagreed with the majority. He wrote: "What distinguishes the rule of law from the dictatorship of a shifting Supreme Court majority is the absolutely indispensable requirement that judicial opinions be grounded in consistently applied principle."

The court did not wish to imply that all displays of the Ten Commandments in courtrooms are unconstitutional. The Supreme Court contains an image of Moses carrying the Ten Commandments; it is presumably constitutional. However, in the frieze, Moses is accompanied by many other famous secular and religious individuals throughout history who have contributed to the rule of law. 1

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The Supreme Court decision in the Texas case:

The court's decision was handed down on 2005-JUN-27. They found the granite monument beside the capitol building in Austin, TX to be constitutional. They noted that it is only one of 17 historical displays spread through a 22 acre lot. Chief Justice William Rehnquist, writing for the majority, said: "Of course, the Ten Commandments are religious — they were so viewed at their inception and so remain. The monument therefore has religious significance. Simply having religious content or promoting a message consistent with a religious doctrine does not run afoul of the Establishment clause." 1 Joining Chief Justice Rehnqist were Justices Antonin Scalia, Anthony Kennedy, Clarence Thomas, and Stephen Breyer. 2

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Reaction to the rulings:

Both conservative and liberal agencies and commentators appear to be generally disappointed with the court's rulings: 2

bulletFocus on the Family, a Fundamentalist Christian group, suggests that the Supreme Court decisions are "dangerous" because they fail to clearly define what is constitutional and what is not. Founder and head, James Dobson, said that the rulings "tore a hole through the First Amendment...."This was no affirmation of the right of religious expression — particularly Christian religious expression — in the public square. It was an argument rooted in logic along the lines of, 'Well, the Commandments have been around for a long time, so long, in fact, that they're kind of like any other historical decoration that might be used to adorn the walls or the grounds of a public building. So let them stay in place and keep accumulating dust'." He added:  "What the court decided today is that it's OK to keep a Ten Commandments monument on state-owned land, so long as you don't consider what's written on the stone tablets to be anything more than empty words from a bygone era that is only worth remembering as a distant point on a timeline....These decisions make it more evident than ever that the next justice must be a 'strict constructionist,' a jurist who understands his or her role is to uphold, not shred, the Constitution. All people of faith, those 'values voters' who made the difference in the last election, must be prepared to make their voices heard to make sure a future Supreme Court lineup doesn't eradicate our rights as individuals to acknowledge God publicly." 2
bulletGreg Abbott, Attorney General of Texas, was pleased with the decision concerning his case. But he found the rulings unclear. He said: "It is undeniable that the Ten Commandments are a very important religious text, but it is also undeniable that the Ten Commandments have played a very large role in the development of our laws and our culture in this state. I don't think, however, we have absolute clarity going forward so that everyone will always know what is and what is not permissible." 2
bulletJordan Lorence, Senior Counsel for the conservative Alliance Defense Fund believes that the Justices were swayed by a resolution issued by the Kentucky county commissioners. It expressed openly religious motives and purposes for putting up the display. Lorence said: "They later went through a series of three displays where they increasingly conformed with what the Supreme Court has said about having secular documents with the religious documents. But even with that, the court basically was swayed by what they perceived to be a 'bad attitude' that had been expressed in the past." 2
bulletGary Bauer, president of American Values, said: "Is this now the great sin in American culture — to be defiant of our masters on the federal courts? The people of Kentucky, operating through their elected officials, were doing what I thought America was all about, which was expressing their own deeply held views about what they wanted to honor in displays on public property. The Supreme Court is on dangerous ground."
bulletFormer Chief Judge Roy Moore of Alabama, who was removed from office because he refused a court order to remove a Ten Commandments monument from the state court building, said that the decisions struck a devastating blow to Christianity. He said: "They have actually confused the public by leaving one display and removing one display but their reasoning is what's so dangerous and harmful. They are saying basically you can acknowledge God as long as you don't recognize that you believe in Him. You can post recognition of God as long as you say it's not religious. That's completely contrary to the First Amendment. The First Amendment doesn't prohibit the acknowledgement of God." 2
bulletScott Moss, a constitutional law professor at Marquette University Law School, said: "The court's religion jurisprudence has been a mess for a long time. The court used to enforce a wall of separation between church and state. As of the 1980s, various justices led the court to reject the strong wall. But the court has never agreed to what replaces the wall, so the court's decisions on whether government is endorsing religion have been so fact-specific that cases 'A' and 'B' couldn't help you predict case 'C'." 2

"I pity states and towns trying to figure out what is permissible, because it's not even clear that a state or a town could do exactly what Texas did. Justice Breyer might say a contemporary effort to do the same thing is more divisive in today's pluralistic society." 3
bulletAnnie Laurie Gaylor, co-president of the Freedom from Religion Foundation said: "The Supreme Court really blew it today. They had the chance to resolve this divisive issue, and, instead, they have simply egged on the people who want to put Bible edicts outside our public buildings. And I think they've issued two contradictory decisions and sent a very confusing signal to the public." Her agency filed amicus curia briefs in opposition to the Texas and Kentucky displays. 3
bulletAnthony Picarello, president and general counsel of The Becket Fund for Religious Liberty, a conservative agency said: "These are two decisions that go two different ways for reasons that are hard to discern. This uncertainty will keep lawyers for the ACLU (American Civil Liberties Union) and their opponents in clothes and shoes for years to come." His agency filed amicus curia briefs in favor of the displays. 3

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Effect of the rulings:

These rulings have confirmed that a display of the Ten Commandment in schools, courthouses, government offices, parks, etc: 

bulletBy itself is unconstitutional because it not only promotes religion in general but it promotes a narrow range of monotheistic religions.
bulletAlong with other religious documents is also unconstitutional for the same reason.
bulletMixed with other documents of a secular nature in a balanced grouping is probably constitutional.

Unfortunately, the line between what is constitutional and what is not cannot be specifically defined. The Supreme Court has only offered general guidance.

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References used:

  1. "Split rulings on Ten Commandments displays. Supreme Court: Courthouse exhibits crossed line, but outdoor tablet OK," Associated Press, 2005-JUN-27, at: http://www.msnbc.msn.com/
  2. Pete Winn, "Court Issues 'Dangerous' Decisions on Ten Commandments." CitizenLink, Focus on the Family, 2005-JUN-27, at: http://www.family.org/
  3. Tom Heinen, "Commandments rulings settle little; Case-by-case guideline leaves both sides unhappy," Milwaukee Journal Sentinel, 2005-JUN-28, at: http://www.romingerlegal.com/

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Texts of the Kentucky and Texas rulings:

bulletMcCreary County, KY v. American Civil Liberties Union of Kentucky, #03-1693, 2005-JUN-27, at: http://a257.g.akamaitech.net/
bulletVan Orden v. Perry, #03-1500, 2005-JUN-27, at: http://a257.g.akamaitech.net/

These are PDF files. You may require software to read them. Software can be obtained free from: 

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Site navigation: Home > Religious LawsTen Commandments > 2005 SCOTUS cases > here

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Copyright © 2005 by Ontario Consultants on Religious Tolerance
Originally written: 2005-JUN-27
Latest update: 2005-JUN-30
Author: B.A. Robinson

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