Can Satates Display the 10 Commandments on their Statehouse Lawn?

Van Orden v. Perry

This case deals with the constitutionality of displaying a 6 foot by 3.5 foot plaque of the ten commandments, donated by a benevolent association, and which has been displayed in front of the State-house for 40 years (along with 16 other unassociated installations on a 20 acre area of land.)

After a brief history of Establishment Clause cases, and references to our nation's history of natural rights, the Court asserts that the Lemon test is not "useful in dealing with the sort of passive monument that Texas has erected." Instead the Court chooses to consider the nature of the monument, and the history of the Nation. Among the religious references are a Congressional resolution in 1789 referring to God, a proclamation by President Washington referring to Him and His, and even (...) some previous opinions by, and adornments in, the Court itself. I swear, I was not reading ahead, I thought this was an introduction to a reasoned argument. That’s it. The majority surveys previous cases and then flatly asserts that the monument has a dual significance, and that it does not violate the Establishment Clause (all in about 4 or 5 sentences). The only way I can describe this opinion is "disappointing."

Justice Scalia then states that he would "prefer to reach the same result by adopting an Establishment Clause jurisprudence that is in accord with our Nation's past and present practices, and that can be consistently applied." The very next sentence states what that jurisprudence would be "there is nothing unconstitutional in a State’s favoring religion generally, honoring God through public prayer and acknowledgment, or, in a nonproselytizing manner, venerating the Ten Commandments," a statement he made in a previous dissent. This paragraph is longer than his opinion.

Justice Thomas opens by arguing that the Establishment Clause should not be incorporated against the states (via the 14th Amendment). He then proposes returning to the "original meaning of the word 'establishment,'" which he states was an action rather than a description. Justice Thomas goes on to suggest that in Establishment Clause cases the "litigants are mere '[p]assersby ... free to ignore [such symbols or signs], or event to turn their backs, just as they are free to do when they disagree with any other form of government speech.'" More interestingly, he attacks Justice O'Connor's proposal for Establishment Clause jurisprudence by arguing that it is disingenuous to find no religious significance in terms or symbols "by virtue of [their] ubiquity or rote ceremonial invocation." Finally, he argues that the Court has left Establishment Clause Jurisprudence up to "judicial predilections," something this case's opinions carry in spades.

Justice Bryer suggests focusing on how the text of the commandments is used in this context. To this end Justice Bryer emphasizes that the group that donated the monument was primarily concerned with its role in shaping civic morality, and the state's interest in the same message. Justice Bryer points to the monument's longevity as a societal identification with this purpose. He then states in plain terms that this monument does not violate the Lemon test, while arguing that this test is not determinative. The ultimate conclusion is that "where the Establishment Clause is at issue, we must “distinguish between real threat and mere shadow.” Here, we have only the shadow." (Quoting Schempp)

Justice Stevens states for the dissent that the display of the commandments implies Texas' endorsement of the commandments, and the display offers the observer nothing with which to conclude otherwise. Justice Stevens goes on to argue that original project was based on a religious motivation, to make know the Ten Commandments to those that have not received The Word. Justice Stevens then suggests that the "secular by-products that are intended consequences of religious instruction ... are not the type of 'secular' purposes that justify government promulgation of sacred religious messages." The minority opinion then argues that because there is an ongoing debate over the interpretation of the ten commandments it is an unquestionable violation for the State to take sides by choosing a particular version of the commandments to endorse, (though Justice Stevens does not regard this argument as being the only violation at issue). The opinion also states that the history presented by the majority is misleading and that, for example, the free exercise of religion was, before the Philadelphia Convention, meant only to apply to the free exercise of Christian religion. Finally, in response to Justice Thomas, Justice Stevens suggest that if the Establishment Clause were limited to actual coercion it would be redundant in relation to the compelled speech doctrine.

Justice Souter focuses on the fact that the first commandment is stated as "I AM the LORD thy God," and then asserts that if the display were accompanied by some historical reference it would be less constitutionally objectionable. Justice Souter also states that because 17 monuments take up 20 acres anyone seeing one would take each on its own terms. The opinion then tries to relate the case to Stone which the majority stated was distinguished because this case is a more passive invocation of the commandments. "If neutrality in religion means something, any citizen should be able to visit that civic home without having to confront religious expressions clearly meant to convey an official religious position that may be at odds with his own religion, or with rejection of religion." Finally, Justice Souter argues that there is nothing persuasive about the fact that there had been no contest over the display for 40 years because "suing a state over religion puts nothing in a plaintiff's pocket and can take a great deal out."

Sorry it was so long, but there were so many opinions. I think I would go with Justice O'Connor's opinion. There is nothing in it with which I do not agree. Seriously though, this court has GOT to come up with some kind of test that will last longer than a couple of terms.