Public Display of the Ten Commandments
Public Display of the Ten Commandments
Cynthia Brougher
Legislative Attorney
American Law Division
Summary
In 1980, the Supreme Court held in Stone v. Graham that a Kentucky statute
requiring the posting of a copy of the Ten Commandments on the wall of each public
school classroom in the state had no secular legislative purpose and was therefore
unconstitutional. The Court did not address the constitutionality of public displays of
the Ten Commandments again until 2005. In McCreary County v. ACLU of Kentucky
and Van Orden v. Perry, the Court reached differing conclusions regarding displays of
the Ten Commandments in different contexts. This report summarizes the Court’s
holdings in Stone, McCreary, and Van Orden, and analyzes the distinctions the Court
made in reaching the divergent decisions. It also addresses the potential impact of the
decisions in Establishment Clause jurisprudence and the case of Pleasant Grove City,
Utah v. Summum, a case scheduled to be argued before the Court in November 2008.
Backgr ound1
Public displays of religious symbols, such as the Ten Commandments, are subject
to review under the Establishment Clause of the First Amendment. The primary test used
to evaluate these claims is known the Lemon test. Under this test, public displays (1) must
have a secular purpose, (2) must have a primary effect that neither advances nor inhibits2
religion, and (3) must not lead to excessive entanglement with religion.
The Supreme Court first addressed the constitutionality of public displays of
religious symbols in 1980. In Stone v. Graham, the Court struck down a Kentucky statute
requiring the posting of a privately funded copy of the Ten Commandments on the wall
of each public school classroom in the state.3 The Court determined that the statute had
no secular purpose, and therefore failed the Lemon test. Kentucky argued that the statute
1 Portions of this report were originally prepared by Angie A. Welborn, formerly a Legislative
Attorney, American Law Division.
2 Lemon v. Kurtzman, 403 U.S. 602, 612-13 (1971).
3 449 U.S. 39 (1980).
served a secular legislative purpose because the Commandments displays included the
following notation: “The secular application of the Ten Commandments is clearly seen
in its adoption as the fundamental legal code of Western Civilization and the Common
Law of the United States.”4 The Court, however, found that the “pre-eminent purpose for
posting the Ten Commandments on schoolroom walls was plainly religious” and the
display served no educational function.5 The Court held that an “‘avowed’ secular
purpose is not sufficient to avoid conflict with the First Amendment.”6
In Stone, the source of the funding did not affect the constitutionality of the statute.
Although the displays were funded by voluntary private contributions, the Court held that
“the mere posting of the copies under the auspices of the legislature provides the ‘official
support of the State ... Government’ that the Establishment Clause prohibits.”7
2005 Supreme Court Decisions Regarding Public Displays
McCreary County v. American Civil Liberties Union of Kentucky.8 In
including a citation to the Book of Exodus, in their courthouses. The displays were placed
in public areas, “readily visible” to those who used the courthouse.9 Soon after the
displays were posted, the ACLU of Kentucky sued the counties in federal district court
for an injunction against maintaining the displays, alleging a violation of the
Establishment Clause. While the court considered the requested injunction, the counties
expanded the display to show that the Commandments were Kentucky’s “precedent legal
code,” and included eight other documents, each having its own religious reference.10 The
counties stated several grounds for their position, including a declaration that the
“Founding Fathers had an explicit understanding of the duty of elected officials to
publicly acknowledge God as the source of America’s strength and direction.”11 Although
the district court ordered that the Commandments be removed immediately and that no
4 Id. at 41. See also Ky. Rev. Stat. § 158.178 (1980).
5 Id.
6 Id.
7 Id. at 42.
8 545 U.S. 844 (2005).
9 Id. at 852.
10 Id. at 853. The documents in the second displays included a passage of the Declaration of
Independence; the Preamble to the Constitution of Kentucky; the national motto, “In God We
Trust”; a page from the Congressional Record of February 2, 1983, proclaiming the Year of the
Bible and including a statement of the Ten Commandments; a proclamation by President
Abraham Lincoln designating April 30, 1863, a National Day of Prayer and Humiliation; an
excerpt from President Lincoln’s “Reply to Loyal Colored People of Baltimore upon Presentation
of the Bible,” reading that “the Bible is the best gift God has ever given to man;” a proclamation
by President Reagan marking 1983 as the year of the Bible; and the Mayflower Compact.
11 Id. at 853.
county official “erect or cause to be erected similar displays,”12 the counties erected a third
display. This final display in each courthouse included nine documents of similar size to
each other, and was titled “The Foundations of American Law and Government
Display. ”13
When the case came before the U.S. Supreme Court, the Court emphasized the
importance of neutrality in considering issues under the Establishment Clause, noting that
“the First Amendment mandates governmental neutrality between religion and religion,
and between religion and nonreligion.”14 The Court explained that the Establishment
Clause’s core value of neutrality is violated by government actions that have “the
ostensible and predominant purpose of advancing religion.”15 The facts of McCreary
raised questions of the relevance of the purpose prong of the Lemon test. The Court
recognized that the purpose of a government action, though rarely dispositive, serves an
important function.16 According to the Court, favoring one religion, or favoring religion
generally, contradicts the understanding “that liberty and social stability demand a
religious tolerance that respects the religious views of all citizens.”17 The Court also
recognized that purpose is a valid consideration when determining the constitutionality
of a statute, citing numerous instances apart from Establishment Clause cases in which
the Court looked to the purpose of an action when evaluating its constitutionality.18
The Court further explained that while a governmental entity’s stated purpose is
generally given deference, the Lemon test requires that “the secular purpose be genuine,
not a sham, and not merely secondary to a religious objective.”19 The specific actions that
the counties had taken in this case led the Court to conclude that the counties acted with
an unconstitutional purpose. According to the Court, the first display “lacked even
Stone’s implausible disclaimer that the Commandments were set out to show their effect
on the civil law.”20 Furthermore, the Court noted, the county executive’s pastor “testified
to the certainty of the existence of God” at the ceremony for posting the Commandments,
which could reasonably lead observers to think that the counties were emphasizing the
religious value of the display.21 Regarding the second display, the Court looked to the
resolutions adopted to modify the displays, which expressed support for other public
12 American Civil Liberties Union of Kentucky v. Pulaski County, Kentucky, 96 F. Supp.2d 691,
13 McCreary, 545 U.S. at 856. The final display included the Ten Commandments and eight other
documents (the Magna Carta, the Declaration of Independence, the Bill of Rights, the lyrics of
the Star Spangled Banner, the Mayflower Compact, the National Motto, the Preamble to the
Kentucky Constitution, and a picture of Lady Justice).
14 Id. at 860.
15 Id.
16 Id. at 859.
17 Id. at 860 (internal quotation omitted).
18 Id. at 861.
19 Id. at 864.
20 Id. at 869.
21 Id.
displays of the Commandments and cited a specific Christian reference used by the state
legislature.22 The Court determined that the counties sought to highlight primarily
religious texts and that their actions constituted “an indisputable, and undisputed, showing
of an impermissible purpose.”23 Although the counties attempted to demonstrate a valid
secular purpose by creating a third display allegedly intended to educate the public on
significant documents in American legal history, the Court found that there was no clear
theme that overcame the apparent religious objectives the counties held in developing the
displays.24 As a result, according to the Court, a reasonable observer “would probably
suspect that the counties were simply reaching for a way to keep a religious document on
the walls of courthouses constitutionally required to embody religious neutrality.”25
Van Orden v. Perry.26 In 1961, a monolith of the Ten Commandments was
erected by the Fraternal Order of the Eagles on the grounds of the Texas State Capitol.
The display was included among 17 monuments and 21 historical markers displayed in
the 22 acres surrounding the Texas State Capitol, “commemorating the ‘people, ideals,
and events that compose Texan identity.”27 The Eagles paid the cost of erecting the
monument, the location of which was determined by the state based on the
recommendation of the state organization responsible for maintaining the Capitol
grounds. In 2001, Thomas Van Orden, a frequent visitor to the Capitol grounds since
In deciding Van Orden, the Court did not use the test set forth in Lemon, but rather
analyzed the placement of the monument based on the nature of the monument itself and
the history of the nation.28 The Court cited numerous examples in which all three branches
of government officially acknowledged the role of religion in American life, and
specifically noted that the Court had recognized the role of God in American heritage in29
previous decisions. For instance, in Marsh v. Chambers, the Court held that the
Establishment Clause permits a state legislature to open its daily session with a prayer by30
a chaplain paid by the state. The Court also noted cases in which the Court upheld laws
originating from one of the Ten Commandments, e.g., McGowan v. Maryland which31
upheld a law prohibiting the sale of merchandise on Sunday.
With respect to the specific display of the Ten Commandments, the Court found that
“acknowledgments of the role played by the Ten Commandments in our Nation’s heritage
are common throughout America,” and cited numerous government buildings where the
22 Id. at 869-70.
23 Id. at 870.
24 Id. at 871.
25 Id. at 873.
26 545 U.S. 677 (2005).
27 Id. at 681.
28 Id. at 686.
29 Id. at 686-88.
30 463 U.S. 783 (1983).
31 366 U.S. 420 (1961).
Commandments can be found.32 Despite the focus on the historical significance of the
Commandments, the Court acknowledged that they were at their inception and remain
inherently religious. However, the Court noted that “[s]imply having religious content
or promoting a message consistent with a religious doctrine does not run afoul of the
Establishment Clause.”33
Although the Court’s holding might appear to conflict with Stone, the Court
distinguished Van Orden from Stone based on the difference between religious displays
in a classroom context and the “more passive” display of the Commandments at issue on
the grounds of the Texas State Capitol.34 The Court stated that while it had been
“particularly vigilant” in Establishment Clause cases set in schools, there was never any
indication that Stone’s holding would extend to a legislative chamber or to capitol
grounds.35 Because the Texas monument lacked the particular concerns raised by displays
in school settings and because Van Orden walked past the monument for a number of
years before bringing the lawsuit, the Court determined that the Van Orden display was
different from the texts that confronted elementary school students every day in Stone.36
The Court held that the monument in question had a “dual significance, partaking of both
religion and government,” and therefore its inclusion among the monuments on the
capitol grounds did not violate the Establishment Clause.37
Analysis
The 2005 cases decided by the Court concerning the public display of the Ten
Commandments reached divergent conclusions regarding the displays and used different
tests to reach those conclusions. While the Court did not use these cases to create a bright-
line test for determining whether such displays violate the Establishment Clause, the
decisions can be reconciled by studying the specific facts presented in each case. The
displays at issue in McCreary were created and erected by county officials and placed in
prominent locations at the counties’ main government buildings. The counties’ actions
in promoting and justifying the display were viewed by the Court as having religious
motivations and implicating government endorsement of a religious message. On the
other hand, the display at issue in Van Orden was characterized by the Court several times
in its decision as “passive” and placed in a location where a reasonable observer likely
would not infer government endorsement, as it was placed among dozens of other
monuments and markers. The fact that the Texas state legislature played no role in
creating or erecting the monument in the Van Orden case also alleviated the appearance
of governmental endorsement of a religious message.
32 Van Orden, 545 U.S. 688-89 (citing acknowledgments of the Ten Commandments in the U.S.
Supreme Court building, the Library of Congress, the National Archives, the Department of
Justice, the Ronald Reagan Building, both the Court of Appeals and the District Court for the
District of Columbia, and the Chamber of the United States House of Representatives).
33 Id. at 690.
34 Id. at 690-91.
35 Id.
36 Id. at 691.
37 Id. at 692.
What remains unclear from these decisions is the status of the Lemon test in the
Court’s Establishment Clause jurisprudence. The majority opinion in McCreary relied
on the test, but applied a modified version of the test that incorporates “endorsement” into
the purpose and effects prongs of the original Lemon test.38 The Court reached its decision
in Van Orden without a consensus in its reasoning, but the plurality opinion did not use
the Lemon test, noting other decisions where the Court used the factors set forth in Lemon
as “helpful signposts” without relying on the three-part test for its analysis.39
The divergent decisions were reached as a result of a split court, and raise the
question of what approach the Court will take in future cases of such displays. The views
of Justices Stevens, O’Connor, Souter, Ginsburg, and Breyer were represented in the
McCreary opinion that held the display unconstitutional, and the views of Chief Justice
Rehnquist and Justices Scalia, Kennedy, Thomas, and Breyer were represented in Van
Orden’s decision that upheld the display as constitutional. The appointments of Chief
Justice Roberts and Justice Alito may change the outcome of future public display
decisions. Future vacancies and replacements also have the potential to influence the
understanding of the standard to be applied in future cases.
Although these cases did not use a consistent standard for analysis, McCreary and
Van Orden might not be as divergent from Establishment Clause jurisprudence as one
might expect. Justice Breyer, who provided the deciding vote in the cases, explained his
understanding that the Establishment Clause requires the government to “avoid excessive
interference with, or promotion of, religion,” but “does not compel the government to
purge from the public sphere all that in any way partakes of the religious.”40 This rationale
echoed the Court’s previous holdings in challenges to public displays of religious
symbols. Generally, the Court has upheld public displays of religious symbols where the
display is set in diversified context.41 McCreary and Van Orden appear to fit this analysis,
as the display upheld in Van Orden was set in a historical secular context, while the
display struck down in McCreary indicated a predominantly religious message.
In November 2008, the Court is scheduled to hear the case of Pleasant Grove City,
Utah v. Summum,42 which addresses First Amendment issues regarding monuments
displayed in a public park. Summum has challenged the city’s refusal to include a
monument of the Seven Aphorisms for display in a public park that currently includes
various monuments, including the Ten Commandments. The case appears to be brought
before the Court on free speech grounds, rather than under the religion clauses. However,
the Court’s treatment of the case may provide insight on the Roberts Court’s approach to
public displays of religious symbols.
38 Lynch v. Donnelly, 465 U.S. 668, 687 (1984) (O’Connor, J., concurring).
39 Van Orden, 545 U.S. at 685.
40 Id. at 699 (Breyer, J., concurring).
41 See County of Allegheny v. American Civil Liberties Union Greater Pittsburgh Chapter, 492
U.S. 573 (1989).
42 Summum v. Pleasant Grove City, Utah, 483 F.3d 1044 (10th Cir. 2007), cert. granted, 128 S.Ct.