Florida attorney argues Ten Commandments case before United States Supreme Court

Mar 8, 2005
MICHAEL FOUST
Baptist Press

WASHINGTON (BP)—Liberal and conservative lawyers alike have debated for years the constitutionality of public Ten Commandments displays. On Wednesday, the U.S. Supreme Court will consider that issue when it takes up two cases that could impact religion’s role in America for years to come.

One case involves two Kentucky counties, where framed copies of the Ten Commandments hang on the walls in the two courthouses. In both instances, the Ten Commandments is part of a larger display of eight other historical documents, including the Declaration of Independence, the Mayflower Compact and the national motto—all of which also mention God.

The second case involves a six-foot Ten Commandments monument on the grounds of the state capitol in Austin, Texas. It is one of 17 monuments on the grounds, which include memorials to war veterans and tributes to the state’s history.

If the Supreme Court affirms both displays, it would be a giant victory for pro-family groups, who for years have watched liberal interest groups—such as the American Civil Liberties Union—target religious displays. A victory likely would lead to similar displays going up in other localities nationwide.

“There are certain decisions the court could come down with that would be groundbreaking in the area of the Establishment Clause and what it means,” Jeremy Tedesco, an attorney with the Alliance Defense Fund—which filed a friend-of-the-court brief in the Texas case—told Baptist Press. “[But] the court could also just follow current precedent and just stay with the status quo.”

The Establishment Clause is the often-debated part of the Constitution’s First Amendment. Only 10 words, the clause states, “Congress shall make no law respecting an establishment of religion ....”

A “groundbreaking” Establishment Clause decision would occur if the court chooses to change or overturn the “Lemon Test,” a three-pronged test that has acted as a guide in determining the constitutionality of a religious display, monument or law. The test, though, has been the source of much criticism and confusion. Liberty Counsel, the pro-family legal group representing the two Kentucky counties, is asking that it be overturned.

The test was derived from a 1971 court decision, Lemon v. Kurtzman. According to Lemon, for something to be constitutional it must:
• have a secular purpose
• neither advance nor inhibit religion.
• not foster government “entanglement” with religion.

But courts have disagreed over how to apply Lemon. Using it, appeals courts have come to opposite conclusions: The Sixth Circuit Court of Appeals found the Kentucky display unconstitutional, while the Fifth Circuit Court of Appeals upheld the Texas display.

“Nobody has a handle on what [Lemon] means,” Tedesco said. “It could mean just about anything a judge wants it to mean. So we need a more workable test.”

Conservative lawyers are particularly critical of what they call the Lemon Test’s “purpose prong.” Under it, they argue, courts could reach two different decisions on two identical religious displays—simply because the courts decide one had a secular purpose and the other didn’t.

“At a minimum, the purpose prong should be abandoned,” Liberty Counsel’s Mathew Staver argues in his legal briefs. “It focuses too much on subjective motives when the focus should be on the objective effects of an activity.”

The Kentucky case dates back to 1999, when the ACLU of Kentucky—representing seven local citizens—sued the two counties after stand-alone copies of the Ten Commandments were hung on the walls outside the respective courtrooms. Seeking to appease the courts, county officials surrounded the Ten Commandments displays with other historical documents, such as the Declaration of Independence and the Magna Carta. All the frames are of equal size. But both the district court and the appeals court found the display—dubbed the Foundations Display—unconstitutional.

The Texas case began in 2002, when an Austin, Texas, homeless man, Thomas Van Orden, sued to have the Ten Commandments monument removed. He lost in both district court and the appeals court. The monument was donated in 1961 by the private Fraternal Order of Eagles to the “youth and people of Texas.” The organization even chose a nonsectarian text of the Ten Commandments and had it approved by representatives of the Jewish, Protestant and Catholic faiths.

Central to the defenses’ arguments in both cases is that the Ten Commandments—as well as religion—played a major role in the nation’s founding.

“One would have to rewrite history to conclude that the Ten Commandments played an insignificant role in American law,” Staver asserts in his legal briefs.

Liberty Counsel’s briefs give a short history of the Ten Commandments’ role in both Colonial America and modern-day America. It asserts that:
• In 1610, Virginia passed a law requiring its leaders to give “allegiance” to God. Similarly, in 1641, Massachusetts adopted a law banning the worship of “any other god but the Lord God.”
• The colonies of Massachusetts, Connecticut, Rhode Island, New Hampshire and Pennsylvania all outlawed adultery.
• The commandment prohibiting the bearing of “false witness” became “the foundation of our judicial system.”
• The fourth commandment was the basis for the U.S. Constitution prohibiting a law from taking effect on a Sunday.

Ten Commandments displays are found today on government buildings, Liberty Counsel asserts, noting that a depiction of Moses and the Ten Commandments appears five times in the Supreme Court building itself.

In his legal briefs, Texas Attorney General Greg Abbott also points to the many instances in which the Ten Commandments are displayed nationwide.

“Countless monuments, medallions, plaques, sculptures, seals, frescoes, and friezes—including, of course, this Court’s own courtroom frieze—commemorate the Decalogue,” Abbott’s brief states. “Nothing in the Constitution requires these historic artifacts to be chiseled away or erased.”

The Ten Commandments monument isn’t even the only monument on the capitol ground that references religion. A World War I monument has an inscription reading, “God—Country— Peace.” Within the capitol building, the Six Flags over Texas display features a Mexican eagle and serpent, which is a “religious symbol of Aztec prophecy,” according to Abbott’s legal briefs.

“The effect of the [Ten Commandments] monument, in the eyes of the reasonable observer, is merely a governmental acknowledgment of the substantial contribution of the Ten Commandments to the development of Western civilization and legal codes, a commemoration of one influence, among many, on who we are as a people,” Abbott’s legal brief states. “Although unquestionably a religious text, the Decalogue has also indisputably had a significant secular impact on our history and culture.”

Staver, in his legal briefs, makes a similar argument.

“No reasonable observer would consider the Foundations Display an endorsement of religion,” his brief states. “Such an observer, aware of the historical influence of the Ten Commandments, would view them in context with the other legal documents.”

Staver has proposed a new three-pronged test be adopted. Under his proposal, something would be permissible if it: “comports with history and ubiquity,” “does not coerce participation in a religious exercise or activity” and “does not discriminate among sects based upon religious character alone.”

Both Staver and Abbott were in the spotlight March 2, defending the government’s role in acknowledging religion’s role in the nation’s founding.

But whatever the court eventually decides—it likely will release its decision in June—the legal battle will continue.

“They’re pretty important cases, but they ultimately are just two cases in a battle that has been going on for years,” the ADF’s Tedesco said. “It will continue after theses cases, no matter which way they are decided.”

The Kentucky case is ACLU of Kentucky v. McCreary County. The Texas case is Van Orden v. Perry.

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