Ten Commandments & other displays

By the Hon. Avern L. Cohn, Senior District Judge

Updated June 2006

“Congress shall make no law respecting an establishment of religion …” — the First Amendment

Those 10 words — the first phrase of the Bill of Rights — have been the focus of hotly contested debates and countless lawsuits seeking to reach a consensus on precisely what the framers of the U.S. Constitution intended when they drafted what has come to be known as the establishment clause of the First Amendment. Interplay between religion and government is a decidedly sensitive topic, and determining just how much (if at all) one sphere can interact with the other is difficult and inevitably imprecise.

This essay provides an overview of establishment-clause jurisprudence relating exclusively to public mottos and displays having a religious connotation. The discussion examines modern tests courts use to resolve establishment-clause challenges regarding religious mottos and displays, explores how history has been used to justify practices perceived as religious in nature, and concludes with an analysis of four areas of public religious displays: portraits of Jesus Christ, holiday displays, the Ten Commandments and state mottos.

Brief history
As the first settlers of this country migrated from Europe, so too did European customs like religious persecution and taxation to support a government church. Life in Colonial America preceding and during the American Revolution was filled with struggles to secure political and personal rights, including religious freedom, which the colonists sought to achieve by “disestablishing” the Anglican Church, as Chester Antieau, Arthur Downey, and Edward Roberts have described. Accordingly, the Constitution’s framers attempted to separate religion from government in the First Amendment. In the years following the adoption of the First Amendment on Dec. 15, 1791, courts and legal scholars have articulated many disparate interpretations of the establishment clause.

Before 1947, the establishment clause applied exclusively to the federal government. By and large this meant the Supreme Court exercised jurisdiction only over challenges of federal aid to religion, as Jeffrey W. Stiltner has noted. Early cases generally dealing with the establishment-clause principles include Terrett v. Taylor (an 1815 case concerning lands acquired by the Episcopal Church prior to the Revolutionary War), and Vidal v. Girard’s Executors (1844; regarding the founding of a Philadelphia college that banned any “ecclesiastic, missionary, or minister of any sect” from working at or visiting the college). (See also Reynolds v. United States (1879) and Davis v. Beason (1890), both of which considered the establishment clause in the context of a free-exercise claim regarding federal laws prohibiting bigamy).

The Supreme Court did not review a direct establishment-clause challenge until its 1899 decision in Bradfield v. Roberts (upholding federal funds given to the Roman Catholic Church to maintain and operate a hospital in Washington, D.C.). The number of establishment-clause challenges began to increase after the Supreme Court made the clause applicable to the states through the 14th Amendment in the first modern establishment-clause case: Everson v. Board of Education (1947), which upheld a New Jersey statute authorizing tax money to be used to reimburse parents for providing transportation for public and parochial students. Consequently, federal courts after Everson exercised their powers to review state and federal aid to religion. One commentator has explained the increase of religious issues in the courts which began in the 20th century to be the result of “American religious pluralism and the voting power of minority religions”:

“The Supreme Court decisions [those dealing with school prayer in the 1960s] simply reinforced a tendency that was already underway. Prayers were chased out of the schools because pluralism made them less and less practical. It became harder and harder to find any religious common denominator. Ultimately, it became so difficult to package religion without offending someone that the schools (and courts) totally gave up. Religion was politely shown the door.” — Lawrence M. Friedman, American Law in the 20th Century

Tests used for religious mottos & displays
Thomas Jefferson is often quoted for his view that the establishment clause should be considered “a wall of separation between Church and State.” Some justices on the Supreme Court seemed uneasy with that principle in some early cases when one described the United States as a “Christian country” in Vidal, and another as a “Christian nation” in the 1892 decision Church of Holy Trinity v. United States. The Supreme Court of South Dakota as late as 1929 declared this a “Christian nation” and Christianity the “national religion” in the case State ex rel. Finger v. Weedman. Despite its early statements, however, the U.S. Supreme Court in Everson reaffirmed Jefferson’s view when it said, “The First Amendment has erected a wall between church and state. That wall must be kept high and impregnable. We could not approve the slightest breach.”

The Supreme Court, nonetheless, later distanced itself from its statement in Everson that there is a “wall” between church and state when it conceded in its 1984 decision Lynch v. Donnelly that “the Constitution doesn’t require complete separation of church and state.” Public displays of religion have undeniably become embroidered into the tapestry of our lives so that it is practically impossible to go through a day without encountering some religious reference or symbol. Any transaction involving U.S. currency is a noteworthy example, as our national motto, “In God We Trust,” has been imprinted on all U.S. coins since 1938 and bills since 1957. So how is a unit of government to know if a display involving religion is in discord with the establishment clause? An examination of the three tests the Supreme Court uses to examine religious mottos and displays (the Lemon test, the endorsement test, and the coercion test) is instructive but certainly not dispositive.

Lemon test. The Supreme Court in its 1971 decision Lemon v. Kurtzman synthesized its establishment-clause analysis when it pronounced a three-pronged inquiry commonly known as the Lemon test. To withstand Lemon scrutiny, the government conduct (1) must have a secular purpose, (2) must have a principal or primary effect that does not advance or inhibit religion, and (3) cannot foster an excessive government entanglement with religion.

Endorsement test. In addition to the Lemon test, the Supreme Court has also employed what is known as the endorsement test, a test that emphasizes government neutrality toward religion. In her concurring opinion in Lynch, Justice Sandra Day O’Connor, who is widely regarded as the Court’s current leader in establishment-clause jurisprudence, introduced this second approach to analyzing potential establishment-clause violations when she noted two ways in which government can encounter trouble with the establishment clause: through excessive entanglement with religious institutions and through government endorsement or disapproval of religion. “Endorsement sends a message to non-adherents that they are outsiders, not full members of the political community, and an accompanying message to adherents that they are insiders, favored members of the political community,” Justice O’Connor wrote. “Disapproval sends the opposite message.”In the 1995 decision Capitol Square Review and Advisory Board v. Pinette, Justice O’Connor clarified how the endorsement test should be applied when she said it must be applied according to a “reasonable observer” standard: “In this respect, the applicable observer is similar to the ‘reasonable person’ in tort law, who ‘is not to be identified with any ordinary individual, who might occasionally do unreasonable things’ but is ‘rather a personification of a community ideal of reasonable behavior, determined by the [collective] social judgment.’” (The quote is from W. Keeton et al., Prosser and Keeton on The Law of Torts 175 (5th ed. 1984.)

Coercion test. At the other end of the spectrum of establishment-clause analysis, the Supreme Court has said that government action violates the establishment clause only if it coerces religious participation or support. Justice Anthony Kennedy advanced this so-called coercion test in the 1992 decision Lee v. Weisman: “[A]t a minimum, the Constitution guarantees that government may not coerce anyone to support or participate in religion or its exercise, or otherwise act in a way which establishes a state religion or religious faith, or tends to do so.”

Choosing an approach
Recent Supreme Court decisions demonstrate that there is not a consensus among the justices for a preferred approach to evaluate the constitutionality of potential establishment-clause violations involving religious mottos and displays. Although the Supreme Court has decided cases without expressly saying it was relying on the Lemon test, it perhaps is the most frequently and consistently used approach despite the fact that some legal scholars and justices themselves have criticized the test. Of the current Supreme Court, Justice Antonin Scalia is perhaps the most outspoken critic of Lemon. In the 1993 decision Lamb’s Chapel v. Center Moriches Union Free School District, Justice Scalia likened the test to a ghoul in a horror movie that “repeatedly sits up in its grave and shuffles abroad, after being repeatedly killed and buried.” Justice Scalia continued, “When we wish to strike down a practice it forbids, we invoke it, when we wish to uphold a practice it forbids, we ignore it entirely.” Justice Scalia’s criticism is notable because courts across the country have applied Lemon and the other tests to similar facts involving perceived establishment-clause violations and have consistently reached conflicting results. Indeed, attempting to determine what result a court will reach when deciding a case in this area of law is not an easy task.

History as a justifier
Before examining some broad areas of establishment-clause challenges for public religious displays, it is worth noting the concept of “ceremonial deism” — Yale University Law School Dean Eugene Rostow’s phrase for practices deemed constitutional and devoid of any religious connotation based on historical usage.

The Supreme Court repeatedly has used ceremonial deism to uphold certain practices challenged under the establishment clause (e.g., our national motto “In God We Trust,” legislative prayer, and the phrase “under God” in the Pledge of Allegiance), but some legal scholars like Steven Epstein question whether mere historical usage can truly continue to validate these practices. “The year is 2096,” Epstein writes. “Muslims now comprise seventy percent of the American population, while Christians and Jews comprise only twenty-five percent collectively. Elementary school students in most public school systems begin each day with the Pledge of Allegiance in which they dutifully recite that America is one nation ‘under Allah;’ our national currency — both coins and paper — contains the inscription codified as our national motto, ‘In Allah We Trust’… .” Epstein queries, “Would the average Christian or Jew seriously contend that this America of 2096 would not make them feel like outsiders in their own country? How then can Christians and Jews reconcile this feeling of exclusion with approval of a state of affairs … in which non-Christians, non-Jews, and non-religionists have no constitutional basis for attacking ‘ceremonial’ Christian or Judeo-Christian forms of government expression? More to the point, how can the Supreme Court continue to countenance these practices?” Whatever the answer, it does not appear the Supreme Court will abandon the concept of ceremonial deism anytime soon, as discussed below.

National motto
In his 1997 book The Words We Live By: The Creeds, Mottoes, and Pledges that Have Shaped America, editor Brian Burrell refers to mottos and slogans as “the most succinct ready-made opinions … . Although the origin of mottoes is somewhat murky, their present role is well defined. They are most usefully thought of as rousing and inspirational rallying cries.” The history of our national motto, “In God We Trust,” can be traced back to the Civil War era, when increased religious sentiment caused many people to appeal to Secretary of Treasury Salmon P. Chase to recognize God on U.S. coins. (See the U.S. Dept. of Treasury’s History of “In God We Trust.”) The first such appeal was in 1861 by Rev. M.R. Watkinson of Ridleyville, Pa., in a letter to Secretary Chase: “[o]ne fact touching our currency has hitherto been seriously overlooked. I mean the recognition of the Almighty God in some form on our coins. You are probably a Christian. What if our Republic were not shattered beyond reconstruction? Would not the antiquaries of succeeding centuries rightly reason from our past that we were a heathen nation?”

On Dec. 9, 1863, Chase suggested “In God We Trust” as the proper motto to recognize God on coins. Because an 1837 act of Congress prevented any changes to coins without enacting new legislation, Chase worked with Congress to pass on April 22, 1864, an act that allowed “In God We Trust” to first appear on the 1864 two-cent coin. Subsequent legislation authorized the motto to appear on other coins, and the inscription has appeared on all U.S. coins since 1938.

President Dwight D. Eisenhower signed a law making “In God We Trust” the official national motto of the United States on July 30, 1956, and one year later it first appeared on paper money. A slight variation of the motto is also found in the fourth stanza of Francis Scott Key’s “The Star-Spangled Banner” (“And this be our motto — ‘In God is our trust.’”), which Key composed in 1814 and was later designated as our National Anthem in 1931. (See 36 U.S.C. § 301, also H.R. Rep. No. 84-1959, 1956 U.S.C.C.A.N. 3720.)

It was an examination of the historical usage of the motto that led the 9th U.S. Circuit Court of Appeals in 1970 to find “In God We Trust” to be compatible with the establishment clause. In Aronow v. United States, the 9th Circuit stated, “It is quite obvious that the national motto and the slogan on coinage and currency ‘In God We Trust’ has nothing whatsoever to do with the establishment of religion’… . It is excluded from First Amendment significance because the motto has no theological or ritualistic impact … it has ‘spiritual and psychological value’ and ‘inspirational quality.’”

Legislative prayer
The Supreme Court in its 1983 decision Marsh v. Chambers again abandoned modern establishment-clause tests when it found the practice of legislative prayer constitutional based on historical usage. Chief Justice Warren Burger wrote that as early as 1774 the Continental Congress opened its sessions with prayer by a paid chaplain. He also noted, “Clearly the men who wrote the First Amendment Religion Clause did not view paid legislative chaplains and opening prayers as a violation of that Amendment, for the practice of opening sessions with prayer has continued without interruption ever since that early session of Congress.”

Although the Supreme Court declined to review a 1991 case involving a North Carolina judge’s practice of beginning court sessions with a prayer, the 4th U.S. Circuit Court of Appeals found the practice unconstitutional in North Carolina Civil Liberties Union Legal Foundation v. Constangy. Finding that ceremonial deism did not apply to the judge’s prayer, which began, “O Lord, our God, our Father in Heaven, we pray this morning that you will place your divine guiding hand on this courtroom,” the 4th Circuit distinguished this practice from legislative prayer in Marsh, saying, “The opinion in Marsh clearly focuses on legislative prayer and its ‘unique history’” and that “there is no similar long-standing tradition of opening courts with prayer.” The Supreme Court declined to review the decision.

Pledge of Allegiance
Francis Bellamy composed the Pledge of Allegiance for the Sept. 8, 1892, issue of The Youth’s Companion magazine, specifically to be used during that year’s national school celebration of Columbus Day. It was not until June 22, 1942, that Congress wrote the Pledge into law as “I pledge allegiance to the flag of the United States of America and to the Republic for which it stands, one Nation indivisible, with liberty and justice for all.” 1 The words “under God” were added after the word “Nation” on June 14, 1954. 2 The addition was initiated during the Cold War with the Soviet Union, as is illustrated by the House of Representatives’ report regarding the change:

“At this moment of our history the principles underlying our American Government and the American way of life are under attack by a system whose philosophy is at direct odds with our own. Our American Government is founded on the concept of the individuality and the dignity of the human being. Underlying this concept is the belief that the human person is important because he was created by God and endowed by Him with certain inalienable rights which no civil authority may usurp. The inclusion of God in our pledge therefore would further acknowledge the dependence of our people and our Government upon the moral directions of the Creator.” — H.R. Rep. No. 83-1693 (1954), reprinted in 1954 U.S.C.C.A.N. 2339, 2340

Federal appellate courts have reached conflicting conclusions regarding the inclusion of “under God” in the Pledge. Consistent with the Supreme Court’s concept of ceremonial deism, the 7th U.S. Circuit Court of Appeals in 1992 upheld the phrase based on historical usage in Sherman v. Community Consolidated School District 21 of Wheeling Township. A controversial 2002 decision by the 9th Circuit in Newdow v. United States found the phrase to violate all three modern establishment-clause tests. That case was appealed to the U.S. Supreme Court, which did not reach the First Amendment merits of the case in its 2004 ruling but disposed of it on the grounds that Newdow did not have standing to sue on behalf of his 10-year-old daughter. The case is likely to resurface before the high court.

Other examples
Aside from these examples of federal courts using history to justify certain practices under establishment clause scrutiny, legal scholars have questioned other traditions, such as prayers at presidential inaugurations, presidential addresses referring to God, the use of “God save the United States and this Honorable Court” at the opening of Court proceedings, the use of God and the Bible in public oaths, “in the year of our Lord” to date public documents, Thanksgiving and Christmas holidays, and the National Day of Prayer.

Public displays of religious symbols

Portraits of Jesus Christ
The 6th U.S. Circuit Court of Appeals did not use history to justify a portrait of Jesus Christ that had been hanging in the hallway outside the principal’s office in the Bloomingdale (Mich.) Secondary School for 30 years. In Washegesic v. Bloomingdale Public Schools (1994), a student at the school sued, alleging the display of Warner Sallman’s portrait, “Head of Christ,” violated the establishment clause. The U.S. District Court found the display to violate all three prongs of the Lemon test, and the 6th Circuit agreed, saying “[t]he school has not come up with a secular purpose. The portrait advances religion. Its display entangles the government with religion.” The defendants argued that the portrait “has meaning to all religions and that it is not inherently a symbol of Christianity.” The 6th Circuit disagreed, acknowledging that the outcome of the case would be different if the school had included other symbols of world religions on the wall, “[b]ut Christ is central only to Christianity, and his portrait has a proselytizing, affirming effect that some non-believers find deeply offensive.”

Similarly, in 1990 a federal court in New York found a school’s display of a student painting of Jesus Christ’s crucifixion to violate the establishment clause in Joki v. Board of Education of the Schuylerville Central School District. The painting, which was permanently displayed inside the school’s auditorium and measured 10 feet by 12 feet, was donated to the Schuylerville (N.Y.) High School in 1965. It depicted three men nailed to wooden crosses, with the central figure wearing a crown of thorns on his head, bleeding from the left side of his chest, and surrounded by a burst of yellow light. Other figures in the display included a man tossing a net into the water, a woman mourning, two men fighting, and a man with a gray beard carrying two stone tablets with the Roman numerals I through X inscribed on them.

The plaintiffs argued the central figure depicted the crucifixion of Jesus Christ, while the defendants claimed the painting signified examples of “‘man’s inhumanity to man’ rather than having any religious significance.” The defendants also argued that any religious effect was reduced because the painting “is technically ‘not great art’ and located in a poorly lit corner of the auditorium.” The federal court, however, found those claims unpersuasive, noting that the average observer would perceive the central figure to represent Christ’s crucifixion and the stone tablets to represent the Ten Commandments. Further analyzing the context of the display, and particularly cautious about the impressionability of school-age children, the court noted that it “remains wary of sectarian messages displayed in public schools as they transmit basic and fundamental values to our youth … students view the painting each time they enter the auditorium. Further, defendant School District uses the auditorium for numerous events at which elementary students are required to attend. Accordingly, this court’s scrutiny of the painting and its placement must be all the more discriminating.”

Holiday displays
Because the establishment clause requires government “neutrality” in all things religious, numerous lawsuits have challenged the common practice of public holiday displays like crèches and menorahs, arguing that such displays are essentially government imprimaturs on a particular religion. In the 1984 Lynch case, the Supreme Court addressed the question of whether a crèche included in Pawtucket, R.I.’s annual Christmas display was unconstitutional. The Supreme Court’s fact-sensitive analysis, which included an application of the Lemon test and Justice O’Connor’s articulation of the endorsement test, concluded with a determination that the crèche did not violate the establishment clause. The Supreme Court said that the crèche display must be viewed in light of its setting, which included nearby traditional Christmas displays like a Santa Claus house, reindeer and a sleigh, a Christmas tree, lights and carolers. The Supreme Court viewed the crèche in the context of the Christmas season and noted that “the display depicts the historical origins of this traditional event long recognized as a National Holiday.”

The Supreme Court reached a different conclusion regarding a crèche in its 1989 decision County of Allegheny v. American Civil Liberties Union, Greater Pittsburgh Chapter. In fact, Allegheny is particularly illustrative of the divergent views individual justices have taken when analyzing a holiday display. The case involved two such displays located on public property in downtown Pittsburgh: a crèche that was placed on the staircase of the Allegheny County Courthouse, and a display outside the City-County Building consisting of an 18-foot menorah celebrating Hanukkah placed next to a 45-foot Christmas tree (only the menorah was challenged in the case). The crèche was donated by a Roman Catholic group and featured a sign reading “Gloria in Excelsis Deo” (“Glory to God in the highest”). A sign saluting liberty was part of the menorah and Christmas tree display.

The Court analyzed each display separately and determined 5 to 4 that the crèche violated the establishment clause but 6 to 3 that the menorah display was not unconstitutional. The Supreme Court said that “Lynch teaches that government may celebrate Christmas in some manner and form, but not in a way that endorses Christian doctrine.” Unlike that case, the Supreme Court said there was nothing in the surrounding setting of the Allegheny County crèche to detract from its religious message because the crèche was the only display on the courthouse’s staircase. That, along with the fact that the staircase was considered the “most beautiful part” of the courthouse, led the Supreme Court to find that “[n]o viewer could reasonably think that it occupies this location without the support and approval of the government.” Justices Harry Blackmun, William Brennan, John Paul Stevens and O’Connor joined in that conclusion, finding the crèche to violate the Lemon test because it had a “principal or primary effect” of advancing religion (Justices Blackmun and O’Connor also applied the endorsement test to find the crèche unconstitutional). Justices Anthony Kennedy, Byron White, Antonin Scalia and Chief Justice William Rehnquist found the majority’s application of Lemon to reflect “an unjustified hostility toward religion” and would have allowed the crèche display based partly on the history of government participation in holiday seasons like declaring public holidays, erecting displays and hosting parades.

Regarding the menorah display, even though the menorah was the only item being challenged, the Supreme Court said it was necessary to consider it in relation to its surroundings, namely the Christmas tree and the sign. The Supreme Court noted that a Christmas tree is not itself a religious symbol, and that the 45-foot tree was the predominant element in the display. Accordingly, Justice William Blackmun wrote for the majority that the combination of the menorah and the tree indicated “not a simultaneous endorsement of both the Christian and Jewish faiths, but instead, a secular celebration of Christmas coupled with an acknowledgment of Chanukah as a contemporaneous alternative tradition.” Moreover, the Supreme Court majority believed the sign further illustrated that the menorah does not serve to endorse Judaism but rather serves to recognize cultural diversity. Justices Blackmun, O’Connor, Kennedy, Rehnquist, White and Scalia agreed with this view, while Justices Stevens, Brennan and Marshall believed the menorah display was unconstitutional because, in Justice Stevens’ view, “the Establishment clause should be construed to create a strong presumption against the display of religious symbols on public property.”

These cases and the justices’ differing reasoning have led to disparate decisions by lower courts, as is frequently the case with establishment-clause challenges.

In a case similar to Allegheny, a federal court found constitutional Jersey City, N.J.’s 1994 display of a menorah, Christmas tree and sign proclaiming the city’s celebration of “the diverse cultural and ethnic heritages of its peoples.” The display was located in front of City Hall. Despite a permanent injunction prohibiting such a display, the city in 1995 erected the same display, but added a sled, Santa Claus, Frosty the Snowman and Kwanzaa symbols. The court concluded that those additions brought the entire display into compliance with the establishment clause.

On appeal, however, the 3rd U.S. Circuit Court of Appeals in ACLU of New Jersey v. Schundler (1997) analyzed the 1994 and 1995 displays and found them to violate the endorsement and Lemon tests, saying that the district court’s belief that the addition of the sled, Santa and Frosty “demystified” the display’s religious message “cannot form the basis of sound constitutional analysis.” However, in 1998 the 3rd Circuit again heard Schundler (168 F. 3d 92) and then-Judge Samuel Alito, discussing the modified display, ruled in 1999 that it did not violate the establishment clause and was constitutional.

Not surprisingly, cases involving holiday displays tend to come to the forefront and move quickly in the courts during the holiday season. A good example is the case of Chabad of Southern Ohio v. City of Cincinnati. Here, plaintiffs Chabad of Southern Ohio and Congregation Lubavitch applied to the city for a permit to erect a menorah on Fountain Square, a public square in downtown Cincinnati, as they had done in prior years. The city denied the request, citing a newly adopted ordinance that gives exclusive use of Fountain Square to the City of Cincinnati during the last two weeks of November, all of December and the first week in January. The district court, after an evidentiary hearing on Nov. 25, 2002, issued an injunction on Nov. 27 preventing the enforcement of the ordinance pending a trial on its merits. The city appealed to the 6th U.S. Circuit Court of Appeals, which immediately stayed enforcement of the district court’s order. The plaintiffs appealed to the U.S. Supreme Court, where on Nov. 29, 2002, Justice John Paul Stevens issued an order vacating the 6th Circuit’s stay. On April 5, 2004, the 6th U.S. Circuit Court of Appeals affirmed the district court’s decision and enjoined the city from enforcing the new ordinance. The 6th Circuit ruled that Fountain Square was a “traditional public forum” and that the city could not exclude Chabad from placing an unattended Hanukkah menorah on the public square. The court also found the new ordinance to be a content-based regulation of speech because the ordinance stated that its intent was to ensure that winter holiday displays appealed to the widest of audiences. The court agreed with the district court’s findings that “by excluding … speech which would not appeal to ‘the widest of audiences,’ the city wishes to eliminate speech which might be controversial or offensive.”

Ten Commandments
Perhaps one of the most debated religious displays in recent years involves the Ten Commandments. Lower courts repeatedly have reached inconsistent conclusions with respect to the permissible public display of the commandments.

In the seminal Supreme Court case involving a public display of the Ten Commandments, the Supreme Court in 1980 struck down a Kentucky statute requiring that the Ten Commandments be posted on the wall of each public school classroom in that state. In Stone v. Graham, the state of Kentucky took the position that the statute had a secular purpose in that each display of the Ten Commandments contained small print noting that the display was posted to illustrate “its adoption as the fundamental legal code of Western Civilization and the Common Law of the United States.” The Supreme Court, however, said the statute was “plainly religious in nature.” The Court noted the Ten Commandments were not confined to a secular purpose, especially in light of their command to worship the Lord God alone.

In 2005, the Supreme Court revisited the Ten Commandments issue when it decided two significant cases involving these displays. Some legal scholars believed that the Supreme Court’s grant of certiorari in these cases — McCreary County, Kentucky, et al. v. American Civil Liberties Union of Kentucky, et al. and Van Orden v. Perry, et al. — was an indication that the Court would attempt to clarify this increasingly murky realm of establishment-clause jurisprudence. When the Supreme Court issued the two respective opinions on June 27, 2005, however, the disparate results only emphasized the unpredictable nature of establishment-clause litigation.

In McCreary County, executives of two Kentucky counties — McCreary and Pulaski — posted large, gold-framed copies of the King James version of the Ten Commandments on the walls of their respective courthouses. The McCreary County display was placed in accordance with the county legislative body’s mandate that the display be posted in a high-traffic area of the courthouse. The unveiling of the Pulaski County display included a ceremony led by the county’s judge-executive, who called the commandments “good rules to live by” and invited the pastor of his church to speak at the ceremony. The American Civil Liberties Union of Kentucky promptly filed suit and sought a preliminary injunction against maintaining the displays.

Before the district court ruled on that request, however, each county installed a second Ten Commandments display, each of which stated that the commandments represented the legal code upon which the civil and criminal codes of Kentucky were founded. Each county’s second display included eight other documents in smaller frames, each with a religious theme. The district court ultimately issued a preliminary injunction ordering that the displays be removed. Both counties, however, installed a third display in each courthouse, each of which consisted of nine framed documents of equal size (including the Ten Commandments, the Magna Carta, the Declaration of Independence, the Bill of Rights and a picture of Lady Justice). The third displays were titled “The Foundations of American Law and Government Display.” The district court later supplemented the preliminary injunction to order the removal of the third display. The 6th U.S. Circuit Court of Appeals affirmed.

In a 5-4 U.S. Supreme Court decision, Justice Souter, writing for the majority, invoked the Lemon test and concluded that, in posting the first display, the counties had an unmistakable purpose of emphasizing and celebrating the commandments’ religious message. He noted that a “reasonable observer,” viewing the pastor’s presence at the Pulaski County ceremony, could only reach such a conclusion. Souter also noted that the counties’ subsequent displays — which contained additional religious and historic documents — likewise were constitutionally infirm. His majority opinion noted that the second displays’ “unstinting focus was on religious passages, showing that the Counties were posting the Commandments precisely because of their sectarian content” and that the third display “quoted more of the purely religious language of the Commandments than the first two displays had done. … No reasonable observer could swallow the claim that the Counties had cast off the objective so unmistakable in the earlier displays.” In holding the displays unconstitutional, the Court’s majority opinion placed great emphasis on Lemon’s “purpose prong”:

“We hold only that purpose needs to be taken seriously under the Establishment Clause and needs to be understood in light of context; an implausible claim that governmental purpose has changed should not carry the day in a court of law any more than in a head with common sense.”

Justice Scalia, writing for the dissent in McCreary County, criticized, as he has many times in the past, the application and continued viability of Lemon. “As bad as the Lemon test is, it is worse for the fact that, since its inception, its seemingly simple mandates have been manipulated to fit whatever result the Court aimed to achieve. Today’s opinion is no different.” Scalia said in dissent that the majority was wrong to characterize our government tradition as being one of religious neutrality and he drew a distinction between acknowledging a creator versus using public funds to aid religion or restricting the free exercise of religion:

“[T]oday’s opinion suggests that the posting of the Ten Commandments violates the principle that the government cannot favor one religion over another. That is indeed a valid principle where public aid or assistance to religion is concerned, or where the free exercise of religion is at issue, but it necessarily applies in a more limited sense to public acknowledgment of the Creator.”

In the second Ten Commandments case, decided on the same day as McCreary County, the Court in Van Orden held that the challenged display was constitutional. In Van Orden, the display consisted of a monument donated to the state of Texas by the Fraternal Order of Eagles in 1961. The monolith was located on the Texas State Capitol grounds as part of a display containing 17 monuments and 21 historical markers commemorating the “people, ideals, and events that compose Texan identity.” The primary content of the monument was the text of the Ten Commandments. An eagle grasping the American flag, an eye inside a pyramid, two Stars of David, and the Greek letters Chi and Rho (which represent Christ) also were included on the monument. The district court held that Texas had a secular purpose in recognizing and commending the Eagles for its efforts to reduce juvenile delinquency. The district court also found that a reasonable observer would not conclude that the monument was an endorsement of religion. The 5th U.S. Circuit Court of Appeals affirmed.

Former Chief Justice Rehnquist’s plurality opinion first dispensed with the Lemon test, finding it “not useful in dealing with the sort of passive monument that Texas has erected on its Capitol grounds.” Rather, the plurality’s analysis focused on “the nature of the monument and … our Nation’s history.” Rehnquist cited what he labeled an “unbroken history of official acknowledgment by all three branches of government of the role of religion in American life from at least 1789,” including both houses of Congress passing resolutions in 1789 to ask President George Washington to issue a Thanksgiving Day proclamation to “recommend to the people of the United States a day of public thanksgiving and prayer, to be observed by acknowledging, with grateful hearts, the many and signal favors of Almighty God”; as well as prior Supreme Court cases that acknowledged the history of religion in the founding of our country and the Supreme Court’s courtroom itself, which the late chief justice noted has, since 1935, displayed a frieze showing Moses holding two tablets revealing portions of the Ten Commandments, along with images of other lawgivers.

Turning to the context of the challenged display, the plurality said the placement of the monument on the Texas State Capitol grounds “is a far more passive use of those texts than was the case in Stone, where the text confronted elementary school students every day.” Justice Breyer, concurring in the judgment, wrote that Van Orden differed from McCreary County in that the McCreary County displays demonstrated “the substantially religious objectives of those who mounted them.” In the Van Orden display, Breyer listed factors that he felt militated in favor of finding the Texas display constitutional: the physical setting, which, he wrote, “suggests little or nothing of the sacred” because it sits in a large park containing dozens of other monuments and markers; and the fact that the monument was on display for 40 years before it was challenged, which, Breyer noted, “suggest[s] more strongly than can any set of formulaic tests that few individuals, whatever their system of beliefs, are likely to have understood the monument amounting, in any significantly detrimental way, to a government effort to favor a particular religious sect.”

Justices Stevens, Ginsburg, O’Connor and Souter dissented. Souter, who wrote the majority opinion in McCreary County, was not persuaded that the expansive nature of the entire Texas display was indicative of constitutionality:

“17 monuments with no common appearance, history, or esthetic role scattered over 22 acres is not a museum, and anyone strolling around the lawn would surely take each memorial on its own terms without any dawning sense that some purpose held the miscellany together more coherently than fortuity and the edge of the grass.”

Although Souter recognized that the Texas display in Van Orden was unlike that in McCreary County, he nonetheless indicated that nothing could overcome the reality that the Ten Commandments constitute a religious statement. “It would therefore be difficult to miss the point that the government of Texas is telling everyone who sees the monument to live up to a moral code because God requires it.” Justice Stevens’ dissent likewise emphasized the religious nature of the Ten Commandments and questioned how the result in Van Orden could be reconciled with other displays challenged under the establishment clause: “If a State may endorse a particular deity’s command to ‘have no other gods before me,’ it is difficult to conceive of any textual display that would run afoul of the Establishment Clause.”

The different results reached in McCreary County — where the Ten Commandments displays were held unconstitutional — and in Van Orden — where the display was constitutionally permissible — likely will provide little predictability with respect to the disposition of future cases involving the Ten Commandments or other public displays of religious symbols. Indeed, recent cases from lower courts illustrate that predictability in this area of constitutional law is anything but likely.

In March 2002, a federal court in Pennsylvania ruled in Freethought Society v. Chester County that a plaque of the Ten Commandments placed on the exterior of the Chester County courthouse failed the Lemon test and therefore was unconstitutional. The plaque had been on display for more than 80 years. The district court ordered it covered with drapery to match the color of the building’s limestone walls while the county appealed. Three months later, the 3rd U.S. Circuit Court of Appeals in June 2003 reversed the district court’s judgment and vacated the lower court’s permanent injunction ordering the removal of the plaque. The 3rd Circuit applied the endorsement and Lemon tests to reach its conclusion that the plaque was not constitutionally infirm. Of particular importance to the court were the facts that (1) there was no evidence that the county had taken any action involving the plaque since its erection in 1920, (2) the county had never held a ceremony to commemorate the anniversary of the plaque or installed lights to draw attention to it at night, and (3) the county closed the courthouse entrance near the plaque, which the court found “has detracted in a major way from the obviousness and accessibility of the plaque.” The court opined that although the entrance near the plaque was closed for budgetary and security reasons, “the County could have moved the plaque to the new entrance if it wanted to call attention to the plaque.” Therefore, the court found that a reasonable observer would view the plaque as part of an historic monument and not as an endorsement of religion. Furthermore, with respect to the Lemon test, the court looked to the Chester County commissioners’ recent refusal to remove the plaque and concluded that that refusal was motivated by a secular purpose — specifically, the commissioners’ belief that the plaque “served the secular purpose of demonstrating one of the key sources of American law.”

Five days after the 3rd Circuit’s decision in Freethought Society, the 11th U.S. Circuit Court of Appeals ruled that the chief justice of the Alabama Supreme Court must remove a monument of the Ten Commandments that he had installed in the Alabama State Judicial Building’s rotunda. In Glassroth v. Moore, the 11th Circuit distinguished the 3rd Circuit’s reasoning in Freethought Society and concluded that the monument at issue violated the Lemon test. Unlike the plaque in Freethought Society, the 11th Circuit found, there was no secular purpose and no historical tradition with respect to the monument. Rather, the circumstances surrounding the monument’s installation undeniably reflected a strong religious purpose.

Alabama Supreme Court Chief Justice Roy Moore began his judicial career as an Alabama Circuit Court judge, and during his tenure he became known as the “Ten Commandments Judge” because he installed a wooden plaque of the Ten Commandments behind the bench in his courtroom and regularly invited clergy to lead prayer at jury-organizing sessions. Indeed, during his campaign for the state Supreme Court’s chief justice position, his campaign materials described him as the “Ten Commandments Judge,” and his campaign promise was to “restore the moral foundation of law.” Once elected chief justice, Moore kept his promise by installing a two-and-a-half ton Ten Commandments monument in the rotunda of the Alabama State Judicial Building.

In analyzing this display, the 11th Circuit observed: “No one who enters the building through the main entrance can miss the monument.” In fact, anyone entering the building must pass the monument to access the building’s elevators, stairs, public restrooms and law library. Also unlike in Freethought Society, where the county never held any ceremonies or recognitions to call attention to the Ten Commandments plaque, Moore held an unveiling ceremony for his monument and specifically described his purpose for installing it as “to remind all who enter the building that ‘we must invoke the favor and guidance of Almighty God.’” He also said that the monument marked “the return of the knowledge of God in our land.” The record before the 11th Circuit further indicated that building employees and visitors came to recognize the monument as an appropriate place for prayer. The court recognized that Moore added two smaller displays to the rotunda after the monument was installed — a plaque containing quotes from the Rev. Dr. Martin Luther King Jr. and Frederick Douglass, and a plaque of the Bill of Rights — but the court found those displays “inconspicuous compared to the Ten Commandments monument.” The court affirmed the district court’s ruling that the monument violated the Lemon test because the purpose behind the monument was non-secular and the monument’s primary effect was to advance religion.

In June 2002, a federal court in Ohio, in an opinion that provides an excellent overview of the conflicting authority in the area of the display of the Ten Commandments, ordered a framed poster of the Ten Commandments removed from a judge’s courtroom because the court found the display to violate the Lemon test. Judge James DeWeese of the General Division of the Court of Common Pleas in Richland County used his own funds to create and hang the poster in his courtroom. He also placed a poster of the Bill of Rights directly across the courtroom from the Ten Commandments display. Both posters had a large, bold caption that read, “The rule of law.” Although the judge argued the Ten Commandments “are emblematic of moral absolutes,” the district court examined the judge’s deposition to reveal his belief that moral absolutes “come from divine law, the idea that God is the ultimate authority in law.” Explaining a general pattern among cases challenging displays of the Ten Commandments, the district court noted in ACLU of Ohio Foundation, Inc. v. Ashbrook:

“When a governmental entity specifically decides to display the Ten Commandments, whether or not part of a larger display, Courts generally find that action to have a religious rather than a secular purpose. When, on the other hand, the Ten Commandments are an incidental or essentially inconspicuous part of a larger secular display or are integrated within a larger secular goal, Courts generally find a secular purpose and, thus, no violation.”

Lower courts have reached differing results when the Ten Commandments are combined with other texts and symbols. The 10th U.S. Circuit Court of Appeals in 1973 in Anderson v. Salt Lake City Corp. found a granite monolith inscribed with the Ten Commandments and other symbols representing the all-seeing eye of God, the Star of David, letters of the Hebraic alphabet, the Order of Eagles, Christ and peace to be primary secular in nature and therefore constitutional. The monolith was placed near a courthouse entrance in Salt Lake City, Utah.

In contrast, in its 2001 decision in Indiana Civil Liberties Union v. O’Bannon, the 7th Circuit said Indiana Gov. Frank O’Bannon’s desire to place a seven-foot stone monument of the Ten Commandments, Bill of Rights and the preamble to the 1851 Indiana Constitution on the state Capitol grounds violated the establishment clause. The majority opinion said that an observer viewing the monument may believe “that it impermissibly links religion and law since the Bill of Rights and the 1851 Preamble are near the sacred text.”

The Supreme Court in February 2002 declined to review O’Bannon. The denial of review disappointed many states that had joined in a friend-of-the-court brief asking the Supreme Court to hear the case. Many states have considered posting the Ten Commandments in public places, but a split in decisions among lower courts makes it difficult to determine when and if such displays would be permissible and comport with the Constitution. For instance, lower courts in Colorado, Kansas, New Mexico, Oklahoma, Utah and Wyoming have allowed the Ten Commandments to be displayed on public property.

In May 2003, in King v. Richmond County, the 11th U.S. Circuit Court of Appeals distinguished O’Bannon and a 6th Circuit case, Adland v. Russ, pre-McCreary County attempt by Kentucky to display the Ten Commandments in a public place, when it ruled that a Georgia superior court clerk’s seal that included an outline of two stone tablets with Roman numerals I through X did not violate the establishment clause. (In Adland, the 6th Circuit said Kentucky’s desire to relocate a monument inscribed with the Ten Commandments to a permanent site on the state Capitol grounds violated the Lemon test, despite an intent to place it among other cultural and historical displays, which the 6th Circuit found to be mere “afterthought.”)

In King v. Richmond County, the 11th Circuit applied the Lemon test to analyze the seal, which the Richmond County, Ga., superior court clerk has used since at least 1872 to help people easily recognize the legal validity of documents. Although there was no evidence of the original purpose for including the outline of the Ten Commandments in the seal, the court found a permissible secular purpose based on the county’s argument that the seal helped illiterate citizens in the late 1800s recognize the authenticity of legal documents because the Ten Commandments are not only a religious symbol, but also a secular symbol for the rule of law. The court further noted that unlike in O’Bannon and Adland, the seal did not contain the text of the Ten Commandments — only the Roman numerals I through X; therefore, the seal did not “induce [observers] to read, meditate upon, perhaps to venerate and obey, the Commandments” (quoting Stone v. Graham). That, along with the seal’s small size (one inch in diameter), the presence of another symbol in the seal (a sword, something the court found to be “among the most recognizable symbols of the secular legal system”), and the fact that it is used exclusively to authenticate legal documents, led the court to conclude that its use does not violate the establishment clause. Furthermore, in a comment particularly appropriate with respect to this area of the law, the court emphasized: “In religious-symbols cases, context is the touchstone.”

State mottos
Four states currently have official mottos making some reference to God: Arizona: “Ditat Deus” (“God Enriches”); Florida: “In God We Trust;” Ohio: “With God All Things Are Possible;” and South Dakota: “Under God the People Rule.” Of these four, only Ohio’s has undergone an establishment-clause challenge.

Ohio’s motto, “With God All Things are Possible,” is a direct quotation from the New Testament’s Matthew 19:26, and was adopted as the state’s official motto in 1959. In 2001, the 6th Circuit in ACLU v. Capitol Square Review and Advisory Board found the motto to fit within the notion of ceremonial deism because it “is merely a broadly worded expression of a religious/philosophical sentiment that happens to be widely shared by the citizens of Ohio.” The 6th Circuit went on to note its view that a reasonable observer would not be able to distinguish the national motto, “In God We Trust,” from that of Ohio’s. Further, the 6th Circuit found the motto to withstand Lemon and endorsement scrutiny.

Courts, legal scholars and historians have grappled with the true meaning of the establishment clause ever since the Bill of Rights was ratified. Some scholars, in fact, believe modern interpretations of the clause are significantly attenuated from its original meaning. As Philip Hamburger wrote in his 2002 book, Separation of Church and State, Thomas Jefferson’s belief that the First Amendment erected a wall between church and state did not reflect the popular sentiment at the time the Constitution’s framers drafted the First Amendment: “[I]n the history of separation, Jefferson is but a passing figure, less important for what he wrote than for the significance attributed to it.” Hamburger argues that the framers did not contemplate true separation of church and state when they drafted the establishment clause because the religious dissenters of the 18th century “did not ordinarily demand a separation between church and state” and only wanted to forbid an established national church. Nonetheless, separation has become a substantial part of American society and varied interpretations of the establishment clause are sure to continue.

Each federal court decision involving an establishment-clause challenge reflects a fact-sensitive examination and application of one of the modern tests used to resolve perceived government involvement with religion. Because of the number, structure, ambiguity and varied interpretations of the modern tests among courts and among Supreme Court Justices, attempting to predict the outcome of a particular case is an uncertain exercise. Although the Supreme Court has articulated tests to use when analyzing an establishment-clause challenge, they have not been rigidly applied. Certainly a rigid application would detract from the critical thinking and historical perspective required in constitutional analysis.

1 Pub. L. No. 623, Ch. 435, Sect. 7 (1942) (now 4 U.S.C. Sect. 4 (1998)
2 Pub L. No. 396, Ch. 297 (1954)