ReligionLink

UPDATED JUNE 27, 2005

The U.S. Supreme Court ruled Monday that a Ten Commandments monument outside the Texas state Capitol can stay, while displays inside Kentucky courthouses must go. The forecast for the future: more lawsuits, and plenty of contentious debate, over which of the thousands of Ten Commandments displays in this country pass constitutional muster. The intent and context of the displays shaped the justices’ two closely divided opinions, leaving room for legal wrangling over when displays on government property are appropriate. The rulings are also likely to fuel the larger debate over how religious people publicly acknowledge God in a nation that is overwhelmingly Christian but includes a growing number of non-Christians.

In the Texas case, Van Orden v. Perry, the high court ruled 5-4 that a 6-foot monument on the grounds of the Texas state Capitol, positioned among other religious and historical displays, was a tribute to the nation’s religious and legal heritage and did not constitute government endorsement of religion. (Read the decision.) In the Kentucky case, McCreary County v. ACLU, the court ruled 5-4 that two displays inside courthouses did imply government endorsement of religion. (Read the decision.)

Many questions - and stories - remain for the months ahead:

• How will the rulings affect other Ten Commandments lawsuits already in the courts?

• How will the rulings affect displays throughout the country, where district courts have previously issued rulings that conflict with each other?

• How will supporters of the displays react? Will they seek to erect more monuments, using the guidelines of the Texas case? Will the Texas ruling bolster their confidence to seek more religious influence in public life in other ways?

• How will detractors of the displays react? Will they seek to remove displays on the grounds of religious intent?

• How will the rulings affect the larger debate about the role of religion in government? With a possible retirement among the justices looming, how might these rulings color debate over other church-state issues? Given the close rulings, how would a change in the Supreme Court justices affect such cases?

• How much time, money and energy will be spent on debates over Ten Commandments displays in the coming months? Why do people on both sides of the debate think this cause is worth such vast resources? What other issues are people on both sides of the debate working on? How do ordinary Americans feel about the amount of money being spent on Ten Commandments debates at a time when poverty, hunger, the Iraq war, Social Security and unemployment are also issues?

• A number of non-Christian religious groups filed court briefs arguing against the displays. Will the rulings encourage more activism among Hindu, Sikh, Buddhist and other groups?

• In the last decade, there has been a sharp increase in the number and profile of law firms that specialize in religious issues. What other issues are these law firms working on? In what ways is their influence increasing?

• Polls and support campaigns show that most Americans have no problem with Ten Commandments displays, and many embrace and encourage them. Will the rulings satisfy most Americans that their beliefs are being respected? Or will it inspire them to engage in church-state debates on local, state and national levels?

• The justices considered the intent and context of the displays in their rulings. What about the effect of such displays? What do local community leaders and members say about how Ten Commandments monuments and displays affect their citizens and the way local and state governments acknowledge religion?

• The campaign supporting Ten Commandments displays is overwhelmingly Christian, but not all Christians support them. Will clergy respond to the rulings in sermons this weekend? Church-state issues have become very prominent in public debate; which churches encourage conversation about them within church walls, and which don’t? What reasons do they give?

• How will legislators at the state and national level react? What will they hear about the rulings from their constituents? Dozens of bills involving church-state issues are in play in state legislatures at any given time. How might they be affected by the rulings?

• The First Amendment of the U.S. Constitution forbids government endorsement of religion but also protects religious expression - two ideals that have been in tension since the country’s founding. One justice suggested Monday that the Establishment Clause should be re-examined. What do legal scholars say about which clause is more highly valued now? How has that changed?

• The ban on government endorsement of religion has been cited in many court rulings that protected the rights of members of non-Christian religions. Some argue that those rights have been protected at the expense of Christians’ rights. What do religious leaders, people and legal scholars say?

• Religious groups are increasingly finding themselves allied with other religious groups on one or two political issues – such as the environment or stem-cell research — even when they are bitterly opposed on other issues. How do church-state issues affect those fragile alliances?

• The majority and dissenting opinions in both Ten Commandments rulings included some very divisive language. If the Supreme Court justices are bitterly divided on church-state issues and engage in dispiriting debate, will the rest of the country continue to follow suit? What local and national examples exist where opposing religious or secular groups were able to work together despite their differences to make progress on an issue?

Why it Matters

Court decisions have been divided on whether and when it is appropriate to display the Ten Commandments on government property. This emotionally charged issue has caused dozens upon dozens of lawsuits and community arguments. For some, the issue is the opening wedge in a campaign to establish the United States as a Christian nation. Others say they are fighting to stop a threat to the separation of church and state.

Skip to background

See ReligionLink’s timeline of Ten Commandment displays and court rulings, including links to information on current and former court cases.

 

National sources

IN FAVOR OF POSTING COMMANDMENTS IN GOVERNMENT BUILDINGS

• Mat Staver is president of Liberty Counsel, whose organization is representing the Kentucky counties in the current Supreme Court case. It posts questions the Supreme Court will consider. The Counsel’s web site states, “This case will likely affect every single church-state case for the next generation. History is at stake.” Contact 407-875-2100.

• Jay Sekulow is chief counsel for the American Center for Law and Justice in Washington, D.C. He is handling several Ten Commandments cases in the lower courts and says the ACLJ will file briefs in both the current Supreme Court cases. The ACLJ has also appealed to the U.S. Supreme court in an Adams County, Ohio, case involving a public school that displayed the Ten Commandments along with the Bill Rights, the Magna Carta, and the Preamble to the Constitution. Contact 757-575-9520.

• The Center for Reclaiming America in Fort Lauderdale, Fla., supports former Alabama Chief Justice Roy Moore’s posting of the Ten Commandments. It is affiliated with D. James Kenndy’s Coral Ridge Ministries. Contact 877-725-8872 or 954-351-3353.

• The Rutherford Institute, an international, nonprofit civil liberties organization in Charlottesville, Va., offers constitutional guidelines for displaying religious documents on public property. It has supported groups that wish to display the Ten Commandments. Contact media liaison Nisha N. Mohammed, 434-978-3888 ext. 604, nisha@rutherford.org.

• The Thomas More Law Center is a public-interest law firm dedicated to the defense and promotion of the religious freedom of Christians. It produces and distributes free Ten Commandments book covers for students and supports displaying the Ten Commandments on government property. Contact chief counsel Richard Thompson, in Ann Arbor, Mich., at 734-827-2001.

• Alan Sears is president, CEO and general counsel of the Alliance Defense Fund, a legal alliance based in Scottsdale, Ariz., whose focus is defending religious liberty. ADF provided funding for both Supreme Court cases and wrote an amicus brief in the Van Orden case. Contact Sears through media relations, 480-444-0020. See contacts for the fund’s five regional offices.

AGAINST

• Marci A. Hamilton is professor of law and director of the Intellectual Property Law Program at the Benjamin N. Cardozo School of Law at Yeshiva University. She is a nationally recognized expert on the religion clauses of the First Amendment. Read her 2004 FindLaw analysis of the Establishment Clause issues the Supreme Court will decide. Contact 212-790-0215, Hamilton02@aol.com.

• Derek Davis directs the J.M. Dawson Institute of Church-State Studies at Baylor University in Waco, Texas. The editor of the Journal of Church and State has said that Ten Commandments displays violate the Establishment Clause of the First Amendment. Contact 254-710-1510, Derek_davis@baylor.edu.

• Douglas Laycock is Alice McKean Young Regents Chair in Law and associate dean for research at the University of Texas School of Law in Austin. He has said that surrounding Ten Commandments displays with other historic documents and claiming they are posted for historical, not religious, value is a “charade.” Contact 512-232-1341, dlaycock@mail.law.utexas.edu.

• The Rev. Barry W. Lynn, executive director of Americans United for Separation of Church and State, says that Ten Commandments displays violate the Establishment Clause. Contact 202-466-3234.

• Bryan K. Fair is the Thomas E. Skinner Professor of law at the University of Alabama School of Law, where his specialties include the First Amendment. He wrote a commentary in the August 25, 2003 Jurist journal that said that both the Alabama and the U.S. constitutions do not support state Chief Justice Roy Moore’s Ten Commandments efforts. Contact 205-348-7494, bfair@law.ua.edu.

• The American Jewish Congress produced a Ten Commandments booklet calling the battle over the Ten Commandments a battle “for the soul of America.” Contact Marc Stern, assistant executive director, 212-360-1545, cell 917-660-4689, mstern@ajcongress.org.

• Manjit Singh, executive director of Sikh Mediawatch And Resource Task Force in Germantown, Md., says members of minority religions, particularly Sikhs, often feel a mix of patriotism and intimidation when confronted with civil religious displays. He says religious patriotism can push minorities to the periphery and casts them aside as Americans. Contact 877-917-4547.

• Nikhil Joshi, a lawyer from Tampa, Fla., is a board member of the Hindu American Foundation who helped prepare that group’s brief asking the Supreme Court to disallow government displays of the Ten Commandments because many Americans, including Hindus, do not ascribe to them. Contact 813-963-7736, nick@laborattys.com.

• Erwin Chemerinsky is the Alston & Bird Professor of Political Science at Duke University Law School. He wrote the Supreme Court brief on behalf of Thomas Van Orden in the Texas case. Contact 919-613-7173, chemerinsky@law.duke.edu.

 

OTHER SOURCES

• Sue Hoffman, a Seattle area high school teacher, researches the Fraternal Order of Eagles’ 1950s campaign that placed Ten Commandments monuments in public parks, at schools, and in front of city and state municipal buildings around the country as gifts to honor individuals, respected groups, and special events. Many of these monoliths - including the monument at the Texas State Capitol - are the subject of lawsuits. Contact 253-735-9981, hoffman014@comcast.net.

• Charles Haynes, senior scholar at the Gannett Freedom Forum’s First Amendment Center at Vanderbilt University in Nashville, Tenn., can discuss the historical underpinning of such disputes. He says there are too many Ten Commandments cases in the courts at this point to keep track of them all. Read Haynes’ Oct. 17, 2004, commentary on the new Supreme Court cases and a Nov. 10, 2002, column in which he says the Ten Commandments push is part of a wider agenda by conservative Christians. Contact 703-528-0800, Chaynes@freedomforum.org.

 

Background

When the Supreme Court issues its opinion in the Ten Commandments cases, the Pew Forum on Religion and Public Life will publish the findings of a recent poll on public attitudes toward displaying the commandments. The organization has also published a non-partisan backgrounder on the Ten Commandments cases. The website contains transcripts from recent public events.

RECENT ARTICLES

• Read a June 27, 2005, Christian Science Monitor story about the Supreme Court rulings.

• Read a June 27, 2005, Associated Press story about the decisions posted by The Washington Post.

• Read a March 7, 2005, CNN.com story about the U.S. Supreme Court’s oral arguments in the case.

• Read a March 3, 2005, legal analysis from the First Amendment Center on why the Supreme Court’s ruling on the Ten Commandments may not definitively resolve issues regarding public displays.

• Read a Feb. 27, 2005, New York Times story about the place of the Ten Commandments in American life.

• Read a Feb. 27, 2005, article from the St. Louis Post-Dispatch that discusses the increasing pluralism in the United States and how that affects views about Ten Commandments displays. It is posted by the Hindu American Foundation.

 

LEGAL BACKGROUND

• Read a Oct. 13, 2004, Washington Post story posted by the ACLJ about the U.S. Supreme Court agreeing to hear the two Ten Commandments cases.

• Americans United for Separation of Church & State posts a commentary on why the Ten Commandments should not be posted in government buildings. It also offers an analysis of caselaw involving Ten Commandment displays in non-school, government buildings.

• The American Center for Law and Justice has a resources page on the Ten Commandments that also tracks cases it is involved in. A commentary explains its stand.

• In February 2004 the Constitution Restoration Act of 2004, S. 2082, (search by bill number) sponsored by Alabama Sen. Richard Shelby and supported by ousted Alabama State Supreme Court Justice Roy Moore, was introduced in the U.S. Senate and House of Representatives. A similar bill, H.R. 3799 (search by bill number) was introduced in the U.S. House of Representatives the same month. The bills would ban federal courts from finding government acknowledgments of religion a violation of the First Amendment and promote federalism.

• Read the First Amendment Center’s overview of issues involving the public display of the Ten Commandments and other documents.

 

JUDGE ROY MOORE

• Read a history of Moore’s Ten Commandments battle as well as other materials supporting Moore at Reclaiming America: Defending the Ten Commandments.

• Read an Oct. 25, 2002, Washington Post story about how Judge Roy Moore has become a folk hero.

 

POLLS

• An August 2004 poll by the Pew Research Center and the Pew Forum on Religion & Public Life found that a majority of the public (72 percent) believes that it is proper to display the commandments in public buildings; just 23 percent say this is improper. More Republicans (86 percent) than Democrats (64 percent) say it is proper to display the Ten Commandments in government buildings. Among certain Kerry voters a majority (57%) agree. Seculars are evenly divided on the question (45% say it is proper, 48% improper).

• An Aug. 1, 2003, poll by the First Amendment Center and the American Journalism Review found that 62% of those surveyed said government officials should be allowed to post the Ten Commandments inside government buildings.

• A November 2003 CNN-USA Today-Gallup poll found 77 percent of the 1,009 Americans interviewed disapproved of the federal court order that ordered that Judge Roy Moore’s Ten Commandments monument be removed from the Alabama Judicial Building. Read a Nov. 14, 2003, CNN.com story.

• In a 1990 Gallup poll, 42 percent of adults were able to name as many as five of the Ten Commandments correctly.

 

RELIGION BACKGROUND

• Read an Oct. 23, 2004, Washington Post article (registration required) about how the different versions of the Ten Commandments could figure into U.S. Supreme Court arguments.

• The Ten Commandments are basic tenets for the more than 80 percent of Americans who identify themselves as Christian or Jewish. Proponents of public postings say the commandments are a critical historical document that should help guide Americans’ everyday actions. Critics say four of the commandments are explicitly religious and that posting them constitutes the state endorsement of religion.

• The Ten Commandments are listed in three places in the Bible, Exodus 20:2-17, Exodus 34:12-26, and Deuteronomy 5:6-21. Exodus 20 is the most commonly used set. Christians and Jews of varying traditions group them differently. Christian scriptures can be searched at gospelcom.net. Read the Jewish version at a Web page devoted to Shavuot, the commemoration of Moses receiving the Ten Commandments at Mount Sinai.

 

PUBLIC RELIGION

Timeline of Ten Commandment displays and court rulings

• 1950s: The Fraternal Order of Eagles placed Ten Commandments monuments in public parks, at schools, and in front of city and state municipal buildings around the country as gifts to honor individuals, respected groups, and special events. Many of these monoliths are the subject of lawsuits. The first was donated in 1955 in Milwaukee, Wis., in a public event involving Ten Commandments director Cecil B. DeMille and actor Yul Brenner, who played Pharaoh Ramses in the film. Sue Hoffman, a Seattle area high school teacher, is researching the monument campaign. Contact her at 253-735-9981, hoffman014@attbi.com.

• 1980: In Stone v. Graham, The U.S. Supreme Court found unconstitutional a Kentucky law requiring the posting of the commandments in classrooms. It is the only time the Supreme Court has addressed the issue.

• May 2001: The U.S. Supreme Court declined to consider a Ten Commandments case from Elkhart, Ind., though Chief Justice William H. Rehnquist and Justices Antonin Scalia and Clarence Thomas said they would like to address the issue. In August, a federal judge ordered city officials to remove Elkhart’s Ten Commandments monument. The city spent $63,000 in legal fees before moving it to private property. The case may be important because, some say, in declining to hear it the Supreme Court may be indicating that it is not, at this point, going to tamper with the decisions of lower courts to bar the monuments from public land. Read a May 29, 2001, Associated Press story posted on the Freedom Forum website.

• February 2002: The U.S. Supreme Court rejected an appeal from Indiana Gov. Frank O’Bannon, who wanted to display a 7-foot stone monument of the Ten Commandments at the state capitol. Read a Feb. 26, 2002 BBC news story about the appeal.

• October 2002: The Sixth U.S. Circuit Court of Appeals ruled that a Kentucky legislative directive to put a Ten Commandments monument on Frankfort’s state capitol grounds was unconstitutional. This case stands out because it was decided on a higher level court than most other such cases.

• November 2002: U.S. District Judge Myron Thompson rules that the 5,300-pound granite monument of the Ten Commandments placed in the rotunda of the Alabama state Judicial Building by Chief Justice Roy Moore violates the First Amendment’s Establishment Clause and must be removed.

• August 22, 2003: Alabama Chief Justice Roy Moore was suspended for defying a federal court order to move the Ten Commandments monument.

• November 3, 2003: The U.S. Supreme Court rejected an appeal from suspended Alabama Chief Justice Roy Moore (Moore v. Glassroth). Lower federal courts had ruled that Moore violated the Establishment Clause of the U.S. Constitution by placing a and that it must be removed.

• November 12, 2003: Workers removed the granite monument of the Ten Commandments from the rotunda of the Alabama Judicial Building.

• November 13, 2003: Alabama’s judicial ethics panel removed Chief Justice Roy Moore from office for defying a federal judge’s order to remove the Ten Commandments monument from the state Supreme Court building. Read a Nov. 14, 2003, CNN.com story.

• October 5, 2004: The U.S. Supreme Court dismissed an appeal of former Alabama Chief Justice Roy Moore, upholding a decision by the Alabama Court of the Judiciary that removed him from office.

• October 12, 2004: The U.S. Supreme Court said it will consider the constitutionality of posting the Ten Commandments on government land and in government buildings. It will hear arguments in February on two cases: Van Orden v. Perry, in which a homeless man contends that the a Ten Commandments monument on the Texas State Capitol grounds is an unconstitutional attempt to establish state-sponsored religion, and McCreary County v. ACLU, in which a lower court ruled that the Ten Commandments could not be posted in Kentucky courtrooms. Read an Oct. 12, 2004, Associated Press story posted by Fox News.

• March 2, 2005: The U.S. Supreme Court hears oral arguments in two Ten Commandments cases. Read the transcripts from arguments in Van Orden v. Perry and McCreary County v. ACLU.

 

Regional sources

STATE BY STATE

• Check a listing of state bills and their status at the web site of Americans United for Separation of Church and State. Ten Commandments bills are clearly labeled.

 

IN THE NORTHEAST

• John H. Mansfield teaches at Harvard University Law School about issues arising under the Establishment and Free Exercise Clauses of the First Amendment. Contact Mansfield at 617-495-3141 or his assistant, Susan Norton, at 617-496-2609.

• Jay D. Wexler, associate professor of law at Boston University Law School, teaches law and religion. Contact 617-353-2789.

• John H. Garvey is the dean of Boston College Law School and is one of the nation’s foremost authorities on legal issues regarding church and state. Contact 617-552-4340, john.garvey.1@bc.edu.

IN THE EAST

• Contact Ana Maria Diaz-Stevens, professor of church and society, at the Union Theological Seminary, a non-denominational graduate school in New York City, 212-662-7100.

• Ira C. Lupu is F. Elwood and Eleanor Davis Professor of Law at George Washington University in Washington, D.C., and specializes in constitutional law, law and religion, and separation of church and state. Contact 202-994-7053, iclupu@main.nlc.gwu.edu.

• Noah Feldman is assistant professor of law at New York University. His expertise includes constitutional law, and law and religion. He is the author of a book provisionally titled Under God? Religion and Government in the American Republic, to be published by Farrar, Straus & Giroux in 2004, and of After Jihad: America and the Struggle for Islamic Democracy (FSG, April 2003). He is constitutional adviser to the U.S. government on the Iraqi constitution. Contact 212- 998-6711, noah.feldman@nyu.edu.

• The Rev. C. Welton Gaddy is president of the Interfaith Alliance in Washington, D.C. He says the Supreme Court’s mixed message erodes religious freedom. Contact through communication director John Lynner Peterson, 202-639-6370 ext. 105, 202-607-8508 (cell).

 

IN THE SOUTHEAST

• Robert Alley is a church-state scholar and professor emeritus of humanities at the University of Richmond, Va. His books include The Constitution & Religion: Leading Supreme Court Cases on Church and State (Prometheus Books, 1999). Contact 804-288-8807, ralley@richmond.edu.

• Laura Underkuffler is a law professor at Duke University in Durham, N.C., who teaches and writes about law and religion. Contact 919-613-7085, Underkuffler@law.duke.edu.

• Colby May is senior counsel and director of the conservative Office of Governmental Affairs at the American Center for Law and Justice, which supports Ten Commandments displays. It’s based in Virginia Beach, Va. Contact 757-226-2489.

• Christian Legal Society of Annandale, Va., 703-642-1070.

• John Witte Jr. is Jonas Robitscher Professor of Law and Ethics and director of the Law and Religion Program at Emory University in Atlanta. His specializes in religious liberty issues. Contact 404-727-6980.

• Michael J. Broyde is a professor of law and academic director of the Law and Religion Program at Emory University in Atlanta. He is also an ordained rabbi. His specialties include law and religion and Jewish law. Contact 404-727-7546.

 

IN THE SOUTH

• Thomas R. McCoy, professor of law at Vanderbilt University, specializes in freedom of speech, press and religion as well as church-state issues. Contact 615-322-2711.

• Contact University of Mississippi law professor Timothy Hall, whose expertise is in the establishment and free exercise clauses of the First Amendment, 662- 915-6847.

• Chriss Doss, director of the Center for the Study of the Law and the Church at Samford University in Birmingham, Ala., watches Ten Commandments cases. Contact 205-726-2409.

• The Ten Commandments Project in Nashville, Tenn., pays children 16 years and younger $10 if they memorize the Ten Commandments.

 

IN THE MIDWEST

• Gerard V. Bradley is a scholar of constitutional law and law and religion at Notre Dame Law School in Indiana. Contact 574-631-8385.

• Contact the Center for the Study of Religion and American Culture at Indiana University - Purdue University in Indianapolis, 317-274-8409.

• Contact Bob Weaver, a founder of the Elkhart Ten Commandments Committee, 574-266-1010.

• Contact Ken Falk, attorney with the American Civil Liberties Union in Indianapolis, which challenged the Elkhart display in court, 317-635-4056.

• The Rev. Ken Johnson, founder of Adams County for the Ten Commandments, said the group has raised $150,000 in Seaman, Ohio - mostly through the sale of yard signs — to defend the Ohio Valley School District. Ten Commandments monuments placed at four new schools in 1997 are the subject of a suit now in the appeals stage. Contact Johnson at 888-474-4679, kdjmm@bright.net.

• The Freedom From Religion Foundation, based in Madison, Wis., has been involved in legal challenges to Ten Commandments displays. Contact attorney James Friedman, 608-256-8900, or president Annie Gaylor, 608-256-5800, algaylor@ffrf.org.

IN THE SOUTHWEST

• The Alliance Defense Fund in Scottsdale, Ariz., is a Christian legal organization working to defend traditional family values and religious freedom. Contact 1-800-835-5233.

• Liberty Legal Institute in Plano defends religious freedoms and First Amendment rights. Contact chief legal counsel Kelly Shackleford, 972-423-8889, ext. 5.

• Thomas Van Orden, a homeless man living in Austin, sued to remove a stone slab with the Ten Commandments, calling it an endorsement of Judeo-Christian beliefs by the state, but in October 2002, a federal judge in Austin ruled it could stay.

• Paul Finkelman is Chapman Distinguished Professor of Law at the University of Tulsa. His books include, as editor, Religion and American Law: An Encyclopedia (Garland, 1999). Contact 918-631-3706, paul-finkelman@utulsa.edu.

 

IN THE WEST/NORTHWEST

• James T. Richardson directs the judicial studies program at the University of Nevada-Reno and teaches sociology of religion. Contact 775-784-6270.

• Contact John Orr, principal investigator of the Center for Religion and Civic Culture at University of Southern California, 213-740-8562.

• Contact the Denver Chapter of Americans United for Separation of Church and State, 303-273-2838.