. In its most recent term the United States Supreme Court issued four rulings that will be of interest to church leaders. In one case the Court ruled that a city has the power to seize private property using the power of eminent domain in furtherance of an “economic development” plan. In the second case, the Court affirmed the constitutionality of portions of the Religious Land Use and Institutionalized Persons Act (RLUIPA). This ruling will provide churches with significant protection in the event that a city attempts to seize their property to expand the tax base or further an economic development plan. The third and fourth cases address the constitutionality of posting the Ten Commandments on public property. In one case, the Court ruled that posting the Ten Commandments in a Kentucky courtroom violated the first amendment’s “nonestablishment of religion” clause, while in the other case the Court concluded that a monument depicting the Ten Commandments on the grounds of the Texas state capitol building was permissible. The first two of these rulings were summarized in the September-October edition of this newsletter. The other rulings are addressed in this edition.
NOTE: The first 2 cases were presented in a previous article.
Case #3. Posting the Ten Commandments inside a county courthouse – McCreary County v. American Civil Liberties Union, 2005 WL 1498988 (2005)
In 1999 two county courthouses in Kentucky hung large, gold-framed copies of an abridged text of the King James version of the Ten Commandments (including a citation to the Book of Exodus), on a courthouse wall. In one county, the placement of the Commandments responded to an order of the county requiring “the display to be posted in a very high traffic area of the courthouse.” In the other county, the Commandments were hung in a ceremony presided over by a judge, who called them “good rules to live by” and who recounted the story of an astronaut who became convinced “there must be a divine God” after viewing the Earth from the moon. The judge was accompanied by the pastor of his church, who called the Commandments “a creed of ethics” and told the press after the ceremony that displaying the Commandments was “one of the greatest things the judge could have done to close out the millennium.”
In each county, the hallway display was “readily visible to county citizens who use the courthouse to conduct their civic business, to obtain or renew driver’s licenses and permits, to register cars, to pay local taxes, and to register to vote.”
In 1999 the American Civil Liberties Union (ACLU) of Kentucky sued the two counties in federal court, seeking an order barring the displays which the ACLU claimed were violations of the first amendment’s nonestablishment of religion clause. Before the court issued a ruling, each county authorized a second, expanded display, stating that the Ten Commandments are “the precedent legal code upon which the civil and criminal codes of Kentucky are founded,” and stating several grounds for taking that position, including that:
the Ten Commandments are codified in Kentucky’s civil and criminal laws”; that the Kentucky House of Representatives had in 1993 “voted unanimously to adjourn in remembrance and honor of Jesus Christ, the Prince of Ethics”; that the “County Judge and magistrates agree with the arguments set out by Judge [Roy] Moore” in defense of his “display of the Ten Commandments in his courtroom”; and 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.”
The expanded displays of the Ten Commandments included eight other documents in smaller frames, each either having a religious theme or excerpted to highlight a religious element. The documents were the “endowed by their Creator” passage from 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 a Bible,” reading that “the Bible is the best gift God has ever given to man”; a proclamation by President Reagan marking 1983 the Year of the Bible; and the Mayflower Compact.
A federal district court ordered the displays at both county courthouses removed “immediately,” and warned county officials not to “erect or cause to be erected similar displays.” A federal appeals court affirmed, and the case was appealed to the United States Supreme Court.
The Court began its opinion by observing,
The touchstone for our analysis is the principle that the “first amendment mandates governmental neutrality between religion and religion, and between religion and nonreligion.” When the government acts with the ostensible and predominant purpose of advancing religion, it violates that central establishment clause value of official religious neutrality, there being no neutrality when the government’s ostensible object is to take sides. Manifesting a purpose to favor one faith over another, or adherence to religion generally, clashes with the “understanding, reached … after decades of religious war, that liberty and social stability demand a religious tolerance that respects the religious views of all citizens. By showing a purpose to favor religion, the government “sends the message to nonadherents ‘that they are outsiders, not full members of the political community, and an accompanying message to adherents that they are insiders, favored members”
The Court continued: “This is not to deny that the Commandments have had influence on civil or secular law; a major text of a majority religion is bound to be felt. The point is simply that the original text viewed in its entirety is an unmistakably religious statement dealing with religious obligations and with morality subject to religious sanction. When the government initiates an effort to place this statement alone in public view, a religious object is unmistakable.”
The Court conceded that the expanded display included eight other historical documents in addition to the Ten Commandments. However, this did not render the posting of the Ten Commandments permissible, since the expanded display included other documents “with highlighted references to God as their sole common element. The display’s unstinting focus was on religious passages, showing that the counties were posting the Commandments precisely because of their sectarian content. That demonstration of the government’s objective was enhanced by serial religious references and the accompanying resolution’s claim about the embodiment of ethics in Christ. Together, the display and resolution presented an indisputable, and undisputed, showing of an impermissible purpose.”
The Court stressed that it was not outlawing all exhibitions of the Ten Commandments on government property:
Nor do we have occasion here to hold that a sacred text can never be integrated constitutionally into a governmental display on the subject of law, or American history. We do not forget, and in this litigation have frequently been reminded, that our own courtroom frieze was deliberately designed in the exercise of governmental authority so as to include the figure of Moses holding tablets exhibiting a portion of the Hebrew text of the later, secularly phrased Commandments; in the company of 17 other lawgivers, most of them secular figures, there is no risk that Moses would strike an observer as evidence that the National Government was violating neutrality in religion. The dissent notes that another depiction of Moses and the Commandments adorns this Court’s east pediment. But as with the courtroom frieze, Moses is found in the company of other figures, not only great but secular.
The Court concluded that
the principle of neutrality has provided a good sense of direction: the government may not favor one religion over another, or religion over irreligion, religious choice being the prerogative of individuals under the free exercise clause. The principle has been helpful simply because it responds to one of the major concerns that prompted adoption of the religion clauses. The framers and the citizens of their time intended not only to protect the integrity of individual conscience in religious matters, but to guard against the civic divisiveness that follows when the government weighs in on one side of religious debate; nothing does a better job of roiling society, a point that needed no explanation to the descendants of English Puritans and Cavaliers (or Massachusetts Puritans and Baptists). A sense of the past thus points to governmental neutrality as an objective of the establishment clause, and a sensible standard for applying it. To be sure, given its generality as a principle, an appeal to neutrality alone cannot possibly lay every issue to rest, or tell us what issues on the margins are substantial enough for constitutional significance, a point that has been clear from the founding era to modern times. But invoking neutrality is a prudent way of keeping sight of something the framers of the first amendment thought important.
Justice Scalia’s dissenting opinion, which was joined by three other justices, begins with an overview of the place of religion in public life (some of his conclusions were challenged by the Court’s majority):
On September 11, 2001 I was attending in Rome, Italy an international conference of judges and lawyers, principally from Europe and the United States. That night and the next morning virtually all of the participants watched, in their hotel rooms, the address to the Nation by the President of the United States concerning the murderous attacks upon the Twin Towers and the Pentagon, in which thousands of Americans had been killed. The address ended, as Presidential addresses often do, with the prayer “God bless America.” The next afternoon I was approached by one of the judges from a European country, who, after extending his profound condolences for my country’s loss, sadly observed “How I wish that the Head of State of my country, at a similar time of national tragedy and distress, could conclude his address ‘God bless ______.’ It is of course absolutely forbidden.”
That is one model of the relationship between church and state—a model spread across Europe by the armies of Napoleon, and reflected in the Constitution of France, which begins “France is a secular Republic.” Religion is to be strictly excluded from the public forum. This is not, and never was, the model adopted by America. George Washington added to the form of Presidential oath prescribed by … the Constitution, the concluding words “so help me God.” The Supreme Court under John Marshall opened its sessions with the prayer, “God save the United States and this Honorable Court.” The First Congress instituted the practice of beginning its legislative sessions with a prayer. The same week that Congress submitted the establishment clause as part of the Bill of Rights for ratification by the states, it enacted legislation providing for paid chaplains in the House and Senate. The day after the first amendment was proposed, the same Congress that had proposed it requested the President to proclaim “a day of public thanksgiving and prayer, to be observed, by acknowledging, with grateful hearts, the many and signal favours of Almighty God.” President Washington offered the first Thanksgiving Proclamation shortly thereafter, devoting November 26, 1789 on behalf of the American people “to the service of that great and glorious Being who is the beneficent author of all the good that is, that was, or that will be,” thus beginning a tradition of offering gratitude to God that continues today. The same Congress also reenacted the Northwest Territory Ordinance of 1787, 1 Stat. 50, Article III of which provided: “Religion, morality, and knowledge, being necessary to good government and the happiness of mankind, schools and the means of education shall forever be encouraged.” And of course the first amendment itself accords religion (and no other manner of belief) special constitutional protection.
These actions of our First President and Congress and the Marshall Court were not idiosyncratic; they reflected the beliefs of the period. Those who wrote the Constitution believed that morality was essential to the well-being of society and that encouragement of religion was the best way to foster morality. The “fact that the Founding Fathers believed devotedly that there was a God and that the unalienable rights of man were rooted in Him is clearly evidenced in their writings, from the Mayflower Compact to the Constitution itself.” President Washington opened his Presidency with a prayer, and reminded his fellow citizens at the conclusion of it that “reason and experience both forbid us to expect that National morality can prevail in exclusion of religious principle.” President John Adams wrote to the Massachusetts Militia, “we have no government armed with power capable of contending with human passions unbridled by morality and religion. Our Constitution was made only for a moral and religious people. It is wholly inadequate to the government of any other.” Thomas Jefferson concluded his second inaugural address by inviting his audience to pray: “I shall need, too, the favor of that Being in whose hands we are, who led our fathers, as Israel of old, from their native land and planted them in a country flowing with all the necessaries and comforts of life; who has covered our infancy with His providence and our riper years with His wisdom and power and to whose goodness I ask you to join in supplications with me that He will so enlighten the minds of your servants, guide their councils, and prosper their measures that whatsoever they do shall result in your good, and shall secure to you the peace, friendship, and approbation of all nations.” James Madison, in his first inaugural address, likewise placed his confidence “in the guardianship and guidance of that Almighty Being whose power regulates the destiny of nations, whose blessings have been so conspicuously dispensed to this rising Republic, and to whom we are bound to address our devout gratitude for the past, as well as our fervent supplications and best hopes for the future.”
Nor have the views of our people on this matter significantly changed. Presidents continue to conclude the Presidential oath with the words “so help me God.” Our legislatures, state and national, continue to open their sessions with prayer led by official chaplains. The sessions of this Court continue to open with the prayer “God save the United States and this Honorable Court.” Invocation of the Almighty by our public figures, at all levels of government, remains commonplace. Our coinage bears the motto “In God We Trust.” And our Pledge of Allegiance contains the acknowledgment that we are a Nation “under God.” As one of our Supreme Court opinions rightly observed, “We are a religious people whose institutions presuppose a Supreme Being.”
With all of this reality (and much more) staring it in the face, how can the Court possibly assert that “the First Amendment mandates governmental neutrality between religion and nonreligion,” and that “manifesting a purpose to favor adherence to religion generally,” is unconstitutional? Who says so? Surely not the words of the Constitution. Surely not the history and traditions that reflect our society’s constant understanding of those words. Surely not even the current sense of our society, recently reflected in an Act of Congress adopted unanimously by the Senate and with only 5 nays in the House of Representatives, criticizing a Court of Appeals opinion that had held “under God” in the Pledge of Allegiance unconstitutional. Nothing stands behind the Court’s assertion that governmental affirmation of the society’s belief in God is unconstitutional except the Court’s own say-so, citing as support only the unsubstantiated say-so of earlier Courts going back no farther than the mid-20th century. And it is, moreover, a thoroughly discredited say-so … because the Court has not had the courage (or the foolhardiness) to apply the neutrality principle consistently.
Case #4. A Monument Depicting the Ten Commandments on the Grounds of the Texas State Capitol – Van Orden v. Perry, 125 S.Ct. 2854 (2005)
The 22 acres surrounding the Texas State Capitol contain 17 monuments and 21 historical markers commemorating the “people, ideals, and events that compose Texan identity.” One of the monuments is a 6-feet high portrayal of the Ten Commandments located between the state capitol and state supreme court building. An eagle grasping the American flag, an eye inside of a pyramid, and two small tablets with what appears to be an ancient script are carved above the text of the Ten Commandments. Below the text are two Stars of David and the superimposed Greek letters Chi and Rho, which represent Christ. The bottom of the monument bears the inscription “Presented to the People and Youth of Texas by the Fraternal Order of Eagles of Texas.” The other 16 monuments include those depicting the Heroes of the Alamo, Confederate Soldiers, Volunteer Firemen, Texas Rangers, Spanish-American War, Texas National Guard, Texas School Children, Pearl Harbor and Korean War Veterans, Soldiers of World War I, Disabled Veterans, and Texas Peace Officers.
The Fraternal Order of Eagles (a national social, civic, and patriotic organization) paid the cost of erecting the Ten Commandments monument, the dedication of which was presided over by two state legislators. Nearly 50 years after the erection of the Ten Commandments monument, an attorney who frequently walked past the monument on his way to the state supreme court library sued to have the monument removed, claiming that it offended him and that it constituted an establishment of religion in violation of the first amendment. A federal district court ruled that the monument did not violate the first amendment, and a federal appeals court affirmed this ruling. The case was appealed to the United States Supreme Court.
The late Chief Justice William Rehnquist, writing for the Court, began his opinion by observing,
Our cases, Januslike, point in two directions in applying the establishment clause. One face looks toward the strong role played by religion and religious traditions throughout our Nation’s history. As we observed in [a previous case]: “It is true that religion has been closely identified with our history and government …. The fact that the Founding Fathers believed devotedly that there was a God and that the unalienable rights of man were rooted in Him is clearly evidenced in their writings, from the Mayflower Compact to the Constitution itself …. It can be truly said, therefore, that today, as in the beginning, our national life reflects a religious people who, in the words of Madison, are ‘earnestly praying, as … in duty bound, that the Supreme Lawgiver of the Universe … guide them into every measure which may be worthy of his [blessing].’ The other face looks toward the principle that governmental intervention in religious matters can itself endanger religious freedom. This case, like all establishment clause challenges, presents us with the difficulty of respecting both faces. Our institutions presuppose a Supreme Being, yet these institutions must not press religious observances upon their citizens. One face looks to the past in acknowledgment of our Nation’s heritage, while the other looks to the present in demanding a separation between church and state. Reconciling these two faces requires that we neither abdicate our responsibility to maintain a division between church and state nor evince a hostility to religion by disabling the government from in some ways recognizing our religious heritage
The Court quoted from an earlier case: “We find no constitutional requirement which makes it necessary for government to be hostile to religion and to throw its weight against efforts to widen the effective scope of religious influence.” It noted that “fostering a pervasive bias or hostility to religion … could undermine the very neutrality the establishment clause requires.”
The Court rejected the so-called Lemon test for resolving the case before it. The Lemon test comes from a 1971 decision of the Supreme Court in which it ruled that a law or practice does not violate the establishment clause if it (1) has a secular legislative purpose; (2) has a principal or primary effect that neither advances nor inhibits religion; and (3) does not foster an excessive government entanglement with religion. The Court concluded that the Lemon test was “not useful in dealing with the sort of passive monument that Texas has erected on its Capitol grounds.” Instead, our “analysis is driven both by the nature of the monument and by our Nation’s history.” It observed that “there is an unbroken history of official acknowledgment by all three branches of government of the role of religion in American life from at least 1789.” It cited numerous examples, many of which were mentioned by Justice Scalia in his dissenting opinion in the McCreary case (see above).
This recognition of religion in public life back to the founding of the country has led to decisions finding that the establishment clause permits some public accommodations of religion. It noted that “acknowledgments of the role played by the Ten Commandments in our Nation’s heritage are common throughout America,” and that “we need only look within our own Courtroom. Since 1935, Moses has stood, holding two tablets that reveal portions of the Ten Commandments written in Hebrew, among other lawgivers in the south frieze. Representations of the Ten Commandments adorn the metal gates lining the north and south sides of the Courtroom as well as the doors leading into the Courtroom. Moses also sits on the exterior east facade of the building holding the Ten Commandments tablets.” The Court continued,
Similar acknowledgments can be seen throughout a visitor’s tour of our Nation’s Capital. For example, a large statue of Moses holding the Ten Commandments, alongside a statue of the Apostle Paul, has overlooked the rotunda of the Library of Congress’ Jefferson Building since 1897. And the Jefferson Building’s Great Reading Room contains a sculpture of a woman beside the Ten Commandments with a quote above her from the Old Testament (Micah 6:8). A medallion with two tablets depicting the Ten Commandments decorates the floor of the National Archives. Inside the Department of Justice, a statue entitled “The Spirit of Law” has two tablets representing the Ten Commandments lying at its feet. In front of the Ronald Reagan Building is another sculpture that includes a depiction of the Ten Commandments. So too a 24-foot-tall sculpture, depicting, among other things, the Ten Commandments and a cross, stands outside the federal courthouse that houses both the Court of Appeals and the District Court for the District of Columbia. Moses is also prominently featured in the Chamber of the United States House of Representatives.
The Court concluded: “Texas has treated her Capitol grounds monuments as representing the several strands in the state’s political and legal history. The inclusion of the Ten Commandments monument in this group has a dual significance, partaking of both religion and government. We cannot say that Texas’ display of this monument violates the establishment clause of the first amendment.”
Justice Breyer, in a concurring opinion, made the following observations:
The case before us is a borderline case. It concerns a large granite monument bearing the text of the Ten Commandments located on the grounds of the Texas State Capitol. On the one hand, the Commandments’ text undeniably has a religious message, invoking, indeed emphasizing, the Deity. On the other hand, focusing on the text of the Commandments alone cannot conclusively resolve this case. Rather, to determine the message that the text here conveys, we must examine how the text is used. And that inquiry requires us to consider the context of the display. In certain contexts, a display of the tablets of the Ten Commandments can convey not simply a religious message but also a secular moral message (about proper standards of social conduct). And in certain contexts, a display of the tablets can also convey a historical message (about a historic relation between those standards and the law)—a fact that helps to explain the display of those tablets in dozens of courthouses throughout the Nation, including the Supreme Court of the United States.
Here the tablets have been used as part of a display that communicates not simply a religious message, but a secular message as well. The circumstances surrounding the display’s placement on the capitol grounds and its physical setting suggest that the State itself intended the latter, nonreligious aspects of the tablets’ message to predominate. And the monument’s 40-year history on the Texas state grounds indicates that that has been its effect ….
The physical setting of the monument, moreover, suggests little or nothing of the sacred. The monument sits in a large park containing 17 monuments and 21 historical markers, all designed to illustrate the “ideals” of those who settled in Texas and of those who have lived there since that time. The setting does not readily lend itself to meditation or any other religious activity. But it does provide a context of history and moral ideals. It (together with the display’s inscription about its origin) communicates to visitors that the state sought to reflect moral principles, illustrating a relation between ethics and law that the state’s citizens, historically speaking, have endorsed. That is to say, the context suggests that the state intended the display’s moral message—an illustrative message reflecting the historical “ideals” of Texans—to predominate.
If these factors provide a strong, but not conclusive, indication that the Commandments’ text on this monument conveys a predominantly secular message, a further factor is determinative here. As far as I can tell, 40 years passed in which the presence of this monument, legally speaking, went unchallenged (until the single legal objection raised by petitioner). And I am not aware of any evidence suggesting that this was due to a climate of intimidation. Hence, those 40 years suggest more strongly than can any set of formulaic tests that few individuals, whatever their system of beliefs, are likely to have understood the monument as amounting, in any significantly detrimental way, to a government effort to favor a particular religious sect, primarily to promote religion over nonreligion …. Those 40 years suggest that the public visiting the capitol grounds has considered the religious aspect of the tablets’ message as part of what is a broader moral and historical message reflective of a cultural heritage ….
To reach a contrary conclusion here, based primarily on the religious nature of the tablets’ text would, I fear, lead the law to exhibit a hostility toward religion that has no place in our establishment clause traditions. Such a holding might well encourage disputes concerning the removal of longstanding depictions of the Ten Commandments from public buildings across the Nation. And it could thereby create the very kind of religiously based divisiveness that the establishment clause seeks to avoid.
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