Van Orden v Perry, McCreary v ACLU
The Supreme Court likely took two cases involving Ten Commandments displays in the hope of offering clarity to lower courts on an issue that is arising in litigation across the country: When may the government place religious symbols, such as Ten Commandments displays, on government property? Unfortunately, Monday’s decisions in McCreary County, Kentucky v. ACLU of Kentucky and Van Orden v. Perry did little to clarify the law in this area.
In McCreary County, the Court, by a 5-4 decision, declared unconstitutional displays of the Ten Commandments in county courthouses. In Van Orden, in a 5-4 decision without a majority opinion, the Court upheld the constitutionality of a Ten Commandments monument that sits between the Texas State Capitol and the Texas Supreme Court.
In trying to make sense of these decisions it is important to remember that only one Justice — Stephen Breyer — saw a distinction between them. Four Justices — Rehnquist Scalia, Kennedy, and Thomas — would have upheld both displays. Four Justices — Stevens, O’Connor, Souter, and Ginsburg — would have invalidated both displays. Only Breyer was in the majority both in striking down the Kentucky display and in upholding the Texas monument.
What conclusions can be drawn from these decisions? First, the Court reaffirmed the test for the Establishment Clause that it articulated in Lemon v. Kurtzman in 1971. Under the Lemon test, the government violates the Establishment Clause if it has the purpose of advancing religion, or if the primary effect is to advance or inhibit religion, or if there is excessive government entanglement with religion. For many years, conservatives such as Justice Scalia, have urged the overruling of the Lemon test. But in McCreary County, Justice Souter’s majority opinion emphatically reaffirms and applies the Lemon test.
Second, the government is limited in its ability to display religious symbols on government property. A majority of the Justices agreed that the government cannot place religious symbols on government property in a manner that symbolically endorses religion. This was the rule announced in prior decisions, such as Allegheny County v. ACLU (1989) and Capitol Square Review Commission v. Pinette (1995), and it was reaffirmed in Monday’s rulings.
Third, the Ten Commandments are a religious symbol. Justice Souter’s opinion for the Court in McCreary County clearly explains that the Ten Commandments are a profound religious message: they are regarded as sacred text by many religions and they express the view that there is a God and that God has commanded rules for behavior. The Court reaffirmed its decision in Stone v. Graham (1980), which held that it was unconstitutional for Kentucky to require the posting of the Ten Commandments in public school classrooms.
Fourth, in determining whether a particular display is a symbolic endorsement of religion, courts must look at its history, its purpose, and its context. For Justice Breyer, these were the key factors that distinguished the Kentucky and the Texas displays. As for history, Justice Breyer stressed that the Texas Ten Commandments monument had been there 40 years, while the Kentucky displays were of recent origin. As for purpose, Justice Breyer saw the Texas monument as serving secular purposes, including the role of the Ten Commandments as a foundation for law, while the Kentucky displays had an express religious purpose. As for context, Justice Breyer stressed that the Texas monument was part of an overall display of over 20 monuments on the Capitol grounds, while the other symbols in the Kentucky display were put there just to save the Ten Commandments display.
But this means that every religious symbol on government property will have to be analyzed based on its unique facts and circumstances. At one extreme, a religious symbol, like a Ten Commandments monument, that sits by itself and is of recent origin is almost surely unconstitutional. At the other extreme, a presentation of the Ten Commandments that has long been present on government property and is surrounded by other secular and religious symbols is likely constitutional. There is enormous uncertainty between these extremes and this will be the subject of significant continued litigation.
Overall, what is striking about Monday’s decisions is that they did not change the legal tests that courts are to apply. They did not offer much additional guidance to local governments or to lower courts.
American society is deeply divided over issues of religion and government. Some believe strongly that government should be strictly secular and religious symbols rarely belong on government
property. Others believe that excluding religious symbols is impermissible hostility to religion and religious symbols should be allowed on government property essentially without limits. These
contrasting, strongly held views ensure that this issue will continue to divide the Court, and society, for years to come.
The author, Erwin Chemerinsky, is Alston & Bird Professor of Law at Duke University School of Law and was counsel of record for Thomas Van Orden in Van Orden v. Perry.
Certiorari Grants:
McCreary County, Kentucky v. American Civil Liberties Union of Kentucky
Van Orden v. Perry
Edited Opinions:
McCreary County, Kentucky v. American Civil Liberties Union of Kentucky
Van Orden v. Perry
Supreme Court Opinions:
McCreary County, Kentucky v. American Civil Liberties Union of Kentucky
Van Orden v. Perry
