I believe that the increasing call by private citizens and public officials for the government to post the Ten Commandments in schools, government buildings, courts and other public places -- while often well-intentioned - is bad policy and often unconstitutional. Governmental posting of the Ten Commandments can lead to the kind of religious divisions within otherwise peaceful communities that our founding fathers sought to avoid by constitutionally mandating the separation of church and state. Before embracing this easy fix for some of society's most in-rooted problems, communities should consider its consequences for one of America's most precious traditions: religious tolerance.
Prohibitions on Display of the Ten Commandments
The Supreme Court has long held that the government may not take any action that endorses a specific religious belief. All of the Court's decisions banning government support for religious activity have rested on the First Amendment's requirement of separation of church and state. Over the years, this precept has led the high court to ban such government practices as organized prayer in public schools, the inclusion of creationism in public school science classes and the sponsorship of nativity scenes by government agencies.
In the majority of cases considering official posting of the Ten Commandments, the Court has extended this prohibition. In its 1980 (Stone v. Graham) decision striking down a Kentucky law requiring that a copy of the Ten Commandments be posted in every public school classroom, the Court said: The pre-eminent purpose for posting the Ten Commandments on schoolroom walls is plainly religious in nature. The Ten Commandments are undeniably a sacred text in the Jewish and Christian faiths, and no legislative recitation of a supposed secular purpose can blind us to that fact. The Commandments do not confine themselves to arguably secular matters, such as honoring one's parents, killing or murder, adultery, stealing, false witness, and covetousness. Rather, the first part of the Commandments concerns the religious duties of believers: worshipping the Lord God alone, avoiding idolatry, not using the Lord's name in vain, and observing the Sabbath Day (H Bible).
The Court recently issued two decisions concerning official display of the Ten Commandments with differing results. In McCreary v. ACLU of Kentucky, the Court considered county courthouse displays of the Ten Commandments in Kentucky. Similar to the Stone decision, it again recognized that the Ten Commandments is "… an unmistakably religious statement dealing with religious obligations and with morality subject to religious sanction." The Court ultimately decided that the displays were unconstitutional because their history and context demonstrated a clear religious purpose and intent on the part of county officials.
In Van Orden v. Perry, the Court considered a forty-year-old granite Ten Commandments monument on the Texas capitol grounds - one of seventeen monuments on the broad plaza. Reaching an opposite result, the Court decided that this display is constitutionally permissible. However, Justice Breyer, who cast the deciding vote in the case, characterized the display as "borderline" and found that it served "a mixed but primarily nonreligious purpose." Significantly, as with the McCreary decision, a majority of the Justices indicated that displays in public schools likely will be unconstitutional. In other situations, a display or posting's location, history and context will be critical in determining its constitutionality.
These recent decisions mean that - outside the school context - there is no bright-line test for Ten Commandments cases. Rather, the legality of these displays will be decided on a case-by-case basis. Many of them will be found unconstitutional.
Of course, the First Amendment protects the right of any citizen to post the Ten Commandments on...