Academic journal article The William and Mary Bill of Rights Journal

The Supreme Court and the Ten Commandments: Compounding the Establishment Clause Confusion

Academic journal article The William and Mary Bill of Rights Journal

The Supreme Court and the Ten Commandments: Compounding the Establishment Clause Confusion

Article excerpt

INTRODUCTION

The Supreme Court's decisions in Van Orden v. Perry1 and McCreary County, Kentucky v. ACLU of Kentucky2 have done nothing to clear away the fog obscuring religious display cases or Establishment Clause jurisprudence generally. If anything, the decisions have exacerbated an already confused and confusing area of the Court's decisional law, an area which Justice Scalia has not shrunk from calling "embarrassing."3 Douglas Laycock, who filed amicus briefs in both cases in support of challengers of the respective displays, laments that the Court's decisions "draw fuzzy and unprincipled lines."4 An editorial in Christianity Today captures the understandable reactions of partisans of both sides:

Everyone knows the Supreme Court ruled that one kind of Ten Commandments display on government property is unconstitutional, but that another kind is acceptable. But no one - including the Supreme Court itself - seems to be able to explain why.5

It seems that the Chief Justice may have chosen the wrong classical allusion when, in his Van Orden plurality opinion, he described the Court's Establishment Clause cases as "Januslike,"6 i.e., pointing in two directions.7 A better choice would have been "Hydralike," after the nine-headed mythological creature killed by Hercules as part of his famous Twelve Labors.8 After this pair of decisions, the question is whether there is anywhere a logical, coherent principle or set of principles upon which five or more members of the Court can agree in order to perform the apparently Herculean task of adjudicating these cases in any kind of consistent, predictable manner.

I. BACKGROUND

Perhaps the most disappointing aspect of the Van Orden and McCreary decisions is that they utterly failed to resolve an issue that has been boiling over in the lower courts for the past decade. Prior to 1996, only three reported decisions addressed the merits of constitutional challenges to Ten Commandments displays on non-school public property.9 After that, the deluge.10

As this non-exhaustive list shows, from about 1997 on, hardly a month went by without a decision being issued by either a district court or court of appeals on the constitutionality of some Ten Commandments display somewhere in the nation. The results were anything but consistent. The courts of appeals divided as follows: The Tenth Circuit held onto a ore-Stone v. Graham11 case upholding a courthouse display of the Fraternal Order of Eagles monument.12 The Third Circuit upheld a courthouse plaque of the Decalogue dating from 1920.13 The Sixth Circuit struck down every Ten Commandments display brought before it, including a Van Ordenesque state Capitol Eagles monument,14 a judge's courtroom poster,15 a school lawn historical texts display,16 and, of course, McCreary County's "Foundations of American Law and Government" display.17 The Eleventh Circuit struck down Chief Justice Roy Moore's monumental display,18 but upheld Richmond County, Georgia's use of the Decalogue in its seal.19 The Fifth Circuit upheld Texas's state capítol display of the Eagles monument in Van Orden.20 The Seventh Circuit struck down a state capítol monument display,21 struck down a city hall Eagles monument display in the city of Elkhart, Indiana,22 but, just three months before the hammer fell on McCreary County's display, upheld a courthouse display identical to McCreary' s in the county of Elkhart, Indiana.23 The Eighth Circuit took a wait-andsee attitude. That court vacated a three judge panel's 2-1 decision affirming the district court's striking down of an Eagles monument in a city park,24 heard oral argument en banc on September 15, 2004, then apparently informally abated further action pending the Supreme Court's consideration of Van Orden and McCreary.25

Confused? So were the lower courts, which frequently expressed, in the cases cited above as well as in district court opinions, their frustration with the lack of anything approaching clear direction from the highest court in the land. …

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