Defending the Ten Commandments

Larry J. Obhof

March 1, 2005

This week, the Supreme Court will hear oral arguments in McCreary County v. ACLU and Van Orden v. Perry, each of which ask whether displaying the Ten Commandments on public property violates the First Amendment’s prohibition against laws “respecting an establishment of religion.” While there is considerable speculation about these cases, the fact that the Supreme Court has chosen to hear two of the lesser-known and less controversial Ten Commandments cases suggests that a majority of the Justices is likely to uphold the displays and provide much-needed guidance to the lower courts.

Public displays of the Ten Commandments have become increasingly controversial in recent years, as the number of such lawsuits has skyrocketed and some of the defendants, most notably former Alabama Chief Justice Roy Moore, have become veritable celebrities. Moore’s case, which involved a 2 ½ ton granite monument placed in the rotunda of Alabama’s state judicial building, has overshadowed other cases in which the ACLU and other plaintiffs have fought to remove the Ten Commandments from the public square.

What does the Supreme Court’s choice of cases tell us? Perhaps most importantly, it indicates that the Justices recognize that these lawsuits are not only about religion. In contrast to Moore and his 2 ½ ton monument, the defendants in the McCreary County lawsuit posted the Ten Commandments on letter-sized sheets of paper, as part of broad historical displays about the origins and development of American law. Public officials in two Kentucky counties erected historical displays in their respective courthouses in order to “educate the citizens of the county regarding some of the documents that played a significant role in the foundation of our system of law and government.” Consistent with that purpose, each display was prominently identified as “The Foundations of American Law and Government Display.” In addition to the Ten Commandments, each display also included the text of the Star Spangled Banner, the Declaration of Independence, the Mayflower Compact, the Bill of Rights, the Magna Carta, the National Motto, the Preamble to the Kentucky Constitution, a printed image of Lady Justice, and an explanatory sign stating that the foregoing documents influenced our system of law and government. Other historical displays were found throughout the courthouses, including an additional 284 documents and symbols in the McCreary County courthouse alone.

Is this what the Founding Fathers intended to prohibit when they wrote that “Congress shall make no law respecting an establishment of religion?” Of course not. It is obvious to anyone who reads the facts of the case that the McCreary County lawsuit is not about government “establishment of religion” at all. It is simply an attempt by activist plaintiffs to rid public discourse of ideas with which they disagree.

The plaintiffs found all-too-willing allies in the federal courts, where three out of four judges ruled the displays unconstitutional even though the Supreme Court has repeatedly upheld public displays containing religious symbols. In the 1984 case Lynch v. Donnelly, the Supreme Court upheld the public display of a crèche—a nativity scene prominently featuring Jesus, Mary, Joseph, angels, shepherds, and kings—as part of a larger holiday display that included such things as Santa’s house and sleigh, reindeer, and candy-striped poles. The Court specifically addressed the religious origins of Christmas, and held that celebrating and depicting the origins of the holiday were legitimate, constitutionally permissible purposes for the display. The Court later upheld the public display of an 18-foot Chanukah menorah, along with a Christmas tree and a sign saluting liberty, in County of Allegheny v. ACLU. The Court recognized that the menorah is a religious symbol but nonetheless upheld the display because its overall context emphasized the symbols’ secular impact on our society.

Against this backdrop, how could the lower courts have found the courthouse displays in McCreary and Pulaski Counties unconstitutional? The short answer is that they could not, unless they ignored the prior holdings of the Supreme Court. We could argue all day about the “wall of separation” between church and state, the scope of the First Amendment, or the level of government coercion necessary to constitute “establishment” of religion. It seems obvious, however, that including one of history’s most influential legal codes in a display about the origins and development of the law does not offend any of these principles. The Supreme Court has explicitly held that depicting the religious origins of the Christmas holiday is a constitutionally permissible purpose for a government display of the nativity. The Sixth Circuit somehow missed the point and decided that celebrating the origins of American secular law is not similarly constitutional.

With all due respect to the courts, this is an easy case. It is one that the Sixth Circuit should not—and had it followed Supreme Court precedent, could not—have gotten wrong. The Supreme Court should simply say so and put an end to the faux-controversies surrounding so many of these displays.

Larry J. Obhof is an attorney practicing in Chicago, Illinois. He co-authored a brief filed by the Ashbrook Center for Public Affairs and Ohio Senate President Bill Harris in support of the petitioners in McCreary County v. ACLU.