Keeping the Ten Commandments in Place

By Jay Sekulow

January 16, 2006

You might think that when the U.S. Supreme Court issued its conflicting decisions in June 2005 concerning the constitutionality of public displays of the Ten Commandments, that the litigation was finished.

Not so.  In fact, since those decisions, there have been several very important decisions upholding the constitutionality of such displays by federal appeals courts.

As you may recall, here's what the Supreme Court concluded in its two cases in June 2005.  In a case out of Kentucky, the high court said it was unconstitutional to display the Commandments inside a courthouse while at the same time concluding that a granite monument of the Ten Commandments donated by the Fraternal Order of Eagles outside the State Capitol in Austin, Texas was constitutional.

The conflicting opinions created confusion.  It was even challenging for some of the Justices to express their views.  After voting against the display in the Kentucky case, Justice Stephen Breyer switched sides and voted in favor of the Texas monument writing that "few individuals, whatever their beliefs, are unlikely to have understood the monument as amounting, in any significant way, to a government effort to favor a particular religious sect."

The Supreme Court decisions did not stop the litigation wheels that were in motion concerning many ongoing Commandments cases across the country.  In fact, since the Supreme Court decisions, there have been several important victories emanating from ACLJ cases.

In August 2005 – just two months after the Supreme Court decisions – the Eighth Circuit Court of Appeals upheld the public display of a Ten Commandments monument in a city park.  In that case, the ACLJ represented the City of Plattsmouth, Nebraska defending the display of a monument donated to the city of Plattsmouth in 1965 by the Fraternal Order of Eagles.

In a 10-2 decision, the appeals court relied heavily on the Supreme Court decision in the Texas case.  Writing for the majority in the Plattsmouth case, Judge Bowman noted, “Given [the] rich American tradition of religious acknowledgements, we cannot conclude that the City's display of a Ten Commandments monument violates the Establishment Clause. . . “

The court recognized that the Plattsmouth monument “makes passive – and permissible – use of the text of the Ten Commandments to acknowledge the role of religion in our Nation's heritage.”

Even more encouraging was a decision involving another Commandments case in which the ACLJ represented Mercer County, Kentucky.  A three-judge panel of the Sixth Circuit Court of Appeals in December 2005 unanimously affirmed the decision of a federal district court which upheld the inclusion of the Ten Commandments in a display of historical documents inside the Mercer County courthouse.  The appeals court rejected arguments by the American Civil Liberties Union that the display violated the Establishment Clause of the First Amendment.

Writing for the appeals court, Circuit Judge Suhrheinrich said that the ACLU's “repeated reference ‘to the separation of church and state' . . . has grown tiresome.  The First Amendment does not demand a wall of separation between church and state.” 

The court said that a reasonable observer of Mercer County's display would appreciate “the role religion has played in our governmental institutions, and finds it historically appropriate and traditionally acceptable for a state to include religious influences, even in the form of sacred texts, in honoring American traditions.”

Interestingly, the Sixth Circuit went even further concerning the ACLU and its mission when it concluded: “The ACLU, an organization whose mission is ‘to ensure that . . . the government [is kept] out of the religion business,' does not embody the reasonable person.”

Consider this quote from the Sixth Circuit opinion:  “If the reasonable observer perceived all government references to the Deity as endorsements, then many of our Nation's cherished traditions would be unconstitutional, including the Declaration of Independence and the national motto. Fortunately, the reasonable person is not a hyper-sensitive plaintiff.  Instead, he appreciates the role religion has played in our governmental institutions, and finds it historically appropriate and traditionally acceptable for a state to include religious influences, even in the form of sacred texts, in honoring American legal traditions.”

These cases clearly show that the Constitution does not require that we strip the public square of all vestiges of our religious heritage and traditions. In fact, these decisions also reassert what the Supreme Court has consistently held: that religion is closely tied to our history and government.

Questions concerning the constitutionality of displaying the Ten Commandments will persist.  The Supreme Court decisions of 2005 haven't settled the issue.  The litigation continues.

At the ACLJ, we remain committed to working to protect the constitutionality of displaying the Ten Commandments and we know this issue eventually will make its way back to the Supreme Court once again.

Jay Sekulow is Chief Counsel of the American Center for Law and Justice, a constitutional law firm and advocacy organization based in Washington, D.C.