How The Supreme Court Will Decide The Ten Commandment Cases In 2005

How The Supreme Court Will Decide
The Ten Commandment Cases In 2005

By David W. New, Esq.

The Covenant News ~ December 27, 2004

Millions of Americans believe that the U.S. Supreme Court has an unfriendly attitude toward religion and the role of religion in American life. They believe the Court has discriminated against the rights of religious Americans and treated them like second class citizens. The school prayer cases of the 1960’s are just one of many examples that suggest the Supreme Court has been intolerant and unfair. Recently, the High Court has announced that it will decide two cases involving the display of the Ten Commandments on public property. The cases originate from Kentucky and Texas. How will the Supreme Court decide these cases? What test will the Supreme Court use to reach its conclusions? In this article I would like to discuss the likely outcome of these cases, the test the Court will use to reach its conclusions and finally I would like to suggest a better test to use to decide cases involving religion and the First Amendment. I will recommend the test proffered by the Senate Judiciary Committee in 1853 for any case involving the display of the Ten Commandments on public property.


The U.S. Supreme Court has heard a case about the Ten Commandments before. The case was called Stone v. Graham and it was decided in 1980. The issue in the case was whether a display of the Ten Commandments in a public school was constitutional. The Kentucky public schools required that a copy of the Ten Commandments be displayed on the schoolroom walls. The cost to display the Ten Commandments was provided by private donations. The Supreme Court agreed that the students were not required to repeat the Ten Commandments or to read them. Nevertheless, the Court ruled that the display was unconstitutional. The Court said the display of the Ten Commandments violated the Establishment Clause found in the First Amendment. The words in the Establishment Clause are the most important words in any case involving the display of the Ten Commandments. The reader will recall that there are two religion clauses in the First Amendment. There is an Establishment Clause and a Free Exercise Clause. These two clauses which consist of 16 words are as follows: “Congress shall make no law respecting an establishment of religion or prohibiting the free exercise thereof . . . . ” In effect, the Court said that to display the Ten Commandments in a public school was to establish Christianity or Judaism or both as the official religion of the state of Kentucky. The Court in 1980 concluded the case with these unbelievable words: “If the posted copies of the Ten Commandments are to have any effect at all, it will be to induce the schoolchildren to read, mediate upon, perhaps to venerate and obey, the Commandments. However desirable this might be as a matter of private devotion, it is not a permissible state objective under the Establishment Clause.Note 1.


The current case from Kentucky is about the display of the Ten Commandments as well. Here however, the issue is not about a Ten Commandments display in the public schools but in two county courthouses located in McCreary and Pulaski Counties. While this difference may seem minor to most people, it is very important to the Supreme Court. The U.S. Supreme Court has zero tolerance for any display of the Ten Commandments on public school property. This is the message from the 1980 case. However, in this case, the fact that the Ten Commandments are located at the courthouse probably will not save them. If the past is any indicator, the Supreme Court will likely rule against the Ten Commandments in this case as well. In fact, you might say this case is “dead on arrival.” A cynic might even argue that the Supreme Court took this case for the express purpose to rule against it. What the Court will likely find objectionable in this case is the manner by which the Ten Commandments were introduced into the courthouse. The Ten Commandments were placed there by ‘religious zealots.’ This fact alone is enough to cause the Supreme Court to rule against the Ten Commandments display. The Court will never acknowledge their hostility against religious Americans but that will be the message. Please join me and pray that I am wrong. Let us pray that the Court will allow the Ten Commandments to be displayed.


The case from Texas is a little different from the Kentucky case. Here the Ten Commandments display is in a public park setting. Most important, the Ten Commandments are displayed in an area designated as a National Historic Landmark and there are other displays in the park besides the Ten Commandments. In addition, the Texas display has another point in its favor. The Ten Commandments were not placed there by ‘religious zealots’ but by the Fraternal Order of Eagles, a non-religious group. Thus, the combination of the following facts: the location of the Ten Commandments in a public park, the display of other monuments with the Ten Commandments and the fact that the Ten Commandments were donated by a non-religious group suggests that this case could be a winner. I think there is a 51/49% chance the Supreme Court will rule in favor of the Ten Commandments display in Texas, assuming that all nine members of the Court vote. (The Ten Commandments displayed in the McCreary and Pulaski courthouses had other things on display besides the Ten Commandments as well but they were added later only as a result of litigation.) Another big factor in favor of the Texas case is the attorney who will fight to keep the Ten Commandments display. It will be the Texas Attorney General, a secular authority. The case from Kentucky is represented by a very gifted attorney by the name of Mathew Staver who heads a religiously conservative organization called the Liberty Counsel. Unfortunately, there is a problem. While the liberal members on the Supreme Court will never admit it, in a case like this, having a religiously conservative attorney represent you hurts your case to some extent. An attorney with a secular association has a better chance. (Interestingly, the Ten Commandments display in Texas is virtually identical to the one I have seen in Elkhart, Indiana and in Lincoln Park, in Denver, Colorado. These Ten Commandment displays were donated by the Fraternal Order of Eagles as well. Sadly, the one in Elkhart has since been removed from public property.)

Question: why will the Supreme Court likely see the Kentucky and Texas cases so differently? Why does it matter to the Supreme Court if the Ten Commandments were donated by a secular group? Why does it help to have a secular attorney represent you in a case like this rather than a religious conservative? The answer to these questions can be found in the test the Supreme Court will use to decide these cases.


The test the Supreme Court will use to decide these cases will likely be the same test that was used in the 1980 Ten Commandments case. The test is known as the Lemon Test. The Lemon Test has been very destructive to religious freedom in America. The Supreme Court has used the Lemon Test to advance its philosophy of secularism in America and to strip America of her spiritual heritage. Most important, the Lemon Test promotes an attitude of intolerance toward religion. Much of the animosity some Americans feel toward religion originates from the influence of the Lemon Test. The Lemon Test effectively institutionalizes discrimination against religion and religious Americans. It allows the government to treat religious Americans like second class citizens. For example, in the first decision concerning the Pledge of Allegiance, the Ninth Circuit used the Lemon Test in part to ban the words “under God” from the public schools. The Lemon Test was written by Chief Justice Warren E. Burger in 1971. We will quote it here as it was quoted in the 1980 Ten Commandments case:

    “This Court has announced a three-part test for determining whether a challenged state statute is permissible under the Establishment Clause of the United States Constitution:
    First, the statute must have a secular legislative purpose; second, its principal or primary effect must be one that neither advances nor inhibits religion . . . . ; finally the statute must not foster ‘an excessive government entanglement with religion’ ” Note 2.

In order for a Ten Commandments display to be constitutional the display must pass all three parts of the test. A failure to pass one part of the test will doom the Ten Commandments display. In 1980, the Supreme Court said the Ten Commandments display in the public schools violated the first prong of the test, the secular legislative purpose part of the test. Since the Ten Commandments display in the public schools could not pass the first part of the test, the Court said there was no need to go to parts two and three.

The Lemon Test is fatally flawed for several reasons. First, neither the First Amendment nor the Establishment Clause dictate a philosophy of secularism. Indeed, as this author has pointed out in prior articles, the modern philosophy of secularism didn’t even exist in the 18th century when the First Amendment was written. In any case, the Supreme Court has successfully used the first prong of the Lemon Test, the secular legislative purpose test, to advance secularism in America. Of course, whenever the government favors a philosophy of secularism this will by definition result in discrimination against religion. The Lemon Test also explains why the Supreme Court might allow a display of the Ten Commandments if donated by a secular organization or defended by a secular lawyer. A display of the Ten Commandments might be permitted if it can be stripped of its spiritual value, if it can be secularized. Second, the Lemon Test in no way reflects what the framers of the First Amendment intended for the Establishment Clause. Indeed, if the Lemon Test had been in force during the first 175 years of American history, almost everything Americans did involving religion in public would have been unconstitutional. Clearly, all those weekly church services Thomas Jefferson attended at the U.S. Capitol while President were illegal. Finally, the third part of the test, the ‘excessive government entanglement with religion’ test is a joke. The Federal Government has never been more excessively entangled with religion than now. Today, the Federal Government decides when Americans can pray, where they can pray, who they can pray with and how they can pray. Since 1962, the U.S. Supreme Court has been issuing national federal guidelines for prayer in America. Rather than keeping government and religion apart, the Lemon Test and its predecessors gave the government a license to regulate religious life in America.


In 1853, the U.S. Senate had an opportunity to define the Establishment Clause to the First Amendment. Apparently, some Americans petitioned the Congress to end the practice of having paid chaplains at taxpayer’s expense in the Congress and in the military. These people felt that such an arrangement violated the Establishment Clause to the First Amendment. The Senate rejected their petition. However, in their response the Senate offered a very insightful definition of the Establishment Clause. I believe this definition is much closer to the intent the framers of the First Amendment had for the Establishment Clause than anything the Supreme Court has yet to produce. Interestingly, the Senate’s test had three parts to it as well. Here is what the Senate said:

The clause speaks of ‘an establishment of religion.’ What is meant by that expression? It referred, without doubt, to that establishment which existed in the mother country, and its meaning is to be ascertained by ascertaining what that establishment was. [1] It was the connection with the state of a particular religious society, by its endowment, at the public expense, in exclusion of, or in preference to, any other, [2] by giving to its members exclusive political rights, [3] and by compelling the attendance of those who rejected its communion upon its worship, or religious observances. These three particulars constituted that union of church and state of which our ancestors were so justly jealous, and against which they so wisely and carefully provided.” [Numbers Added] Note 3.

The U.S. Senate captured the essence of the Establishment Clause. The purpose of the Establishment Clause was to prevent the United States from ever having an established church after the manner of Great Britain. It’s that simple. It is true that preventing a national church or religion was not its sole purpose but that clearly was the main objective Congress had in mind for the clause. A Ten Commandments display on public property does not award anyone with exclusive political rights or compel a pedestrian to a religious ceremony while walking to court, nor does it exclude other religions. In 1854, the U.S. House of Representatives said that an establishment of religion required there to be “ …a creed, defining what a man must believe… and penalties for the non-conformist” It was these kind of things which occurred in England that Congress did not want for America. Neither Kentucky nor Texas required their citizens to obey the Ten Commandments nor did they impose a penalty if a citizen did not obey them. A mere display imposes no penalty and binds no one to a creed. Sadly, the U.S. Supreme Court will likely continue to divide America over religion as long as she pursues a philosophy of secularism. Let us pray that someday America will have a Supreme Court which supports the original intent of the Constitution. Note 4.

For a discussion of how monotheism and the Ten Commandments influenced American law and government read new my booklet: “The Ten Commandments For Beginners.” Visit: for ordering information.


Note 1. Stone v. Graham, 39 U.S. at 42 (1980).
Note 2. Stone v. Graham, 39 U.S. at 40 (1980).
Note 3. U.S. Senate Report No. 376, 32nd Congress, 2nd Session, January 19, 1853.
Note 4. U.S. House of Representatives Report No. 124, 33rd Congress, 1st Session, Chaplains in Congress and in the Army and Navy, March 27, 1854.

David W. New is an attorney and author in the Washington, D.C. area. He graduated from the Georgetown University Law Center in 1989. In 2002, he graduated from The National Litigation Academy sponsored by the Alliance Defense Fund. In January 2003, he received an honorary Doctor of Divinity degree from the Methodist Episcopal Church USA. David is the author of several publications supporting the original intent of the Constitution.

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