Supreme Court – Supreme Court Ratchets Up Hostility To Religion in Ten Commandments Cases; Political Solution Sought


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   NEWS RELEASE: FOR IMMEDIATE RELEASE:                June 27, 2005

Court’s Hostility To Religion

Supreme Court Ratchets Up Hostility
To Religion in Ten Commandments Cases;
Political Solution Sought

ANN ARBOR, MI. June 27 /Covenant News Wire Service/ — According to Richard Thompson, Chief Counsel of the Thomas More Law Center, a national pubic interest law firm based in Ann Arbor, Michigan, today’s United States Supreme Court rulings in the two Ten Commandment cases, one from Kentucky and the other from Texas, will have the practical effect of discouraging some public entities from displaying religious symbols.

Said Thompson, “Justice Scalia got it right. These decisions do not rest on consistently applied principles of law. Thus, the Court announced no rule of law, which government entities can depend upon that will give them any reasonable certainty they are complying with the requirements of the Establishment Clause. Consequently, some local governments will decide not to take a chance and be forced to pay monstrous attorney fee awards to organizations like the ACLU if they lose. One political solution is to remove the statutory attorney fee awards to the prevailing party in these kinds of cases.” “However, I am certain of one thing,” said Thompson, ” this battle is far from over.”

The Thomas More Law Center filed friend of the court briefs in favor of the Ten Commandment displays in both McCreary County v. ACLU and Van Orden v. Perry.

In its 5 to 4 decision issued today in the McCreary case, the Supreme Court ruled that the displays of the Ten Commandments in Kentucky courthouses in McCreary and Pulaski counties violated the Establishment Clause of the United States Constitution. Both displays originally included only framed copies of the Ten Commandments. After the ACLU sued to remove the displays, the two counties supplemented the framed copies of the Commandments with eleven historical documents, including the Mayflower Compact and the Bill of Rights, calling the new displays the “Foundations of American Law and Government.” The additional documents were chosen because, like the Ten Commandments, they played a significant role in the foundation of our system of law and government.

Despite the additions, a federal trial judge struck down the “Foundations” display because it included the Ten Commandments. On appeal, the United States Court of Appeals for the Sixth Circuit agreed with the trial judge, holding that the original display, which had only included the Ten Commandments, “unconstitutionally tainted” the subsequent “Foundations” display, making them unconstitutional as well. A sharply divided Supreme Court agreed, noting that the Kentucky counties had not sufficiently distanced themselves from any religious purpose in the first displays.

The four dissenting justices (Justices Scalia, Rehnquist, Kennedy, and Thomas) criticized the majority’s decision and the majority’s application of the so-called Lemon test, which the dissenters explained can be manipulated to fit whatever result the Court wants to achieve. They noted that even if a government could show that its actual purpose in displaying the Ten Commandments was not to advance religion, the display could still be struck down if the Court’s imaginary “objective observer” would conclude that the government officials intended to advance religion. The dissenters explained that the majority’s new use of the Lemon test has ratcheted up the Court’s hostility to religion.

Richard Thompson, Chief Counsel commented: “As the four dissenting justices explained, the five majority justices have ratcheted up the Supreme Court’s hostility to religion in this case. The use of the faulty Lemon test by courts is a way to silence religion in this country. Courts, as the dissenters noted, can use the Lemon test to find a religious purpose when none was intended by the government.”

Edward L. White III, trial counsel with the Law Center, explained that “Although the Court ruled against the displays in the two Kentucky counties based on the unique facts of the case, the Court explicitly stated that it was not ruling across the board that the Ten Commandments or other sacred texts cannot be displayed as part of a government display on the subject of law or American history. As such, government can continue to include the Ten Commandments in displays on public property.”

The Supreme Court upheld the display of a Ten Commandments monument on the Texas Capitol grounds in the Van Orden case. The monument had stood on government grounds for more than forty years. A few years ago, Thomas Van Orden, a former criminal defense attorney who became homeless, filed a federal lawsuit against the State of Texas challenging the granite monument on which the Ten Commandments were etched. In his lawsuit, Van Orden argued that the appearance of the Ten Commandments monument on government property violated the First Amendment.

Both the district court and the United States Court of Appeals for the Fifth Circuit ruled against Van Orden, upholding the display of the Ten Commandments as constitutional. The case was then appealed to the Supreme Court.

The Texas State Capitol Building contains a wide array of monuments, plaques, and seals depicting both the secular and religious history of Texas. They include a tribute to African American legislators, a plaque commemorating the war with Mexico, a statue of a pioneer woman holding a child in tribute to the role of women in Texas history, and a tribute to the Texans lost at Pearl Harbor. The six foot tall Ten Commandments monument was a gift of the Fraternal Order of Eagles, accepted by a joint resolution of the House and Senate in early 1961.

In the decision issued today, Justices Rehnquist, Scalia, Kennedy, and Thomas, with a concurrence by Justice Breyer, ruled that the display of the Ten Commandments monument on the Capitol grounds was constitutional. In reaching its ruling, however, the Court was fractured with regard to what analysis it should apply to decide such cases. Thus, the Supreme Court has provided little guidance for government entities to follow in erecting displays of the Ten Commandments that will pass constitutional muster.

The Thomas More Law Center has been involved in several cases involving the defense of the Ten Commandments, including two victories last year in defeating separate efforts to remove displays of the Commandments from the cities of Pleasant Grove and Duchesne, Utah.

The Thomas More Law Center defends and promotes the religious freedom of Christians, time-honored family values, and the sanctity of human life through education, litigation, and related activities. It does not charge for its services. The Law Center is supported by contributions from individuals, corporations and foundations, and is recognized by the IRS as a section 501(c)(3) organization.

Thomas More Law Center
Dan Costanzo
24 Frank Lloyd Wright Drive, P.O. Box 393
Ann Arbor, MI. 48106
Fax: 734-930-7160


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