The American Supreme Court on 27 June 2005 held that the Establishment Clause, as outlined in the US’ first Amendment allowed the Ten Commandments existence presented in the Van Orden v. Perry case. 1 The opinion on the Texas Van Orden v. Perry case symbolized Jurisprudence’s great step forward in the American Establishment clause. However, the ruling on the McCreary County v. ACLU contradicted Texas' Van Orden v. Perry case, when the court decided Kentucky's public display of the Ten Commandments in the courthouses was a violation of the Establishment Clause. 2 The two case rulings stir up the debates on the establishment of religious monuments on public property, blurring more the separation wall between state and church hence calling for further litigation. This paper discusses the Van Orden v. Perry and Mc Creary County v. ACLU case facts and explains what the decisions prove concerning today's religious liberties and the American constitution.
Thomas Van Orden in the year 2001, challenged the constitutionality of the public display of the Ten Commandments on the monument established on the Capitol grounds of the Texas State hence, suing them. 3 Van Olden would often encounter the monument in his visits to the building of the Supreme Court that existed to the North West side of the capital structure. The monument, which is six-feet –high by three-feet wide was located in between the Capitol and Supreme Court buildings. The Texas state monument was donated by the fraternal order of Eagles to the youth and people of Texas in the year 1961 and erected in a ceremonial activity involving two state legislators. The Pew Research Center highlight the Fraternal Order of Eagles as a secular group, which was highly involved in erecting monuments in1950 and 1960s in various states and cities. 4 The stone monument in the Capitol ground in Texas stood alongside other 16 statues, which commemorated significant events and people in Texas city history.
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In the Van Orden case, the district court ruled that the Ten Commandments monument in Texas Grounds did not violate the Establishment clause hence, no need to remove the inscriptions. 5 The court chose the ruling with the ideas that the state had their valid secular reasons for erecting the monument while still appreciating the Eagles' efforts towards juvenile delinquency. 6 Following the Van Orden case ruling the Rehnquist chief Justice restated a common theme to maintain plurality justice in various cases encompassed under the Establishment Clause. The chief justice aim was to establish a proper distinction between the state and church while ensuring no hostility developed and while acknowledging America's religious heritage.
Analyzing the chief justice’s opinion the Ten Commandments display in the Texas Capitol Grounds depicted a mere recognition of the American people's religious heritage, which was passive hence, acceptable. 7 The chief justice asserted that the stone monument was not compelling people to read its message explaining its setting, as only established outside thus, there was no risk of the state using it in pressing the citizens in observing religion. Justice Stephen Breyer presented the narrower opinion on the Van Orden case, qualifying the Texas monument approval. Breyer focused on the link between government neutrality and civic tranquility on religion. 8 Breyer emphasized the secular origin of the monument and its setting was in conjunction with other history commemorates Texas History.
The American Civil Liberties Union (ACLU) in 1999, presented a lawsuit against two counties in Kentucky which displayed the Ten Commandments framed copies in their courthouses. The ACLU was hoping to have a preliminary injunction claiming the Ten Commandment display was against the constitution’s Establishment Clause. 9 Following the lawsuit, the counties included other additional documents expanding the displayed Ten Commandment emphasizing on the religion’s roles on the American law and History. 10 In Pulaski county, the Ten Commandments were displayed in a ceremonial activity under the Judge-Executive, who defined the words as good in guiding a person’s living while his pastor explained the display as a great act by the Judge-Executive in closing the millennium. 11 The legislative body in the McCreary County issued the order of displaying the commandment in the most populous area in the courthouse. The legislative bodies in the two counties authorized the expansion of the displays including other documents emphasizing religion before the district courts were able to respond to the request of the ACLU. 12
Following the ACLU lawsuit, the district court ruled in ACLU favor ordering the immediate removal of both courthouses displays and forbade any acts of establishing such displays by the county officials. The district court arrived at the order through the application of the three-part lemon test that helped to authenticate whether the original display included any secular reasons. 13 Therefore, the lemon test led to the conclusion that the original display of the ten commandments lacked any secular reasons in its display as they are distinctly religious documents in which Jews and Christians believe to be revealed and direct God’s words. Nonetheless, the court could not find any secular purpose on the updated documents as the counties tailored narrowly their selection of documents incorporating only those with specific references to religion. 14 The counties modified the displays following the court order for the third time, to include 9-equal sized documents with expanded Ten Commandments with other religious quotations. Accompanying them were eight new documents with which the counties explained as part of the American government and law foundation. 15 However, the court could not identify any secular meaning hence, ordering the counties to remove the displays. The decision to remove was affirmed by the Court of Appeals that identified the county's reasons for establishing the displays was non-secular and non-educational hence, emphasizing religion.
In the Van Orden v. Perry case, the Supreme Court following the plurality decision of five-to-four exerted the Fifth Circuit Judgement allowing the Texas State to display their Ten Commandment monument. 16 Ignorance on the Establishment Clause by the Court led to the Texas decision. The court ignored the application of the coercion, lemon, or the endorsement tests, failing also to provide a replacement test. The case involved seven separate justices who published their individual-specific opinions thus, providing a fractured insight in the future claims involving the Establishment clause. However, the decision on the McCreary v. ACLU case is based on the lemon test which affirmed the Ten Commandment display was to propagate religious reasons, in which it was a contradiction of the Van Orden decision. 17 In the American constitution, application of the Lemon test is controversial; however, the issuance of contradicting opinions on the same day posed a great problem especially to the lower courts that wade through a challenging and confusing sensitive area of the American law. 18
The court’s reasoning in the Van Orden and McCreary cases involve opinions from the various justice. Rehnquist, the chief justice delivered the plurality opinion in the Van Orden case with Thomas, Scalia, and Kennedy joining his opinion. The Rehnquist acknowledged the religious significance of the Ten Commandments although he emphasized that possession of religious content does not necessarily run afoul of the establishment clause. 19 Therefore, he asserted that the American constitution does not necessarily require the government to be hostile towards Christianity. 20 Nonetheless, the Van Orden ruling emphasized the limits available in the religious messages citing Stone v. Graham as a sample.
Justice Breyer's approach to the "no harm, no foul" technique produces precedents that are inconsistent in a crucial area in American history. 21 He ignores the reality of the violation claims in the Establishment clause by claiming the unavailability of claims challenging the Ten Commandments displays for 40years. The recent claims increase in the Ten Commandment challenges shows that the American citizens are questioning the constitutionality of the document. Beyer's claim depicts a change in the Texans' disbelieve in God, with some worshipping a different god or others not worshipping at all. Therefore, Beyer’s claims that of violation of the Establishment Clause went unnoticed for forty years tries to show that the display constitutionality can change with time is arbitrary, as analyzing the Kentucky case under this assumption shows that it would be constitutional if erected in 1959. Therefore, the two case rulings stir up the debates on the establishment of religious monuments on public property, blurring more the separation wall between state and church hence, calling for further litigation.
Bibliography
Chemerinsky, Erwin. "Why Justice Breyer Was Wrong in Van Orden v. Perry." Wm. & Mary Bill Rts. J. 14 (2005): 1.
Green, Steven K. "Bad History: The Lure of History in Establishment Clause Adjudication." Notre Dame L. Rev. 81 (2005): 1717.
O'Connell, Tyson Radley. "How Did the Ten Commandments End up on Both Sides of the Wall of Separation between Church and State-The Contradicting Opinions of Van Orden v. Perry and McCreary v. ACLU." Mont. L. Rev. 69 (2008): 263.
Pew Research Center. Religion and Public Life, 2007 https://www.pewforum.org/2007/06/27/religious-displays-and-the-courts3/
Sisk, Gregory C., and Michael Heise. "Ideology All the Way Down-An Empirical Study of Establishment Clause Decisions in the Federal Courts." Mich. L . Rev. 110 (2011): 1201.
