Two Ten Commandments cases on one day, opposite results, and the reason

Same day. Same courthouse steps. Same Ten Commandments. Opposite results.

If you ever wanted proof that the Supreme Court does not always hand down clean, consistent rules, here it is. On June 27, 2005, the Court released two decisions about government displays of the Decalogue. In one, McCreary County v. ACLU of Kentucky, it struck the displays down. In the other, Van Orden v. Perry, it upheld a monument on the grounds of the Texas Capitol. Both were decided by votes of 5-4. And one justice, Stephen Breyer, sat in the middle and decided both.

A reporter on deadline might have written "Court Splits the Baby." A county commissioner who read the papers might have asked: so can I hang the Ten Commandments or not? That is the right question, and it has a real answer, though the answer is more of a method than a yes or a no. I'm going to give you the facts of each case, put them in a table next to two older decisions, and then explain what purpose, setting and history mean for a county board, a school board or a state agency that wants to display the Decalogue lawfully. I'll also say plainly where I think the Court got it right and where the line-drawing has been a mess.

Case one: Kentucky courthouses

McCreary County v. ACLU of Kentucky grew out of two Kentucky counties, McCreary and Pulaski, which hung framed copies of the Ten Commandments in their courthouses. The ACLU sued. What made the case unusual is that the displays changed over time as the litigation moved along.

The first display was the Commandments alone. After the lawsuit started, the counties changed it, adding other documents with religious references, such as the Declaration of Independence and the national motto, and describing the display as showing the Commandments' role in American law. When a court still found trouble, the counties went to a third version, titled "The Foundations of American Law and Government," with eight documents, including the Magna Carta and the Star-Spangled Banner, each presented with a statement of its historical significance.

Justice David Souter, writing for a 5-4 majority that included Justices Stevens, O'Connor, Ginsburg and Breyer, held that the displays were unconstitutional. His reasoning focused on purpose. A court, he said, can look at the whole history of a display to ask what an objective observer would conclude the government was trying to do. A county that started with the Commandments alone, then added documents only after being sued, had revealed a religious purpose, and the later versions did not wash it away. Government cannot, he reasoned, take a purpose that is religious on day one and recast it as secular on day two with a legal-sounding label.

Case two: the Texas Capitol

Van Orden v. Perry was a different animal. Thomas Van Orden, a lawyer who passed the Texas State Capitol grounds regularly on his way to a law library, challenged a six-foot granite monument inscribed with the Ten Commandments. The Fraternal Order of Eagles, a civic group, had donated the monument in 1961. It was one of seventeen monuments and twenty-one historical markers on twenty-two acres of grounds, along with others honoring Texas history, such as Confederate soldiers, the Texas cowboy, and the Heroes of the Alamo.

Chief Justice William Rehnquist wrote a plurality opinion for four justices, and he did not use the Lemon test. He looked instead at the nature of the monument and at our country's history of acknowledging the role of religion. He pointed out that the Court's own courtroom has a frieze showing Moses with the tablets among the great lawgivers of history, and that the Decalogue is part of the history of law. Justice Breyer, in a separate concurrence that supplied the fifth vote, said the case was a borderline one that had to be decided on its facts. The monument's setting was a park-like area with many monuments, the display conveyed a mixed message that was partly religious and partly historical and moral, and it had stood for forty years without a legal challenge. That last fact mattered to him: if the display had really been a religious coercion, someone would have complained earlier.

The four dissenters, Justices Stevens, O'Connor, Souter and Ginsburg, said the monument was an unmistakable endorsement of the Judeo-Christian religious tradition and that history gave it no special pass.

The table

Here are the two cases beside two older decisions that govern the same ground.

Study the table a minute and a pattern emerges. The two struck-down cases involved a government-run location where citizens come to do business or learn, a courthouse and a classroom, and a record that showed the government's own purpose was religious. The two upheld cases involved long-standing practices or settings that placed the display in a broader historical context. Purpose, setting, history: those three words are the key.

What the three words mean in practice

Let me take them one at a time, since a county commissioner will need all three.

1. Purpose. What did the government say it was doing, and does the record support it? In McCreary, a record of officials saying they wanted to put the Commandments up because of their religious importance sank the display. In Van Orden, there was no comparable evidence, and the stated purpose of the donor, to promote youth morality, was not treated as a government religious aim. Lesson: the paper trail matters. A board that records its true aim, say, a historical display about the sources of American law, and then builds a display that actually does that, is on firmer ground than one that issues a pious resolution.
2. Setting. Where is the display, and what is around it? A stand-alone Commandments poster in a classroom or on a courtroom wall is a very different thing from one monument among many in a public park. Breyer's vote in Van Orden turned on that. A display that stands with other documents and objects, chosen for a real reason and arranged to make a historical point, has a better chance than a lone religious text.
3. History. How long has it been there, and has anyone been coerced by it? A monument that has stood for decades without controversy is treated differently from a new display that goes up after a political fight. The Court said something similar in the 2019 Bladensburg cross decision, which gave older monuments a presumption of constitutionality.

What a county or school board can do

Now for the practical question. I'm not a lawyer and this is not legal advice, so have your county attorney or board counsel read the current law before you act. With that said, here is the method the cases point to:

• Start with the record. If the aim is to teach history, say so and mean it, and have the minutes reflect a historical or educational purpose, not a religious one.
• Place it in context. A historical display that includes the Magna Carta, the Mayflower Compact, the Declaration of Independence and the Bill of Rights, each with a clear explanation of its role in American law, is a different animal from the Commandments alone.
• Avoid sectarian choices. Different traditions number and word the Commandments differently, and a display that picks one translation as official looks like a sectarian choice.
• Do not repeat the Kentucky mistake. Changing the display only after being sued, and in a way that tells the same story, will be read as a litigating position.
• Classrooms are the hardest case. Posting the Commandments on the wall of every classroom is the situation in Stone v. Graham, which, as far as the Supreme Court decisions covered in this post go, has not been formally overruled. The Court has since left the Lemon test behind, as I explain in the three-part test that haunted churches for fifty years is finally gone, and a challenge to a modern posting law will have to be argued by the lawyers against that backdrop. Before a school board acts, it should check current decisions in its own federal circuit.

For a state-level or school-level view, School Prayer, Bibles and the Ten Commandments, Eleven Questions Answered answers the most common questions in plain English.

The strongest objection

The strongest objection comes from both directions at once, which is a sign that it is a serious one. From the strict-separation side: the Commandments are, at the start, a religious text. They begin with commands about the worship of God. A government that displays them is speaking religiously, whatever the surrounding monuments, and Justice Stevens said so in his dissent. From the other side: the Commandments are also woven into Western law and moral thought, the Supreme Court's own building honors Moses as a lawgiver, and a rule that bans the display of something so central to the law's history risks erasing a historical fact.

Neither objection is silly. Where I come down is that both are partly right and the Court was correct to refuse a flat rule. The Constitution bans an establishment of religion, and it does not ban acknowledging religion's role in the country's history. The question that matters is whether the government is endorsing a faith or compelling anyone, and for that question the setting is the best evidence. Judges will always have to draw lines, and a bright-line rule here would give us either a public square scrubbed of every historical reference to the Decalogue or a public square in which a school can post a religious text and call it a day. Neither of those fits the history I describe in Baptists, Madison and the Virginia fight that put religious liberty first. For the history of the metaphor behind the argument, where 'a wall of separation' really comes from and what it was built for is a good companion, and the broader context of religious-liberty rulings is in Seven Things Americans Get Wrong About the First Amendment.

The honest critique of 2005 is the one you hear from judges themselves: a doctrine in which the same text can be unconstitutional in a courthouse hallway and constitutional on a lawn forty miles away, depending on the history of the people who put it there, does not give anyone much notice. That is true. But the answer is a better test, not the abolition of the question.

The verdict

If your county commission or school board asks you whether it can put up the Ten Commandments, tell them the truth: it depends, and the three things it depends on are purpose, setting and history. A display that was built for a real historical or civic reason, sits in a context with other materials, and has a long record of peaceful existence is in far better shape than a stand-alone religious text hung in a classroom or courtroom after a vote about religion. That is not a satisfying slogan, but it is accurate, and it is the best you can do when the Supreme Court gives you a 5-4 split on the same day.

The bottom line

• On June 27, 2005, the Court struck the Kentucky courthouse displays in McCreary and upheld the Texas Capitol monument in Van Orden, both 5-4, with Justice Breyer deciding each.
• Three words decide most of these cases: purpose, setting and history. The paper trail of why the display went up matters as much as the display.
• Classroom posting was struck down in Stone v. Graham (1980). Before any board acts, it should have counsel read the current decisions for its circuit.
• If your town wants a lawful display, build it as a real historical exhibit with context and a documented secular purpose, not as a pious gesture.
• Do not treat a 5-4 split as a license or a ban. Read the opinions, or ask your county attorney to read them to you.