Displaying the text of the Ten Commandments on public property endorses religion

We live in a divided society. One of the fault lines is religion. Always has been and maybe always will be. For every step across the line, there seems to be one, and sometimes two, steps back. Take, for example, the actions of Jason Rapert. He is a senator in the Arkansas legislature. He is also a devout Christian. In 2015 Rapert sponsored the Ten Commandments Monument Display Act. The law requires the state to permit citizens to install on the grounds of the capitol a six-foot granite monument that recites the commandments. A foundation, organized by Rapert, raised the money to construct the monument. To him the monument "honored the historical moral foundation of law." The ACLU saw the monument in a different light. "Several of the commandments are wholly religious in nature, like 'having no other gods before me' and keeping the Sabbath. Those have no purpose in U.S. or Arkansas law." The monument suggests the state favors "one particular set of beliefs over others and over no religion." Persons who fall into the categories of other religion and no religion are made to "feel like second-class citizens." The ACLU threatened to sue. The monument went up the morning of June 27. Enter one Michael T. Reed, a Christian of some sorts. At 4:47 the next morning, he drove his car into the monument, shattering it. He videotaped the ramming and posted the video on Facebook. The audio captured him yelling, "Oh, my goodness-freedom." The police arrested him and booked him on multiple charges, including defacing an object of public respect, a felony. Rapert has started a campaign to raise money to build a new monument. Where do the courts stand on the issue of the text of the Ten Commandments being displayed on public property? They are across the board, including the Supreme Court. On the one hand, a state may not require schools to post the text of the Commandments on the walls of classrooms. Stone v. Graham, 449 U.S. 39 (1980). Similarly, a county may not post visibly the text in a courtroom, even when the Ten Commandments is one of nine documents posted as part of "The Foundations of American Law and Government Display." McCreary County v. ACLU of Kentucky, 545 U.S. 844 (2005). In both cases the governments could not show they had a secular purpose for their actions. Making such a showing is the first prong of the three-prong test articulated in Lemon v. Kurtzman, 403 U.S. 602 (1971). The test separates those government actions that endorse religion from those that do not. On the other hand, Texas convinced five justices of the Supreme Court it could erect on the grounds of its capitol a six-foot "monolith" inscribed with the Ten Commandments without violating the Establishment Clause. Van Orden v. Perry, 545 U.S. 677 (2005). The five justices did not find the three-prong test of Lemon useful in evaluating the constitutionality of "passive monuments," like Texas's. Instead, the analysis should be "driven by both the monument's nature and the Nation's history." Since 1789 all branches of government have acknowledged the role of religion in American life. Erecting a monument is one such acknowledgment. That the monument has some religious content does not detract from its "undeniable historical meaning," so reasoned four of the justices. In a concurrence Justice Breyer agreed the inquiry must be of the context in which the text of the Ten Commandments is used. Here it conveyed a message about the proper standards of social conduct and the historic relation between those standards and the law. In his opinion "the determinative factor" that the monument conveyed this secular message was the lapse of time-40 years-between the monument's installation and the commencement of the suit. Rapert cited Van Orden to say what Arkansas was doing was perfectly legal. Unfortunately for him and the state neither the plurality opinion nor Justice Breyer's concurrence is that clear cut. For starters, they will not be able to rely on years of acceptance. The ambivalence of the courts is reflected in Green v. Haskell Cty. Bd. of Comm'rs, 568 F.3d 784 (10th Cir. 2009). Haskell County erected a Ten Commandments monument on the grounds of its courthouse. The grounds contained other, very secular monuments, like in Texas. The circuit court did not follow the analysis of Van Orden, looking at the history and context of the monument. Instead, it applied Lemon and held the county failed the second prong. The primary effect of the monument's installation on public property was to endorse religion. The county petitioned for a rehearing before all of the judges of the circuit. It was denied on a 6-6 vote. Interestingly, one of the judges who would have granted a rehearing was Neil Gorsuch. The county then petitioned the Supreme Court. Nine states filed a brief in support. They argued lawsuits over the Ten Commandments were burdensome "because public officials cannot reliably predict their outcomes based on precedents from this or any other court." Ironically, one of the nine was Texas. The Supreme Court refused to take up the case. The nine states are correct. However, rather than seeking another opinion from the Supreme Court, they, and all governments, should refrain from displaying the Ten Commandments. In this day such displays can be interpreted as favoritism and further divide us. ----- Scott Forsyth is a partner in Forsyth & Forsyth and serves as counsel to the local chapter of the ACLU. He may be contacted at 585-262-3400 or scott@forsythlawfirm.com. Published: Fri, Jul 14, 2017