Thomas Van Orden faces long odds in his battle to get the Ten Commandments removed from the state Capitol lawn. But is that because of who he is, and how he’s bringing his case? In purely legal terms, shouldn’t this be a slam-dunk? Doesn’t the Constitution make this separation-of-church-and-state thing pretty clear?
For more than 50 years, the U.S. Supreme Court has been playing a game of chicken with the churches as it limns the limits of the First Amendment: Usually church-and-state “entanglements” are unconstitutional, but sometimes they’re not. After some years of making up the rules as they go along, the Supremes in 1971’s Lemon v. Kurtzman — which struck down a Pennsylvania statute giving state funds to parochial schools — created a three-prong test to determine when states go too far when they flirt with religion:
So spake Chief Justice Warren Burger, who noted in Lemon that the court can often “only dimly perceive the lines of demarcation in this extraordinarily sensitive area of constitutional law.” Burger’s view is pretty clear: The Framers were so afraid of communal strife that in the Establishment Clause they prohibited not just a state religion, but any government action respecting a state religion. So any government act that fails one part of the Lemon test — in the view of that “reasonable person” who pops up a lot in Supreme Court jurisprudence — is out the door.
But in later decisions, Burger and the Supremes backslid — for example, Marsh v. Chambers (1983) upheld Nebraska’s paying a legislative chaplain with public funds, which the appellate court had decided failed all three parts of the Lemon test, but which Burger, writing for the court, said was consistent with centuries of U.S. government practice. It’s such an appeal to history that undergirds most defenses of state-supported displays of the Ten Commandments — the Decalogue is the foundation of common law and U.S. jurisprudence, has been venerated since the birth of the Republic, and on and on.
However, in the one Supreme Court decision since Lemon to focus specifically on the Ten Commandments — Stone v. Graham (1980) — the court struck down a Kentucky law requiring that schools post the Decalogue in every classroom, even though the Bluegrass State put a fine-print disclaimer on each copy (paid for by private funds) noting the Commandments’ role in secular legal history. “The Ten Commandments are undeniably a sacred text in the Jewish and Christian faiths,” said the court, “and no legislative recitation of a supposed secular purpose can blind us to that fact.”
The state of Texas has asserted just such a secular purpose, with the blessing of U.S. Senior District Judge Harry Hudspeth, in the Ten Commandments monument on the Capitol lawn. And while Van Orden may have Supreme Court precedent on his side, it is a different Court now than it was in 1971 or 1980.
This article appears in December 6 • 2002.