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Civil Liberties: Displaying the Text of the Ten Commandments on Public Property Endorses Religion
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July 12, 2017
by Scott A. Forsyth
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 threeprong
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.


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