It is a truth universally acknowledged, that the Supreme Court’s decisions regarding religion in America’s public schools are widely disregarded.  No matter how many times the Court rules that officially-sponsored school prayers are unconstitutional, for example, the prayers continue.  The same pattern holds with regard to public Ten Commandments displays – though here, the Court bears much of the blame.  The Court has issued three decisions on public Ten Commandments displays over the past three decades, but they turn on very specific facts and fail to announce an easy principle.  For example, in two decisions issued on the same day in 2005, the Court held that a display of the Commandments in a Kentucky courthouse was unconstitutional, because reasonable observers would perceive an endorsement of religion, but that a display of the Commandments on the Texas State Capitol grounds was constitutional, because, well, the display had secular elements and hadn’t seemed to bother people.  One could forgive local officials for being confused.

A new Ten Commandments case has arisen in Giles County, Virginia, where the ACLU is suing the local school board in federal court for ordering that the Commandments be placed in the lobby of a local high school.  The school board argues that it has displayed the Commandments along with other historical documents, like the Declaration of Independence, that show that the school is not endorsing religion as such.  But the Supreme Court has been particularly suspicious of displays of the Commandments in public schools, and the facts suggest that, as in the Kentucky case, officials in Giles County surrounded the Commandments with secular documents only after some parents complained about the Commandments’ religious message.  In the Kentucky case, the Supreme Court dismissed this sort of post-hoc justification as a pretext, and the district judge will probably do the same thing here.

That should settle the Giles County case, assuming there aren’t other facts that would change things.  But Ten Commandments displays will no doubt continue to appear in public schools elsewhere and prayers will no doubt continue as well (to say nothing of Christmas decorations).  The American people respect the Court, but find its judgments with respect to public religious displays somewhat incomprehensible.  So they mostly ignore them – at least until someone sues.  – MLM

2 thoughts on “Another Ten Commandments Case

  1. Thanks, Mark — just a quick defense of the current doctrine from one of its fans. Until a time when there is some semblance of national consensus with respect to the permissibility of these displays, a day which may never come, may the incoherence continue! Marc

  2. Well, I don’t know about the “American people,” but those people who want to post the Ten Commandments–as a religious message–in our public schools certainly disregard the Court. On this point, the law does not seem incoherent–and it is not for legal confusion that local officials need forgiveness.

    Jeffrey Shulman
    Georgetown Law

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