On Wednesday, the Court will hear argument in Van Orden v. Perry and McCreary County v. ACLU of Kentucky. The issue in each case is whether a display of the Ten Commandments in the form of a privately donated exhibit or monument located on public property violates the Establishment Clause of the First Amendment. These cases pose a slightly different version of the issue that the Court avoided last Term when it addressed only the standing issue presented in Newdow v. Elk Grove Unified School District: how does the Establishment Clause's general bar against government endorsement of religion apply to relatively minimal religious displays that are widespread and longstanding?


Background

All parties agree that under current law, this question is governed by the three-pronged test articulated in Lemon v. Kurtzman. The two prongs that are relevant to these cases prohibit government actions that lack a secular purpose or that have the effect of impermissibly endorsing religion (all parties agree that Lemon's entanglement prong is not implicated).

The facts of the cases are similar. In McCreary, the text of the Ten Commandments was posted in two county courthouse lobbies as a part of a "Foundations of American Law" display. The final version of the display also included the Declaration of Independence, the Mayflower Compact, the Magna Carta, and other documents that played a significant role in the development of American law. In Van Orden, the display at issue was a granite monument — six feet tall and three-and-a-half feet wide -"“ located on the grounds of the Texas State Capitol, between the Capitol building and the Texas Supreme Court. Like the display in McCreary, the monument was donated by a private group. The Capitol grounds also housed a number of other monuments, including tributes to veterans, firefighters, and Texas children.

Despite the similarity of the cases, the courts below reached opposing results. In Van Orden, a unanimous panel of the Fifth Circuit held that the Ten Commandments monument satisfied the Lemon test because it had a valid secular purpose"”commending the private organization that donated the monument"”and because its primary effect was neither to advance or inhibit religion. By contrast, in McCreary, a divided panel of the Sixth Circuit affirmed a district court's decision to grant a preliminary injunction on the grounds that the plaintiffs were likely to prevail in their suit claiming that the display of the Ten Commandments in the county courthouses violated the Lemon test.

Arguments in Favor of the Displays

In McCreary, the county argues that the Foundations of American Law display is constitutional under the Lemon test and other precedents because of the historical role of the Commandments in the development of American law and because of the many secular documents included in the display. However, the county also contends that Lemon should be overruled in favor of a test based on the one articulated last Term in Justice O'Connor's Newdow concurrence. Justice O'Connor would require a government reference to religion to meet four requirements in order to survive an Establishment Clause challenge: First, the history and ubiquity requirement demands that the it be both commonplace and longstanding. Second, the reference must not contain worship or prayer. Third, any religious expression must not refer to a particular religion. Finally, any religious content must be minimal. Although the county's brief expresses reservations about some of Justice O'Connor's criteria, it concludes that a modified version of her test would be more objective and determinate than the current Lemon jurisprudence.

The respondent in Van Orden devotes most of its brief to arguing that the display in question had both a secular purpose and a secular effect. The brief also acknowledges Justice O'Connor's proposed test from Newdow, arguing that the history and ubiquity of Ten Commandments displays demonstrate their secular nature. However, unlike the county in McCreary, Perry does not explicitly urge the court to abandon the Lemon test.

The United States filed briefs as an amicus curiae supporting the respondent in Van Orden and the petitioner in McCreary. In each case, the interest of the United States was defined in terms of past support for minimal government displays of religious symbols and the fact that there are many displays of the Commandments on federal property. The structure and content of both amicus briefs is similar: in each case, the United States argues that because of the role of religion in the history of the country, governmental displays of the Ten Commandments serve a valid secular purpose. Moreover, given the context of each display, the United States argues that they also have valid secular effects.

Arguments Against the Displays

The majority of the ACLU's brief in McCreary is devoted to arguing that the courthouse displays violate the Lemon test because their primary purpose is to advance religion and because a reasonable observer would see them as an endorsement of religion. This argument is driven primarily by analysis of the history of public displays of the Ten Commandments and the evolution of the particular displays at issue in this case, which were initially more overtly religious and had been secularized in response to the threat of litigation.

In Van Orden, the petitioner also contends that the monument in question violates the Lemon test because the state cannot show that it has a valid secular purpose — in part because the monument's history is essentially devoid of any discussion of its purpose — and because it symbolically endorses religion. However, unlike the ACLU in McCreary, he also argues that the monument violates the Establishment Clause because it discriminates in favor of some religions and against others. In particular, the brief notes that many religions do not recognize the Ten Commandments at all, and that there are differences even among those denominations that do recognize some version of the Commandments. Therefore, Van Orden argues that the monument violates the absolute bar on government favoritism of one sect over another articulated in Everson v. Board of Education.

Arguing Counsel

Van Orden v. Perry:

For Van Orden, Erwin Chemerinsky of Durham, N.C.
For Perry, Gregg Abbott, Texas Attorney General
For the United States, Acting Solicitor General Paul D. Clement

McCreary County v. ACLU of Kentucky

For McCreary County, Mathew D. Staver of Longwood, Fla.
For the ACLU of Kentucky, David A. Friedman of Louisville, Ky.
For the United States, Acting Solicitor General Paul D. Clement

Briefs

Van Orden v. Perry

The Petitioner's brief is available here.
The Respondent's brief is available here.
The brief of the United States as amicus curiae is available here.

McCreary County v. ACLU of Kentucky

The Petitioner's brief is available here.
The Respondent's brief is available here.
The brief of the United States as amicus curiae is available here.

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