First Amendment Folly: Court Says Pa. Ten Commandments Monument May Remain At Public School Because It Isn’t Offensive Enough

While it is fair to say that many are offended by a Ten Commandments display on government property, that is not the main legal issue. The reality is this Decalogue is unconstitutional because it gives the impression that government is endorsing belief over non-belief. Whether or not anyone is offended by the specific display is secondary.

A federal judge recently ruled that it’s perfectly fine for a Ten Commandments monument to remain on government property because the people who complained about the display couldn’t prove that they were sufficiently offended by it.

In a decision that shows he clearly does not understand this issue, U.S. District Judge Terrence F. McVerry said the Wisconsin-based Freedom From Religion Foundation (FFRF) did not convince him that a Decalogue in front of Valley Junior-Senior High School in New Kensington, Pa., was offensive to its plaintiffs.

“Plaintiffs [Marie] Schaub and (her unidentified daughter) … have failed to establish that they were forced to come into ‘direct, regular, and unwelcome contact’ with the Ten Commandments monument on the grounds of Valley High School,” McVerry wrote.

The Pittsburgh Tribune-Review reported that Schaub only recalled a handful of instances in which she saw the monument. As for Schaub’s daughter, McVerry said her “alleged injury is even more tenuous” because she left the school after the lawsuit was filed and testified that she didn’t pay much attention to the monument during her time on campus.

Unfortunately, McVerry focused on the wrong facts in this case. While it is fair to say that many are offended by a Ten Commandments display on government property, that is not the main legal issue. The reality is this Decalogue is unconstitutional because it gives the impression that government is endorsing belief over non-belief. Whether or not anyone is offended by the specific display is secondary.

Even if McVerry had taken a proper First Amendment approach, however, there is no guarantee that FFRF would have won its case – thanks to a bad U.S. Supreme Court decision. The Tribune-Review said the Decalogue was donated by the Fraternal Order of Eagles, sometime during the late 1950s. This allowed Valley High School administrators to argue that the monument is more a landmark than it is a religious display, a claim that is sometimes kryptonite for cases dealing with government-backed religious displays.

In 2005, the U.S. Supreme Court said a Ten Commandments display that had been on Texas state property since 1961 could remain. The court’s main reasoning was that the monument was fine because it had been there for so long that it was essentially a ceremonial symbol with no real religious value.

Of course that argument is incredibly weak, even more so in the face of the Oklahoma Supreme Court’s recent decision that a Ten Commandments display on the grounds of the capitol building in Oklahoma City is unconstitutional. That monument is very similar to the Texas Decalogue – the only real difference is Oklahoma’s was erected in 2012.

The age of a display should be irrelevant. An unconstitutional government endorsement of religion is so whether or not it has been going on for 50 years or 50 hours, and the idea that age somehow changes the meaning of the Ten Commandments is baseless.

It’s also worth noting that this religious monument isn’t displayed at a city hall. It’s at a public school – and that makes a difference. Public schools serve children from a variety of religious and non-religious backgrounds. Courts have taken pains to ensure that they don’t get into the business of promoting religion.

FFRF has said it may appeal the decision. If that happens, we can hope that the next judges who must decide the fate of a government-sponsored religious display actually spend some time thinking about the First Amendment implications of the matter.