Commandments Controversy

With A Boost From A Jerry Falwell Legal Group, The Conflict Over Government-Sponsored Commandments Displays has Arrived At The Supreme Court

When a federal judge ruled that a government-sponsored Ten Command\xadments display in Mc\xadCreary County, Ky., had to come down in May of 2000, one local official vowed defiance.

“I said early on I would not remove them, and I will not,” McCreary County Judge-Executive Jimmie Greene said. “I’ll go to jail before I’ll take them down…. This is one order I will not obey.”

Greene followed through on that promise sort of. Rather than engage in outright defiance of a federal court and end up behind bars, Greene and his fellow officials kept trying to change the display to make it acceptable.

First they tried putting up other items as well. Overnight, excerpts from the Declaration of Independence, the Kentucky Constitution, the Mayflower Compact and a quote from Abraham Lincoln lauding the Bible appeared on the county courthouse walls.

There was still one problem: The entire display was religious. When the federal court struck that one down as well, local officials gave up for a while. But soon, egged on by an offer of free representation from a Religious Right legal group, they decided to try again.

This time they got a little smarter. The third display contained an eclectic mix of elements: The Ten Commandments appeared alongside the entire Declaration of Independence, the Bill of Rights, the lyrics to “The Star-Spangled Banner,” the Magna Carta and a picture of the personification of Justice.

But McCreary County’s third try struck out as well. The federal district judge struck down the revised display, and the 6th U.S. Circuit Court of Appeals later agreed.

Desperate county officials appealed to the U.S. Supreme Court and won a reprieve. On Oct. 12, the high court announced it would hear two Com\xadmandments cases, the McCreary County dispute (which also includes a similar battle from neighboring Pulaski County) and a case from Texas raising many of the same issues.

Greene could barely contain his glee. “The Supreme Court gets about 1,000 requests every year, and they accept very few I think 1 percent,” he told the McCreary County Voice. “I believe it is a very sensitive issue right now. I think with the moral decay of America and the filth we see on television and read in print has reached a degree that folk, whether they believe in the Ten Commandments or not, say we have to put a stop to it.”

Advocates of church-state separation, by contrast, greeted the news with mixed feelings. The high court has not accepted a Commandments case since 1980’s Stone v. Graham, which struck down a Kentucky law mandating the posting of the Decalogue in public school classrooms.

Since then, numerous Commandments conflicts have erupted in lower federal courts. Some were filed or supported by Americans United, most notably the long-running battle against Roy Moore, Alabama’s infamous “Ten Commandments judge.”

Over the years, as the cases progressed, federal appellate courts sometimes came to different conclusions about the legality of the displays. A Decalogue monument on government property in Elkhart, Ind., was struck down by the 7th Circuit. But the 3rd Circuit upheld Commandments plaques deemed “historic” on two county courthouses in Pennsylvania.

In situations like this, where the lower courts are in conflict, the Supreme Court often steps in to clarify matters. That may be the high court’s rationale in accepting these new disputes.

But any church-state controversy at the high court can be fraught with peril, as it becomes an opportunity for the court’s anti-separationist bloc to try to refashion church-state law.

“Religious symbols belong in houses of worship, not courthouses, city halls and public schools,” said Barry W. Lynn, executive director of Americans United, the day the Supreme Court announced it would hear the cases. “If government officials are eager to post something that deals with the foundation of American law, they need look no further than the U.S. Constitution.”

Such a display apparently never occurred to officials in McCreary, a rural county in poverty-stricken southeastern Kentucky. Officials there were among a spate of others who decided to post the Commandments after the state legislature passed a law allowing the display of the Decalogue and other “historic” documents in schools and other government facilities.

Kentucky lawmakers have long been obsessed with this issue. The 1980 Graham case came from the Bluegrass State. Unhappy with that ruling, some state legislators have repeatedly sought ways to circumvent it.

National Religious Right groups were quick to promote the crusade. In the late 1990s, the Family Research Council (FRC) launched a project called “Hang Ten,” which advocated posting the Commandments in public schools and government buildings.

To hear FRC tell it, merely gazing at the text of the Dec\xadalogue would pluck a young person from the wrong road and put him or her on the path of moral reformation.

Janet Parshall, then an FRC spokeswoman, told the Associated Press in December of 1999 that perhaps a Ten Command\xadments posting could have prevented the tragic school shooting at Colo\xadrado’s Colum\xadbine High School.

“I don’t know, for example, if Eric Harris and Dylan Klebold had walked past a copy of the Ten Commandments if that might have been a deterrent to their behavior, but I’m willing to risk the try,” Parshall said.

In McCreary and Pulaski counties, local officials were definitely willing to risk it. But in their eagerness to endorse a religious code, they apparently overlooked the part of the state law that called for posting the Commandments among other historic documents. Instead, they simply put a copy of the Command\xadments in a frame and hung it on the wall.

Opponents were ready for them. Among them was Pulaski County resident Paul Lee, a World War II veteran who moved to the area after retiring from an industrial job in Detroit. Lee had been following developments and called the American Civil Liberties Union of Kentucky as soon as the display went up.

About a dozen Kentucky counties had followed the legislature’s advice and posted the Commandments. The ACLU decided that taking all 12 to court would be logistically difficult and unnecessarily duplicative. The organization filed suit in three counties. (The case from the third county, Harlan, is not before the high court.)

“Our Constitution makes us a government run by law, not by individual whim,” Lee said in a press interview. “I want to keep it that way. Our forefathers saw fit to say that church is separate from the state and vice versa, and I want to keep them separate.” (Lee has since died, but the case lives on thanks to the other plaintiffs.)

In McCreary County, county official Greene was surprised to learn that one of the plaintiffs was his own cousin, Louanne Walker.

“I was kind of shocked,” Greene told the media.

When her name became public, Walker braced herself for negative reaction from the community.

“You know, this is a small county, and I’d say most of the people here are in favor of having the Ten Commandments posted in the courthouse,” the AP quoted her as saying. “I hope they realize this is not a statement about the Ten Commandments. I’m not against the Ten Commandments. I’m just a firm believer in separation of church and state.”

On May 5, 2000, U.S. District Judge Jennifer B. Coffman ruled against all three counties. In an effort to save the displays, officials in the three counties had added the other religious documents, but Coffman was not swayed. She found them overwhelmingly religious in nature.

“No reasonable observer of the displays could conclude otherwise,” Coffman wrote.

The counties appealed, and at that point, attorneys with Liberty Counsel, a Religious Right legal group affiliated with the Rev. Jerry Falwell, took over the case. But even new legal firepower failed to win the day. In December of 2003, the 6th Circuit struck down the displays, holding that their primary effect remained religious. (The case is McCreary County, Kentucky v. ACLU of Kentucky.)

Liberty Counsel is headed by Mat Staver, a Religious Right attorney who for years has advocated a closer relationship between church and state. Staver’s organization, based in Orlando, Fla., labored in relative obscurity for many years, surviving on a modest budget before its fortunes took a dramatic turn for the better.

In 2000, Falwell announced that he was adopting the group, a move that quickly increased Liberty Counsel’s profile and finances. Liberty Counsel’s budget for the tax year ending in 2003 approached $1.4 million. By contrast, in 1999, the year prior to the Falwell takeover, the group’s total revenue was only $537,167.

Falwell had long sought to have a legal vehicle to work through the courts to bring his repressive vision of America to fruition. By taking control of Liberty Counsel, Falwell was able to avoid the arduous task of creating a group from the ground up. With an eye on the long haul, Falwell this fall opened a law school at Liberty University to train a new flock of Religious Right attorneys.

The Staver-Falwell partnership has given the Lynchburg TV preacher a legal sheen for his extreme views even when they’re inaccurate. In September, Falwell hosted a Lynchburg conference for pastors to discuss federal tax law and political activity by churches. Staver was on hand to assure pastors that they may endorse candidates from the pulpit. (See “Partisan Preachment,” November 2004 Church & State.)

Thanks partly to Falwell’s involvement, the long-running Kentucky Commandments battle has captured media interest. The dispute in Texas, by contrast, has been more low key.

The case in the Lone Star State is also less complicated. The challenge there concerns a six-foot-tall granite Commandments monument on the grounds of the state capitol. Erected in 1961, the monument was donated to the state by the Fraternal Order of the Eagles, which said it was a gift for “the Youth and People of Texas.” It stands among other displays that are non-religious in nature, mainly historical and war monuments.

The challenge against it was brought by Thomas Van Orden, an Austin attorney, who argued the case himself in the lower courts. At the Supreme Court, constitutional law expert and Duke University law professor Erwin Chemerinsky will handle the oral argument.

The 5th U.S. Circuit Court of Appeals upheld the display, asserting that the Commandments incorporate both a religious and secular message and insisting that “religion and government cannot be ruthlessly separated.” (Van Orden v. Perry)

Attorneys with Americans United’s Legal Department will file friend-of-the-court briefs, arguing that government has no business displaying religious codes. The cases, which have not been consolidated, will be argued separately, probably on the same day early next year. Decisions are expected by the end of June 2005.

AU attorneys say adverse rulings, especially a high court declaration that government may display the Ten Commandments in any context, could have a dramatic effect on several cases the organization is litigating.

AU is currently sponsoring Commandments challenges in Frederick, Md., and Everett, Wash. In addition, efforts are under way to resolve an ongoing dispute in Hanover, Pa. All of those cases are on hold while the high court considers the cases before it.

A pro-Commandments display ruling would also likely spur Roy Moore’s supporters in Alabama to try again. While Moore is no longer on the state high court, one of his allies, Tom Parker, was elected to that body in November.

Predicting how the high court will rule is also a dicey proposition. Three justices are already on record as supporting government-sponsored Commandments displays. Chief Justice William H. Rehnquist and Justices Clarence Thomas and Antonin Scalia made their views known in May of 2001 when the high court rejected the Elkhart case.

The Ten Commandments, Rehnquist wrote for the anti-separationist trio, have played a “foundational role in…secular legal matters” and can be displayed as part of a city’s acknowledgement of its “cultural and historical roots.”

Justice John Paul Stevens took issue with that, noting that it is hard to argue seriously that a moral code that comes from the Bible “expresses no particular religious preference.”

Stevens’ separationist views are often shared by Justices David Souter, Ruth Bader Ginsburg and Stephen Breyer. The dynamic leaves two justices, Anthony M. Kennedy and Sandra Day O’Connor, as the swing voters who may decide the case.

Complicating the situation are persistent rumors about Rehnquist’s health. In late October, Rehnquist, 80, was treated for thyroid cancer. He announced plans to return to the bench, but his illness sparked inevitable talk of his retirement.

The possibility also exists that the court could hand down rulings permitting government display of the Ten Com\xadmandments in some contexts but not in others.

Religious Right activists insist that the justices must permit some Commandments displays, arguing that the Decalogue is displayed at the high court itself. As usual, they are not telling the whole story. In fact, a depiction of Moses cradling two tablets is among a frieze in the court’s main chamber that depicts the evolution of the law over many centuries.

But Religious Right propagandists usually fail to mention that Moses is only one of many religious figures in the tableau. Also included are Confucius, Mohammad, the Old Testament’s Solomon and Hammurabi, founder of the ancient Babylonian Empire. (Ironically, Hammurabi is depicted being given his famous law code by Shamash, the Babylonian sun god, meaning that the sole depiction of a deity at the high court is a Pagan god.)

The frieze also contains non-religious figures who shaped the law, such as Napoleon, Charlemagne and ancient Greek and Roman figures. The clear purpose of the frieze is to educate about how the law developed, not endorse religion or state that U.S. law is based on a specific religious code.

(Another representation at the high court that Religious Right activists often assume is the Ten Commandments is in fact something else. A single tablet on a separate courtroom frieze that contains the Roman numerals one through 10 stands for the Bill of Rights, not the Ten Commandments, according to Adolph A. Weinman, the sculptor who designed the frieze when the court was built in the 1930s.)

These types of displays meant to educate are an entirely different matter than displays intended to endorse religion, church-state advocates say. The high court could easily uphold truly educational displays that contain the Commandments as one element among several while striking down displays like Moore’s, which the former Alabama chief justice freely admitted was intended to endorse religion.

McCreary County’s Greene clearly seems to see a religious purpose behind the commandments. To hear him tell it, the display goes beyond merely educating it can literally save the country.

“I’ve always been positive,” he told the McCreary County Voice. “I always thought we would win. This is a landmark case. Winner takes all. We’re either going to win and America is going to be the winner, or America is going to hell in a hand basket. We’ve got to win this.”

The Kentucky displays were intended to promote religion, says David Friedman, an ACLU attorney who is handling the case.

“Lawyers come up with clever arguments about why these displays are neutral, but anyone who’s followed the dispute and listened to the parties knows that what they want is to hang the Ten Commandments on government walls,” said Friedman. “‘History’ is just their latest excuse for doing so.”

Continued Friedman, “We’re hopeful that the Supreme Court will stick to its precedent. If it does, it should see that these Kentucky counties simply are trying to wrap their religious views in the flag.”

AU’s Lynn agreed. “These aren’t educational displays that instruct about the evolution of the law,” he said. “They’re just excuses to erect the Ten Commandments in government buildings and assert that our laws have a religious basis. The high court shouldn’t fall for it.”