In Giles County school, will Ten Commandments stay or go?

In this 1955 file photo Charlton Heston in charecter as Moses in "The Ten Commandments." (Anonymous - AP) The two-year battle over posting the Ten Commandments on a high school wall in Giles County, Virginia has been polarizing, angry and downright nasty.

Last week, U.S. District Court Judge Michael Urbanski tried to avoid more litigation by ordering the warring parties to seek common ground through mediation.

In order to jump-start the peace process, Urbanski made an out-of-the-box suggestion: If references to “God” are the problem, why not eliminate the first four commandments (which explicitly mention God) and leave the remaining six (which do not) on the wall?

While the judge gets credit for creativity, his proposed solution won’t fix the problem and is likely to be rejected by both sides.

Proponents of posting the commandments will surely balk at editing holy Scripture to down play the holy. And opponents will no doubt object to retaining school-sponsored scriptures on the schoolhouse wall - whatever the number of divine commands.

Under current Supreme Court rulings, the constitutional problem with posting the Ten Commandments in government spaces is less about references to the deity and more about purpose, context and history. It’s a bit convoluted - but let me try to explain.

More than 30 years ago, the high court ruled that posting the commandments in public schools is state promotion of religion in violation of the First Amendment’s Establishment Clause (Stone v. Graham).

While acknowledging that the commandments contain moral guidance (the purpose of posting them, according to school officials), the court held that the primary effect of displaying them in public schools would be to send a religious message endorsed by the state.

But then in 2005, a sharply divided court muddied the Establishment Clause waters by upholding one Ten Commandments display on government property and striking down another - all on the same day.

In the first (Van Orden v. Perry), the court upheld the constitutionality of a Ten Commandments monument on the grounds of the Texas State Capitol. In the second (McCreary County v. ACLU), the court struck down commandments displays in Kentucky county courthouses.

Both were 5-4 decisions, with four justices voting to invalidate both displays and four voting to uphold both. Justice Stephen Breyer provided the fifth vote in both rulings.

What made the difference (at least for Breyer)? The Texas monument had been there 40 years and was part of an overall secular display of some 20 other historical monuments, but the Kentucky displays were of recent origin and were created to promote a religious message.

To paraphrase a quip from Justice Clarence Thomas, a Ten Commandments display on government property violates the First Amendment --except when it doesn’t.

Which brings us back to Giles County: Is the Ten Commandments plaque in the high school more like the Texas monument in the park or the Kentucky display on the courthouse wall?

In an apparent attempt to resemble the Texas case, Giles County school officials recently surrounded the commandments with a variety of other historical documents such as the Magna Carta and the Declaration of Independence.

It might work - but a similar tactic failed in Kentucky. In the McCreary County case, the court ruled that because county officials had a history of using the display to promote a religious message, they did not cure the constitutional problem by adding other documents after the display was challenged.

For mediation to work in Giles County, opponents of posting the commandments will have to forgive the history of school promotion of religion --and accept the current display as an educational exhibit of historic documents.

Such a compromise is highly unlikely given the bitter conflict of the last two years. It will then be up to Judge Urbanski to decide if the commandments stay or go.

What’s particularly sad about divisive and expensive fights like this is how easily they can be avoided.

If Giles County school officials had heeded the First Amendment in the first place, they could have focused on finding a constitutional place for the Ten Commandments in schools - teach about them in history classes, allow students to form Bible clubs, protect the right of students to appropriately share their faith - and avoided using the school hallway to promote a religious message.

Charles C. Haynes is senior scholar at the Freedom Forum First Amendment Center and director of the Religious Freedom Education Project at the Newseum in Washington.