Stepping once again into the politically volatile realm of church-state separation, the Supreme Court said today it will review whether the constitution allows the Ten Commandments to be displayed on government property.
It will be the first time since 1980 that the court has considered whether or not posting the Ten Commandments violates the "wall of separation" mandated by the First Amendment. In the 1980 case, the court said the commandments could not be posted in public school classrooms.
The court has changed since then, however. Plus, the court has always treated schools differently than other public buildings in religion cases because children in the classroom are a malleable as well as a captive audience susceptible to adult and peer pressure.
The two sets of cases the court accepted for review today involve a state capitol building and a county courthouse, in addition to a school.
Van Orden v. Perry was brought by a homeless man who asked the federal courts to remove from the grounds of the Texas capitol a 42-year-old granite monument in which the Ten Commandments are etched.
The U.S. Court of Appeals for the 5th Circuit ultimately ruled that the Texas legislature, when it put up the monument donated by the Fraternal Order of Eagles, had a secular rather than religious purpose in mind. The monument, the appeals court noted, was part of a long-standing larger display of monuments in the building. In that context, the ruling said, it did not constitute an endorsement of religion.
The second package of cases accepted for review today, McCreary v. ACLU, involves the relatively recent posting of the commandments in courthouses in McCreary and Pulaski counties in Kentucky as well as in a school in Harlan County in the same state. After the courthouse postings, the counties added other documents to the display, such as the Magna Carta and the Declaration of Independence.
In those cases, the U.S. Court of Appeals for the 6th Circuit ruled that the displays conveyed "a message of religious endorsement." It said the context in these situations was not connected with any "unifying historical or cultural theme that is also secular."
Last week, the justices rejected an appeal from a high-profile crusader for Ten Commandment monuments, ousted Alabama Chief Justice Roy S. Moore, who lost his job after defying a federal court order to dismantle a 2 1/2-ton Ten Commandments monument that he installed in the rotunda of the state Supreme Court building.
The court declined to hear a Ten Commandments case in 2001. At that time, Chief Justice William H. Rehnquist, joined by justices Antonin Scalia and Clarence Thomas, said in a dissent that the city in question, Elkhart, Ind., only sought to reflect the cultural, historical and legal significance of the commandments rather than espouse a religion.
Rehnquist noted that the justices' own building includes, among other symbols of the law, a carving of Moses holding the Ten Commandments.