The 7th Circuit Court held that there was no secular purpose to erecting a monument to the Ten Commandments:
- “We have recognized that the Ten Commandments is a religious and sacred text that transcends secular ethical or moral concerns. This is so in part because its very text commands the reader to worship only the Lord God, to avoid idolatry, to not use the Lord’s name in vain, and to observe the Sabbath. These particular commandments are wholly religious in nature, and serve no conceivable secular function.”
The fact that portions of the Ten Commandments do have some conceivable secular function, like the command not to lie, does not save the entire set from being religious. Thus, the state has the burden to show that, despite the existence of a strong religious aspect, there is still some secular purpose in displaying them — but, in this case, the state failed.
Thus, the monument failed the first prong of the Lemon Test. Under the second prong, it is necessary to determine not the purpose, but the effect of the display. What would a “reasonable person” think about such a monument on public grounds? The court held that such an observer would conclude that the government approved of the religious message contained in the text:
- “Its very format conveys a religious message. The limestone blocks are tablet-shaped, so, particularly given its height, even from afar the religious nature of the monument is suggested to observers. The lettering of the Ten Commandments is larger (one inch capital lettering) than the Bill of Rights inscribed on the other side (five-eighths inch capital lettering), making the Commandments more prominent to observers.”
- “Moreover, an observer who views the entire monument may reasonably believe that it impermissibly links religion and law since the Bill of Rights and the 1851 Preamble are near the sacred text. This would signal that the state approved of such a link, and was sending a message of endorsement.”
Governor O’Bannon appealed the ruling to the Supreme Court, but didn’t get the needed minimum of four justices to agree to accept the case. Chief Justice William H. Rehnquist, along with Justices Antonin Scalia and Clarence Thomas, took the unusual step of declaring, before even hearing a case on the matter, that such displays should be allowed. Rehnquist wrote that such a display “simply reflects the Ten Commandments’ role in the development of our legal system.”
Even more unusual was the fact that one justice, John Paul Stevens, responded. Steven said that the First Commandment, “I am the Lord the God,” is “rather hard to square with the proposition that the monument expresses no particular religious preference.”
It is not clear that stating positions on cases before they are heard is entirely ethical — if this had been stated by any other judge in any other type of case, it’s almost certain that they would have to recuse themselves from hearing this sort of case in the future. Failure to recuse themselves would likely be grounds for overturning their decision at a higher court. This is no higher court than the Supreme Court, however, and the justices are responsible for deciding on their own whether or not they should recuse themselves from a case.
Reacting to the Supreme Court’s refusal to hear the case, Rob Schenck, an evangelical minister, said “People are petty for attacking the Ten Commandments, and it should not be sanctioned by the United States Supreme Court.” Presumably, Schenck thinks that instead the Supreme Court should sanction support for and defense of the Ten Commandments — but such partisan involvement in religious disputes is precisely what the separation of church and state is supposed to prevent.
This was a victory for the separation of church and state in Indiana because it meant that the monument would not be erected. Nevertheless, the decision is also problematic because there remains a hodgepodge of conflicting rulings across the country regarding the legality of such displays. In some places, they have been allowed. In others, they have been denied.
Objections to this “hodgepodge” should not be made too strongly, though. The constitutionality of a Ten Commandments display rests heavily upon the context in which the display occurs. Do the Ten Commandments appear alone, with other religious documents, or with secular documents? Does the government do anything to argue that they have secular significance or are they presented as a religious document?
Because the Ten Commandments originated as a set of undeniably religious commands, it can be difficult to set them up in a secular way, for a secular purpose, and with secular effect. It’s not completely impossible, but it is difficult. Therefore, some displays will be found to be constitutional and others will be struck down. A variety of court rulings that appear to conflict or contradict is, therefore, inevitable.
