Are religious displays on public property — such as Ten Commandments in historical-documents exhibits — legal?

The question of whether a religious display on government property is constitutional requires a multi-step analysis. First, one should ask, who is funding and erecting the display? If a private group wants to place a religious monument on public property, then a free-expression analysis should be conducted, looking into such things as the type of forum in question. If, as in this case, a government entity is attempting to post a religious document, then a separate line of questions must be raised.

Religious displays on public property can be legal, but they must pass constitutional muster by not violating the First Amendment’s establishment clause, which requires government “neutrality” towards religion. In deciding whether or not particular religious displays violate the establishment clause, courts look to two Supreme Court tests, the Lemon test and the endorsement test.

The Lemon test poses three questions: 1) Did the state actor have a secular purpose in posting the documents; 2) was the primary effect of the action to advance or promote religion; and 3) was there excessive entanglement between government and religion in the given activity? The government conduct must survive all three of these prongs if the action is to survive constitutional muster.

A more recent test that has gained popularity in the courts is the endorsement test. Justice Sandra Day O’Connor first outlined this test in her concurring opinion in the 1983 decision Lynch v. Donnelly, which involved a city-owned holiday display containing religious elements in a Pawtucket, R.I., park. This approach examines the following questions: Did the state actor subjectively intend to promote religion through its actions, and would the reasonable observer interpret the actions of the state as an endorsement of religion?

The elements of both tests should be examined before a government representative posts any religious documents or engages in other forms of religious expression.

Two cases decided in June 2005 by the U.S. Supreme Court illustrate how even the high court can reach very different conclusions in ruling on seemingly similar religious-display cases. Both McCreary County v. ACLU and Van Orden v. Perry involved displays of the Ten Commandments on public property. In writing for the 5-4 majority in McCreary, Justice David Souter used the Lemon test and determined that the Ten Commandments displays in the two Kentucky courthouses conveyed a religious message to the public, failing to satisfy the first prong of the Lemon test that the display must have a secular purpose. Therefore, the Court majority found the displays in McCreary were unconstitutional.

In Van Orden, which was decided on the same day as McCreary, the high court ruled that a Ten Commandments monument on the Texas State Capitol grounds was constitutional. Chief Justice William Rehnquist, in writing the plurality opinion for the Court, was quick in dismissing the Lemon test as the appropriate way to evaluate the case. (The vote was 4-1-4.) Instead, Rehnquist focused on the nature and setting of the monument. The monument was part of a larger display containing 17 monuments and 21 historical markers celebrating the “people, ideals, and events that compose Texan identity.” In determining that the monument was of a secular purpose, and therefore constitutional, Justice Stephen Breyer in his concurring opinion noted that because the monument had been on display for 40 years before being challenged, it “suggests more strongly than can any set of formulaic tests that few individuals, whatever their system of beliefs, are likely to have understood the monument amounting, in any significantly detrimental way, to a government effort to favor a particular religious sect.”

Later that same year, the 6th U.S. Circuit Court of Appeals held in ACLU v. Mercer County that another Kentucky County courthouse Ten Commandments display was constitutional. In this case, a Mercer County resident had requested permission to hang a display titled “Foundations of American Law and Government” in the courthouse. The display included the Ten Commandments, Mayflower Compact, Declaration of Independence, Magna Carta, Star-Spangled Banner, Bill of Rights and other historical documents. The 6th Circuit affirmed the lower court’s ruling that because the Ten Commandments was part of an exhibit and was not, in any way, more prominently displayed than any of the other documents, the display had a secular purpose in educating the public rather than endorsing religion.

Category: Freedom of Religion

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