Law
& Education:
The Ten
Commandments Revisited
By Martha McCarthy
No school issues are more emotionally and politically charged
than church/state concerns, and posting the Ten Commandments
on public property is among the most volatile recent controversies.
Although in 1980 the Supreme Court invalidated a Kentucky law
calling for copies of the Ten Commandments to be posted in
public school classrooms (Stone v. Graham, 1980),
there have been numerous legislative efforts to authorize these
postings in public schools and other public buildings. During
the past decade the Supreme Court has declined to review several
challenges to such displays that have been enjoined by lower
courts. However, the Supreme Court recently agreed to review
decisions from Texas and Kentucky in which federal appellate
courts reached opposite conclusions regarding the constitutionality
of displaying the Ten Commandments on government property.
In the Texas case, a six-foot granite monument with the Ten
Commandments was donated to the state in 1961 by the Fraternal
Order of Eagles, which works to curb juvenile misconduct. The
Commandments are displayed about 75 feet from the state capitol
in Austin. The Fifth Circuit found no religious establishment
in the display that includes other historical documents. Noting
that the Ten Commandments monument has stood without any legal
complaints for more than 40 years, the court reasoned that
it and the other items in the display commemorate important
historical influences in the state.
The Sixth Circuit in a Kentucky case came to a different conclusion,
ruling that the display of copies of the Ten Commandments in
two county courthouses and a school district abridged the Establishment
Clause. After the complaint was filed, state officials placed
other historical documents in the county displays and invited
community members to post additional documents in the school
display that would contribute to students' character development. But the Sixth Circuit held that such
efforts did not reduce the constitutional violation because
the clear purpose of the displays was religious and not educational.
Thus, the government was enjoined from continuing the displays
or erecting similar displays in the future.
The Composition of the Supreme Court has changed significantly
since it invalidated the posting of the Ten Commandments in
public schools in 1980. At that time, the Court rejected the
contention that such displays are constitutional because the
Ten Commandments represent a fundamental code of conduct embraced
by most of western civilization. However, some of the Court's
recent decisions have supported greater governmental accommodation
toward religion. These church/state decisions have often been
sharply divided, so it is difficult to speculate regarding
whether the Court will use these two cases to strengthen or
overturn its 1980 precedent. Either way, this is a case to
watch.#
Martha McCarthy,
Ph.D. is Chancellor Professor, School of Education, Indiana
University.
