Ten Commandments Cases

Check out the Duke Law video on Van Orden


I would like each one of you to ponder the following two questions:



1. Opponents of Ten Commandments displays won in McCreary and proponents won in Van Orden. Who do you think won the most in these two cases--opponents or proponents? Why?



2. How would you advise, say, a school board that wished to put up a display in the schools--for educational purposes--truthfully and properly depicting the role of religion in the history and culture of the United States?

Consider this passage from Justice Breyer's concurring opinion (he was the 5th vote) in Van Orden:

"If these factors provide a strong, but not conclusive, indication that the Commandments' text on this monument conveys a predominantly secular message, a further factor is determinative here. As far as I can tell, 40 years passed in which the presence of this monument, legally speaking, went unchallenged (until the single legal objection raised by petitioner). And I am not aware of any evidence suggesting that this was due to a climate of intimidation. Hence, those 40 years suggest more strongly than can any set of formulaic tests that few individuals, whatever their system of beliefs, are likely to have understood the monument as amounting, in any significantly detrimental way, to a government effort to favor a particular religious sect, primarily to promote religion over nonreligion, to "engage in" any "religious practic[e]," to "compel" any "religious practic[e]," or to "work deterrence" of any "religious belief." Those 40 years suggest that the public visiting the capitol grounds has considered the religious aspect of the tablets' message as part of what is a broader moral and historical message reflective of a cultural heritage."

3. Now consider this excerpt from the Religion Clause blog about recent Ten Commandments legislation in Oklahoma:

Oklahoma Legislature Authorizes 10 Commandments At Capitol

AP reported yesterday that the Oklahoma House of Representatives, by a vote of 83-2, has passed HB 1330, the Ten Commandments Monument Display Act [full text, Word doc]. The bill, previously passed by the Senate, now goes to Gov. Brad Henry for his signature. It provides in part:

The State Capitol Preservation Commission ... is hereby authorized to ... arrange for the placement on the State Capitol grounds of a suitable monument displaying the Ten Commandments. The ... monument shall use the same words used on the monument at issue in Van Orden v. Perry, that the United States Supreme Court ruled constitutional. This monument shall be designed, constructed, and placed on the Capitol grounds by private entities at no expense to the State of Oklahoma....

In the event that the legality or constitutionality of the Ten Commandments monument is challenged in a court of law, the Oklahoma Attorney General or Liberty Legal Institute is hereby authorized to prepare and present a legal defense of the monument.

The placement of this monument shall not be construed to mean that the State of Oklahoma favors any particular religion or denomination thereof over others, but rather will be placed on the Capitol grounds where there are numerous other monuments.

The family of Rep. Mike Ritze, sponsor of the bill, will pay the $10,000 cost of the monument.