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Jodi Gaalswyk
Mr. Turner
English 001
April 21, 2014
Ten Commandments
“You shall have no other Gods before me, you shall not make for yourself an idol, you
shall not misuse the name of the Lord your God, remember the Sabbath Day by keeping it holy,
honor your father and your mother, you shall not murder, you shall not commit adultery, you
shall not steal, you shall not give false testimony against your neighbor, do not covet” (NIV
Study Bible Exodus 20: 1-17). These are the words that Thomas Van Orden sued Texas for
stating it violated the establishment clause of the First Amendment because they are displayed
in front of the capitol building. The establishment clause is important; it is what separates the
Church and the State. The Ten Commandments not only have a religious background, they
also have a secular and historical background and therefore do not violate the Establishment
Clause in all cases. The case of Van Orden v Perry does not violate the Establishment Clause
due to use of the historical background reason for display.
Thomas Van Orden argued the Ten Commandments monument on the grounds of the
state capitol building in Texas represented an unconstitutional government endorsement of
religion (Van Orden v. Perry). Thomas Van Orden stated that displaying the Ten
Commandments monument violated the establishment clause of the First Amendment. This is
disagreeable. According to In Our Defense the establishment clause states that neither a state
nor the Federal Government can set up a Church; neither can pass law which aid in one
religion, aid all religions, or prefer one religion over another (Alderman, Kennedy 63). In simpler
terms this means the government cannot take favor to one religion over the other. The Texas
capitol has many monuments surrounding it, many that symbolize a major part of our nation’s
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history. There are monuments such as confederate soldiers, Terrey’s Texas Rangers, a Statue
of Liberty Replica, World War I and World War II, and Pearl Harbor monuments, and many
others are included on the 22 acres surrounding the Texas capitol building (Monuments Guide).
The Ten Commandments are among those many monuments displayed and since there are
other historical monuments around the Ten Commandments, it does not violate the
Establishment Clause. The Ten Commandments in front of the capitol building was not up for
display in order to make people believe that they are true or the law of the land. The Texas
State capitol simply displayed them because there are other monuments surrounding the capitol
that the state of Texas believes to be important to our nation’s history and the Commandments
have a historical background.
How does the court decide what violates the establishment clause and what does not?
In the court case Lemon v. Kurtzman this issue came up. The case dealt with whether it is okay
for the government to provide financial aid to church related educational institutions (Lemon v.
Kurtzman). The court found that this does violate the Establishment Clause. I don’t really see
why it would violate the establishment clause if they were giving money to schools that are not
church related.
The verdict of the Lemon v. Kurtzman case led to the development of the Lemon test.
This test is a governing test to see if the case at hand does indeed violate the establishment
clause. The Lemon Test states: 1) the government’s action must have secular legislative
purpose, 2) the government’s action must not have primary effect of either advancing or
inhibiting religion, and 3) the government’s action must not result in “excessive government
entanglement” with religion. If any of these are violated by the government, the action is
deemed unconstitutional under the establishment clause (Lemon Test Law). It cannot be known
for sure whether the court or judge consults the Lemon test when making a decision involving
the establishment clause, but there is some truth to the test. When using the Lemon test for the
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case Van Orden v Perry, the action had a secular and historical purpose not a religious one.
The state of Texas was not trying to push the religion on anyone nor were they trying to force
people to look at the monument. The government was not pushing the Ten Commandments at
anyone nor were they inhibiting anyone from looking and reading the monument of the Ten
Commandments. Lastly the government was not getting involved in the religion; they were
simply displaying a monument they found to have historical meaning along with the other
monuments on the property with historical meaning. If using the Lemon test with no opinion of
the matter involved, displaying the Ten Commandments in front of the Texas capitol building did
not violate the establishment clause. I would agree that there is nothing wrong with the Ten
Commandments being displayed on the property. They aren’t in a location that can be seen on
a daily basis, they are on the grounds of the 22 acres surrounding the capitol building.
The court decision in Van Orden v. Perry ended in a 5-4 decision that no, this does not
violate the clause. The Court held that the establishment clause did not bar the monument on
the grounds of Texas’s state capitol building. The plurality deemed the Texas monument part of
the nation’s tradition of recognizing the Ten Commandments (Van Orden v. Perry).
It is
important that the court recognized that the display of the Ten Commandments is part of the
nation’s traditions and history. This says to me that our government has not lost sight of what
our country and nation was built on, religion.
The Ten Commandments have a Biblical background, but what about the historical
background? According to ACLJ.org, the Supreme Court recognized that our nation was a
religious nation. From this statement, it can be said that the Ten Commandments are a part of
our nation’s history and our nation’s history is religious. With this information in mind, displaying
the Ten Commandments in front of the state capitol cannot violate the establishment clause.
There is truth to this. Our nation does have a religious background. Many of the signers of the
Declaration of Independence believed the land was blessed by a divine power. There were also
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the Freemasons who signed the Declaration who believed that there is one universal faith, a
religion in which all men agree (Timeline: Faith in America). There was never a certain religion
specified, but there was clearly some kind of religion involved when the Declaration was made
and signed and when the Constitution was signed. The founding fathers established our nation
with religion in mind. Why then does displaying words from the Bible in a public place bring up
such controversy? The reason for this could be society not understanding or knowing the
history of our nation or choosing to believe that there is no religion involved. It is easier to
shove that idea aside then try to understand it and apply the religion to our government today. It
doesn’t matter what religion it was, but it is clear that religion played an important role in shaping
our nation.
What if a similar display gets put inside a capitol building or court house? Would this
case be treated differently? The answer to these questions is yes. There was another case
that dealt with the Ten Commandments and whether it violated the establishment clause. In the
case McCreary County v. ACLU, McCreary County put up a display of the Ten Commandments
inside the court house where the public would view it every day. The ACLU (American Civil
Liberties Union) sued the Kentucky County for violating the establishment clause. This case is
a little different than Van Orden v. Perry. In the case of Van Orden v. Perry, the display was a
monument surrounded by many other historical monuments. In McCreary County v. ACLU the
Ten Commandment display was put up and the Biblical reference was written below, Exodus
20. With this display of the Ten Commandments, there was primarily a religious purpose (Ten
Commandments). This case did violate the establishment clause because the court house put
up the display with the intention to sway people towards the Christianity religion. To apply the
Lemon test again, 1) the government action did not have a secular purpose it was
predominately religious, 2) the government’s action was advancing the religion through the
display, and 3) because the Ten Commandments were displayed inside the court house, the
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government was entangled with the religion. According to the Lemon Test, McCreary County
violated all three guidelines by displaying the Ten Commandments. If the decision is based
solely on the Lemon Test, they did violate the establishment clause. According to oyez.org, the
court held that yes the displays violated the establishment clause because their purpose had
been to advance religion. In this case the establishment clause was violated. The government,
McCreary Courthouse, put up the display of the Ten Commandments with a religious reason.
According to the information and outcome of the case, the government was pushing the
Christianity religion on a group of people. Since the establishment clause states that the
government is not allowed to show favor to or endorse one religion over the other, this case
does violate the establishment clause. The court’s decision was fair in this case.
This brings me back to the historical versus religious thing though. In Van Orden v
Perry, the court found that the monument did not violate the establishment clause because
there was a historical background to the Ten Commandments. In McCreary v ACLU, the court
said the case was strictly religious. My question is how can one display have history behind it
while the other is strictly religious? Why in the McCreary v ACLU case was history not factored
in? Although the court said that the government had a religious reason for displaying the Ten
Commandments, history should have been factored in as well because our nation has a
religious historical background. Also, how can they know for certain that there was a religious
reason for the display involved? History was factored into the Van Orden v Perry case and it
was found that the history of the Ten Commandments is relevant. So why is it not with
McCreary v ACLU? Even though the Lemon test showed the establishment clause was
violated, the history of the Ten Commandments should have been factored in and weighed in on
the decision making. If history were to have been factored in in this case, the verdict may have
gone differently. The court stated that they were displayed with religion in mind, but how can
they be sure that there wasn’t also a historical reason for the display?
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The establishment clause was put in the First Amendment to ensure the government
remains neutral when religion is brought into play. It serves to separate the Church from the
State. Not every case involving the establishment clause can be treated the same, nor should
it. There are tests to help the court decide, but as long as there is a secular reason for the
display by the government, it does not violate the establishment clause of the First Amendment.
Each case is different but in regards to Van Orden v Perry, the establishment clause was not
violated.
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Works Cited
Alderman, Ellen, and Caroline Kennedy. "Freedom of Religion: Lyng v. Northwest Indian
Cemetery Protective Association." In Our Defense: The Bill of Rights in Action.
New York: Avon, 1992. 63-64. Print.
Exodus. NIV Study Bible. Grand Rapids: Zondervan Corporation, 2002. Print.
"Lemon Test Law & Legal Definition." Lemon Test Law & Legal Definition. USLegal,
INC, 2014. Web. 08 Apr. 2014. <http://definitions.uslegal.com/l/lemon-test/>.
LEMON v. KURTZMAN. The Oyez Project at IIT Chicago-Kent College of Law. 20 April
2014. <http://www.oyez.org/cases/1970-1979/1970/1970_89>.
MCCREARY COUNTY v. ACLU. The Oyez Project at IIT Chicago-Kent College of Law.
08 April 2014. <http://www.oyez.org/cases/2000-2009/2004/2004_03_1693>.
"Monuments Guide - The State Preservation Board - Caretakers of the Texas
Capitol." Monuments Guide - The State Preservation Board - Caretakers of the
Texas Capitol. N.p., n.d. Web. 19 Apr. 2014.
<http://www.tspb.state.tx.us/SPB/Gallery/MonuList/MonuList.htm>.
"Ten Commandments." American Center for Law and Justice. N.p., 2012. Web. 07 Apr.
2014. <http://aclj.org/church-state/ten-commandments>.
"Timeline: Faith in America." PBS. PBS, n.d. Web. 19 Apr. 2014.
<http://www.pbs.org/godinamerica/timeline/>.
VAN ORDEN v. PERRY. The Oyez Project at IIT Chicago-Kent College of Law. 08 April
2014. <http://www.oyez.org/cases/2000-2009/2004/2004_03_1500>.