Topic: The Ten Commandments
Date: August 17, 2001
Author: Allison Schafer/Leanne Winner
Ten Commandments:
On August 10, 2001, Governor Easley signed into law legislation that purports to allow local
boards of education to create historical displays in school buildings that may include the Ten
Commandments. The Senate added this language to a House bill that addressed teaching
North Carolina history in elementary and middle school.
There has been great discussion around the halls of the General Assembly about whether
this legislation is constitutional. In addressing a constitutional challenge to the statute,
courts will look at the actual language and the legislative intent, which includes comments
made on the floor of the House and Senate. Neither the General Assembly nor the Attorney
General’s office can guarantee that any legislation will survive a constitutional challenge. In
fact, the Attorney’s General’s office has correctly stated that there are no reported legal
cases in which a display of the Ten Commandments on public school walls has been upheld
as constitutional. See the enclosed Charlotte Observer article in which the Attorney
General’s office was quoted.
The American Civil Liberties Union (ACLU) has taken the position that the new statute is
unconstitutional and has stated that it will bring suit against any school system that creates
these displays pursuant to the new statute. In fact, the Executive Director of the North
Carolina branch of the ACLU has told us that three major law firms in this state have
already volunteered to bring such a case against any school system that posts the Ten
Commandments pursuant to this legislation.
This is a very legally complicated and emotionally charged issue. We felt that as you wrestle
with requests to create these displays that you need to be aware of the potential
consequences and the current status of the law in this area. We are enclosing for your
information the following documents: (1) a copy of the new statute; (2) a legal
memorandum from Allison about the status of the law in this area; (3) a copy of the
controlling United States Supreme Court case, Stone v. Graham; (4) a memorandum from
the ACLU explaining its position in this matter and (5) and a newspaper article that quotes
the opinion of the Attorney General in this matter.
We hope this information is informative and helpful. Please feel free to call with any
questions or concerns. Questions about the history of this statute or the discussion
surrounding the enactment of the statute should be directed to Leanne. Questions about the
enclosed legal information should be directed to Allison.
Enclosures
To:
School Board Chairs, Superintendents, and School Board Attorneys
From:
Allison B. Schafer, Legal Counsel/Director of Policy
Date:
August 21, 2001
Re:
Legal Memorandum re Posting Ten Commandments in Schools
House Bill 195, which was signed into law by Governor Easley on August 10, 2001, purports
to permit, but does not require, local boards of education to display "…documents and
objects of historical significance that have formed and influenced the United States legal or
governmental system and that exemplify the development of the rule of law, such as the
Magna Carta, the Mecklenburg Declaration, the Ten Commandments and other
documents…." The provision goes on to impose additional restrictions on how such displays
may be posted. Enclosed for your reference is a copy of the final version of the bill.
The inclusion of the Ten Commandments in the above list has been very controversial. The
North Carolina chapter of the American Civil Liberties Union (ACLU) has clearly stated its
intent to litigate the constitutionality of the provision. The purpose of this memorandum is
to update you on the status of the legislation and to provide background information on the
current state of the law in this area. You almost certainly will receive inquiries from local
groups on this issue and we wanted to help you be prepared to address them.
I.
The Establishment Clause
The issue of religion in the schools is a matter of federal Constitutional law, of
which the final arbiter is the United States Supreme Court. State law cannot
supersede federal Constitutional decisions made by the U.S. Supreme Court.
Therefore, the new North Carolina statute does not and cannot alter in any way
the prohibitions that previously existed. It does, however, impose additional
requirements in terms of language that must accompany a posting.
The "Establishment Clause" of the First Amendment of the United States
Constitution specifically prohibits Congress from making any law "respecting an
establishment of religion." This Establishment Clause prohibition is applicable to
state and local governments through the Fourteenth Amendment. Abingdon School
District v. Schempp, 374 U.S. 203, 215-216, 83 S.Ct. 1560, 1567-1568, 10 L. Ed. 2d
844 (1963).
II.
Supreme Court Rulings
1. Stone v. Graham, 449 U.S. 39, 101 S.Ct. 192, 66 L.Ed.2d 199 (1980) (per
curiam).
Establishment clause litigation has resulted in a very clear ruling from the
United States Supreme Court about the constitutionality of posting the Ten
Commandments in public school classrooms. In the case of Stone v.
Graham, 449 U.S. 39, 101 S.Ct. 192, 66 L.Ed.2d 199 (1980) (per curiam),
the United States Supreme Court struck down as unconstitutional a
Kentucky statute that required the posting of the Ten Commandments in
classrooms. In that case the Kentucky statute at issue required that a
"durable, permanent copy of the Ten Commandments... be displayed on a
wall in each public elementary and secondary school classroom" in the
State. The statute further required that "[i]n small print below the last
commandment shall appear a notation concerning the purpose of the
display, as follows: ‘The secular application of the Ten Commandments is
clearly seen in its adoption as the fundamental legal code of Western
Civilization and the Common Law of the United States.’" Id. at 40, 101 S. Ct.
at 193, 66 L.Ed.2d at 199.
In addressing the constitutionality of this statute, the court stated that the
Ten Commandments are "undeniably a sacred text in the Jewish and
Christian faiths...." Id. at 41, 101 S.Ct.194, 66 L.Ed.2d at 199. The court
discussed the fact that the first part of the Commandments "concerns the
religious duties of believers: worshipping the Lord God alone, avoiding
idolatry, not using the Lord’s name in vain, and observing the Sabbath Day."
Id. at 42, 101 S.Ct. at 194, 66 L.Ed.2d at 199.
The Court then focused its analysis on whether the purpose for requiring the
posting of the Commandments was a "secular" purpose that would permit
the postings. The Court found that, despite a statutory declaration to the
contrary, the purpose of the statute was religious, not secular. The Court
noted as follows:
This is not a case in which the Ten Commandments are integrated into the
school curriculum, where the Bible may constitutionally be used in an
appropriate study of history, civilization, ethics, comparative religion or the
like.... Posting of religious texts on the wall serves no such educational
function. If the posted copies of the Ten Commandments are to have any
effect at all, it will be to induce the schoolchildren to read, meditate upon,
perhaps to venerate and obey, the Commandments. However desirable this
might be as a matter of private devotion, it is not a permissible state
objective under the Establishment Clause.
Id. at 42, 101 S.Ct. at 194, 66 L.Ed.2d 199.
The Stone case is current controlling law on this issue. A copy of the Stone
case is enclosed for your information. It is short and is strongly
recommended reading as you consider this issue.
2. Elkhart v. Books, ___ U.S. ___, 121 S.Ct. 2209, 149 L.Ed. 1036 (May 29,
2001)(memorandum).
In a very recent appeal, the United States Supreme Court declined to hear another
Ten Commandments posting case. In a 6-3 decision in the case of Elkhart v. Books,
___U.S. ___, 121 S.Ct. 2209, 149 L.Ed. 1036 (May 29, 2001)(memorandum), the
Court denied certiorari and, therefore, let stand a Seventh Circuit Court of Appeals
decision requiring the City of Elkhart, Indiana to physically remove from the front
lawn of the Municipal Building a display of the Ten Commandments. Although this
decision technically has no precedential value, it is enlightening about the
opinions of the current justices on this issue. It is a published memorandum with
both majority and dissenting opinions.
The majority opinion asserts that the Ten Commandments were emphasized in the
monument in such a way as to make it "rather hard to square" with the City’s
proposition that the monument expresses no particular religious preference. The
opinion also discusses the details about the monument’s origin, which included
drafting of a "nonsectarian" version of the Ten Commandments by Jewish,
Protestant and Catholic clerics. The decision states that, "Making a religious text
nonsectarian… does not make it secular or strip it of its religious significance."
The memorandum specifically endorsed the Seventh Circuit majority opinion
below, which found that the City’s display had the primary purpose of advancing
or endorsing religion and, therefore, violated the Establishment Clause. See Books
v. Elkhart, 235 F.2d 292 (7th Cir. 2000.)
The dissent from the denial of certiorari, discussed the content and context of the
monument, which had been erected over 40 years before. The dissent argued that
the context in which the monument appeared emphasized the "foundational role
of the Ten Commandment in secular, legal matters…" and therefore, was not
unconstitutional as displayed. However, in a comment relevant to school systems,
the dissent distinguished the city monument from the required postings in the
Stone case discussed as follows: "In Stone, the posting effectively induced
schoolchildren to meditate upon the Commandments during the school day.
[Citations omitted]. We have been ‘particularly vigilant’ in monitoring compliance
with the Establishment Clause in that context, where the State exerts ‘great
authority and coercive power’ over students through mandatory attendance
requirements."
III.
Recent Lower Court Cases Involving the Ten Commandments as Part of
Historical Displays
There are also several recent cases involving counties displaying the Ten
Commandments as part of a larger display of historical documents. The first of
these cases comes out of Haywood County in North Carolina. The second comes
out of Kentucky.
A. Suhre v. Haywood County, North Carolina,55 F.Supp.2d 384 (W.D.N.C.
1999).
In 1994 a citizen sued Haywood County, North Carolina seeking to require
the county to remove the display of the Ten Commandments built into the
walls of the courthouse as part of a larger historical display. The display
was erected as part of the building when it was built in 1932. The case was
originally dismissed twice and then reversed by the Fourth Circuit Court of
Appeals twice on procedural (legislative immunity and standing) issues. The
case was tried in federal district court in 1998. In a decision dated April 2,
1999 the display was upheld the display as constitutional. The decision was
not appealed again as the plaintiff died and standing was lost.
The opinion discussed the context of the display and the history of its
creation. It first addressed whether the Government’s actual purpose in
creating the display was to endorse or disapprove of religion or whether
there was a secular purpose to the display. The judge described the
historical component of the display; its inclusion of "The Lady Justice" and
other recognizable symbols of law and justice, the size of the display and
the size of the Ten Commandments display relative to the other items and
concluded that there was a secular purpose in the display. The decision also
addressed the issue of whether the display would, to a reasonable observer,
send a message of governmental endorsement or sponsorship of religion. It
concluded, given all the facts, that it would not. The judge also noted the
fact that the display was embedded into the plaster of the wall and removal
of the Ten Commandments would injure the remainder of the display.
B. American Civil Liberties Union of Kentucky v. McCreary County Kentucky,
96F.Supp. 691 (E.D.Ky. 2000) and __ F. Supp. 2d __ (E. D. Ky. June 22,
2001).
In Kentucky, a case was brought recently to challenge the efforts of several
counties and one school district in the state to post the Ten Commandments
as part of an historical display. This case is the most similar to the displays
suggested by the new North Carolina legislation. While it is still in the
pretrial stages, the trial judge has already issued two preliminary
injunctions forbidding the posting of displays pending resolution of the
case, which are cited above.
As described in the preliminary injunction orders, the case involves, "the
efforts of the counties and the school system to find a way to post the Ten
Commandments." The case began with a display of only the Ten
Commandments. The initial posting failed the court’s "purpose and effect"
analysis, as it was found to lack a secular purpose and have the effect of
endorsing religion. The defendants then posted the Ten Commandments in a
display entitled "The Foundations of American Law and Government
Display." It included the Magna Carta, the Declaration of Independence, the
Bill of Rights, the Star Spangled Banner, the Ten Commandments, the
Mayflower Compact of 1620, a picture of Lady Justice, and the National
Motto of the United States ("In God we Trust") emblem, the Preamble to the
Kentucky Constitution and an explanation of each of the documents’
historical and legal significance.
In its preliminary injunction decision, the court reviewed the purpose of the
display and concluded that although the defendants articulated "a number
of purportedly secular purposes," among their stated intentions were: (1)
To erect a display containing the Ten Commandments that is constitutional;
(2) to demonstrate that the Ten Commandments were part of the
foundation of American Law and Government; (3) to include the Ten
Commandments as part of the display for their significance in providing the
moral background of the Declaration of the Independence and the
foundation of our legal tradition, etc. The court went on to reason that while
these stated purposes are to be given some deference, it is the duty of
courts to distinguish a "sham secular purpose" from a sincere. The court
found that the first three purposes were, on their face, religious in nature
and therefore impermissible, while the history of the display belied the
articulated secular purposes. The Court specifically indicated that the state’s
desire to proclaim the Ten Commandments’ foundational value for American
law and government to be a religious rather than a secular purpose.
The Court also looked at the history and context of the displays themselves
and found them to "promote one religious code as being on a par with our
most cherished secular symbols and documents" and therefore, an
impermissible endorsement of religion.
III.
Conclusion
Whatever anyone’s personal beliefs, at this point it is clearly contrary to United
States Supreme Court precedent to display the Ten Commandments on classroom
walls for the purpose of inducing children to obey them. The Commandments may,
consistent with the Constitution, be used in instruction, if appropriate and relevant
to the subject. However, courts will look at the true intent behind any posting. As
clearly indicated by the case law discussed above, any school system that sets out
to find a "constitutional way" to post the Ten Commandments and attempts to
hide this purpose by adding historical documents is very unlikely to prevail. If the
purpose in doing the posting is to inculcate religious values into students rather
than to teach them about a specific subject to which the Ten Commandments
logically relate, then your posting would be unlikely to withstand a constitutional
challenge. If you are receiving pressure from religious groups to post this
historical display so that they can get the Ten Commandments on the wall,
remember that any testimony at trial will include the fact of those requests and
the timing of your decision.
We are not aware of any case in the country in which the posting of the Ten
Commandments in a public school has been found to be permissible under the
Constitution. Please tread very carefully as you consider this issue and work
closely with your local board attorney. Lawsuits are very expensive and can divert
considerable attention away from instructional issues. Additionally, if you
intentionally and knowingly participate in a violation of clearly established law you
could lose your qualified immunity from personal liability and your insurance
coverage.
We hope you will find this information helpful as you consider requests to post the
Ten Commandments in schools as part of an historical display. Please feel free to
call me if you wish to discuss this topic further.
Enclosures
Cc: Ed Dunlap, Executive Director, NCSBA
Leanne Winner, Director of Governmental Relations, NCSBA