Topic: The Ten Commandments
Date: November 8, 1999
Author: Allison Schafer/Jim Blackburn
The Ten Commandments:
During the last several weeks both of our organizations have received numerous telephone
calls from newspapers and other media sources regarding discussions among several boards
of county commissioners about the possibility of requesting or requiring local boards of
education to post a copy of The Ten Commandments in schools and/or requesting the North
Carolina General Assembly or the federal Congress to require North Carolina schools to post
the Ten Commandments in schools. The purpose of this memorandum is to update you on
the status of the activity in this area and to share with you the current state of the law.
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 .Ed.2d 844 (1963). The scope of the Establishment
Clause provision of the Constitution has been the subject of much litigation over the years
since the Constitution was adopted. This litigation has resulted in a very clear ruling from
United States Supreme Court regarding the states’ authority to require the posting of 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 (1981), 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.
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. Absent a United States Supreme Court decision
in which the Court reverses itself or a change in the United States Constitution, we are
bound by the Supreme Court’s interpretation of the Constitution.
It is our understanding that there is provision in a federal House of Representatives Juvenile
Justice bill that seeks to mandate the posting of the Ten Commandments. The Senate
version does not contain a similar provision. We are informed that the bill is in conference.
Such a bill, if enacted, would certainly be the subject of litigation by groups, such as the
American Civil Liberties Union (ACLU), that monitor such issues. The current Supreme Court
precedent would suggest that such a statute would not withstand constitutional scrutiny by
the federal courts.
We hope you will find this information helpful as your advise your boards when they
consider requests to endorse the call to post the Ten Commandments in schools. Please feel
free to call either of us if you wish to discuss this topic further.
cc:
All Chairmen of Boards of County Commissioners
All County Managers
All Chairmen of School Boards
All Superintendents
Ron Aycock,
Executive Director, North Carolina Association of
County Commissioners
Ed Dunlap,
Executive Director, North Carolina School Boards Association