WASHINGTON (BP)–The U.S. Supreme Court will hear oral arguments March 2 in two cases involving different settings for public display of the Ten Commandments.
In one case, the justices will consider whether they should revise the standard by which they determine a government act violates the First Amendment’s ban on establishment of religion.
The high court released its latest calendar for oral arguments Dec. 15, revealing that it would hear arguments about displays of the Ten Commandments on government property in Kentucky and Texas. The appeals, which were accepted by the court in October, will be argued separately, and rulings are expected before the Supreme Court adjourns next summer.
In Van Orden v. Perry, which will be argued first on the morning of March 2, justices will weigh whether the Fifth Circuit Court of Appeals was correct in ruling last November that a stand-alone monument of the Ten Commandments on the Texas capitol grounds in Austin is constitutional.
In McCreary County v. ACLU of Kentucky, the high court will consider if the Sixth Circuit followed the Constitution in invalidating last December the inclusion of the Ten Commandments in a display of historical documents in two Kentucky county courthouses.
In agreeing to review the McCreary County decision, the justices said one of the questions they would consider is whether the Lemon test should be overruled and replaced by another standard. The Lemon test is the three-part examination that has guided the high court’s decision-making in establishment clause cases since it was outlined in the 1971 Lemon v. Kurtzman opinion. According to the test, a government does not establish religion if its action has a secular purpose, does not promote or inhibit religion and does not entangle government excessively with religion.
Critics of the test have called for its revision, saying it is biased against government accommodations of religion that should be constitutional. Associate Justice Clarence Thomas has signaled he may be prepared to change the test. In this year’s decision upholding the Pledge of Allegiance on a technicality, Thomas wrote in a concurring opinion he would use the case “to begin the process of rethinking” the establishment clause.
The Department of Justice and 22 states have filed friend-of-the-court briefs supporting the display of the Ten Commandments in the McCreary County case.
“It is nonsense to suggest that public acknowledgments of religion in general, or of the Ten Commandments in particular, somehow establish a religion,” said Liberty Counsel President Mathew Staver, who will argue before the high court on behalf of the Kentucky counties. “There is no question that the Ten Commandments influenced our law and government. To exclude the Ten Commandments from a display on law would be like eliminating stars and stripes from the flag.”
In the Kentucky case, framed copies of the commandments were hung alone in courthouses in McCreary and Pulaski counties. After the ACLU of Kentucky challenged the displays, historical documents –- eventually including the Declaration of Independence, Bill of Rights and Magna Carta -– were added. A panel of the Sixth Circuit still called for removal of the Ten Commandments from the displays in a 2-1 decision.
In the case from Texas, a three-judge panel of the Fifth Circuit ruled unanimously that a six-foot-tall granite monument of the commandments on the state capitol grounds is constitutional. The Fraternal Order of Eagles donated and paid for the monument, and it was accepted by the Texas legislature in 1961. It stands with other monuments outside the capitol building.
Also on Dec. 15, the American Center for Law and Justice asked the Supreme Court to review a decision finding a poster of the Ten Commandments in an Ohio judge’s courtroom violates the establishment clause. A Sixth Circuit panel voted 2-1 in July to uphold a lower court’s ruling invalidating the poster.