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DECEMBER 2004

Law & Education:
The Ten Commandments Revisited
By Martha McCarthy

No school issues are more emotionally and politically charged than church/state concerns, and posting the Ten Commandments on public property is among the most volatile recent controversies. Although in 1980 the Supreme Court invalidated a Kentucky law calling for copies of the Ten Commandments to be posted in public school classrooms (Stone v. Graham, 1980), there have been numerous legislative efforts to authorize these postings in public schools and other public buildings. During the past decade the Supreme Court has declined to review several challenges to such displays that have been enjoined by lower courts. However, the Supreme Court recently agreed to review decisions from Texas and Kentucky in which federal appellate courts reached opposite conclusions regarding the constitutionality of displaying the Ten Commandments on government property.

In the Texas case, a six-foot granite monument with the Ten Commandments was donated to the state in 1961 by the Fraternal Order of Eagles, which works to curb juvenile misconduct. The Commandments are displayed about 75 feet from the state capitol in Austin. The Fifth Circuit found no religious establishment in the display that includes other historical documents. Noting that the Ten Commandments monument has stood without any legal complaints for more than 40 years, the court reasoned that it and the other items in the display commemorate important historical influences in the state.

The Sixth Circuit in a Kentucky case came to a different conclusion, ruling that the display of copies of the Ten Commandments in two county courthouses and a school district abridged the Establishment Clause. After the complaint was filed, state officials placed other historical documents in the county displays and invited community members to post additional documents in the school display that would contribute to students' character development.  But the Sixth Circuit held that such efforts did not reduce the constitutional violation because the clear purpose of the displays was religious and not educational. Thus, the government was enjoined from continuing the displays or erecting similar displays in the future.

The Composition of the Supreme Court has changed significantly since it invalidated the posting of the Ten Commandments in public schools in 1980. At that time, the Court rejected the contention that such displays are constitutional because the Ten Commandments represent a fundamental code of conduct embraced by most of western civilization. However, some of the Court's recent decisions have supported greater governmental accommodation toward religion. These church/state decisions have often been sharply divided, so it is difficult to speculate regarding whether the Court will use these two cases to strengthen or overturn its 1980 precedent. Either way, this is a case to watch.#

Martha McCarthy, Ph.D. is Chancellor Professor, School of Education, Indiana University.
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