Court: Ten Commandment Display is Unconstitutional

Is a display of the Ten Commandments unconstitutional? Astoundingly, on October 9th a federal Court of Appeals said “yes”.

This case began in Kentucky, which sought to redisplay the Ten Commandments at its capitol building, as it had done for nearly three decades in the past.

The Supreme Court, after all, exhibits the Ten Commandments high above the justices. A marble Moses holds those immortal tablets for all below to see.

The Supreme Court’s daily sessions also begin with an invocation to God: “God save the United States, and this Honorable Court.”

The Kentucky legislature passed, and its governor signed, Resolution No. 57 to order the display of a roughly 6-foot by 4-foot granite inscription, next to one of the world’s largest clocks. For support, the Resolution then quoted religious statements by many of our nation’s honored leaders.

The Resolution quoted President Andrew Jackson as declaring on May 29, 1845: “The Bible is true. The principles and statutes of that Holy Book have been the rule of my life, and I have tried to conform to its spirit as nearly as possible. Upon that sacred volume I rest my hope for eternal salvation, through the merits and blood of our blessed Lord and Savior, Jesus Christ.”

It quoted President George Washington as announcing on September 19, 1796: “Of all the dispositions and habits which lead to political prosperity, religion and morality are indispensable supports.” He presided over the Constitutional Convention, which itself began each session with a prayer.

The Resolution quoted President Woodrow Wilson as follows: “The Bible is the word of life. I beg that you will read it and find this out for yourselves …. When you have read the Bible, you will know it is the Word of God, because you will have found it the key to your own heart, your own happiness, and your own duty.”

Finally, the Resolution even quoted a 1892 United States Supreme Court decision declaring the United States to be a “Christian nation.” But the Resolution was not entirely religious – it also ordered the exhibition of seven additional secular signs, markers and monuments, in tribute to non-religious aspects of Kentucky history.

Nevertheless, the American Civil Liberties Union (ACLU) and others sued to block this planned exhibition of the Ten Commandments in Kentucky. They won before the district court, and the appeal went to a three-judge panel dominated by two appointees of Carter and Clinton.

The Court of Appeals held, by a 2-1 vote, against the Ten Commandments. Adland v. Russ, 2002 U.S. App. LEXIS 21054 (6th Cir. Oct. 9, 2002). It invoked the Lemon test, which requires invalidation of anything religious by government if it has either (1) a primary purpose or aiding religion, (2) a primary effect of aiding religion, or (3) an “excessive” entanglement between state and church functions.

Chief Justice Warren Burger devised this test over thirty years ago, but later privately criticized its frequent use against religion. Few laws with any religious implication can survive application of the Lemon test.

The Supreme Court has moved away from the Lemon test in favor of an “endorsement test” that only invalidates official endorsement of religion as viewed by a reasonable observer. But the Carter and Clinton appointees insisted on resurrecting the Lemon test to block Kentucky’s planned display, relegating the endorsement test to a minor clarification of its second prong.

In disallowing the display, the Court apologetically said that other displays of the Ten Commandments may be allowed. But the Court then suggested that the legislature consult with the ACLU in trying to find an acceptable arrangement!

Judge Alice Batchelder, who was appointed by the first President Bush, vigorously dissented. She would have dismissed the lawsuit because the Resolution merely called for the “Ten Commandments monument to be part of an historical and cultural display.”


The tide has been turning at the Supreme Court level in favor of the historical respect of religion. Yet many federal Courts of Appeals remain intransigent on the issue, determined to censor anything religious in official life. More than any other issue, the November 2002 elections for control of the Senate will influence whether judicial animosity towards religion continues.