Liberty Council and the Giles County School Board have both argued that the hanging of the Commandments was permissible for two reasons:
1. The Ten Commandments form one part of a larger historical display (which consists of many other historical documents) and therefore serve a secular, historical purpose;
2. The documents display was paid for by local residents and not by the school board. Therefore, even if (1) were not true, this would not be an Establishment Clause violation.
In order to evaluate (1) and (2), there are two cases that are particularly worth our time to consider. The first is Stone v Graham (from 1980) and the second is Ahlquist v Cranston (from 2012).
In Stone v Graham, local residents (one of whom was Stone) sued Graham, the superintendent of public instruction in Kentucky, over a then recent law requiring the posting of 16x20 copies of the Ten Commandments in public school classrooms. The case was brought before the Supreme Court, where it was determined that posting copies of the Ten Commandments in public schools is unconstitutional. In that case, private contributions were used to pay for the Ten Commandments. Thus, argument (2) is a non-sequitor; Supreme Court precedent has already ruled that private monetary contributions do not render a display constitutional.
As in many other cases, the Court used the criteria from Lemon v Kurtzman (the Lemon Test) to determine the constitutionality of the hanging of the Ten Commandments. The Lemon Test consists of a three pronged criteria, where failure of any of the three is considered sufficient to determine an Establishment Clause violation. The three prongs are that governmental actions must (wording from Lee v. Weisman, 505 U.S. 577, 585, 112 S.Ct. 2649, 2654.):
3. "reflect a clearly secular purpose";
4. "have a primary effect that neither advances nor inhibits religion";
5. and "it must avoid excessive government entanglement with religion."
The Court determined that the law violated prong (3). Since it violated prong (3), the law was determined to be unconstitutional. The Court wrote: "The pre-eminent purpose for posting the Ten Commandments on schoolroom walls is plainly religious in nature. The Ten Commandments are undeniably a sacred text in the Jewish and Christian faiths, and no legislative recitation of a supposed secular purpose can blind us to that fact. The Commandments do not confine themselves to arguably secular matters, such as honoring one's parents, killing or murder, adultery, stealing, false witness, and covetousness. See Exodus 20: 12-17; Deuteronomy 5: 16-21. Rather, 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. See Exodus 20: 1-11; Deuteronomy 5: 6-15."
Additionally, the Court ruled that while a note was posted with the Commandments proclaiming the display to have a purely secular purpose, this is insufficient to support that the display in fact had a secular purpose. Therefore, it was ruled that even if a body proclaims its intent to be secular, that is not sufficient to establish that the intent is actually secular. This is important for argument (1) because it doesn't really matter if the Giles County School Board proclaims its purposes to be entirely secular. What matters is whether or not its purposes are sufficiently secular as determined by the courts.
It's true that the Ten Commandments have been hung in public courthouses or in other governmental buildings and that such displays were ruled not to be Establishment Clause violations. However, the Court has long upheld that, due to the impressionability of children, special care must be taken in what is displayed in public school class rooms. On these grounds, the Court has been especially delicate with regards to the sensitivities of children. The Judge in Abington School District v. Schempp stated: "constitutional prohibitions encounter their severest test when they are sought to be applied in the classroom."
This establishes that the hanging of the Ten Commandments in a public school classroom, by themselves, is an Establishment Clause violation. However, the Ten Commandments are not currently being hung by themselves in Giles County Schools. They are being hung alongside a number of other historical documents, such as the Consitution and the Magna Carta. Furthermore, in that context, it's argued that the Commandments serve the secular purpose of further elucidating the history of codes of law.
Therefore, to address the legality of argument (1), I turn to Ahlquist v Cranston. In that case, then high school junior Jessica Ahlquist (via her father, who acted as "next friend") sued the city of Cranston. In Cranston High School West, which Ahlquist attended, a prayer banner had hung in the back of an auditorium since the 1960s. At the time when it was first hung, school prayer had not yet been deemed unconstitutional and the school had just been recently constructed. A student constructed the prayer banner which the school hung to the wall, where it resided for the last ~50 years.
Ahlquist's case was brought before the Rhode Island District court, who ruled the banner unconstitutional. The defence argued both that the banner is a historical display going back to the school's founding and that Ahlquist did not have proper standing to bring the suit.
A key part of the decision in Ahlquist v Cranston was the Lemon Test analysis. While the Judge stated that the Lemon Test has not always been applied in the same way, he did consider it to be an important part of the legal criteria used to establish Establishment Clause violations. To establish a violation of prong (3), he noted that it was important to consider both the intent when the prayer banner was first displayed and the present day intent in continuing to display the banner.
The original purpose was found to be obviously religious. The banner is, after all, a display of a Catholic prayer and differs even from Protestant prayers. The language used is not that used by other Christian denominations nor even similar to that used by other religions. The Judge went on to note that "Cranston's purposes in installing and, more recently, voting to retain the Prayer Mural are not clearly secular... the tenor of the School Committee's open meeting [where it was voted to keep the banner] at times resembled a religious revival". The judge ruled that this was sufficient to establish the failure of the first prong of the Lemon test.
Therefore, some of the relevant legal issues to be decided in the Giles case are:
6. What was the original intent of the Ten Commandments display in Giles County Schools?
7. What is the present intent of the display?
I do not intend this to be an exhaustive list of all of the legal issues to be considered, but (6) and (7) are definitely crucial. To answer (6), it's important to have some information about the history of the display. And to answer (7), one needs to examine the rhetoric in and surrounding Giles County Schools. For example, how do the local residents of Giles county view this issue? What sort of pressure have they applied to the school board to keep the commandments hanging and for what reasons?
Roanoke Times gives a timeline of the display in Giles:
April 1999: After the Columbine school shootings, a Giles County pastor donates framed copies of the Ten Commandments and the U.S. Constitution to be displayed in all public schools. The Rev. Shahn Wilburn later says he hoped students would see and obey the commandment: 'Thou shalt not kill.'
December 2010: The Freedom from Religion Foundation sends a letter to the Giles school superintendent, objecting to the display on the grounds that it violates the constitutional separation of church and state. The commandments are removed from all schools and replaced with the Declaration of Independence.
January 2011: More than 200 angry citizens pack a school board meeting, demanding that the Ten Commandments be restored. 'We all know that America was founded on biblical beliefs,' one speaker says. The school board votes unanimously to put the displays back up.
February 2011: Following news reports that a lawsuit was pending, the school board holds a special meeting. Members are told their lawyers, from Christian-based Liberty Counsel, are threatening to end their representation if the displays remain in their present form. The board votes to take down the commandments.
March 2011: About 200 Giles High School students walk out of class to protest the vote. 'This is Giles County and Christ is a big, big, big part of Giles County,' one student says. 'For those who don’t like it, go somewhere else.'
June 2011: The school board votes 3-2 to put the commandments back up. This time, at the suggestion of county resident and attorney Bobby Lilly, the commandments are included as part of a larger display with nine historical documents such as the Bill of Rights and the Declaration of Independence.
September 2011: A student at Narrows High School and a parent sue the school board in U.S. District Court in Roanoke. They are identified only as Doe 1 and Doe 2, saying they fear backlash from the community if they are named.
October 2011: Attorneys with Liberty Counsel object to concealing the names of the student and parent. 'The people have a right to know who is using their courts,' they write in court papers.
December 2011: Judge Michael Urbanski orders lawyers to draft an order concealing the plaintiffs’ identities. 'This court will tolerate no harassment, no efforts to interfere with the rights of these individuals,' he says. Urbanski also denies a motion by the school board to dismiss the case, setting the stage for a long legal battle.
April 2012: The American Civil Liberties Union, which represents the student, files court papers asking Urbanski to order the display be taken down. It cites the heated community reaction, along with comments from one school board member, in arguing that the display and the board’s support are at their core a governmental endorsement of religion.
April 2012: Liberty Counsel argues in its briefs that the lawsuit should be dismissed because the commandments appear with historical documents — a secular display not of religion, but of the development of American law and government. The school board also argues it’s not responsible for a display suggested and put up by a private citizen.
Since the posting of this timeline, Judge Urbanski has suggested that a compromise be reached by excising the explicitly religious commandments and leaving the others.
Note that the Commandments were originally donated with a clear religious intent by a local pastor (in April 1999.) Note also the language used in January, 2011, and March, 2011. It wasn't until June of 2011 -- a full 12 years after the Commandments were originally hung -- that the other documents were added. For the the entire period up to that time, the display had a clearly religious purpose and was seen as such by the local community.
I actually attended one of the school board meetings in Giles. A local Baptist group showed up to the meeting and held a prayer beforehand. They spoke loudly about their religious convictions and made it clear that they wanted the Commandments to stay on the school wall for sectarian purposes. The school board members spoke about their own religious convictions, but voiced fears that the school district would not have enough money to fight off a potential lawsuit. After the school board was done discussing the Commandments, a number of people left. Myself and those I had come with were left behind.
One should also note that Liberty Council was brought in to defend the school district. This is an organisation whose mission, as described by the Roanoke Times, is as a, "A Christian-based, nonprofit organization that uses litigation, education and policy to advance religious freedom, the sanctity of life and family." One should recognise the buzzwords tacked onto the end of that statement; they, ostensibly, legal warriors for the religious right, where the phrase "family values" really means prejudice towards gays and making abortion illegal (consider, for example, organisations like Focus on the Family.) This is a group associated with Liberty University, an institution founded by ultra-conservative Baptist pastor and televangelist Jerry Falwell. While the association between the Giles County School Board is certainly not sufficient to show an Establishment Clause violation, it is strongly indicative that the school board is arguing a religiously motivated position. It seems largely disingenuous for either the school board or Liberty council to argue that their aims are non-sectarian.
Judge Urbanski's recent decision -- to compromise by removing the explicitly religious commandments but keeping the other six -- was not well received by conservative commentators. For example, during his show's "Culture Warriors" segment, Bill O'Reilly called Judge Urbanski a "pin head" (available here). Other commentators on the same program stated that they felt the suggestion to be "blasphemous". But this seems to drive the point home even further -- conservatives are seeing the discussion from a purely religious perspective.
Conservative commentator Bobby Eberle wrote (for GOPUSA) that: "I personally don't care if the 10 Commandments are surrounded by the Bill of Rights, Constitution, or any other document." Indeed, he sees this as putting the Ten Commandments on trial, as opposed to putting on trial whether or not displaying them in the context of a public school is constitutional (this is certainly not a trivial equivocation.)
Fox News columnist Lauren Green argues along explicitly religious lines. She states: "The problem is, once the first commandment goes, the whole ten are nothing more than suggestions. The reason those six come second is because the Bible is saying that only when God is revered can mankind avoid the pitfalls of committing adultery, murder, stealing, etc." She goes on to state that morality cannot exist without God and gives the oft-cited Dostoevsky quote ("Without God, all is permissible.") To be fair, her analysis is probably a decent (from a religious perspective) Christian exegesis of the Decalogue. But it's also irrelevant to the issues under legal consideration.
Amongst philosophers and theologians, opinion is widely divided on the subject of the ontological foundations of morality. Indeed, many think that morality cannot derive from a Divine being of any kind because of the Euthyphro Dilemma. But whatever the truth of that matter might be, it's not an appropriate matter for courts to adjudicate on. Thus, Green's comments on this subject are entirely non-sequitors. Whether or not the Ten Commandments are the source of moral values in Western society is simply irrelevant to whether or not they can be hung in a public school.
But I don't think the Judge Urbanski thought his suggestion would be well received by the parties involved. Instead, to invoke a Biblical metaphor, I contend that it was rather more like the sort of test employed by King Solomon in 1 Kings 3:16-28. Two women bring a baby to Solomon, who is given the hard choice of deciding who is the actual mother. Solomon orders that he be brought a sword so that he can cut the baby in half. One of the women cries out and pleads to let the other woman have the baby, while the other simply states, "Go ahead and cut him in half. Then neither of us will have the baby." Solomon states that the first woman must be the real mother and gives her the baby.
In the Giles case, Urbanski is given the hard decision of determining whether or not the Commandments are being hung for religious reasons. If they are being hung simply as historical documents, there should not be any issue in hanging excerpts from them as opposed to the documents in full. This might not be a perfect test; conceivably, one might argue that we should not be in the business of editing or censoring history in an educational setting. But that would still be a secular response. Instead, we are told that cutting or censoring the documents is "blasphemous".
In the context of Giles public schools, the Ten Commandments are clearly being hung for religious purposes. The local community construes the issue as Christians versus non-Christians. Conservative commentators across the media view the issue in those terms as well. The team of lawyers currently defending the school district hail from a Christian institution and have the stated mission of defending Christianity in the public sphere. And, as I previously documented in my Op Ed article, the arguments in favor of hanging the commandments involve a deeply revisionist history that wrongly construes our founders to have been orthodox Christians (while most of them were certainly not atheists, their beliefs would not be considered recognisably Christian by modern American Christians. And certainly not by religious conservatives.)
Therefore, despite its being hung together with historical documents, the Commandments are an Establishment Clause violation. And, what's more, the particular brand of rhetoric being brought out from that community makes it even more difficult for anyone in that community to argue for a secular purpose for the display.