The display of religious objects in public places in America has become a very contentious and highly publicized issue. Both sides have competing rights, which is one of the main reasons for the controversy.
It takes a multi-step analysis to determine whether a religious display on government property is constitutional. The first question to ask is who is funding and erecting the display? When a private group wants to erect a religious monument on public property, a free expression analysis should be conducted, considering factors such as the type of forum. A separate set of questions must be raised whenever a government entity attempts to post a religious document.
Displays of religious symbols on public property can be legal, but they must pass constitutional muster by not violating the First Amendment establishment clause, which requires government neutrality regarding religion. Courts use the Lemon test and the endorsement test to determine whether a particular display violates the establishment clause.
In the Lemon test, three questions are asked:
- Did the state actor have a secular purpose for posting the documents?
- Was the primary effect of the action to advance or promote religion?
- Was government involvement excessively entangled with religion?
Government action must pass constitutional muster if it is to survive.
The endorsement test is a more recent test that has gained popularity in the courts. Sandra Day O’Connor first devised this test in her concurring opinion in Lynch v. Donnelly, a 1983 case involving a holiday display containing religious elements in a Pawtucket, Rhode Island, park. The objective of this approach is to examine the following questions: Did the state actor subjectively try to promote religion through its actions, and would a rational observer interpret the state’s actions as endorsements of religion?
Before a government official posts or engages in any religious expression, both elements should be examined.
The June 2005 decisions by the U.S. Supreme Court demonstrate how even the highest court can reach very different conclusions in cases involving religious display. McCreary County v. ACLU and Van Orden v. Perry involved public displays of the Ten Commandments. Using the Lemon test, Justice David Souter ruled that the Ten Commandments displayed in Kentucky’s two courthouses conveyed a religious message, failing to satisfy the first prong of the Lemon test. Therefore, the majority of the Court found the displays in McCreary unconstitutional.
In Van Orden, also decided the same day as McCreary, the high court ruled that a Ten Commandments monument on the grounds of the Texas State Capitol was constitutional. In the plurality opinion for the Court, Chief Justice William Rehnquist dismissed the Lemon test as inappropriate for evaluating this case. (Votes were 4-1-4.) Instead, Rehnquist stressed the nature and setting of the monument. The monument was a part of a larger display of 17 monuments and 21 historical markers honoring “people, ideals, and events that define Texas identity.”
In determining that the monument was of a secular meaning and thus constitutional, Justice Stephen Breyer wrote that because the monument had been on display for 40 years before being challenged, “it suggests more strongly than any set of formulaic tests that few individuals, whatever their system of beliefs, are likely to have understood the monument as a government effort to favor a particular religion.”
That same year, the 6th Circuit Court of Appeals held in ACLU v. Mercer County that another Kentucky County courthouse’s Ten Commandments display was constitutional. An individual in Mercer County had requested permission to hang a display in the courthouse titled “Foundations of American Law and Government.”
Among the documents displayed were the Ten Commandments, the Mayflower Compact, the Declaration of Independence, the Magna Carta, the Star-Spangled Banner, and the Bill of Rights. Because the Ten Commandments were part of a display and not more prominently displayed than any of the other documents, the 6th Circuit affirmed the lower court’s ruling that the display was meant to educate the public rather than endorse religion.
