William & Mary Bill of Rights Journal
Abstract
The Ten Commandments are of paramount importance to the Jewish and Christian faiths, and they are viewed by many as a source of Western law. In America, they have been (and are) taught in churches and synagogues, and throughout much of this nation’s history they have been taught by parents, tutors, and teachers in private and public schools. They are regularly displayed in courthouses and statehouse grounds, and some states have desired to display them in public schools. Predictably, those who would scrub religion from the public square have argued that Ten Commandment displays on public property violate the First Amendment’s Establishment and Free Exercise Clauses. Many such separationists even object to passive displays of the Ten Commandments in public schools.
In this Article, we argue that passive displays of the Ten Commandments in public schools are constitutional. In Part I, we show that the U.S. Supreme Court has long held that the Establishment Clause must be interpreted in light of its “generating history.” Although the Court abandoned this approach in favor of the ahistorical Lemon Test in the 1970s and 1980s, that test proved to be unworkable and has since been abrogated. In recent years, the Court has instead insisted that the Establishment Clause must be interpreted in light of what it was originally understood to prohibit. Today, the Court also considers what is “deeply embedded in the history and tradition of this country.” In Part II, we demonstrate that the original understanding of the Establishment Clause permits religious language and images in public spaces. In Part III, we show that there is a long history and tradition of including religious images and language in public spaces. Particularly relevant for our argument here, we show that there is a long history and tradition of displaying the Ten Commandments in public spaces and teaching about them in private and public schools.
In Part IV, we turn to the major arguments waged against Ten Commandment displays in public schools. We demonstrate that: (a) there is no good reason to conclude that the text of the Ten Commandments utilized in most monuments and displays is sectarian, (b) that the Ten Commandments are a source of Western and American law, and (c) Stone v. Graham is no longer good law. In Part V, we contend that preventing passive displays of the Ten Commandments or other religious texts in public schools discriminates against religion and violates the antidiscrimination principles of the Constitution.
This abstract has been taken from the author's introduction.