In a case that could change how courts address religion’s role in public institutions, two public-interest groups filed briefs asking the U.S. Supreme Court to overturn a ruling that declared a Ten Commandments display in Kentucky unconstitutional.

Moses and Ten Commandments on rear facade of Supreme Court building

Mathew D. Staver, who will argue the case as lead counsel in February, is asking the high court to reconsider the so-called Lemon test formulated by then-Chief Justice Warren Burger in 1971 to determine when a law has the effect of establishing religion.

Burger’s test said, “First, the statute must have a secular legislative purpose; second, its principal or primary effect must be one that neither advances nor inhibits religion; finally, the statute must not foster “an excessive government entanglement with religion.”

Staver’s brief argues for a new objective test that comports
with history and which “should respect our religious heritage by
distinguishing between real establishments and permissible acknowledgments of religion.”

“There is a big difference between an establishment of
religion, which the Constitution forbids, and governmental acknowledgments of religion, which the Constitution permits,” said Staver, president and general counsel of Florida-based Liberty Counsel.

The case marks the first time the Supreme Court has received full briefing on the Ten Commandments, according to Staver.

The court’s ruling, expected in June, will “affect every Ten Commandments display in the country and may well set the future course for other governmental acknowledgments of religion, like the Pledge of Allegiance,” he said.

The American Center for Law and Justice also has filed a brief, which notes courts – including the Supreme Court – have recognized the foundational role of the Commandments in the development of the country’s legal system.

The Supreme Court building itself has three depictions of Moses and/or the Ten Commandments, the ACLJ points out.

The Kentucky case involves two courthouses in Pulaski and McCreary counties – which displayed the Ten Commandments, the Declaration of Independence, the Magna Carta, the Bill of Rights and other historical documents – and Harlan County, where the school board created a similar display. The Harlan exhibit includes a limited public forum where the community can post additional historical documents.

The displays began with the Ten Commandments alone. They later were changed to include some historical documents with excerpted religious quotes. The displays then were altered to include other historical documents in their entirety.

Because the displays originated with only the religious document, however, Judges Eric Clay and Julia Smith Gibbons agreed they were unconstitutional. They contend the original religious purpose was not altered by later adding historical documents.

Senior Judge James Ryan dissented, Liberty Counsel said, stating court precedent established that displays could be altered to include a broader education purpose even if the original purpose was solely religious. He also argued the displays were constitutional, and he criticized the court for not taking seriously the school exhibit, which allows the community to post any historical document.

Currently, four federal circuit courts and one state Supreme Court hold that displays of Ten Commandments are constitutional, while three federal circuit courts have ruled them unconstitutional.

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