Supreme Court's Ten-Commandments Rulings Will Draw Line between What is Religious and What is Historical, Says UB Expert

Justice O'Connor's opinion on 'ceremonial deism' may sway court

Release Date: May 27, 2005 This content is archived.


BUFFALO, N.Y. -- In the continuing cultural battle over the separation of church and state, the Supreme Court will be challenged to draw a line between what is religious and what is historical or cultural when it soon rules on two cases involving the Ten Commandments, according to University at Buffalo Law Professor Lee A. Albert, a constitutional law expert.

The cases -- Van Orden v. Perry, and McCreary County, Ken. v. ACLU of Ken. -- likely will determine the fate of two displays of the Ten Commandments on public property. The Supreme Court is expected to rule on the constitutionality of the displays at the conclusion of its current session, ending in June.

"Neither of these cases arrives on a clean slate, they're important, but they're line-drawing cases," says Albert, a former Supreme Court clerk under Justice Byron White. "The question is where you draw the line over what is historical and cultural and what is religious. That's not an easy line to draw.

"The court already has held that posting Ten Commandments in a classroom is unconstitutional, so we're not talking about whether the government can do anything with the Ten Commandments. The issue is more contextual," he adds.

Albert expects the court's decisions -- particularly in the Kentucky case, where the commandments are depicted as part of a series of historic documents that have influenced American law -- will be guided by an opinion expressed by Justice Sandra Day O'Connor in the court's 2004 consideration of the use of "under God" in the Pledge of Allegiance.

"Justice O'Connor made a strong case for what she called 'ceremonial deism,'" Albert points out. "She meant that religion as an artifact in American life can't be ignored and the First Amendment can't eradicate it, nor should it.

"She pointed out there are certain practices that are museum-like, they are part of secular displays of history and not attempts to inculcate, indoctrinate or proselytize for religious purposes," he adds.

"Given the drift of the current court against a very rigid wall of separation between church and state, it is quite possible that Justice O'Connor's position could garner a majority."

Regardless, Albert does not expect the court to write broadly in this "cluttered, vexing area."

"I doubt the court will break new ground," he says. "It will follow some form of the old Lemon test, asking whether the purpose or effect of the Ten-Commandment displays is to advance religion or a secular goal. Context will matter."

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