The Associated Press reports, in a Houston Chronicle story this week, that an Oklahoma monument that includes the Ten Commandments has been deemed constitutional (not violative of the First Amendment). Based on the story’s description of the collection of monuments involved in the case, the decision appears to be in line with Van Orden v. Perry and McCreary County v. ACLU from the Supreme Court’s last term.
However the kicker of the story is this paragraph, which offers an incomplete, if not outright false, description of Supreme Court jurisprudence:
The U.S. Supreme Court has ruled that religious displays on government property are not inherently unconstitutional and must be considered on a case-by-case basis.
O.K. Yes, Ten Commandment displays must be considered on a case-by-case basis, just like all other potential violations of the First Amendment’s Establishment Clause. And the criteria have been established since 1971, when in Lemon v. Kurtzman, the Court articulated this test:
1. The government action has a secular purpose.
2. The primary effect neither advances nor hinders religion.
3. The action creates no excessive entanglement between the government and religion.
People can argue that the Lemon test has fallen out of favor over the years, but the court has never overturned it, and it is what lower courts should, and do, apply when faced with Establishment cases.
Which leads to a similar case in Houston last week, in which a judge ruled a 1950s monument that started out with a secular purpose was modified to have a religious purpose when it was altered in 1995.
Here’s another case reported in the Chronicle, which this month is my source of choice for Establishment clause cases.