Perspectives: ‘Commandments’ case recalls monumental issues here

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“The Ten Commandments … are the charter and guide of human liberty, for there can be no liberty without the law.”
Famed movie director Cecil B. DeMille

“We’ve staked our future on our ability to follow the Ten Commandments with all our heart.”
Constitutional founder and President James Madison

“I have wondered at times what the Ten Commandments would have looked like had Moses run them through the U.S. Congress.”
President Ronald Regan

The high-profile litigation brought barely a month ago through the American Civil Liberties Union, Roake v. Brumley, Case No. 3-24-CV-00517-JWD/SDJ (M.D. La. June 24, 2024) challenging Louisiana’s enactment in mid-June of a measure requiring that the Ten Commandments be posted in all public school classrooms lies at the intersection of precedent and the inclinations of the super-majority conservative wing of the U.S. Supreme Court. When that collision occurs, precedent has faltered lately.

While prior case law, including a pair of high court decisions from Kentucky, would seem to doom the Louisiana measure, a number of recent rulings of the high court may presage a more hospitable outcome in the lower federal courts where the case will proceed and possibly, reach the justices in the nation’s capital.

Legal developments in Minnesota on the Iron Range and in Duluth have addressed similar issues regarding the propriety of placing the Ten Commandments in public forums, colliding with the Freedom of Religion and Establishment clauses of the First Amendment to the U.S. Constitution.

The Louisiana case, which is on pause until at least November, provides an opportune occasion to examine those features of jurisprudence and how they have been applied here in Minnesota.

Commandment cases

The issue of the Ten Commandments on public premises has been subject of numerous cases over the years, including three major rulings of the U.S. Supreme Court.

The first one, Stone v. Graham, 449 U.S. 39 (1980) was a narrow 5-4 per curiam decision, which reflected the volatility of the topic. The case concerned a Kentucky law that required placement of Ten Commandment replicas in public school classrooms, which the court deemed to be an impermissible violation of the First Amendment. The court reached a similar outcome 25 years later in McCreary County v. ACLU of Kentucky, 545 U.S. 844 (2005), one of a pair of consolidated Ten Commandment cases decided by the court during that term.

That case involved framed window panels depicting the Ten Commandments in a courthouse, which have intermingled with drawings of other secular documents. The high court, in another 5-4 decision, held that the placement was unconstitutional because of its “religious” motivation.

But, on the same day, in another narrow 5-4 decision, the court upheld the placement of the Ten Commandments in a public park in Austin, Texas, in Van Orden v. Perry, 545 U.S. 627 (2005). It reasoned that the tablet placed there was not of religious nature, since it was among the 17 other monuments and 21 historical documents depicted in that public forum, which belied any impermissible religious-based “motivation.”

The 8th Circuit has had its share of these cases, decided under the rubric of Lemon v. Kurtzman, 43 U.S. 602 (1971), which established the three-part standard for adjudicating religious Establishment Clause claims: whether the measure in practice has a “secular” or religious purpose; whether it advances religion; and whether adjudication would engage the court to become engaged in “excessive entanglement” with religious doctrine.

In ACLU Nebraska Foundation v. City of Plattsmouth, 358 F.3d 1020 (8th Cir. 2004), the court, in a 2-1 panel decision, held that a 5-foot-tall, city-owned granite monument at a public park, bearing the inscription of the Ten Commandments constituted a violation of the First Amendment. Rather than an Establishment Clause claim, the lawsuit was brought by a self-professed atheist, who alleged that the marker violated his First Amendment right of freedom of religion, which the 8th Circuit characterized as that “judicially cognizable injury” due to the claimant’s “direct personal offensive contact with the landmark.”

While recognizing that the display had a “philanthropic” purpose, the court said it transgressed the First Amendment standards for separation of church and state, as set forth in the Lemon standard. The 8th Circuit deemed it impermissible because the fixture has an “undeniably religious purpose” and its “primary effect” is religious because it constitutes an “attempt by [the city] to steer its citizens in the direction of main stream Judeo-Christian religion.” The combined religious purpose and effect were not salvaged by any “unambiguous and unbroken historical basis for displaying the Ten Commandments in public parks in that community.”

A dissent opined that a “reasonable observer” would not view the city’s acceptance of the monument from a nonprofit organization as constituting an endorsement of religion attributable to the city.

The constitutional collision stemming from the new Louisiana law is not as easy to resolve as precedent would suggest. Although the legislative record underlying the enactment, known as H.B. 71, reflecting a strong religious motivation to the measure, the U.S. Supreme Court has been very indulgent in recent years to religious practice and beliefs, as it backs away from its prior case law.

A number of rulings of the court under the leadership of Chief Justice John Roberts, has given much greater injunctive relief to claimants, highlighted by the decision in Kennedy v. Bremerton School District, 597 U.S. 507 (2022), upheld the right of a public school football coach to gather his players on the 50-yard line of the field after a game and lead them in prayers, a practice that the court, by a 6-3 margin, deemed permissible under the Freedom of Religion Clause of the First Amendment.

In doing so, the court disregarded the standard it developed more than a half-century ago in the Lemon case, a doctrine that stood for more than five decades, although many justices soured on it over the years. Their unease was reflected in the tart concurring observation by Justice Anton Scalia, bemoaning that the precept continues to arise, like some “ghoul in a late night horror movie that repeatedly sits up in its groove and shuffles abroad, after being repeatedly killed and buried.” Lamb’s Chapel v. Center Moriches Union Free School District, 508 U.S. 384, 398-99 (1993).

The praying Kennedy football coach case may have driven a stake through the heart of Lemon once and for all, much to the satisfaction of other jurists, who, like Justice Scalia, have chafed over it for years.

But the U.S. District Court in North Dakota came to a different conclusion in a case involving a Ten Commandments marker placed outside a mall across the street from city hall in Trombley v. City of Fargo, Civ. No. 02-CV-137 (D.N.D. Nov. 27, 2002). The challengers relied upon the Plattsmouth case in seeking to remove the marker.

U.S. District Court Judge Ralph Erickson, later elevated to the 8th Circuit, departed from that case and dismissed the lawsuit on grounds that the public mall in downtown Fargo where the monument is placed differs from a municipal park in the Nebraska case.

Duluth denouement

The Fargo lawsuit was going through the judicial system there at about the same time a similar case arose in Duluth, which centered on a 6-foot by 3-foot massive granite monument on the lawn of the city hall, part of a complex of local county and federal offices in downtown Duluth since 1957.

A lawsuit, Minnesota Civil Liberties Union v. City of Duluth, Civ. No. 01-079-JM-RLE (D. Minn. 2004), challenged the maintenance on public grounds of the monument, whose existence was attributable to a Minnesota jurist, E.J. Ruegemer, who conceived of the project in the mid-1950s as a means of stemming juvenile delinquency. He enlisted a fraternal order of the Elks, a philanthropic civil organization, which financed and donated scores of monuments to communities throughout the country, including several in Minnesota cities, such as Brainerd, Faribault, and Albert Lea, among others.

The project was supported by Hollywood movie mogul Cecil B. DeMille, who at the time was promoting his blockbuster 1957 movie, “The Ten Commandments,” which won numerous nominations for Academy Awards, including as best picture, but received only one statue for best special effects and is now a staple on television at the Easter and Passover seasons.

Shortly after the lawsuit was filed, the Duluth City Council, by a narrow vote, agreed to dismantle the monument rather than mount a fight to preserve it, and it was removed to private property in the Canal Park area, were it still stands.

Itasca issue

But the issue regarding the Ten Commandments did not go away, reflected on the events this spring in Itasca County, on the Iron Range, where a new $75 million jail and law enforcement center has been built in Grand Rapids. To the consternation of a number of observers, the wall of the jail portion contained large inscription of the Ten Commandments, mixed in with other religious quotes throughout the building.

Complaints about the proper religiosity were directed to the county sheriff, Joe Daskovich, who also received some supporting views from among the 45,000 residents of the county.

The county, however, decided to do paint over the lettering a couple of months after the building opened, satisfying the critics, but saddening some of the supporters of the lettering.

The upshot of this case is “Thou shalt not violate the Final Amendment.” But that admonition begs the question: What is a violation? The Louisiana case may provide the contemporary answer to the age-old question.

PERSPECTIVES POINTERS 

Other high court religious freedom rulings

Carson v. Makin (2022): Public financing of school tuition for students in sparsely populated rural areas upheld.

Shurtleff v. City of Boston (2022 ): Religious flag of Christian group required to be flown in public square because other banners are allowed there, too.

Ramirez v. Collier (2022): Condemned murderer allowed to be accompanied by clergy in execution chamber.

Espinoza v. Montana Dept. of Revenue (2000): State required to provide scholarship funds to students at religious schools when similar funding given to non-religious private school students.

Trinity Lutheran Church v. Comer (2017): Public funding allowed for parochial school playground improvement.

Marshall H. Tanick is an attorney with the Twin Cities law firm of Meyer Njus Tanick.

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