Thou Shall Not Post the Ten Commandments? McCreary, Van Orden, and the Future of Religious Display Cases
44 Pages Posted: 20 Feb 2007
Abstract
On the last day of its 2004-2005 term, the Supreme Court ruled unconstitutional a pair of Kentucky county courthouse Ten Commandment displays but upheld a Ten Commandments monument on the grounds of the Texas State Capitol. The cases crystallized the deep divisions within the Rehnquist Court regarding the Establishment Clause's fundamental purpose and historical intention. The cases also brought forth significant but unannounced doctrinal developments. After discussing the relevant facts and lower court opinions of McCreary County v. ACLU and Van Orden v. Perry, this Article examines and evaluates the Supreme Court's Ten Commandments decisions, with particular attention given to the Court's use of the Founding Fathers and to the unannounced doctrinal alterations made in Establishment Clause jurisprudence. The Article also speculates as to how the Supreme Court might decide future Ten Commandments cases and other religious display cases in light of the appointments of Chief Justice John Roberts and Justice Samuel Alito to the bench. The future of Establishment Clause jurisprudence, the Article concludes, remains very much unsettled.
Keywords: Establishment Clause, establishment of religion, first amendment, separation of church and state, ten commandments, religion, constitutional law, freedom of religion, religious liberty, originalism, Newdow, Mccreary, Van Orden, church and state
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