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Bellarmine Law Society Review

Volume XIII | Issue II Article II

Establishment Along the Borderline: Supreme Court Jurisprudence on Ten
Commandments Displays

Joshua Darrish
University of California, Santa Barbara, jdarrish@umail.ucsb.edu



ESTABLISHMENT ALONG THE BORDERLINE: SUPREME COURT

JURISPRUDENCE ON TEN COMMANDMENTS DISPLAYS

JOSHUA DARRISH 1

Abstract: Throughout the 20th and subsequent centuries, the United States
Supreme Court has debated the First Amendment's regulations on religious
establishment. Particularly, the belief in the "separation between church and state"
has become a bedrock constitutional value for some, while for others, it has been
rejected for a more accommodationist approach to religion and government
intermingling. In 2005, the debate over the legality of religious establishment
became further muddied through McCreary County v. ACLU and Van Orden v.
Perry. Both cases revolved around whether a state institution would be allowed to
display the Ten Commandments on its property: for the former, in a Kentucky
courthouse; for the latter, the Texas state capitol. McCreary ruled the display
unconstitutional, yet Van Orden decreed otherwise. These decisions created
incongruity in the Supreme Court's line of reasoning, worsening the divide
between separationist and accommodationist interpretations of the Bill of Rights.
However, by situating these cases in a chronology of similarly back-and-forth
decisions on the establishment, it becomes clear that the Supreme Court has
purposefully adopted a vague interpretation of the Establishment Clause. Doing
so ensures that separation of church and state remains a viable ideal and realistic
to popular American Christian sentiment. I craft my argument using Justice
Stephen Breyer's employment of a "borderline" to which the Court must adhere.
Along it, there is a critical respect for Judeo-Christian values that underscore the
American social fabric that the Bench must not uproot. Meanwhile, the 2005
cases place barriers on allowing religious imagery on public grounds by forcing
governments to seriously weigh legal consequences, wherein overt attempts to
establish a religion can be entirely struck down. Thus, I argue that the
Establishment Clause must be kept in vague language that neither entirely
codifies separationism nor accommodationism for the sake of lasting societal
cohesion. McCreary and Van Orden necessarily came to opposing conclusions on
the Ten Commandments displays' constitutionality to enshrine the Establishment
Clause as a truly secular guide.

1 Joshua Darrish is a third-year undergraduate student at the University of California, Santa Barbara (UCSB). He is
pursuing a B.A. in history with a focus on the United States. He has a particular interest in the Early Republic,
comparing and contrasting the Constitution from the time of its writing to its application today, especially in the
realm of privacy rights and civil liberties. Beyond his passion for constitutional analysis, Joshua is an avid rower,
reader, squash player, and a lover of classic rock music.

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In his 1952 Zorach v. Clauson majority opinion, Justice William Douglas declared, “we

are a religious people whose institutions presuppose a Supreme Being.”2 The Supreme Court of

the United States has attempted to marry the foundational Protestant religiosity of the American

people with First Amendment restrictions on establishment. Specifically, Ten Commandments

case law has struck at the legality of government-sponsored religious iconography. McCreary

County v. ACLU (2005) and Van Orden v. Perry (2005) saw the overturning of Kentucky

courthouse Ten Commandments displays and the approval of another at the Texas State Capitol,

respectively, seemingly creating incongruity. The opinions, however, reveal a line of

constitutional reasoning that protects a separationist approach with the necessary flexibility. The

outcomes prevent national division that the very spirit of the Establishment Clause implies.

McCreary and Van Orden do not reach the same conclusion on the Ten Commandments displays’

constitutionality by design. Together, they follow the Establishment Clause precedent that

reasonably delineates a necessary but situational relationship between religion and government

derived from national tradition and political harmony.

McCreary v. ACLU sparked a constitutional challenge to a King James’ Bible Ten

Commandments display alongside an Exodus passage in the McCreary County, Kentucky

courthouse. Since its creation, the American Civil Liberties Union of Kentucky has held a strict

separationist view of the Establishment Clause. Thus, the Ten Commandments display being

“‘readily visible to…county citizens who use the courthouse to conduct their civic business, to

obtain or renew driver’s licenses and permits, to register cars, to pay local taxes, and to register to

vote’” came as a flagrant violation.3 McCreary County argued that the Ten Commandments

served a secular purpose as the basis for Kentucky law. Two other subsequent displays were

added to better adhere to secular principles and to avoid a federal district court ruling. The

second display included “eight other foundational documents, including the Declaration of

Independence.”4 However, the apparent religious passages continued to make McCreary County’s

4Schaps, Mike, “Vagueness as a Virtue: Why the Supreme Court Decided the Ten Commandments Cases Inexactly
Right,” California Law Review, Inc. 94, no. 4 (July 2006): 1243–69, https://doi.org/10.2307/20439063, 1255.

3 Dunman, L. Joe, “Religion in the Law: An Open Access Casebook (1st Ed.),” SSRN Electronic Journal, August 20,
2021, https://doi.org/10.2139/ssrn.3903347, 194-195.

2 Douglas, William O, “Zorach et al. v. Clauson et al,” Legal Information Institute, n.d.
https://www.law.cornell.edu/supremecourt/text/343/306.

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https://doi.org/10.2307/20439063
https://doi.org/10.2139/ssrn.3903347
https://www.law.cornell.edu/supremecourt/text/343/306


secular claims suspicious. The final attempt included documents of equal physical size to the Ten

Commandments display, such as the Magna Carta, Mayflower Compact, and the Kentucky

Constitution’s Preamble; in spite of this, the ACLU continued its pursuit, leading to the United

States Supreme Court’s involvement. Primarily utilizing the Lemon test, a three-pronged

assessment to determine if a religious establishment has occurred, Justice David Souter

maintained that “the secular purpose required has to be genuine, not a sham, and not merely

secondary to a religious objective.”5 The majority concluded that the display violated the

Establishment Clause for having an unavoidable religious agenda that no later secular additions

could obfuscate.

In a contrasting outcome, a majority ruled the Ten Commandments displayed in Van

Orden v. Perry constitutional. Petitioner Thomas Van Orden filed a suit against the Texas

government for placing a Ten Commandments display on the State Capitol Grounds. This exhibit

was privately donated by the Fraternal Order of the Eagles of Texas to spread their

anti-delinquency message and engraved with “two Stars of David and the superimposed Greek

letters Chi and Rho, which represent Christ.”6 Van Orden argued that his First Amendment right

had been violated due to a religious expression on the public grounds he frequented. Moving

away from the Lemon test as a definitive marker of constitutionality, the Court aligned with Chief

Justice William Rehnquist’s accommodationist view of the Establishment Clause. Though often

“the Rehnquist Court did not go nearly as far as Rehnquist would have liked in changing the law

regarding the Establishment Clause,” Van Perry v. Orden successfully upheld a religious and

governmental relationship.7 One of the primary objectives of Chief Justice Rehnquist was

relaxing the Establishment Clause’s restrictions.8Despite Van Orden identifying a religious image

on state property, it held a passive and historically relevant position that could not be construed

as coercive. Its non-imposing nature gained credence as the display had been in place for 40

years without challenge, whereas in McCreary, the displays were newly placed. Justice Breyer

agreed the lack of legal battles over four decades “suggest more strongly than any set of

8 Chemerinsky, “Assessing Chief Justice William Rehnquist,” 1343.

7 Chemerinsky, Erwin, “Assessing Chief Justice William Rehnquist,” University of Pennsylvania Law Review 154,
no. 6 (2006): 1331-64, https://doi.org/10.2307/40041341, 1354.

6 Dunman, “Religion in the Law,” 205.

5 Dunman, “Religion in the Law,” 197.

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https://doi.org/10.2307/40041341


formulaic tests that few individuals…are likely to have understood the monument as

amounting…to a government effort to favor a particular religious sect…”9 Conforming to the

Rehnquist position against strict separation, the plurality rejected Van Orden. In combination

with McCreary’s focus on a display’s intent regarding time, Van Orden made the constitutionality

of public Ten Commandments scenes dependent on physical, situational context.

Legal precedent for religious display cases oscillates between separation and

accommodation, justifying the opposing decisions from McCreary and Van Orden. The Court

relied on Stone v. Graham (1980) to uphold the Ten Commandments exhibition display in Van

Orden. Chief Justice Rehnquist placed importance on the setting of the display in determining

how intrusive it is on onlookers. He writes that “the placement of the Ten Commandments

monument on the Texas State Capitol grounds is a far more passive use of those texts than was

the case in Stone, where the text confronted elementary school students every day.”10 Stone

focused on a Ten Commandments display in elementary schools that created a coercive

environment for impressionable students. Meanwhile, in Van Orden, the mere existence of the

Ten Commandments in the open space of the Texas State Capitol did not comparably pressure

onlookers. Conversely, the displays in Kentucky courthouses in McCreary were required “[to] be

posted in ‘a very high traffic area’…”11 Kentucky eventually created an exhibit with a more

secular title and theme of “The Foundations of American Law and Government,” but Justice

Souter was not convinced that the secular purpose of the display outweighed the clearly religious

intent. He deferred to the reasonable observer who would have had a memory of the original

display’s sole focus on Judeo-Christian passages.12 Thus, the framing, both in a physical and a

temporal sense, of the displays played a significant role in the Supreme Court’s contrasting

decisions in 2005.

Lynch v. Donnelly preceded Graham in 1984, now approving the public display of a

crèche during the holiday season in Pawtucket, Rhode Island. Accepting religious involvement as

inextricably linked to the American national identity and civil life, Pawtucket “has principally

12Dunman, “Religion in the Law,” 197.

11Dunman, “Religion in the Law,” 194.

10 Dunman, “Religion in the Law,” 207.

9 Dunman, “Religion in the Law,” 209.

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taken note of a significant historical religious event long celebrated in the Western World.”13 By

placing the crèche alongside secular objects such as reindeer and Santa’s house, the crèche

integrated into the widely celebrated holiday tradition. Combined with other historic Christian

invocations, such as “congressional and executive recognition of the origins of Christmas, or the

exhibition of religious paintings in governmentally supported museums,” the Court could not

have realistically singled out the crèche.14 If violative, government buildings across the United

States would be unreasonably scrutinized for containing religious images deemed essential to the

foundational values of the nation, like the Supreme Court, Capitol, and Library of Congress’s

Jefferson Building. In Van Orden, Chief Justice Rehnquist makes further reference to the Ten

Commandments as a source of American values. He asserts that “since 1935, Moses has stood,

holding two tablets that reveal portions of the Ten Commandments written in Hebrew” in the

Supreme Court building.15 While religious in nature, the Ten Commandments fundamentally

shaped Western law and, thus, American law, giving them civic value. Following the reasoning

from Lynch, Van Orden ensures that the Establishment Clause respects the core religious identity

of the United States, as “simply having religious content or promoting a message consistent with

a religious doctrine does not run afoul of the Establishment Clause.”16 The 2005 decision keeps

with the 1984 Court to preserve the national spirit.

Placing McCreary and Van Orden in the chronology of other display case law unravels

their contradictory appearance. The 2005 decisions present the back-and-forth precedent as

“borderline cases.”17 Justice Stephen Breyer applies the “borderline cases” reasoning in his Van

Orden concurrence. Establishment Clause vagueness mitigates attempts at serious religious

encroachment. Before McCreary, “government actors inclined to erect a display of dubious

constitutionality had little reason for refrain” because “at worst they might be sued.”18 After the

decision, if a government attempts to place a display and hopes to eventually gain governmental

approval by gradually secularizing the piece, “government actors stand to lose all by violating the

18 Schaps, “Vagueness as a Virtue,” 1265.

17Dunman, “Religion in the Law,” 208.

16 Dunman, “Religion in the Law,” 207.

15Dunman, “Religion in the Law,” 206.

14 Burger, “Dennis Lynch, Etc., et al., Petitioners v. Daniel Donnelly et al.”

13 Burger, Warren E, “Dennis Lynch, Etc., et al., Petitioners v. Daniel Donnelly et al,” Legal Information Institute,
n.d, https://www.law.cornell.edu/supremecourt/text/465/668.

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https://www.law.cornell.edu/supremecourt/text/465/668


Establishment Clause in the first instance.”19 The Kentucky counties attempted to retain a Ten

Commandments display by slowly conforming to judicial approval. However, the vague case law

between McCreary and Van Orden effectively forces the state or local government to weigh the

potentially heavy legal implications of installing the display. The Supreme Court noted that the

religious primary legislative purpose of the McCreary display had always existed since its first

rendition, only being insincerely softened to fit Establishment Clause parameters. To the benefit

of separationists, there is a higher chance for a display to be completely removed by avoiding a

universal constitutional standard that local governments could work around much in the way

McCreary County attempted.

Justice Breyer’s concurrence in Van Orden further advanced the necessary vagueness of

the Establishment Clause in religious display cases because he departed from the Lemon test. He

writes, “the removal of longstanding depictions of the Ten Commandments from public buildings

across the Nation…create the very kind of religiously based divisiveness that the Establishment

Clause seeks to avoid.”20 He emphasized the responsibility vested in the justices to uphold social

order that removing religious images central to the nation’s heritage would undermine. The

reasoning follows Lynch by recognizing the cohesive role that religion plays. By making the

Establishment Clause universally antagonistic toward the Ten Commandments, Justice Breyer

argues that “religious divisions…recognized in Van Orden, number among the most dangerous

risks to Americans’ sense of themselves as coparticipants in a venture shaped by a common

heritage and shared ideals.”21 An Establishment Clause that restricts all

governmentally-sponsored religious symbolism turns the judicial system against the spirit of the

nation. The Supreme Court has a duty to preserve religious guardrails that separate church from

state. Yet, the McCreary and Van Orden rulings also underscored necessary flexibility that does

not charge the government strictly against the religious beliefs of the American people: in 2014,

over 70% of Americans had no objections to public Ten Commandments displays.22 Justice

22 Klarman, Michael J, “Judicial Statesmanship: Justice Breyer’s Concurring Opinion in ‘Van Orden v. Perry,’” The
Harvard Law Review Association 128, no. 1 (November 2014): 452–56, https://www.jstor.org/stable/24643935, 456.

21 Fallon, Jr., Richard H, “A Salute to Justice Breyer’s Concurring Opinion in ‘Van Order v. Perry,’” The Harvard
Law Review Association 128, no. 1 (November 2014): 429–33, http://www.jstor.org/stable/24643933, 433.

20 Dunman, “Religion in the Law,” 209.

19 Schaps, “Vagueness as a Virtue,” 1266.

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https://www.jstor.org/stable/24643935
http://www.jstor.org/stable/24643933


Breyer’s concurrence hoped to prevent the judiciary from alienating the majority of Americans

from their own political institutions.

Justice Breyer’s concurrence also leverages vagueness to mitigate the Supreme Court’s

more radical voices as well. Justice John Paul Stevens dissented in Van Orden, pushing for a

strict separationist interpretation of the Establishment Clause: the Ten Commandments, as a

“Judeo-Christian message of piety would have the tendency to make nonmonotheists and

nonbelievers feel like outsiders in matters of faith, and strangers in the political community.”23 To

him, the display made religious morality paramount to the Fraternal Order of the Eagles of

Texas’ anti-delinquency efforts, with the state sponsoring the effort. Opposingly, in McCreary,

Justice Scalia believes that the Establishment Clause legally discriminates against polytheists and

non-believers, with Judeo-Christian monotheism given a protected status emanating from the

nation’s Protestant origins.24 The concurrence uplifts the moderate voice in the judiciary as a

vehicle for civil discourse on religion’s role in the American people’s lives. The Court appears

split between strict separationism and loose accommodation, with Breyer searching for a

compromise between both.

Hence, Justice Breyer emphasizes the “borderline” in the Ten Commandments cases to

practice a rational Establishment Clause. By over-enforcing strict separationism, expansive

removal of the Ten Commandments and other images would become “fodder for political

ads…The inevitable political backlash would make it more likely that future presidents and

senators, and the future Supreme Court justices they nominate and confirm, would be hostile” to

church-state neutrality.25 By generating hostility toward all Ten Commandments displays, the

separationist justices work contrary to their vision. Their decisions do not exist in a political

vacuum. Popular backlash leads to politicians who take advantage of the electorate’s anger; then,

the Supreme Court is downstream, being appointed and confirmed by those elected leaders.

Justice Breyer recognizes that separationism can only persevere in the long term through

selective permission of religious displays rather than complete removal in a more uniform

jurisprudential manner. Historically, such aggression toward religious involvement in public life

25 Schaps, “Vagueness as a Virtue,” 1264.

24 Dunman, L. Joe, “Religion in the Law,” 202-203.

23 Dunman, “Religion in the Law,” 211.

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has “contributed significantly to the reemergence of religious fundamentalists in American

politics and the rise of the Religious Right,” consequent of the proliferation of strict separationist

rulings in the 1960s that 70 to 80% of Americans still oppose.26Even a liberal justice like Breyer

recognized the profoundly political and popular role Judeo-Christian images play in the United

States. He also appears to signal to liberal voters who may have felt betrayed by his decision to

support the display’s constitutionality by suggesting that it is for their electoral benefit in the long

term. To prevent the heavy incursion of religion on government that Justice Scalia endorsed,

concessions need to be made that give leeway to the Ten Commandments’ legality based on

temporal and physical setting, not the display itself.

McCreary v. ACLU and Van Orden v. Perry represent the Court’s historic balancing of

religious interests intrinsic to national identity with that of government neutrality. While the

cases come to independent conclusions on the constitutionality of Ten Commandments displays,

when placed together in precedent, they outline a deliberately vague and flexible interpretation of

the Establishment Clause. As expressed through Justice Breyer’s swing vote, the survival of

separationism rests on its ability to accept religion’s integrated role in American life. No test,

whether under Lemon standards, endorsement, or coercion, properly determines the role of the

Ten Commandments in civil affairs. The “borderline” allows for context to be the scrutable issue

instead of the Commandments themselves. McCreary and Van Orden necessitate each other to

define an Establishment Clause respectful of American tradition while avoiding social upheaval

that could threaten democratic processes.

26 Klarman, “Judicial Statesmanship,” 456.

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