Stone v. Graham
449 US 39 (Decided November 17, 1980)
This was a per curiam decision, meaning that decision was reached without aid of briefing and oral argument. Four justices dissented, mostly on the ground that the Court refused to grant plenary consideration to the case. At issue was the constitutionality of a 1978 Kentucky statute requiring the posting of a "permanent" copy of the Ten Commandments, 16" X 20", in each public elementary and secondary school classroom in the state. The Court held, applying the first Lemon prong, that the purpose of the enactment was to advance religion and that therefore, even without considering the other two prongs, the statute must fail.
After the KY legislature passed the Act, the state courts upheld its consitutionality, using the Lemon test in arriving at its conclusion. The courts upheld the "purpose prong" of Lemon because of the statute's requirement that the following secular notation be included on the display: "The secular application of the Ten Commandments is clearly seen in its adoption as the fundamental legal code of Western Civilization and the Common Law of the United States."
The US Supreme Court held that, notwithstanding this characterization, the "pre-eminent purpose for posting the Ten Commandments on schoolroom walls is plainly religious in nature." The Ten Commandments not only deal with arguably secular matters, such as murder and adultery, but also plainly consider religious duties such as sole worship of God, avoiding idolatry, honoring the Sabbath and not using the Lord's name in vain. An "avowed" secular purpose for legislation is not enough to surmount the "purpose" hurdle of Lemon. Indeed, the Court cited its 1963 Schempp decision disallowing daily Bible reading and the Lord's prayer in public schools despite the school district's assertion that such practices had secular purposes such as "the promotion of moral values, the contradiction to the materialistic trends of our times, the perpetuation of our institutions and the teaching of literature." The Court concluded that posting of the Ten Commandments would not serve the secular purposes of the study of of comparative religion, history, civilization or ethics.
In a spirited dissent, Justice Rehnquist chided the Court for its summary conclusion that the KY statute had "no secular legislative purpose," by citing both the legislature's and state court's finding of such a secular purpose. He wondered why the Court would have been so solicitous to limn and support secular legislative purpose in Lemon, for example, when they would not do so here. Indeed, the Court in Lemon quickly accepted the facial legislative justification for the Acts--Acts which it found improper under the entanglement prong of the Lemon test.
Justice Rehnquist's dissent thus points to the issue of whether the Supreme Court subjects a statute to its own independent evaluation of whether it has a secular purpose or whether it must or should defer to the state's finding of secularity. In addition, he highlights the issue of what level of secularity vs. sacredness must be found by which body in order to violate the purpose test. Does the statute have to be wholly secular? primarily so? just a small degree secular? By whose finding?
The deeper issue not really considered by this case, because of its comparative brevity, is to what extent and in what manner religious themes, practices or literatures can be presented in public contexts when the First Amendment requires separation of church and state but the traditions of the country in many instances reflect and grew out of religious practices (such as Sunday Blue Laws or tax benefits for churches or property controlled by religious entities). What does it mean, for example, that the "Ten Commandments had a significant impact on the development of secular legal codes of the Western World"? Is it true? How is it to be demonstrated? And what is its legal effect under First Amendment jurisprudence if it can be shown to have had this "significant impact?" But all questions cannot be answered in a case; it was enough for the Court in this instance summarily to declare the KY statute unconstitutional for violating the first prong of the Lemon test.
Copyright © 2004-2007 William R. Long