Last updated on: 2/15/2013 11:00:17 AM PST
Do Religious Displays on Public Property Violate the Constitution?
The ACLU wrote in "The ACLU and Freedom of Religion and Belief," available at www.aclu.org (accessed Feb. 15, 2013):
"Some people, however, mistakenly use the word 'public' when they really mean 'governmental.' This can be seen, for example, with Ten Commandments monuments. The right of churches and families to erect such monuments on their own property is constitutionally protected, regardless of whether it is public or private and regardless of whether someone is offended or not. A Christian cross that is fully visible from a public sidewalk is constitutionally protected when placed in front of a church. But if that same cross were moved across the street and placed in front of city hall, it would violate the Constitution. The issue is not 'religion in the public square'--as the rhetoric misleadingly suggests--but whether the government should be deciding whose sacred texts and symbols should be placed on government property and whose should be rejected."
Feb. 15, 2013 - American Civil Liberties Union (ACLU)
The Anti-Defamation League wrote in the "The Ten Commandments Controversy: A First Amendment Perspective," available at www.adl.org (accessed Feb. 15, 2013):
"The Anti-Defamation League believes that the increasing call by private citizens and public officials for the government to post the Ten Commandments in schools, government buildings, courts and other public places--while often well-intentioned--is bad policy and often unconstitutional. Governmental posting of the Ten Commandments can lead to the kind of religious divisions within otherwise harmonious communities that our founding fathers sought to avoid by constitutionally mandating the separation of church and state...
By adhering to the principle and spirit of separation of church and state we best fulfill the Constitution's legacy of religious liberty for all Americans."
Feb. 15, 2013 - Anti-Defamation League (ADL)
Robert A. Sedler, JD, Professor of Law at Wayne State University, wrote in his 2010 article "The Constitutional Protection of Religious Liberty in the United States," available at the Forum On Public Policy website:
"The display of a Christian religious symbol such as a Nativity Scene on a city hall front lawn has been held to violate the Establishment Clause on the ground that the display sends a message to non-Christians that their beliefs are not favored in that political community and that they are not full members of that community.
The underlying theory of the Establishment Clause then is that prohibiting the government from taking actions to advance or inhibit religion will serve to protect the religious liberty of all persons, and particularly the liberty of religious minorities. I think that this point is often not fully understood by religious believers, who may see such restrictions as demonstrating hostility to religion. Again it is not hostility to religion, but a structural concern for religious liberty in the United States that prohibits the government from using its power or its funds in any way to advance or inhibit religion. At least this is the theory of our Constitution."
2010 - Robert A. Sedler, JD
John Paul Stevens, JD, former Supreme Court Justice, wrote in his June 27, 2005 dissent to the opinion in Thomas Van Orden v. Rick Perry, available at the Cornell Law School website:
"Viewed on its face, Texas' display [a Ten Commandments monument] has no purported connection to God's role in the formation of Texas or the founding of our Nation; nor does it provide the reasonable observer with any basis to guess that it was erected to honor any individual or organization. The message transmitted by Texas' chosen display is quite plain: This State endorses the divine code of the 'Judeo-Christian' God…
In my judgment, at the very least, the Establishment Clause has created a strong presumption against the display of religious symbols on public property."
June 27, 2005 - John Paul Stevens, JD
The Baptist Joint Committee for Religious Liberty and the Interfaith Alliance stated the following in an Aug. 3, 2009 friend-of-the-court brief filed on behalf of Frank Buono in the Supreme Court case Ken L. Salazar, Secretary of the Interior, et al. v Frank Buono, available at the Baptist Joint Committee's website:
"When government displays a religious symbol without note or comment, it endorses and supports the religious traditions to which the symbol is sacred. In trying to justify by explaining the significance of the religious symbol, government takes sides in any controversies about the meaning and significance of the religious symbol - an endorsement of religion that the Constitution prohibits. Because government can display religious symbols only if it claims a secular purpose and effect, the tendency of its explanation is always to distort and desacralize the religious symbol. The inevitable effect is that government supports only the religion of those who agree with both the meaning of the symbol and the government's secularized explanation of the symbol. Government puts itself in competition with the religion of all other Americans. The Constitution excludes government from such religious competition - for the protection of believers and nonbelievers alike."
Aug. 3, 2009 - Baptist Joint Committee for Religious Liberty (BJC)
Philip Paulson, a US military veteran who sued the City of San Diego to remove a veterans' memorial displaying a cross, said the following in an interview with the San Diego Union-Tribune, titled "Chief Opponent of Mount Soledad Cross," published Oct. 26, 2006, available at the San Diego Union Tribune website:
"I fought in Vietnam and I thought I fought to maintain freedom and yet the cross savers in this city would have us believe all of the veterans' sacrifices are in vain, that the Constitution is something to be spit on…
The real message is equal treatment under the law, and religious neutrality. That's the purpose of why I did it. It has nothing to do with me being an atheist. The fact is, the Constitution calls for no preference and that's why every judge ruled for me."
Oct. 26, 2006 - Philip Paulson, MS
Alliance Defending Freedom, a legal ministry, wrote the following in "Seasonal Religious Expression," available at its website (accessed Feb. 15, 2013):
"In recent years, misconceptions about the legalities of the celebration of Christmas have led government officials to remove Christ from Christmas in public places such as schools, parks, libraries, and government offices...
These efforts to suppress Christmas celebrations demonstrate that many public officials mistakenly believe that allowing seasonal religious expression would violate the so-called 'separation of church and state' – a doctrine often cited in connection with the Establishment Clause of the First Amendment. As a result, public officials across our nation have denied citizens their constitutional rights of religious speech and expression under the guise that it is unconstitutional…
[I]t is important to realize that the Constitution does not 'require complete separation of church and state.' The Establishment Clause of the First Amendment merely requires the state be neutral in its relations with religious believers and non-believers; it does not require the state to be their adversary."
Feb. 15, 2013 - Alliance Defending Freedom
Anthony M. Kennedy, LLB, Justice of the US Supreme Court, wrote in his Apr. 28, 2010 opinion on Salazar, Secretary of the Interior et al. v. Buono, available at the Cornell Law School website:
"The goal of avoiding governmental endorsement does not require eradication of all religious symbols in the public realm. A cross by the side of a public highway marking, for instance, the place where a state trooper perished need not be taken as a statement of governmental support for sectarian beliefs. The Constitution does not oblige government to avoid any public acknowledgment of religion's role in society... Rather, it leaves room to accommodate divergent values within a constitutionally permissible framework."
Apr. 28, 2010 - Anthony M. Kennedy, LLB
Paul D. Clement, Acting Solicitor General, stated the following in a Dec. 2004 friend-of-the-court brief filed on behalf of McCreary County in the Supreme Court case McCreary County, Kentucky, et al., v. American Civil Liberties Union of Kentucky, et al., available at the U.S. Department of Justice website:
"As this Court has repeatedly recognized, the political and legal history of the United States is infused with religious influences, and the Establishment Clause does not require government to ignore or minimize that reality. Governmental commemorations of history, heritage, and culture properly need not exclude references to religious influences. To hold, as the court of appeals did here, that any acknowledgment of religious history must be accompanied by elaborate disclaimers or explanations bespeaks a fundamental hostility to or suspicion of religion that has no place in Establishment Clause jurisprudence."
Dec. 2004 - Paul D. Clement, JD
Matthew D. Staver, JD, Founder and Chairman of the Liberty Counsel, wrote the following information in his 2003 article titled "Don't Let the Grinch Steal This Christmas," and published on his organization's website, www.lc.org:
"A publicly sponsored nativity scene or Christmas pageant is constitutional so long as within the context there are both secular and sacred symbols or messages...
Religious symbols and songs remind us that while we are diverse, we remain one nation under God. Sure it is important to acknowledge God in our private life, but it is critical that we also acknowledge him in our public life.
Our country was founded on Judeo-Christian principles. If we separate these fundamental principles from our civic life, we destroy our government in the process. Our Founding Fathers believed that religion and morality were necessary to our success as a nation...
Religious symbols and music are intricate to our freedoms. They remind us that we are not alone in the universe. There is a God who governs in human affairs, who sets up kings and who can take them down."
2003 - Mathew D. Staver, JD
The Republican National Committee stated in its 2012 Republican platform titled "We Believe in America," available at www.gop.com:
"The first provision of the First Amendment concerns freedom of religion. That guarantee reflected Thomas Jefferson's Virginia Statute for Religious Freedom, which declared that no one should 'suffer on account of his religious opinion or belief, but that all men shall be free to profess, and by argument to maintain, their opinion in matters of religion...' That assurance has never been more needed than it is today, as liberal elites try to drive religious beliefs – and religious believers – out of the public square...
We support the public display of the Ten Commandments as a reflection of our history and of our country's Judeo-Christian heritage… We assert every citizen's right to apply religious values to public policy and the right of faith-based organizations to participate fully in public programs without renouncing their beliefs, removing religious symbols."
2012 - Republican National Committee
Kenyn Cureton, PhD, Vice President for Church Ministries for the Family Research Council, writes in the booklet "The Ten Commandments: Foundation of American Society," available at www.frc.org (accessed Feb. 15, 2013):
"[T]he Founding Fathers and Framers of the First Amendment never intended government to be hostile toward religion. The so-called 'separation of church and state' found in the First Amendment was intended only to preserve the government's neutrality among competing denominations, not between religion and irreligion. The First Amendment was meant to protect the rights of Americans to the free exercise of religion, not to permanently enshrine the government's opposition toward religion or expressions of faith in the public square...
Publicly posting the Commandments can help us recall the voices of the Founders that religion and morality are the twin pillars upholding our freedom, and that a people who are not virtuous will not long remain free."
Feb. 15, 2013 - Kenyn Cureton, PhD