Yesterday evening, we began the thorough process of analyzing the opinions in the Supreme Court’s Ten Commandments cases.  Between the case in Kentucky and the case in Texas, the Justices issued eight opinions.  What is very significant is that there was considerable debate and discussion about the role of the Ten Commandments and its development on law in the United States.  Even Justice Stevens’ noted on Page 6 of his opinion in the Texas case that “this Court has subscribed to the view that the Ten Commandments influenced the development of Western legal thought.”  He went on to state that the Court had not “officially endorsed the far more specific claim that the Ten Commandments played a significant role in the development of our Nation’s foundational documents.”  What is important in this context is that Justice Stevens then went on to say with regard to the issue of the role of the Ten Commandments in the development of our Nation’s foundational documents that “at the very least, the question is a matter of intense scholarly debate.  Compare Brief for Legal Historians and Law Scholars as Amicus Curiae in McCreary County v. American Civil Liberties Union of Ky. with Brief for American Center for Law and Justice as Amicus Curiae.”  Any time a Supreme Court Justice quotes and references a brief that is filed in a case, it is very significant.  It is even more so in a case like this that we were able to establish through “intense scholarly debate” that, in fact, the Ten Commandments, in our view, did play a significant role in the development of our Nation’s foundational documents.

The decision by the Supreme Court in the Texas case upholding the constitutionality of the public display of the Ten Commandments clears the way for thousands of monuments like the one put in place outside the Texas capitol by the Fraternal Order of Eagles to remain in place across the country.  At the same time, the Court’s decision declaring the display unconstitutional in the Kentucky case will create additional confusion in this area of the law.

It is very encouraging that the Supreme Court understands the historical and legal significance of displaying the Ten Commandments and moved to protect thousands of monuments now in place across America. The fact that the Commandments hold a religious meaning for many does not render them unconstitutional.  The Texas decision recognizes the fact that the Commandments have played a vital role in the development of Western law and represents an integral part of the legal underpinnings of our system.  Unfortunately, the Court’s decision in the Kentucky case is likely to create more questions and confusion in this area of church/state law.  The Supreme Court has long acknowledged that when religion and culture intersect, there are traditions and practices that are appropriate.  That principle was reinforced with the Court’s decision in the Texas case.

We filed amicus briefs in both the Texas and Kentucky cases; and the brief in the Texas case was co-authored by Harold J. Berman, the Robert W. Woodruff Professor of Law at Emory University.  Berman is also the James Barr Ames Professor of Law, emeritus, at Harvard University where he taught from 1948 to 1985 and again in 1986 and 1989. 

We are involved in numerous Ten Commandments cases nationwide and have two pending before the Supreme Court--a case involving a display outside public high schools in Adams County, Ohio and a case involving the display of a framed poster of the Commandments in the courtroom of a state judge in Ohio.

We have prepared a memorandum regarding some of the key quotes and statements from the Ten Commandments opinions that we think are significant.  There will be more information coming in the next few days.