The appeal arrived at the U.S. Supreme Court late in the summer of 1980, after more than two years of debate and legal action in Kentucky over a state law that required the display of the Ten Commandments in public school classrooms.
The Kentucky Supreme Court had upheld the law, and the challengers—a Unitarian stay-at-home mom, a rabbi, a public school teacher who was Catholic, and an atheist Republican—were asking the justices to review the case of Stone v. Graham. The Kentucky case is getting fresh attention now that Louisiana, more than four decades later, has adopted a nearly identical law that requires the posting of the Ten Commandments in schools.
The Kentucky decision is providing fuel to the challengers of the new Louisiana law, while papers of the justices provide some fresh insights into how the court handled the earlier case.
“Relist for WJB,” says an Oct. 31 notation on the case’s docket sheet, available in several of the justices’ papers at the Library of Congress. “Relist” meant the court was holding the appeal over for closer consideration at the request of “WJB”—Justice William J. Brennan Jr., the liberal stalwart then in his 25th term on the court.
The justices discussed the case at one of their private conferences in early November, and they tentatively decided to take the somewhat rare step of ruling on the case without a full merits briefing or oral arguments. Such “summary reversals” are rare but are typically issued when the justices believe a lower court ruled so erroneously in conflict with settled precedents that full merits review isn’t necessary to correct the mistake.
Within days of the private conference, Brennan circulated to his colleagues his first draft of a summary reversal in Stone.
“The pre-eminent purpose for posting the Ten Commandments on schoolroom walls is plainly religious in nature,” Brennan said in the Nov. 10 draft. “The Ten Commandments are undeniably a sacred text in the Jewish and Christian faiths, and no legislative recitation of a supposed secular purpose can blind us to that fact.”
Brennan labeled the opinion as a “per curiam”—meaning “by the court” and in the unsigned fashion that is customary for such summary reversals. Per curiam does not mean unanimous, however, and there were four justices who went on record with either procedural or substantive dissents.
“Dear Bill,” then-Associate Justice William H. Rehnquist wrote to Brennan on Nov. 11. “I will be circulating a dissent to your proposed summary reversal in due course.”
Kentucky legislature introduced controversial Ten Commandments bill in 1978
The Ten Commandments bill was introduced in the Kentucky legislature in 1978 by a Democratic representative from Louisville, Claudia Riner, whose husband was a Baptist minister. Her idea was to purchase plaques featuring the Decalogue with private funds and place them in each of the state’s classrooms.
Another Kentucky minister who helped lead the charge in support of the bill, Jack Roberts, told the Louisville Courier-Journal that “there is a moral code that makes this country what it is.”
The statute called for a “durable, permanent copy” of the Ten Commandments “16 inches wide by 20 inches high” to be displayed along with the phrase, “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 law was challenged on state and federal constitutional grounds by the Kentucky Civil Liberties Union on behalf of Sydell Stone, the Unitarian stay-at-home mom; Ann Bowers, an atheist and a Republican precinct captain; Patricia Bricking, the public school teacher who was Catholic; and Martin Perley, a rabbi.
Marvin Coan was a private lawyer in Louisville who worked on the side as general counsel to the state ACLU chapter. He had worked for the U.S. Department of Justice in Washington for several years and used to go to the Supreme Court to watch arguments. He imagined himself appearing before the justices one day.
The challengers’ primary lawyer was William Stone, who was no relation to the lead plaintiff. Coan, now 76, said in an interview that he got involved with helping Stone once the Kentucky Supreme Court upheld the law.
A state trial court had ruled that the “avowed” purpose of the statute was secular. On April 22, 1980, the Kentucky Supreme Court, with one member recused, split 3-3, leaving the lower court decision in place. One state justice who voted to uphold the law wrote in an opinion, “Basically, the Ten Commandments is a code of conduct which just happens to be rooted in Judeo-Christian history. For the state to use these particular ‘rules,’ if you will, to promote moral and legal behavior among its youth seems perfectly acceptable to me.”
A state justice writing for the three who would have struck down the law wrote, “The first three commandments (or four, depending upon the translation selected) are undeniably religious injunctions, proclaiming the supremacy of the Lord God, commanding that no other gods or graven images be had, forbidding the use of the name of God in vain, and enjoining that the Sabbath be kept holy. The remaining commandments exhibit a somewhat more secular thrust. However, they cannot be taken separately. … Consequently, no preference may be given them by law.”
Coan said there was little doubt the challengers would appeal.
“We thought the law was unconstitutional, improper, you name it,” he said. “We knew we had to go to the U.S. Supreme Court.”
Supreme Court struck down Kentucky’s Ten Commandments statute, sparking debate on Establishment Clause precedents
The Supreme Court 1980 docket sheet for Stone v. Graham indicates that seven justices voted to grant review. Besides Brennan, they were Chief Justice Warren E. Burger and Justices Byron R. White, Thurgood Marshall, Harry A. Blackmun, Lewis F. Powell Jr., and John Paul Stevens.
The docket sheet from Stevens’s papers further shows that all but one of those seven—Blackmun—initially voted to reverse the Kentucky high court. Blackmun soon wrote to Brennan to say that he would be dissenting on the narrow grounds that “he would grant certiorari and give this case plenary [full] consideration.”
Burger soon switched his initial vote in favor of reversal and asked that he be added to Blackmun’s short dissenting statement.
Justice Potter Stewart went a little further with his own short dissent, saying that the Kentucky courts “applied wholly correct constitutional criteria in reaching their decisions.”
The justices’ papers do not reveal much substantive back and forth, likely due to the summary handling of the case. Four other justices backed Brennan’s desire to reverse the lower court without full consideration, and the court was ready to move on.
Brennan, in the per curiam opinion, said the Kentucky statute did not pass muster under the Supreme Court’s then-prevailing “Lemon” test for evaluating government support for religion. The test, from the 1971 case of Lemon v. Kurtzman, says that a statute must have a secular legislative purpose; its primary effect must neither advance nor inhibit religion, and it must not foster an excessive government entanglement with religion.
“We conclude that Kentucky’s statute requiring the posting of the Ten Commandments in public school rooms has no secular legislative purpose, and is therefore unconstitutional,” the per curiam opinion in Stone said.
“This is not a case in which the Ten Commandments are integrated into the school curriculum, where the Bible may constitutionally be used in an appropriate study of history, civilization, ethics, comparative religion, or the like,” Brennan said, citing one of the court’s landmark decisions striking down public school prayer, the 1963 case of Abington School District v. Schempp.
“Posting of religious texts on the wall serves no such educational function,” Brennan continued. “If the posted copies of the Ten Commandments are to have any effect at all, it will be to induce the schoolchildren to read, meditate upon, perhaps to venerate and obey, the Commandments. However desirable this might be as a matter of private devotion, it is not a permissible state objective under the Establishment Clause.”
In his dissent, Rehnquist said the majority was issuing a “cavalier summary reversal,” and that the determination of the Kentucky legislature and courts that the Ten Commandments law had a secular purpose deserved more deference.
While Rehnquist suggested he agreed with the majority that the Decalogue was “undeniably a sacred text,” he went on to say that “It is equally undeniable … that the Ten Commandments have had a significant impact on the development of secular legal codes of the Western World.”
“The Establishment Clause does not require that the public sector be insulated from all things which may have a religious significance or origin,” Rehnquist said.
The court issued its summary reversal as part of a regular Monday orders list on Nov. 17, without the usual fanfare of a decision read from the bench. Coan recalls getting a phone call from someone with the national ACLU with the news.
“We were elated to get that outcome,” he said. “But perhaps there was disappointment about not getting to go argue the case.”
Coan doesn’t know whether he, Stone, or some other lawyer from the ACLU would have argued it if the court had set the case for full consideration.
One consideration that has played out in his mind in the 44 years since the decision is whether the summary reversal has been treated with less respect than a fully briefed and argued decision would have received. In theory, a summary per curiam decision is as much of a Supreme Court precedent as any other decision.
“But anytime a case isn’t fully briefed and argued in the Supreme Court, there are some lawyers who believe it does not have the same oomph,” Coan said.
Michael W. McConnell, a Stanford University law professor and a leading scholar of church-state law, said, “I think there is something to that.”
“Technically, a summary reversal is precedent like any other, but lower court judges know it didn’t get the full attention of the court,” he said in an interview.
As it happens, McConnell was a law clerk to Brennan in the 1980-81 term when Stone was decided. He said he remembers well the internal deliberations in Brennan’s chambers, but he has never publicly discussed such private deliberations from his clerkship and was not inclined to do so now. (Chief Justice Roberts was also a law clerk that term, for Rehnquist.)
Louisiana’s new Ten Commandments law faces immediate legal challenge over religious bias
Louisiana’s new Ten Commandments law was signed by Gov. Jeff Landry, a Republican, on June 19. At a fundraiser a few days before then, Landry said, “If you want to respect the rule of law, you’ve got to start from the original lawgiver, which was Moses.”
He also said he couldn’t wait to be sued over the law. The state soon was sued, by a cross-section of state residents backed by the ACLU, Americans United for Separation of Church and State, and the Freedom From Religion Foundation.
In court papers filed in their case on July 8, the challengers cite the similarities to the Kentucky case, though they stress one distinction they contend makes the Louisiana law even more problematic. While the Kentucky law only required that some version of the Decalogue be posted, the Louisiana measure dictates a Protestant version of the commandments.
“It uses a numbering system derived from Lutheranism (a branch of Protestantism) and a translation that comes from the Protestant King James version of the Bible,” says a brief in support of a preliminary injunction the challengers are seeking to block the law. “This numbering system and translation differ in meaningful ways from those used by other denominations and faiths that recognize the Ten Commandments as part of their theology, including Catholicism and Judaism.”
But they principally argue that the new law is “constitutionally forbidden under Stone.
“For over 40 years, courts have consistently recognized Stone v. Graham as strong, binding precedent,” said Daniel Mach, the director of the ACLU’s Program on Religious Freedom and Belief, and one of the lawyers involved in the challenge. “This is true of the Supreme Court, which has continued to cite Stone favorably, including distinguishing it when it addressed religious displays in other, non-school contexts. And it’s true in the lower courts, not one of which has ever upheld a public-school display of the Ten Commandments.”
In 2005, the Supreme Court considered the legality of Ten Commandments displays in two Kentucky courthouses and on the grounds of the Texas state capitol. On 5-4 votes, the court ruled against the courthouse displays but upheld the commandments monument at the Texas capitol.
Challengers of the Louisiana classroom law point to the Texas case, Van Orden v. Perry, and the plurality opinion of Rehnquist, then the chief justice. Citing Stone, he said, “In the classroom context, we found that the Kentucky statute had an improper and plainly religious purpose.”
Stone “stands as an example of the fact that we have been particularly vigilant in monitoring compliance with the Establishment Clause in elementary and secondary schools,” Rehnquist added.
Justice Stephen G. Breyer, who was the swing vote in the pair of 2005 cases, said in his concurrence in Van Orden that the Texas capitol Ten Commandments monument “is not on the grounds of a public school, where, given the impressionability of the young, government must exercise particular care in separating church and state.”
Supporters of Ten Commandments in schools see hope in Supreme Court’s 2022 decision overruling Lemon test
Supporters of posting the Ten Commandments in public schools believe the Supreme Court’s 2022 decision upholding a high school football coach’s post-game prayers was a big boost.
It’s not so much that the conservative-dominated court has been showing more deference to religious expression in the public sphere as that the decision in Kennedy v. Bremerton School District overruled the Lemon test.
“It seems that the court [in Stone] led off with Lemon and hung its hat on Lemon,” said Matt Krause, a lawyer affiliated with First Liberty Institute, the Plano, Texas-based legal organization that represented the high school coach. “It seems very reasonable to infer that if the only basis they made their decision on was a legal test that has now been abandoned by the Supreme Court, a new review would be in order.”
In the view of Krause and others, the court in Kennedy replaced the Lemon test with one focused on history and tradition for analyzing the interaction between government and religion.
“The history and tradition test suggests you look at the Ten Commandments and the role it played in the founding of the country, and it is hard to think of a document that played more of a role,” said Krause, a former Texas state legislator who, after his legislative service, lobbied for a failed classroom Ten Commandments bill last year in that state.
McConnell, the former Brennan clerk, is also a former federal appeals court judge who is generally conservative and leans in favor of a lower wall of separation between church and state. His writings were cited by the majority in the Kennedy case. McConnell himself thinks the court reached the correct result, but “it was a genuinely hard case” because of its complex and disputed factual record.
On the new Ten Commandments law in Louisiana, however, McConnell parts company with Krause and the state.
“I think the most likely outcome is that the lower courts will hold it unconstitutional under Stone v. Graham,” he said. “The cases are just too similar.”
With both the 1978 Kentucky measure and this year’s Louisiana law, he said, “the state legislature is singling out a particular religious text to be displayed in a way that is not curricular or pedagogical but rather reverential.”
McConnell added: “I don’t see any reason why the Supreme Court would want to revisit this question.”
