If church and state must be separate, how close are they allowed to come? The Supreme Court may soon have to draw a line in that great, never-ending debate.
Almost half a century ago, in a case called Stone v. Graham, the Supreme Court struck down a Kentucky law requiring that the Ten Commandments be displayed in public schools. The law’s evident purpose, said the Court, was “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.”
Last week, the Fifth Circuit U.S. Court of Appeals, sitting en banc, decided the identical issue but came out the other way. By a 9–8 vote in Nathan v. Alamo Heights, the Fifth Circuit upheld a Texas law requiring the Ten Commandments to be displayed in public schools.
I’m an admirer of many judges in the majority, and when a circuit court splits nine to eight, it’s clear that reasonable people can differ. Nevertheless, I think the Fifth Circuit went profoundly wrong.
Under Nathan, the city of Dearborn, Michigan, could pass an ordinance requiring every public school there to display signs reading “There is no God but Allah and Muhammad is his messenger.”
How did the Fifth Circuit go so wrong? Let’s begin with the fact that the majority chose to ignore Supreme Court precedent, which is pretty surprising in itself.
