Stone v. Graham, 449 U.S. 39 (1980)

A 1978 Kentucky statute required that the state superintendent of education (who at the time was James B. Graham) ‘‘ensure that a durable, permanent copy of the Ten Commandments shall be displayed on a wall in each public elementary and secondary school classroom in the Commonwealth. The copy shall be sixteen (16) inches wide by twenty (20) inches high.’’ The law also provided that ‘‘in small print below the last commandment shall appear a notation concerning the purpose of the display, as follows: ‘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 further required that these copies of the Ten Commandments be ‘‘purchased with funds made available through voluntary contributions made to the state treasurer for the purposes of this Act.’’

Sydell Stone, a citizen opposed to the mixing of church and state, sued to enjoin the state from posting the Commandments. A trial court in Kentucky found that there was a ‘‘secular’’ purpose in the act and upheld its constitutionality. On appeal the Kentucky Supreme Court was evenly divided, and thus the lower court decision upholding the monument remained undisturbed. Stone then appealed to the U.S. Supreme Court. Without hearing arguments in the case, and through a per curium decision, the Court summarily reversed the initial finding that the displays were constitutional. Chief Justice Warren Burger, along with Justices Harry Blackmun and Potter Stewart dissented, declaring that the case merited a full hearing by the Court. Justice William Rehnquist wrote a long dissent, essentially setting out why such a display did not violate the First Amendment. He also objected because of the lack of deference to the state, to what he called ‘‘the cavalier summary reversal, without benefit of oral argument or briefs on the merits, of the highest court of Kentucky.’’

The per curium decision was based on the Establishment Clause test set out in Lemon v. Kurtzman (the Lemon test). That test had three prongs: ‘‘First, the statute must have a secular legislative purpose; second, its principal or primary effect must be one that neither advances nor inhibits religion . . . finally the statute must not foster ‘an excessive government entanglement with religion.’’’ If a statute or action of a state violated any one of these prongs, it would be unconstitutional. The Court concluded that the Kentucky law ‘‘requiring the posting of the Ten Commandments in public schoolrooms had no secular legislative purpose, and is therefore unconstitutional.’’ Because it reached this conclusion, the Court did not consider whether the law also violated the second and third prongs. Clearly, the Court might have stuck down the Kentucky law, and its implementation, on both of the other prongs as well. The law advanced religion because it required the placement of a religious text in public schools. Because the state used the traditional Protestant ordering of the Ten Commandments, with a King James Bible translation, Kentucky in effect was entangled in the religious disputes over how to translate the Bible and whether to endorse the traditional Protestant, the Catholic, the Lutheran, the Orthodox, or Jewish versions of the Ten Commandments. By choosing the King James Bible, the state rejected numerous other Protestant translations, as well as the Catholic and Jewish translations.

The Court rejected Kentucky’s ‘‘avowed’’ assertion that the displays had a secular purpose. The Court noted that ‘‘The pre-eminent purpose for posting the Ten Commandments on schoolroom walls is plainly religious in nature. 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.’’ The Court further observed that although some of the commandments were secular, such as the prohibition on stealing, others involved ‘‘the religious duties of believers: worshipping the Lord God alone, avoiding idolatry, not using the Lord’s name in vain, and observing the Sabbath Day.’’ The Court pointed out that it would be constitutionally permissible to teach about the Ten Commandments, as part of a course on religion or history, but that the mere posting of them could not be seen as educational. Rather, it was religious. In reaching this decision the Court also cited the school prayer and Bible reading cases, Engle v. Vitale (1962) and Abington v. Schemp (1963), noting that the Bible could be taught as a text but not read for religious purposes.

Stone remained good law for the next twenty-five years. Although the Court narrowly upheld the right of Texas to maintain a Ten Commandments monument in Van Orden v. Perry (2005), this decision did not undermine Stone, because the circumstances of Van Orden were distinctly different. Indeed, on the same day it upheld the Texas monument, the Court, in McCreary County, Ky. v. ACLU of Kentucky (2005), struck down another Kentucky law that required the posting of the Ten Commandments in state courthouses.

PAUL FINKELMAN

References and Further Reading

• Finkelman, Paul, The Ten Commandments on the Courthouse Lawn and Elsewhere, Fordham Law Review 73 (2005): 1477.
• Green, Steven K., The Fount of Everything Just and Right? The Ten Commandments as a Source of American Law, Journal of Law and Religion 14 (1999–2000): 525.