Kentucky's revived Ten Commandments monument is a lawsuit waiting to happen

A religious display at the Kentucky Capitol will violate the Constitution, but will anyone challenge it?

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Kentucky Republicans, with the help of a handful of pathetic Democrats, have pushed through a resolution to place a Ten Commandments monument outside the State Capitol.

A Ten Commandments monument (image via Adobe Spark)

Gov. Andy Beshear allowed it to become law without his signature, though even if he had tried to veto it, the bill passed with large enough numbers that it would have overridden his objection.

House Joint Resolution 15 passed in the House in February on a 79-13 vote and in the Senate in mid-March on a 32-6 vote. (Five Democrats joined with Republicans in support of this resolution.) The bill itself goes through the history of this particular monument before demanding that it go up “within 180 days of the effective date of this Resolution” and become a “permanent display.”

The Christian Post summarizes the monument’s history:

The monument was first donated to the Commonwealth of Kentucky in 1971 by the Kentucky State Aerie of the Fraternal Order of Eagles. It remained on display until the 1980s when it was moved for a construction project.

While a joint resolution approved by the Kentucky Legislature in 2000 authorized the monument's return to Capitol grounds, a 2002 federal appellate court decision prevented it from going into effect. At that time, the monument was returned to the Fraternal Order of Eagles.

So it was up and unchallenged… then it was up and challenged and taken down… and now it’s just sitting in a warehouse.

In 2005, the U.S. Supreme Court handed down two rulings regarding Ten Commandments monuments in government spaces. One, involving a display at the Texas Capitol, said they were legal as part of some larger secular context. The other, involving a Kentucky courthouse, said stand-alone Ten Commandments displays were illegal.

This resolution only mentions the first of those decisions—the Supreme Court ”upheld the exhibition of an essentially identical Fraternal Order of Eagles’ Ten Commandments monument on permanent display on the state Capitol grounds”—without mentioning the essential bit about how that monument was part of a larger secular display.

(It’s also worth mentioning that the group in question, the Fraternal Order of Eagles, used to be openly racist. In 1971, the same year they donated this Ten Commandments monument to the state, they restricted membership to people who were Caucasian. This is the group these Republicans are now praising.)

The resolution also cites more recent Supreme Court decisions that have nothing to do with Ten Commandments monuments at all in order to imply that church/state separation is effectively dead because SCOTUS has overturned earlier decisions like Lemon that were previously used to protect the wall of separation.

WHEREAS, the legal precedent under which the 2000 joint legislative resolution’s mandate to return the monument to the New State Capitol grounds near the floral clock was enjoined, has been abandoned by the United States Supreme Court, and is no longer good law…

To state the obvious, just because a certain method to judge whether something is unconstitutional is no longer being used doesn’t mean that thing is still not unconstitutional. The Establishment Clause still exists. The government still cannot promote Christianity. This stand-alone monument is clearly an illegal endorsement of Christianity even if ignorant seminary students confuse it with legal displays in which the Decalogue is part of something larger and secular.

This is a lawsuit waiting to happen.

Whether anyone wants to fight this battle, however, is an open question given the current makeup of the federal courts. It’s no wonder right-wing groups like First Liberty Institute, which represented the Fraternal Order of Eagles, are taking a victory lap:

“We applaud the Kentucky legislature for restoring a part of Kentucky’s history,” said Roger Byron, Senior Counsel for First Liberty Institute. “Like Kentucky’s monument, there is a long history and tradition of public monuments and displays that recognize the unique and important role the Ten Commandments have played in state and national history.”

Vic Jeffries, trustee of Fraternal Order of Eagles Aerie 3423, Hopkinsville, Kentucky, said, “We are thrilled to return the Ten Commandments monument to the state and have it restored to the Capitol grounds, its historic location. The Eagles have donated over 100 Ten Commandments monuments to state and local governments over the years, and we’re glad to have ours back where it belongs.”

There’s no “history” or “tradition” of putting up the Ten Commandments in public places. That’s literally what a federal judge said when he knocked down a Louisiana law to put the Ten Commandments up in public school classrooms:

In sum, the historical evidence showed that the instances of using the Ten Commandments in public schools were too “scattered” to amount to “convincing evidence that it was common” at the time of the Founding or incorporation of the First Amendment to utilize the Decalogue in public-school education... That is, the evidence demonstrates that the practice at issue does not fit within and is otherwise not consistent with a broader historical tradition during those time periods.

Even though he was referring to public schools, that judge also pointed out that these displays were coercive and violated the Establishment Clause. Those arguments would still apply to this monument outside the Kentucky Capitol.

For what it’s worth, nearly 80 religious leaders wrote a letter to Gov. Beshear saying they did not want the monument to go back up. (They asked him for a veto, but as I mentioned earlier, he didn’t have the power to stop this.)

The text of the monument at issue in HJR 15 is not universal or inclusive of all faith traditions. Indeed, the monument’s version of the Ten Commandments does not exist in any translation of the Bible, nor do the Ten Commandments as such hold religious meaning for hundreds of thousands or more of Kentuckians who are Muslim, Hindu, Buddhist, Sikh, Unitarian Universalist, or who practice other religions or no religion at all. Matters of faith should remain in the family and in faith communities, and not in the hands of government officials.

HJR 15’s demand that the monument be installed on the Capitol grounds is especially troubling. The Capitol is the seat of our state government and should be welcoming to all Kentuckians, regardless of their faith. Instead, by communicating the government’s preference for some faiths, the monument undercuts the religious equality Kentuckians share and threatens to use the Ten Commandments as a symbol of exclusion and religious intolerance.

This kind of stand-alone monument isn’t just unethical for all the reasons they mentioned. It’s blatantly unconstitutional (even if the Supreme Court now wants to play by different rules).

I asked a number of groups that defend church/state separation if they plan to file a lawsuit to prevent this monument from going up, but I have not heard any confirmations so far.

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