‘HB 702 is clearly unconstitutional’

Edwin Chemerinsky, dean of the School of Law at UC-Irvine and noted legal scholar 0f constitutional law, answered questions regarding House Bill 702, Georgia’s Ten Commandments legislation.

Q: Do you think this would pass court muster?

A: Under current law, HB 702 is clearly unconstitutional. In McCreary County v. ACLU of Kentucky (2005), the U.S. Supreme Court declared unconstitutional a county's decision to place the Ten Commandments in its buildings along with other documents, such as the Declaration of Independence, that mark the importance of religion in American government. The court emphasized that the Ten Commandments is inherently religious. The Georgia legislation is strikingly similar to what the court declared unconstitutional.

Q: What, generally, makes such a monument unconstitutional?

A: There is no doubt there can be a display of the Ten Commandments if it's truly a part of a display with a secular purpose. The frieze in the Supreme Court, for example, depicts many sources of law, from Hammurabi's Code to John Marshall and includes Moses holding the Ten Commandments. Any person seeing this display would see it is about sources of law and not primarily about displaying the Ten Commandments. The Supreme Court has held the Establishment Clause of the First Amendment prohibits the government from acting with the primary purpose of advancing religion or if the primary effect is to advance religion.

Q: Can monument supporters claim a secular purpose?

A: No. The Ten Commandments are inherently religious. They begin with the words, "I am the Lord Thy God." The first five commandments are mandates for devotion and worship to God. There are significant differences among versions of the Ten Commandments of the Catholic, Jewish and Protestant faiths. The choice to put one version over the others is itself a religious choice.

Q: What about inclusion of preambles and such?

A: That is the importance of McCreary County v. ACLU of Kentucky. The county chose to include other documents like the preambles. But the Supreme Court concluded the purpose of the county was to advance religion by putting a religious document in county buildings. The very reason the Georgia Legislature wants the Ten Commandments at the state Capitol is because of its religious content. That is not lessened by including the preambles.

Q: You were involved in the Van Orden v. Perry case. The U.S. Supreme Court upheld the constitutionality of a Ten Commandments display at the Texas state Capitol.

A: Justice Breyer's opinion — and he was the key fifth vote for the majority — stressed that it had been there since 1961, and no one had complained about it. He also stressed the 20-plus other symbols on the Texas state Capitol grounds. He did not find that the primary purpose or primary effect was to advance religion. I do not see how that can be said about the proposed Georgia monument.