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Stone
v. Graham
449
U.S. 39 (1980)
The
Rothgerber Johnson & Lyons Religious Institutions
Group gratefully acknowledges the contribution of the
Ethics and Public Policy Center which provided the following case commentary taken from Terry Eastland, Religious
Liberty in the Supreme Court: The Cases That Define
the Debate over Church and State (1993).
The
Ten Commandments are as central as any document to the history
of the West, and indeed of mankind. But may a state require
its public schools to post a copy of the Decalogue? In 1980
the Supreme Court declined to hear arguments in a case challenging
the constitutionality of a Kentucky law to that effect.
Instead, it issued a per curiam opinion (one issued
"by the court" instead of by an individual justice) in which
it said that under the three-part Lemon test the
law violated the ban on establishment.
The
Kentucky trial court had upheld the statute on grounds that
its legislative purpose was "secular and not religious"
and that it would "neither advance nor inhibit any religion
or religious group," nor involve the state excessively in
religious matters. The state supreme court affirmed.
Stone
v. Graham is included in this volume because it illustrates
the sharp division among the justices over the Court's establishment
jurisprudence. The opinion was signed by Justices William
Brennan, Thurgood Marshall, Lewis Powell, John Paul Stevens,
and Byron White. Chief Justice Warren Burger and Justice
Harry Blackmun, who dissented, would have taken the case
and heard argument. Dissenting on grounds that the courts
of Kentucky appeared to have applied correct constitutional
criteria in reaching their decisions, Justice Potter Stewart
voted not to take the case at all. And Justice William Rehnquist
also dissented, arguing that it was wrong for the Court
summarily to reject the secular purpose articulated by the
Kentucky legislature and affirmed by that state's trial
court. (Under the so-called Rule of Four, the Court does
not review the merits of a case unless at least four justices
vote to do so.) The per curiam opinion and Justice
Rehnquist's dissent are presented here.
Participating
in Stone v. Graham, decided November 17, 1980, were
Chief Justice Warren E. Burger and Associate Justices Harry
A. Blackmun, William J. Brennan, Jr. Thurgood Marshall,
Lewis F. Powell, Jr., William H. Rehnquist, John Paul Stevens,
Potter Stewart, and Byron R. White.
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