Washington, D.C. – The United States Supreme Court is soon to announce its decision in the two Ten Commandments cases known as McCreary County v. ACLU of Kentucky and Van Orden v. Perry. With the Court’s term ending this month and with twenty-three cases left to be decided, a decision on the Ten Commandments could now come at any time. Mathew D. Staver, President and General Counsel of Liberty Counsel, argued the Kentucky Ten Commandments case on March 2.

In the McCreary County case, the Court will address not only the constitutionality of public displays involving the Ten Commandments, but may also decide the future course it will take in interpreting the Establishment Clause of the First Amendment. Two events since the March 2 oral argument may indicate that the Court is ready to abandon or significantly modify the Lemon test. Several weeks after the Ten Commandments cases were argued, the Court issued an order on a petition requesting review in the Town of Great Falls case. In that case, the Fourth Circuit Court of Appeals ruled that the Virginia town violated the First Amendment Establishment Clause when Town officials routinely opened their sessions with prayers and ended them by invoking the name of Jesus. The court of appeals found the routine practice unconstitutional citing the Lemon test. Instead of granting or denying the Town’s petition to review the case, the High Court held it in abeyance and tagged it to the McCreary County docket. The only commonality between the McCreary Ten Commandments case and the Town of Great Falls is that both involve the Lemon test, and the McCreary County case requests the Court to overrule or modify the test. By the time the Court voted on whether to accept the Town of Great Falls petition, it had already voted in the McCreary County case regarding the disposition of the Lemon test. If the Court had not voted to overrule or modify the Lemon test, it would have almost certainly granted or denied the petition for review in the Town of Great Falls case.

The second event occurred in the Cutter v. Wilkinson case involving RLUIPA. There the Sixth Circuit Court of Appeals struck down the Religious Land Use and Institutionalized Persons Act using the Lemon test. The High Court reversed, but did not rely upon Lemon. Justice Thomas in a concurring opinion referred to the Lemon test as the “discredited test in Lemon v. Kurtzman.”

Over the next three weeks, the Court will issue opinions in the twenty-three remaining cases of the term.