When Texas Gov. Greg Abbott served as his state's attorney general in 2005, he appeared before the Supreme Court to argue Van Orden v. Perry.
The question was whether a monument inscribed with the Ten Commandments that had stood on the grounds of the Texas state capitol since 1961 violated the First Amendment.
That amendment says in part: "Congress shall make no law respecting an establishment of religion."
Had Texas established a religion in 1961 by allowing this monument on its Capitol grounds?
In the 1947 case of Everson v. Board of Education, the court ruled 5-4 it was acceptable for a state government to provide students with transportation to both public and religious schools, but that the First Amendment, "made applicable to the states by the Fourteenth Amendment," required separation of church and state.
"The Constitution requires not comprehensive identification of state with religion, but complete separation," wrote Justice Hugo Black.
Then in 1980, in another 5-4 decision in Stone v. Graham, the court cited a test it had established in the 1971 Lemon v. Kurtzman case as justification for prohibiting Kentucky from posting the Ten Commandments in public-school classrooms. "This court," said that opinion, "has announced a three-part test for determining whether a challenged state statute is permissible under the Establishment Clause of the United States Constitution: '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 violates any of these principles," said this opinion, "it must be struck down under the Establishment Clause. We conclude that Kentucky's statute requiring the posting of the Ten Commandments in public school rooms has no secular legislative purpose, and is therefore unconstitutional."
Abbott then went to the court in 2005 to argue it was not unconstitutional for Texas to place a monument with the Ten Commandments on its Capitol grounds. He made this argument in a Supreme Court building that features multiple references to the Ten Commandments.
In his oral argument, Abbott referenced an engraving on the door leading into the court's chamber that shows two tablets -- one marked with the Roman numerals I through V and the other with VI through X.
"As a person walks into this courtroom or exits the courtroom, they don't see the Ten Commandments in a display with a bunch of law givers," said Abbott. "Instead, they see the Ten Commandments alone with an eagle above it."
"They see blank tablets. They don't see any writing," Justice Ruth Bader Ginsburg objected.
"Justice Ginsburg," Abbott responded, "clearly the Ten Commandments that are reflected on the doorway into and out of this courtroom don't have words on them like the tablets do in the States of Texas."
Justice Antonin Scalia then interjected: "But we know what they are, don't we?"
"We do and that's the point," said Abbott.
The court ruled 5-4 for Texas, with Chief Justice William Rehnquist writing the main opinion -- in which he noted multiple references to the Ten Commandments in the Supreme Court's own building.
"The question here is whether the Establishment Clause of the First Amendment allows the display of a monument inscribed with the Ten Commandments on the Texas State Capitol grounds," wrote Rehnquist. "We hold that it does."
"Such acknowledgments of the role played by the Ten Commandments in our Nation's heritage are common throughout America," said Rehnquist. "We need only look within our own Courtroom. Since 1935, Moses has stood, holding two tablets that reveal portions of the Ten Commandments written in Hebrew, among other lawgivers in the south frieze. Representations of the Ten Commandments adorn the metal gates lining the north and south sides of the Courtroom as well as the doors leading into the Courtroom. Moses also sits on the exterior east facade of the building holding the Ten Commandments tablets."
Rehnquist went on to indicate, however, that the court was not overruling its previous opinion against posting the Ten Commandments in public schools. "There are, of course, limits to the display of religious messages or symbols. For example, this Court held unconstitutional a Kentucky statute requiring the posting of the Ten Commandments in every public schoolroom," he wrote. "In the classroom context, we found that the Kentucky statute had an improper and plainly religious purpose."
"The placement of the Ten Commandments monument on the Texas State Capitol grounds is a far more passive use of those texts than was the case in Stone, where the text confronted elementary school students every day," Rehnquist wrote.
Louisiana passed a law last year requiring the Ten Commandments to be posted in every public school classroom. This June, Gov. Abbott signed a Texas law with the same requirement. A three-judge panel for the U.S. Court of Appeals for the 5th Circuit ruled against the Louisiana law last week, citing the Supreme Court precedent in Stone v. Graham.
"Stone still stands," the panel declared.
Now the full circuit court may take it up.
When President Barack Obama took the oath of office in 2009 -- four years after the court upheld its ban on posting the Ten Commandments in public schools -- he put his hand on the same Bible President Abraham Lincoln had used.
Posting the Ten Commandments in a public school does not establish a religion. It is time for the Supreme Court to reconsider its ban.