Context Is in the Eye of the Beholder: Establishment Clause Violations and the More-than-Reasonable Person

The Establishment Clause prohibits any law respecting an establishment of religion. One example of a potential Establishment Clause violation is a display of the Ten Commandments on governmental property. The Supreme Court is on the brink of deciding whether such a display violates the Establishment Clause, and one important question to ask when making this determination is whether a reasonable observer would view a Ten Commandments display as a governmental endorsement of religion. The answer to this question will change based on the definition of the reasonable observer. In Freethought Society v. Chester County, the Third Circuit Court of Appeals concluded that a display of the Ten Commandments affixed to a county courthouse did not violate the Establishment Clause because a reasonable observer would not view the display as an endorsement of religion. However the Third Circuit used the heightened standard of a more-than-reasonable person. This standard was improper and led to the Third Circuit reaching an erroneous conclusion. The Supreme Court should not use this more-than-reasonable-person standard as it rules on the constitutionality of Ten Commandments displays