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THE YEAR 2005 TEN COMMANDMENTS CASES BEFORE THE U.S. SUPREME COURT, FROM KENTUCKY AND TEXAS
The issue, recent court decisions, public opinion, reactions, future reversals
What, precisely, is the issue?
The precise nature of the conflict is often obscured.
Some media accounts say that religiously liberal and secular groups are trying to prevent all displays of the Ten Commandments which are open to the public. For example, some representatives of Fundamentalist and other Evangelical Christian groups have said the following:
Kelly Shackelford of the Liberty Legal Institute, which filed briefs in favor of retaining the Decalogue monument in front of the Texas capital, said: "What they're really advocating on the other side is a religious cleansing from our history. It should be treated with respect as our part of history, not some new form of pornography that has to be banned from our public arena." 1
Tony Perkins of the Family Research Council wrote: "Yesterday, the Supreme Court heard arguments on whether the Ten Commandments are too offensive for public display." 2
Don Hodel, president of the Focus on the Family wrote: "...the separation of church and state means the complete exclusion of religion from the public square." 3
It is important to remember:
There are absolutely no problems associated with the public display of the Ten Commandments, or any other religious statements, as long as they are located on land or in buildings owned by religious institutions, or by individuals or by companies. In fact their right to display religious material is protected by the First Amendment of the U.S. Constitution.
There are absolutely no problems if the Decalogue is shown in government offices, public land, courts, public schools as part of a cultural display containing similar material from other religions, and from secular sources.
Problems can arise if a Ten Commandments document is shown in a government office, public land, courts, or public school:
By itself in isolation, as in the Texas case.
As part of a cultural display which excludes comparable secular documents
As part of a cultural display which excludes comparable documents from other religions as in the Kentucky case.
Past courts have interpreted the First Amendment of the U.S. Constitution as requiring a separation of church and state. That is, the government cannot promote:
Secularism in preference to a religious lifestyle.
A religious lifestyle in preference to secularism.
One religion as being superior to any other faith.
About the content of the Ten Commandments:
One factor that does not appear in the media reports is that the Ten Commandments is actually formed of over twenty instructions. They can be grouped into two parts:
The first section is a series of orders that people must recognize Yahweh as the only deity. These deny the legitimacy of other religions and a secular lifestyle. This is a purely religious document. It threatens non-believers with retribution from God which will affect the non-believer, their children, their grand-children, etc. It produces some real First Amendment concerns since it promotes a specific religious tradition. It also implies that other religions are without merit.
The second part is a slightly longer series of commands forbidding such behaviors as lying, stealing, committing adultery, murdering people, etc. This set of behavioral laws were combined with elements of Pagan Roman law, and facets of other legal systems to produce systems of laws common to many jurisdictions in the western world.
Most Americans are aware of the second part, particularly the commandments against murder, stealing, and committing adultery. A surprising percentage are unaware of the threats and religious commands which form part of the first section. However, many followers of non-Judeo-Christian religions are very aware of such phrases as "Thou shalt have no other gods before me." Some find the words to be very offensive.
Recent major Supreme Court decisions in this area:
In 1980, the Supreme Court ruled that the Decalogue could not be posted by itself in Public School classrooms.
In 2004, the court refused to hear an appeal from former Alabama Supreme Court Chief Justice Roy Moore. He had refused the order of a federal judge to remove his personal property -- a 2.6-ton granite monument bearing the Ten Commandments -- from the state court building.
A number of lower courts have rejected monuments and displays that include solely Judeo-Christian material. Other courts have accepted monuments and displays that include material from a number of religious sources as well as secular documents.
The Supreme Court itself contains a number of marble statues in a frieze. Included are:
Secular law authorities (including Napoleon, Caesar Augustus, John Marshall, and Hammurabi)
Figures from a variety of religions -- (including Confucius, Muhammad, and Moses).
Hammurabi wrote the first major legal code. Many historians and religious liberals believe that the Ten Commandments were based in part on his code. Conservative Jews and Christians generally believe that the Bible's authors were inspired by God to write text that is without error. The Bible states that the Ten Commandments came from God.
The Court decided on 2004-DEC-15 to hear oral arguments in the Kentucky and Texas cases.
Current public opinion:
A CNN/USA Today/Gallup poll was taken during the last week in 2005-FEB. They asked the question: "Do you believe that it is proper or improper for the Ten Commandments to be displayed in a government building?" They concluded that:
76% of American adults support the Ten Commandment displays
21% are opposed;
3% have no opinion or did not state one.
The margin of error of the poll is �4.5 percentage points. 4
Presumably, the 21% who are opposed would not like to see the Decalogue displayed in a government office or court under any circumstances. But the 76% who favor Decalogue displays are probably split among those who would:
Allow the Decalogue, but only if it is in a cultural display with secular documents and similar documents from other religions.
Allow the Decalogue if it is in a cultural display with secular documents, even if it is the only religious material present.
Allow the Decalogue to be displayed by itself or together with any other documents.
Unfortunately, public opinion polls tend to be organized to expect a yes or no response. The possibility of a variety of responses is rarely explored.
It is unlikely that the Supreme Court will allow the Decalogue to be displayed under any conditions; they are unlikely to ban it entirely in government offices, courts and public schools. Their task is to find a middle ground that is consistent with the Establishment Clause of the First Amendment, and to express this clearly so that municipalities, public school boards, state and federal offices will know precisely what is constitutional and what is not. That is not a trivial task.
Comments on the lawsuits:
In the days before the oral arguments were heard by the Supreme Court on 2005-MAR-03:
Charles Haynes, a religious liberty expert at the First Amendment Center said: "These are cases courts like the least; they stir raw emotions. Whatever they decide will be misunderstood; I don't think any side will be happy with the result. Even the winning side loses because of the deep divisions that will result." 4
The National Council of Churches said that they could not take a stand on these lawsuits because their member denominations do not have a common belief.
The Roman Catholic Church -- the largest Christian denomination in the U.S., -- and the Southern Baptist Convention -- the largest Protestant denomination, and other religious organizations -- are largely silent.
Atheist and Humanist groups have filed briefs opposing the displays.
Muslim leaders have also remained silent.
Barry Lynn, executive director of Americans United for Separation of Church and State said: "Thou shalt not merge religion and government. Promoting religion is the job of houses of worship, not government. Our legal system especially must avoid even the appearance of bias on the basis of religion."
Mat Staver of Liberty Counsel wrote: "We are very pleased that the United States of America and twenty-two states have weighed in on our side. This broad-based show of support reveals the broad impact a decision on the Ten Commandments will have on America and our shared religious heritage. There is no question that the Ten Commandments influenced our law and government. It is nonsense to suggest that public acknowledgments of religion in general, or of the Ten Commandments in particular, somehow establish a religion. To exclude the Ten Commandments from a display on law would be like eliminating stars and stripes from the Flag." 5
Former Chief Justice Moore and the Foundation for Moral Law, Inc. argued in their brief to the Supreme Court "that because judges swear an oath to support the written Constitution, the Court should look at the words in the Establishment Clause of the First Amendment to determine whether the Ten Commandments displays are constitutional. The Establishment Clause says that 'Congress shall make no law respecting an establishment of religion.' By putting up Ten Commandments in their courthouses, the Foundation argued, the Kentucky courthouses were simply not making a law respecting an establishment of religion. The Foundation urged the U.S. Supreme Court to reverse the lower courts and hold that the Ten Commandments are a constitutionally permissible manner of acknowledging God in our public places." 6
The possibility of future reversals:
If the Court decides that either the display or monument is unconstitutional, that ruling will probably be reversed in the near future. President Bush is expected to appoint several new justices to the Supreme Court. He has indicated that he plans to select nominees similar in philosophy to Justices Scalia and Thomas. They are often referred to as "strict constructionists." They interpret a legal document as meaning "today not what current society (much less the Court) thinks it ought to mean, but what it meant when it was adopted." 3,7 They interpret the First Amendment and the rest of the U.S. Constitution as an enduring document. They interpret the text according to the belief systems of the time when the Constitution was written. They are most unlikely to support the principle of separation of church and state which past Supreme Courts have interpreted the First Amendment as implying. They are more likely to say that the First Amendment means what it literally states: that the government cannot promote an official religion.
References used:
Jim Vertuno, "Homeless ex-lawyer behind Ten Commandments suit," Chicago Sun-Times, 2005-FEB-27, at: http://www.sun-times.com/
Tony Perkins. "Faith Under Fire," Washington Update, Family Research Council, 2005-MAR-03.
Dan Hodel, "The Real Ten Commandments Issue," Focus on the Family, 2003-AUG-23, at: http://www.family.org/
Bill Mears, "Ten Commandments before high court. Explosive church-state issues from Kentucky, Texas," CNN,com Law Center, 2005-MAR-01, at: http://www.cnn.com/
"United States Supreme Court Announces Today That Ten Commandments Cases To Be Argued On March 2, 2005," News Release, Liberty Counsel, 2004-DEC-15, at: http://www.lc.org/
"Chief Justice Moore and Foundation File Brief in U.S. Supreme Court Arguing That Kentucky Ten Commandments Displays Do Not Violate First Amendment Text," Foundation for Moral Law, Inc., at: http://www.morallaw.org/
Antonin Scalaia, "God's Justice and Ours," First Things 123, 2002-MAY, Page 17 to 21.
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Copyright � 2005 by Ontario Consultants on Religious Tolerance
Originally written: 2005-MAR-02
Latest update: 2005-MAR-05
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