The
Supreme Court and the "Ten Commandments"
The Unfulfilled
Imperative
One of the more persistent themes for First Amendment litigation comes from efforts to have the Ten Commandments and other biblical artifacts displayed on government ground or embedded in the public school curriculum and ritual. The judicial system faces litigation over the issue virtually every year. Twenty-five years ago, the Supreme Court of the United States (SCOTUS) ruled that posting the Ten Commandments in public schools was unconstitutional. Since then, there have been numerous attempts to loophole the criteria used to develop the ruling. Much of the litigation has involved posting of the commandments in or near government facilities, like court buildings for example. Many lower-court battles and subsequent appeals to SCOTUS have ensued, which up until now, were all turned away. One recent case involved a stone monument to the Ten Commandments erected on the grounds of a state court building. Evidently it was one of the many that the Fraternal Order of Eagles is notorious for "donating" to government facilities around the country. A lawsuit claimed violation of the religious establishment clause and a lower Federal court subsequently ordered the monument removed. The state governor appealed the ruling to SCOTUS. The argument favoring the monument claimed that its meaning was not solely religious, but rather also commemorated a "great historical contribution" to the foundation of our legal system.
A point of issue is that the Supreme Court itself contains a frieze depicting Moses holding his legendary stone tablets. The suggestion being that to allow such a display in the Nation's highest court while forbidding it elsewhere amounts to a double standard. By analogy, it is not very different from stipulating that if some top executives were guilty of displaying pornography on government property, then it should be perfectly OK for everyone else to do the same thing. Regardless of the nagging frieze in the ointment, SCOTUS turned the appeal away. Two appeals were, however, picked up by SCOTUS in 2004, one involving display of the commandments in the chambers of a Tennessee court and the other a stone monument on the grounds of the Texas capitol. In both cases the lower courts had ruled against the displays. As it turned out, however, SCOTUS upheld the former ruling but struck down the latter, thus leaving the stone monument in place. The following is a commentary on the political and constitutional issues surrounding the laws of Moses and their presence on government property.
An analogy to pornography might seem to be a bit disingenuous, but it has conceptual relevancy. There is nothing in the Constitution or its standing Amendments that forbids pornography, although endorsement of religion and the use of religious tests is specifically prescribed against. In spite of First Amendment free speech rights, American cultural traditions have sustained a view that nudity in public is civilly inadmissible. The long-standing result has been a wall of lower-order laws that strictly control public access to pornography and completely forbid it within government service itself. The US courts have managed to uphold this latter kind of tightness with little ambiguity. Ironically, the situation is very evidently not the same for religious paraphernalia.
Roughly
stated, the typical judicial analysis of legal permissibility requires that
anything displayed on government property must serve a legitimate secular
purpose while at the same time not amount to a government endorsement of
religion. The fundamental problem is that these criteria have proven vulnerable
to interpretation, thus leading to inconsistency of judgment among the courts (reference).
Terrifyingly, some of the right-leaning justices themselves have managed to
conjure up "secular purpose" where clearly none exists.
Exploiting the situation, the pro-commandment people frequently claim
secular purpose while at the same time appealing to religious history
and traditions. For the latter, the claim is that the commandments are not
just a historical artifact, but rather "the" very foundation of
American law
and the foundation of American morality as well. The trouble is that the "foundation" argument is
completely false (article).
American
law under the Constitution is not based on biblical law, but rather on the
common law (note).
Since the 1980 Stone versus Gram decision, SCOTUS had officially remained silent on the issue of the Ten Commandments. This seemed to reflect a majority condition of ambivalence among the justices themselves. Fractured between honorably defending the transparent import of the First Amendment versus acquiescing to coercive religious influences, they simply agreed not to decide. Consequently, the lower courts sometimes rule one way and then sometimes the other, thus promoting continued controversy and more litigation (news article). Finally deciding that the quarter-century old ruling was not sufficiently robust to foster consistency, SCOTUS undertook the issue again. However, the mixed nature of the two rulings that ensued in June 2005 is certain to spur more controversy and more litigation.
The muddying of facts and resulting confusion of issues compounds the legal and political bickering over the Commandments. If the presence of a piece of artwork in Supreme Court chambers along with claims about historical contributions are going to fuel inconsistency of judgment about the commandments, then the particulars of the matter need to be carefully scrutinized by the American public and understood for what they are. What the pro-commandment people won't tell you is that the Supreme Court Frieze is comprised of a lineup of no less then eighteen historical personages, of which, Moses holding his tablets is only one. Among the others are Menes the first king of Egypt, Hammurabi an ancient Babylonian King, Justinian a Byzantine Emperor, Mohammed the profit of Islam, Confuses a Chinese philosopher and teacher, Napoleon, and even John Marshall, one of the Supreme Court's own past justices. Evidently, at least in the mind of the frieze's designer, each was a noteworthy historical lawgiver who was thought to have contributed something to the advancement of law and government over the course of history.
Issues of artistic merit set aside; there is certainly room to question the categorical legitimacy and sufficiency of the frieze's selection of historical benefactors. For example, notably absent from the lineup is James Madison, the primary architect of the Constitution. Then again, perhaps it is appropriate that the Constitution and its primary architect are not showcased in the freeze. Being the supreme defining act of lawgiving at the Nation's foundation, the Constitution and thus the contribution of its framers possess a status transcendent of the freeze's eighteen personages. That being the case, however, does a shrine so supremely appropriate reside this day anywhere within the Supreme Court's chambers? Unfortunately, I think not.
" What influence in fact have ecclesiastical establishments had on Civil Society? In some instances they have been seen to erect a spiritual tyranny on the ruins of the Civil authority; in many instances they have been seen upholding the thrones of political tyranny: in no instance have they been seen the guardians of the liberties of the people" (James Madison's Memorial and Remonstrance, 1785)
From Madison's perspective, it would be difficult to justify government endorsement of the Ten Commandments on any terms. Still, if the issue is to be raised, then what about the detailed contents of the Commandments themselves? What correspondence might they actually have (or not have) with American law?
The Ten Commandments do contain prohibitions against stealing, lying under oath, murder, and a number of other generally accepted tenets of civilized life. However, the likes of those show up in the governing standards of just about every culture on the planet, past and present, regardless of geographic or religious pedigree. Moses and his deity could hardly claim any originality of authorship. In fact, the historical evidence suggests that much of the contents of the Ten Commandments, as well as the Geneses myth and other biblical tales were scavenged from older Babylonian writings like the Code of Hammurabi, the Enuma Elish, as well as others. It is highly unlikely that the biblical folk would consider those more ancient sources, or any of the freeze's other historical personages, worthy of special mention for their significance of contribution. Of course, that is the fundamental hypocrisy underlying the pro-commandment claim.
Then there is the issue of the civil acceptability of the commandments themselves. Take for instance the infamous first commandment, which with some variation among translations, reads as follows.
"I am the LORD your God, who brought you out of the land of Egypt, the house of bondage: You shall have no other gods beside Me. You shall not make for yourself a sculptured image, or any likeness of what is in the heavens above, or on the earth below, or in the waters under the earth. You shall not bow down to them or serve them. For I the LORD your God am an impassioned God, visiting the guilt of the fathers upon the children, upon the third and upon the fourth generation of those who reject Me ...."
No reasonable observer could possibly overlook the fact that the first commandment is an absolute demand of submission and obedience, under threat of punishment. The commandment is clearly a property claim against our lives as well as an overt rejection of other deities, doctrines, and objects of veneration, and thus rejection of religious freedom itself. In more detail, it implicitly denounces science and art, and vows retribution against not only the violators, but also their offspring for several generations removed. In whole, the first commandment is not exactly consistent with any acceptable standard of civil liberty is it? Nor does in reflect an acceptable standard of discretion in matters of guilt and punishment. The words that rapidly come to mind are bondage, enslavement, and insufferable tyrant. Most generally, the first commandment is not only civilly unacceptable, but morally repugnant as well.
As substantiated by the Sixth Article and First Amendment's religion clauses, commitment to religious freedom is resident in this nation's very foundation of law. The first commandment is complete antithesis to that standard. Undoubtedly, the hardcore biblical types interpret "religious freedom" as some kind of special license on their part to overrun the public trust and impose their dogmas on the whole Nation as compulsory articles of citizenship. The Ten Commandments are more than just symbolic of that obsession. It should be evident that legitimate religious freedom, as guaranteed by the Sixth Article and the First Amendment's free exercise clause, cannot exist without prohibiting government from favoring any religious doctrine, as indeed the First Amendment's establishment clause prohibits. Between the Sixth Article and the First Amendment's two religion clauses, the constitutional mandate is clear. Absolute neutrality regarding religion and its establishments must exist within government and thus also throughout the public trust. The display of the laws of Moses anywhere on government ground, blatantly contravenes the spirit and intent of that mandate.
Consider in some further detail why the commandments do not belong on government property. What is notably absent from them is any prohibition against slavery or discrimination against women and minorities. In fact, the tenth commandment in expanded form proclaims, "You shall not covet your neighbor's wife, or his male or female slave, or his ox or his ass, or anything that is your neighbor's." The "not covet" part, although not original, does possess an element of practicality in many cases, like maybe not coveting the public trust as a vehicle to advance one's religious dogma. Anyway, a double standard is clearly evident within. Under the auspices of "God", Moses thought that slavery was perfectly acceptable. That is, just as long as the favored fathers and sons of Israel were not the victims. And then later, the "correct" interpretation became just as long as the favored fathers and sons of Christendom were not the victims. How is this stuff to be squared with the Thirteenth Amendment and the Bill of Rights as incorporated through the Fourteenth Amendment? In either case, any code that rather explicitly categorizes women as property along with livestock is not a champion of civil equality between the genders. By no means are these the only things that make the commandments repugnant. Many of its detailed demands conflict directly with our civil liberties and immunities under American law (reference). The little among the commandments that do have some correspondence with actual civil obligation, pales in comparison to the other stuff that is civilly antithetical and culturally oppressive. The commandments do not belong on government property, not even in abbreviated form. It all inevitably tracks back into the fine print of the full scripture.
At least the Supreme Court frieze acknowledges a relatively diverse selection of notables from the history of world civilization. In so doing, it does not pay exclusive regard for any one individual, their religious idols, or their cultural pedigree. In addition, the writing actually visible on Moses' tablet is no more then an artistic suggestion of written passages and consequently does not render the Commandments per se. In fact, the tablet containing the first five commandments is obscured behind the other, which itself shows only a hint of lines from commandments six through ten. The frieze presumably resides in Supreme Court chambers as a vehicle of reflection, not only on past accomplishment, but on the mistakes and inequities as well. Still, if the presence of Moses and his ancient middle eastern tribal laws are going to deter SCOTUS from honorably upholding the intent of the Constitution, then perhaps the entire frieze should be removed and thereby eliminate the distraction altogether.
In the June 2005 majority opinion that struck down display of the commandments in the Kentucky courts, Justice Sauter wrote,
"We are centuries away from the St. Bartholomew's Day massacre and the treatment of heretics in early Massachusetts, but the divisiveness of religion in current public life is inescapable. This is no time to deny the prudence of understanding the Establishment Clause to require the Government to stay neutral on religious belief, which is reserved for the conscience of the individual." (reference)
The Sixth Article which mandates "no religious test" along with the First Amendment's establishment and free exercise clauses, make it indelibly clear that the principle of separation between government and religion is not a myth. Rather, it is foundational to this Nation's enlightened historical identity. There can be little doubt that both the Sixth Article and the First Amendment were implanted in the Constitution by the Continental Congress to inoculate government and thus the Nation against the wiles of theocracy and that would certainly include biblical theocracy. With neither deity, doctrine, nor pulpit (old testament or new) privileged to claim the authority of state, an age-old seed of conflict and tyranny was intended to be extinguished. Undoubtedly, out of either ignorance of the new law or out of blind theocratic obstructionism, the Constitution was subverted even as it was ratified into existence. However, the fact that it's imperatives were not immediately realized nor completely fulfilled even two centuries hence, is only evidence of how deep the cultural impediment runs and how many generations the inoculation process ultimately requires.
By using the laws of Moses as a proxy, the advocates of biblicalism proclaim a "great historical contribution" to the founding of the Nation. Sure, there were people out peddling biblicalism and laying claim to the thrown of moral and civil authority in its name even as the Constitution was being stood up, but their mere presence proves nothing beneficial. To the contrary, the history of the American colonies is fraught with religious persecution and sectarian conflict. Slavery was widespread at the time as well. On the same basis, therefore, one might just as well argue that the institution of slavery was also a great historical contributor.
Taking the most popular version of the legend at face value, Moses and his tribe seemed justified in disentangling themselves from ancient Egyptian religion and rule. Nevertheless, that saga belongs to the history and lore of the Middle East. Thousands of years latter and half a planet removed, we also have a need to distance ourselves from the inequitable standards of antiquity. That would certainly include the inherent inequities of the laws of Moses and other biblical artifacts, both old and new testament. Dogmatic veneration and peddling of archaic religious doctrine is culturally dangerous and degenerate business, particularly when endorsed by government. It does no good service to the interests of the Nation, humanity, or the emergent course of civilization. If the age old conflicts between Judaism, Christendom, and Islam over specification of "the" supreme deity and doctrine have not brought that fact clearly home, then the people of this nation do indeed have a tough road to hoe. All three religions claim lineage back to Abraham and Moses as their ancient roots. Notwithstanding Christendom's long history of abuses there and elsewhere, Middle Eastern Government and law has been dominated in one version or the other by the monotheistic ideology of Abraham and Moses for thousands of years. Of course, for roughly the last fourteen centuries, that dominance has come from the revelations of Mohammad and the clerics and potentates that rule on the backs of the people through them. Why then after so much time under the hand of "God's law" is that region of the World filled with so much tyranny, bigotry, and bloodshed?
Showcasing the Commandments anywhere on government ground endorses the deity and doctrine of Moses at the expense of all other beliefs regarding religion and religious identity. There is a diversity of national heritage involved that neither religion in general nor biblicalism in particular can hold a legitimate candle to. Government endorsement of the commandments subverts that more universal heritage and destroys the religious neutrality of the public trust itself. There is the old saying, "two masters cannot share the same house". Having the laws of Moses installed in the courts or anywhere else on government property, gives them the explicit status of legal mandate, which undeniably undermines the authority of the Constitution, its Amendments, and the lower order laws pursuant to them. This can only serve to confuse the difference between obligatory civil law on the one hand and arbitrary if not civilly offensive religious doctrine on the other.
In the aftermath of the June 2005 rulings (reference), we can take some solace, at least for now, that the inner sanctum of the courts will receive some protection from the Laws of Moses and other religious doctrine. However, the court's continued endorsement of ten commandment monuments on government property is characteristic of an error of jurisprudence that is yet to be adequately extinguished. Our government property is not used to immortalize the laws of Hammurabi, Draco, or Mohammed, or any other old world historical personage. Any notion that a special exception should be made for the laws of Moses is both ludicrous and dangerous.
Much of the dicta that split the difference in the mixed rulings seemed focused on the original intent of those who installed the plaques or monuments. In the present cases, some argued that it was simply unknowable as to whether a religious agenda was involved or not. On the face of it, however, such an argument is simply impossible to swallow.
"Thus, a pedestrian happening upon the monument at issue here needs no training in religious doctrine to realize that the statement of the Commandments, quoting God himself, proclaims that the will of the divine being is the source of obligation to obey the rules, including the facially secular ones. In this case, moreover, the text is presented to give particular prominence to the Commandments' first sectarian reference, "I am the Lord thy God." That proclamation is centered on the stone and written in slightly larger letters than the subsequent recitation. To ensure that the religious nature of the monument is clear to even the most casual passerby, the word "Lord" appears in all capital letters (as does the word "am"), so that the most eye-catching segment of the quotation is the declaration "I AM the LORD thy God." ... religious meaning [is] unmistakably clear." (Justice Souter dissenting)
The court's majority ruling in favor of the Texas monument was clearly more in the service of accommodating religious interests then upholding constitutional law. Whenever words like "I Am the Lord thy God" or "you will have no other gods before me", or other clearly religious mandates are integral to a display's inscribed message, original intent is unmistakably clear. That is, to exploit the public trust as a vehicle to advance religious doctrine in violation of the establishment clause. That is the constitutional breach that SCOTUS as a majority has thus far failed to unambiguously rectify.
"The judgment of the Court in this case stands for the proposition that the Constitution permits governmental displays of sacred religious texts. This makes a mockery of the constitutional ideal that government must remain neutral between religion and irreligion. If a State may endorse a particular deity's command to "have no other gods before me," it is difficult to conceive of any textual display that would run afoul of the Establishment Clause." (Justices Ginsburg and Stevens dissenting)
It is license enough that devotees of the various religious persuasions are free to venerate their deities and doctrines under the roofs of their houses of worship and in their personal homes if they so choose. There they can hang placards and erect monuments to Moses and his laws to their hearts content. And thereby satisfy what Justice Renquist refers to as their "spiritual needs". They can do that under the protection of the Constitution and without corrupting the neutrality of the public trust. Why is the latter concept of religious constraint so difficult to grasp?
The transparent obligation of the courts is to produce rulings consistent with the Constitution's import. If there are enterprising politicians, civic leaders, and patriotic interest groups who want to hang plaques and erect monuments on government property, they might consider the Declaration of Independence, the Constitution, Bill of Rights, and America's Creed as worthy candidates. Where on government property do you find the words of any of these documents showcased in stone? When was the last time you entered a public school or other government building and found a copy of the Bill or Rights or our nation's Great Seal adorning the walls? It is regarding these and other legitimate artifacts of the Nation's sacred heritage that the commemorative spirit needs building up.
"Reasonable minds can disagree about how to apply the Religion Clauses in a given case. But the goal of the Clauses is clear: to carry out the Founders' plan of preserving religious liberty to the fullest extent possible in a pluralistic society. By enforcing the Clauses, we have kept religion a matter for the individual conscience, not for the prosecutor or bureaucrat. At a time when we see around the world the violent consequences of the assumption of religious authority by government, Americans may count themselves fortunate: Our regard for constitutional boundaries has protected us from similar travails, while allowing private religious exercise to flourish. The well-known statement that "[w]e are a religious people," Zorach v. Clauson, 343 U. S. 306, 313 (1952), has proved true. Americans attend their places of worship more often than do citizens of other developed nations, R. Fowler, A. Hertzke, & L. Olson, Religion and Politics in America 28-29 (2d ed. 1999), and describe religion as playing an especially important role in their lives, Pew Global Attitudes Project, Among Wealthy Nations U. S. Stands Alone in its Embrace of Religion (Dec. 19, 2002). Those who would renegotiate the boundaries between church and state must therefore answer a difficult question: Why would we trade a system that has served us so well for one that has served others so poorly?" (Sandra Day O'Connor, reference)
With Justice O'Connor retiring from SCOTUS, the solvency of the First Amendment is in more jeopardy than ever before (article). One can only hope that the cadre of clear thinking politicians in Congress, such as they might exist, will have enough patriotic sand to stand up to the right wing and not allow SCOTUS to be turned any further to the right than it already is. Aside from that profoundly important issue, perhaps it is time for the defenders of secular government to fight stone with stone. In the aftermath of the Texas ruling, it is not difficult to imagine yet another epidemic of decalogue donations by the Fraternal Order of Eagles or other so-called patriotic organizations. Evidently, words written in stone, particularly those installed on government property are imagined to carry more weight then the Constitution itself. In rebuttal therefore, perhaps what is needed is a counter epidemic of stone monuments, but these dedicated to religious freedom.
How much could they really cost? Imagine a multi-sided stone block with the Flag or a likeness of the Statue of Freedom atop and with the words "E Pluribus Unum" at her feet. Below, one side of the block might contain the words of the Sixth Article, "No religious test will ever be required as a qualification to any public office or public trust under the United States". On another side, the First Amendment's establishment and free exercise clauses, if not the entire First Amendment itself. On still another side, the words of James Madison as quoted in an earlier paragraph. The number of sides or the words inscribed thereon would be determined by the artistic, historical, and strategic insight that might actually get invested in such a venture. Perhaps the first copy should be offered over to the capitol grounds of the great state of Texas. One can only imagine the reception that such an offering would get. Then again, maybe the first copy should be offered to the Supreme Court Itself.