Yesterday (June 27th) the US Supreme Court handed down two decisions about government displays of the sectarian 10 Commandments. In one case, McCreary County, Ky., v. American Civil Liberties Union of Kentucky, the court ruled 5-4 that the county display was not permissible as it had a clearly sectarian bent. The two counties in question posted the Decalogue along with other historical religious texts such as Lincoln’s 1863 Day of Prayer proclamation.
The second case, Van Orden v. Perry, involved a stone monument displaying the Decalogue on the grounds of the Texas state capitol. In the case the court ruled 5-4 that the display, among other historical items, didn’t cross the line and was permissible.
While the rulings didn’t decide much – other than leaving challenges of these displays to the lower courts to rule on a case by case basis – it does highlight the divergent thought and some weird logic used to decide the cases.
First and foremost the Kentucky ruling reaffirmed state neutrality in religious matters. It can’t endorse religion nor can it harm religion.
Justice O’Conner wrote in her concurring opinion:
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…. [Goverment] may not prefer one religion over another or promote religion over nonbelief…. It is true that many Americans find the Commandments in accord with their personal beliefs. But we do not count heads before enforcing the First Amendment.
What was also interesting was the court reaffirming that the 10 Commandments are an “instrument of religion”. Justice Souter wrote for the court:
Stone stressed the significance of integrating the Commandments into a secular scheme to forestall the broadcast of an otherwise clearly religious message, 449 U. S., at 42, and for good reason, the Commandments being a central point of reference in the religious and moral history of Jews and Christians. They proclaim the existence of a monotheistic god (no other gods), regulate details of religious obligation (no graven images, sabbath breaking, or vain oath swearing), and unmistakably rest even the universally accepted prohibitions (as against murder, theft, etc.) on the sanction of the divinity proclaimed at the text’s beginning. Displaying that text is thus different from symbolic representation, like tablets with 10 roman numerals, which could be seen as alluding to a general notion of law, not a sectarian conception of faith. Where the text is set out, the insistence of the religious message is hard to avoid in the absence of a context plausibly suggesting a message going beyond an excuse to promote the religious point of view. The display in Stone had no such context, and the Counties’ solo exhibit here did nothing more to counter the sectarian implication than the Stone postings. The reasonable observer could only think that the Counties meant to emphasize and celebrate the Commandments’ religious message.
It is always the stated reason for posting such obvious religious documents that the government is only acknowledging the historical influence of the 10 Commandments on the US legal system. The ruling in the Texas case used that logic to allow the monument to remain since it also was among other “historical” markers on the lawn. The majority in the Texas case assumed that the 10 Commandments had some influence but the historical record shows otherwise.
Our government system and laws are based not on some sectarian Decalogue but on the traditions and history of the Roman, Greek, and British law and the philosophy of people like John Locke. The first known written law was founded first in the Code of Hammurabi, the sixth ruler of the First Dynasty of Babylon, who ruled from 1792.1750 B.C. The Magna Carta had greater influence on our Constitution and legal system than the Ten Commandments.
In fact, if there were laws based on the first three of the Ten Commandments they would most likely be ruled unconstitutional if challenged in our courts. They would bump up against the most important fundamental right in the Constitution: the absolute right to believe whatever one chooses that derives from the First Amendment’s free exercise and free speech clauses.
James Madison, leader of the Constitutional Convention and drafter of the First Amendment, explained it as follows: “The Religion then of every man must be left to the conviction and conscience of every man; and it is the right of every man to exercise it as these may dictate.”
Thomas Jefferson spoke out against attempts to claim that the law incorporated the Ten Commandments when he criticized judges for “lay [ing] the yoke of their own opinions on the necks of others by declaring that [the Ten Commandments] make a part of the law of the land.” John Adams also questioned the influence of the Commandments and the Sermon on the Mount on the legal system.
The only relationship that can be connected between the 10 Commandments and the US legal system, besides the prohibitions against murder and stealing, is that both are laws. Nothing more.
Justice Scalia in his dissent in the Kentucky case blathered on about how the decision was inconsistent with the Founding Fathers’ own views and “ratchets up this court’s hostility to religion.”
As noted earlier and in Justice O’Conner’s opinion, the intent of the Founding Fathers was quite clear and opposite to the thinking of Scalia. Again the historical records bear this out.
As for hostility to religion, one has to ask what is meant by that. If the Bill of Rights are there to protect the person from the abuse of government, how then can enforcing religious neutrality be hostile to religion. We wouldn’t enjoy such a diverse community of religions (including the non-religious) if Scalia is correct. The rulings don’t force Christians, Jews, or other sects that use the 10 Commandments in their faiths to give up the 10 Commandments or their faith.
The ruling on the Texas case found a common myth that even a learned jurist such as Justice Breyer expressed in his concurring opinion:
“This [Texas] display has stood apparently uncontested for nearly two generations. That experience helps us understand that as a practical matter of degree this display is unlikely to prove divisive,”
The common myth is that because no one said anything for 40 years that it proves the monument is not divisive. That kind of weak argument is being used even today for other old religious monuments that are now being challenged. One has to point out that many things in this country have been done that turns out to be wrong and has been corrected. “Separate but equal” wasn’t challenged for 34 years but was eventually found illegal when it was challenged. Just because no one had challenged it didn’t mean it was right.
So, in conclusion, while the rulings were a split decision, it seems the court is applying the same guidelines it applied in testing the legality of Christmas Nativity scenes placed on public property. It is all about the context and intent.
It was also noted today (June 28th) that court refused to consider two Ohio cases in which displays of the Ten Commandments on public property were found unconstitutional.
In one case, a Richland County judge displayed the commandments in his courtroom. In the other, the commandments were displayed on stone monuments in front of Adams County school buildings.
The 6th U.S. Circuit Court of Appeals in Cincinnati said both were illegal.
McCreary County, Ky., v. American Civil Liberties Union of Kentucky
Van Orden v. Perry
Nice essay. 🙂
Justice Souter took issue with that “it’s been there for 40 years, must be ok” argument, too. “Suing a State over religion puts nothing in a plaintiff’s pocket and can take a great deal out, and even with volunteer litigators to supply time and energy, the risk of social ostracism can be powerfully deterrent. I doubt that a slow walk to the courthouse, even one that took 40 years, is much evidentiary help in applying the Establishment Clause.” Exactly! Too bad Breyer didn’t understand that.
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