Twenty-Five years ago, the Supreme Court in a per curiam (unsigned) opinion held that a freestanding Ten Commandments display was illegitimately placed in a public school. Stone v. Graham. The case appeared rather straightforward – the first three or four (depending on the version chosen) commandments clearly respected a sectarian set of rules on how to truly honor "the Lord, your God."
The word "your" might rightly be highlighted, since the first and second commandments* clearly took cognizance of other gods, who the "jealous" God of Moses commanded (again, the very name of the text had a religious context) his people not to worship. And, not only was the commandments freestanding, but schools were always treated with special care.
And, then the Court basically ignored the issue, even as loads of cases involving displays on government property were heard in the lower courts, resulting in various conflicting opinions fairly usual for such display cases. The Court found Christmas display cases troubling enough; they didn't really want to deal with Ten Commandment displays, which were perhaps even more open to controversy. And, then Judge Moore practically made it impossible for them to ignore, even if his blatantly political move was too much even for the far from liberal Alabama courts.
The argument in support of such displays has various dubious aspects that do not stand up to much scrutiny. The importance of the Ten Commandments to the development of our legal system is questionable, surely to the degree that it should be so prominently displayed via government sponsorship. Others, such as Justice Scalia, argue that the commandments honor God's place in our laws.
Their favorite line is from Justice Douglas, known for his strong views on separation of church and state, that "We are a religious people whose institutions presuppose a Supreme Being." [The fact he basically took a much stricter line ten years later is left unsaid.] The Declaration of Independence ("the laws of nature and nature's God"), "In God We Trust," and other things are also referenced.
Two problems. Putting aside problems with honoring a certain deity on our coins and in our pledge, the Ten Commandments are much more sectarian. This is somehow forgotten or ignored, including by the likes of Justice Scalia who apparently thinks that the people do not really think of them as sectarian. I underline this bit of sophistry in part for the benefit of those who honor his bluntness regarding the religious nature of the displays. He is willing to allow the state to honor religion's place in society, but not to quite admit just how sectarian some practices truly are. Second, the government is based on the consent of the governed, not God.
Some, such as Dahlia Lithwick, are bothered by the messiness found in the current law. She dreams of a chance to face up to the matter honesty, not via a bunch of convoluted tests. Life is messy though. Lithwick is wrong to note that the true question is if religion has a role in public life. Clearly it does – politicians, voters, school children, and religious groups who use public parks all in some fashion practice religion in public life. And, the government in various ways has a right to help them out – it cannot ban free exercise of religion without good cause, those in prisons and in the military sometimes need help, and religious employers might even discriminate by faith in certain ways.
The question here is more specifically one pertaining to the government's authority to get mixed up with certain religious faiths, in particular by sponsoring certain displays or references with religious content. Public school children can pray in public school, even if it is aloud before they eat their lunch, but school authorities cannot lead their prayers or compose them. Justice Scalia is correct to be annoyed at attempts to remove the religious meaning to certain acts in an attempt to make the questions easier to answer. But, as I noted, he does not honor individual faith by accepting sectarian religious ceremonies and acts sponsored by the state. What message does this send to religious minorities that deeply believe in alternate traditions?
It just cheapens religion really. Saying the Ten Commandments is secular surely is wrong, but so is saying that it is just some basic way to honor God's place in our society. It definitely is more than that – it is a sectarian way to honor God. This is the point that must be addressed before examining the cases at hand. For instance, Justice Kennedy once suggested a permanent big cross atop a state building might cross (ahem) the line. I question if a big granite display of the Ten Commandments in front of the same building necessarily is so much different. A frieze (such as the one on the wall in the courtroom of the Supreme Court) with various representations of the history of law, including Moses, is quite different.**
A few final words about the cases. It is amusing to note that one was first brought forth by a lawyer now homeless – he let a top legal scholar defend it yesterday, since he couldn't collect enough cans for the plane fare. So I heard. Second, one case might be easier to decide since the purpose of the display was clearly religious, even though the government decided to surround it with neutralizing objects after being sued.
The "easier" case is defended as really being a display honoring a certain group, who used the Ten Commandments to represent themselves. This seems an easy way to allow (certain) religious symbols on government (our) property, even if the big granite displays are in the midst of other non-religious ones. In fact, this might arguably be a true "union" of the religious with the secular. It is bit too cute. It surely would not convince me that new commandments displays should be welcomed, even if we grandfather those longstanding.
[The lower court opinion doesn't help. I'm unclear how a version of the commandments can be "nonsectarian" (unless edited) or how it's religious content doesn't dominate when engraved on a stone monument. A betting man would say its forty-odd year place among other displays will be held to neutralize its religious message. He might even say it would not be too bad in the current context. Still, it seems we are cheapening it in the process. Shouldn't its religious content, even if damning in this case, be firmly embraced?]
Justice O'Connor, who decided to speak out in the Pledge Case ("under God" is religiously neutral) while the majority punted, loves cute. The prevailing wisdom is that she will be the deciding vote (especially since she's a bit in a tiff because Justice Kennedy is dominating the role these days), using her legal fiction "endorsement test" to explain how reasonable people should not find the Ten Commandments favorable to certain religious groups, except when it is. Talmudic scholars should find much to like about that gal.
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* Again, it depends on what version you use. The Catholic version starts off with commandments speaking of there being one God, whose name we should not take in name, and should honor on the Sabbath. Other versions toss in another involving graven images, which Jehovah Witnesses believe is violated by pledging allegiance to the flag. The Old Testament has two versions (found in Exodus and Deuteronomy), usually shortened for purposes of such displays, which are different is certain ways.
** Thus, a truly diverse display of the law which has the Ten Commandments as but one of many aspects of its history, probably will be acceptable in most cases. [One of the cases is somewhat in this category, but as noted, the state's heart really wasn't in it.] It is a great rhetorical device to point to the Supreme Court's friezes, but it really is a clear contrast to many of these displays.
The whole reason why these cases are controversial is because of the desire to highlight the Ten Commandments. Likewise, there is quite a difference between displays and inclusion of two tiny tablets in the federal Ninth Circuit of Appeals court seal, and so forth. A sense of perspective might sometimes be hard in law, but really, some lines can reasonably drawn without allowing glaringly sectarian displays.