Why the commandments make for such messy law.
stoney
The law, lawyers, and the court.
Ten
Why the commandments make for such messy law.
By Rod Smolla
Posted Friday, Oct. 15, 2004, at 2:35 PM PT
The Ten Commandments are poised to do this year what the Pledge of
Allegiance last year could not: force the Supreme Court to resolve one
of the more intractable puzzles of our constitutional tradition. How
do we determine the appropriate role of religious symbols and rituals
in our public life? The court's announcement this week that it will
review conflicting decisions from Texas and Kentucky on the
constitutionality of displays of the Ten Commandments on government
property will trigger yet another round of intense legal and cultural
debate. A few ecumenical constitutional observations are offered here
in the hope of illuminating the competing tensions.
Lower courts have been hopelessly divided over the Ten Commandments,
and no wonder—the legal principles and tests are a swirl of confusion.
Among the many inquiries the uncertain Supreme Court precedents appear
to invite are whether the governmental purpose behind the erection of
displays of the Ten Commandments is religious or secular; whether the
effect of such displays is to advance or endorse a religious message;
whether the erection of such displays fosters excessive entanglement
between church and state; and whether the displays are placed in
locations or settings that have some coercive effect—forcing objecting
citizens to view religious content against their will.
Defenders of the displays argue that the Ten Commandments are not
erected to endorse or advance religion, but, rather, are presented for
secular reasons. In the Texas case, for instance, the Ten Commandments
monument was presented to the state by the "Fraternal Order of
Eagles"—one of hundreds of such monuments donated nationwide to honor
the efforts of the Boy Scouts to combat juvenile delinquency. While
this may tell the literal story of how Texas acquired the monument, it
skirts the surface of the real cultural debate, which has a lot more
soul to it. The cultural push to defend the Ten Commandments has
little to do with Boy Scouts*, but lots to do with the larger
perceived value of the Ten Commandments as artifacts of history and
culture—expressions of elemental moral precepts that inform our law
and build our sense of shared values and community.
Defenders of the displays believe that it is folly to root out all
religious symbols and rituals from our civic life. Such zeal to
separate church and state, they argue, tends to starve us of moral
nourishment. As Oliver Wendell Holmes once said, the "law is the
witness and external deposit of our moral life." Legal precepts as
basic as murder or perjury derive from commandments as fundamental as
"Thou shalt not kill" or "Thou shalt not bear false witness." The
shrill individualism that may motivate civil libertarians to insist on
stripping all religious references from our public life leads to a
decay of our public morality.
Those opposed to the commandments' display see these defenses as
flawed at their core. To pretend displays of the Ten Commandments are
not religious in purpose and effect is utter fakery, they claim. What
part of the words "I the LORD thy God am a jealous God" or "Thou shalt
have no other gods before me," they ask, are not religious? More
expansively, those who seek to remove these displays are likely to
have a vision of our Constitution grounded in individualism and
autonomy—a vision especially hostile to any encroachment on matters of
creed and conscience by the state. This vision assumes that religious
symbols and rituals are matters of private faith and devotion, which
belong in private places and spaces, not parks, plazas, and buildings
owned by the government and entrusted for the common good.
Opponents of these displays on public property also see in them the
mischief of sectarian preference. Anytime a sacred text is displayed,
there is an opportunity for division. Because for many of the great
religions of the world, the Ten Commandments are not a sacred text.
And even among the religious traditions that do hold the Decalogue to
be sacred, many different versions of the text exist. There may be
agreement on the number—it's always the Ten Commandments, never the
seven or the 11—but depending on how they're sliced, there are
considerably more than 10 prohibitions or prescriptions. Different
religious traditions group and number the commandments differently,
employ different translations of the text, and include or omit
different phrases. For many, these differences in presentation are
probably not all that consequential—we all pretty much know the gist
of what is forbidden and why. But there may be some for whom it does
matter, and others who do not like the idea of a "non-denominational
text," seeing this is as an exercise in a kind of politically correct
scripture-by-committee bowdlerizing that saps the scripture of its
spiritual resonance and power.
While there are likely to be some Americans and some Supreme Court
justices with relatively absolute convictions on each extreme of these
arguments, many citizens and a critical mass of justices may find
themselves in the middle, with more nuanced views that are neither
completely for or completely against the display of the Ten
Commandments in public spaces. For many in this middle group, context
becomes critical. Which explains why it has been critical in the case
law.
Should it matter, for example, whether the Ten Commandments are
displayed in close proximity to other symbols (including religious
symbols) or other historic documents (including religious documents)?
A large part of our art is religious; a large part of our art is
sacrilegious. If you believed The Da Vinci Code, some masterpieces may
be both. We normally treat publicly funded art museums as public
forums in which artistic themes from every viewpoint and on all issues
are permitted for display. Not only are religious or anti-religious
messages permitted in such settings, their banishment would be
prohibited. It would violate free-speech principles, for example, to
ban from a public museum a painting depicting the resurrection of
Christ, or a painting defiling the image of Christ.
But in the art museum example the context of the display is
everything. The depiction is "art," and we know it reflects the
sensibilities of the artist, not the government. We understand that
the public museum is a collection of views that none of us is forced
to view. But what about public schools? The Supreme Court in Stone v.
Graham (1980) held that a display of the Ten Commandments in a
classroom violated the Establishment Clause of the Constitution. Yet
Stone might not prevent the description of sacred documents in public
school textbooks—as artifacts for the study of history, culture, or
literature. Similarly, while the Supreme Court has declared it
unconstitutional for a state legislature to require the teaching of
"creation science" on equal terms as scientific accounts of the
origins of the universe, it has never held that a school teacher (in
an English class, say) could not include as part of a lesson plan a
comparison between the Big Bang and the first book of the Bible.
Again, context is critical. A federal court would look with great
skepticism on any claim that a genuine academic exercise using such
materials would constitute either a government establishment of
religion or a prohibition on its free exercise.
Move now from these relatively easy examples to harder ones. Displays
of the Ten Commandments like those presented by the Eagles are often
described in lower-court opinions (including the Texas case now before
the Supreme Court) as "monuments." These monuments are often placed in
parks or public buildings. In such instances, our vocabulary and sense
of landscape may change our interpretation of the display. The very
word choice is a clue. Perhaps the term "monument" is chosen only
loosely, as a convenient shorthand to help us conjure the image of the
granite block on which the Decalogue is placed. But the word
"monument" has multiple connotations, including "memorial," "record,"
"testament," "reminder," or "tribute." A monument placed on public
property is usually not thought of as a work of art to which the
government is indifferent, but rather, as a display in some sense
approved or endorsed by the government. We erect "monuments" to
leaders, soldiers, heroes, and great events.
Thus, a massive sculpture of the image of the Buddha or of Christ
being taken down from the cross in the sculpture garden of a public
art museum would plainly not violate the First Amendment. But exactly
the same sculpture, called a "monument" to Buddha or to Jesus and
placed on the steps of a county courthouse, would raise serious
constitutional issues.
One difficulty with an emphasis on context is that such an emphasis is
necessarily very fact-specific, requiring courts to weigh variables
case-by-case, inevitably leading to results that seem erratic and lend
themselves easily to caricature. Two prior Supreme Court cases dealing
with the displays of crèches on public property, for example, appear
to have been influenced by the extent to which the figures of the
infant Jesus, Mary, Joseph, angels, shepherds, and wise men are
accompanied by congeries of less religious significance—namely
Rudolph, Frosty, or Santa. In the case of the Ten Commandments
displays, the accompanying hosts are more dignified—typically
including neighboring displays of the Declaration of Independence, the
Star Spangled Banner, the National Motto, or the Mayflower Compact.
The Texas monument includes Hebrew script, an American eagle, two
Stars of David, a symbol of Christ, the Greek letters Chi and Rho
superimposed on each other, and the symbol of pyramid with an eye,
similar to that on a one-dollar bill. This really is The Da Vinci
Code!
Such detailed inquiries about context may make the case law, and even
the court's concerns, appear trivial, especially when addressing
questions of such vast national consequence. But for the justices in
the middle on this issue, the answers are anything but. Their ultimate
opinions will be nuanced, thoughtful, and complex. Let's hope the
public debate on this issue will be the same.
Correction, Oct 18: The Texas monument was intended to honor the Boy
Scouts generally, not the Eagle Scouts in particular, as the piece
originally implied. Return to the corrected sentence.
Rod Smolla is dean of the University of Richmond School of Law.
/end
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whatever action they intend on taking. -Stoney
And Duty Imp and Rapscallion