Ten Commandments redux: How will SCOTUS rule this time?

Great Debates
#1

It looks like we are heading for another important decision from the U.S. Supreme Court, which heard arguments in two cases this week about government use of the ten commandments.

I know we have been over this before, and talked about it from many angles, but this time it looks like the decision may hinge on what constitutes a *historical display of a religious document or text *vs. a promotion of a religious view. It also requires consideration of “ceremonial deism” as to what is acceptable. That narrows the topic a bit.

Let me begin by assuming what I think most of us can agree on. There is a spectrum of acts from mere historical display to religious promotion. I will say that historical display is OK, religious promotion is not. Examples:

ACCEPTABLE: A diorama in a government lobby depicting the development of government and law and including, in roughly equal proportions, such images as a generic tribal council meeting, Moses given the tablets, the Code of Hammurabi, the Magna Carta, Declaration of Independence, U.S. Constitution, images of the English Parliament, New England town meetings, voting scenes, legislative scenes, women’s suffrage icons, Lincoln’s “Union” texts, you get the idea. At first glance, I have little problem with the inclusion of the ten commandments in this context. It would pass the Lemon test: It has a secular purpose, it does not advance religion, and it does not entangle government with religion.

(Aside: BUT I wonder just how much of a factor the 10s were in the USA’s founding fathers’ works & actions. Did they write essays with the 10s at their side, treating it as if God insisted they be followed, or were they merely present at the back of their minds as a rough guide?)

I’m not concerned here with such matters as which version of the commandments, how many (10 or 12), or whether they make any sense or are followed today. In a historical context, it only matters that SOME version of them were influences – among many – in establishing a government or deriving a set of laws. And the argument that a Buddha statue or Hare Khrishna text should have equal stature is not relevant here, since AFAIK neither had a profound influence in the early development of Western law or government.

NOT ACCEPTABLE: A large, imposing statue in a lobby, where it is impossible to ignore, of the ten commandments presented in such a way as to admonish, if not directly order, citizens to follow them on severe penalty of outcast or punishment, and implying that the courts are enforcing a divine revelation. This would fail the Lemon test in all three ways: It does not have a secular purpose, it advances a specific religion (Judeo/Christian at least), and it entangles government with religion. Badly.

OK, so now we agree on the limits, both ends of the spectrum. Where do we draw the line?

It is disturbing to me that the religious right seems determined to force the issue by deliberately merging sacred displays with secular ones, then daring SCOTUS to do something about it. I find the cries of “it’s part of our heritage” disingenuous when I see ministers protesting outside SCOTUS. Do they really expect us to believe that, to them, the ten commandments are NOT a religous document? And if they are not, why is it so important to them to keep the 10s in a mixed-media display? Would ministers be as upset if the Magna Carta were removed from the same display?

And here’s a What If: Assume that the 10s were truly a profound influence in the original U.S. government design. What if by 300 years later, perhaps thru immigration, this country becomes 70% Shinto. Will Shinto “priests” be lobbying for statues of a Hebrew document in every courthouse?

So where do we draw the line so this doesn’t keep coming up again? Is there a better test than Lemon?

#2

FWIW, this is pretty close to some of the actual decoration inside the Supreme Court bulding. The North and South Friezes (PDF file) inside the courtroom include a parade of historic (or legendary) “lawgivers” from throughout history, from Menes and Hammurabi to John Marshall and Napoleon. Moses is up there; part of the Hebrew text of the Ten Commandments is visible on the tablets he’s holding. Muhhamad is also up there.

The Ten Commandments were very important to the legal systems of some of the American colonies before the Revolution, particularly in New England, but I don’t think they were a factor at all in the theories of law and government enacted by the Founding Fathers of theUnited States. Of course that doesn’t matter in the context of the Supreme Court decorations, as they depict not just the foundations of American law but the idea of the law from throughout history.

#3

Maybe not all ten, but at least two of them were very important to at least one Founding Father:

If “Thou shalt not covet,” and “Thou shalt not steal,” were not commandments of Heaven, they must be made inviolable precepts in every society, before it can be civilized or made free. — John Adams

http://press-pubs.uchicago.edu/founders/documents/v1ch16s15.html

#4

Because, of course, before the Bible came along, nobody had ever advocated the radical position that taking of another’s property was a bad thing…

#5

Well, yeah. That quotation seems very clearly to say that Adams thought those were important as universals, not because they were Biblical.

#6

I have no doubt they will do this but I object to the contention that it’s “required.” “Ceremonial deism” is a completely made-up, bullshit construction with no textual support in the COTUS and which was invented out of desperation as way to knife a hole in the Establishment Clause.

#7

The fact that the mood is subjunctive actually means that he thought they were indeed “commandments of Heaven”.

http://www.bartleby.com/64/C001/061.html

“If “Thou shalt not covet,” and “Thou shalt not steal,” were not commandments of Heaven…”

I know that some people think invoking the conventions of language, like grammar, in order to parse the sense of something is being “picky”. But I don’t. I depend on someone knowing what the conventions and rules are and using them appropriately. I’m especially confident that John Adams knew them and adhered to them.

#8

It doesn’t matter what John Adams thought. “Thou shalt not covet,” and “Thou shalt not steal” are not in the Constitution. Coveting is actually protected by the Constitution, inasmuch as the First Amendment protects free thought.
Adams’ personal religious opinions (and really…what kind of tool would say he wants to criminalize “coveting?”) don’t actually have any bearing on Constitutional arguments. None of the Ten Commandments are in the Constitution and the Bill of Rights actually guarantees the freedom to violate most of them.

#9

Yes, he undoubtedly did.

My point, however, stands. He believed them to be noble, important, and universal precepts for the efficient functioning of any civilized society because of their natire, not their origin.

IMO.

#10

Once again, you misread the argument.

He’s not saying that Adams didn’t think they weren’t commandments from heaven. Clearly he did. However, Adams doesn’t believe that the importance of the commandments is divinely mandated, rather, the importance comes from a universal necessity.

#11

(ahem)

Their nature, rather.

#12

I get it. He was saying “Even if they WEREN’T divine commandments they would still be necessary.”

#13

Musicat, I have no complaint with your examples of what should or should not be appropriate for official display. Where I struggle is coming up with a good, unarbitrary means of judging what exactly is an appropriate display of historical interest, and promoting religion. I say this because if Lemon v. Kurtzman did not supply an appropriate and clear legal precedent, then we must assume that religious conservatives will seek to test the boundaries of jurisprudence at every possible opportunity. Must we include the Code of Hammurabi to make it a sufficiently secular display? If Aristotle’s Athenian Constitution somehow gets a nod, but the concepts of or reference to Shari’a are excluded, will and should some Muslims complain about pro-Western bias? What truly makes something a secularly historical monument? I can’t think of anything much better than the “Porn Test”, i.e., you know it when you see it.

#14

You too, eh? I know it when I see it as long as it is far enough to one side. I don’t know how/where to draw the line inbetween. I wonder how the Supremes will separate the extremes.

#15

Well, I’ll you what, they can post those of the Ten Commandments in courthouses that civil government actually has any jurisdiction over.

#16

I think that when the supporters of a monument repeatedly avow that it exists to “acknowledge God” or to proclaim that “government derives its authority from God”, then it isn’t a secular display.

#17

I didn’t say they did. I countered the argument that “I don’t think they were [COLOR=Red]a factor at all in the theories of law and government enacted by the Founding Fathers of [the] United States[/COLOR]”.

To say that the Tens were not a factor at all implies to me that they never even came to mind, that they were given zero consideration, and surely that they were never explicitly invoked. This business about having a bearing and whatnot has nothing to do with what I said. It is a red herring.

#18

It was actually MY argument that was misread. I have not in any instance interpreted Adams argument as you seem to think I have. My argument was not about Adams’ views on government, but about the Tens being invoked and therefore being a factor.

#19

As a British poster who is relatively uninformed about the matter at hand and wishes to have his ignorance alleviated, I feel I must interject and humbly ask Liberal, Neurotik and others to refrain from getting bogged down in semantic nitpicking, and focus on the interesting stuff :wink:

Sorry for my impertinence :slight_smile:

#20

Yes, well, when we are fortunate enough to have a transparent demagogue like Roy Moore vouching for the Big Ten, it’s a fairly cut-and-dry issue, I’ll agree. If only more of his ilk were so forthright in proclaiming their motivation and intent. When you delve into the tactics and disingenuous rhetoric of folks like those of the Discovery Institute, who have been championing teaching Intelligent Design in our public schools, you realize pretty fast that many of the folks who wish to transform America into something more theocratic engage in fairly sophisticated subterfuge. So it’s good to be on your toes, and to have good and thorough jurisprudence on the subject, because things aren’t always so clear. It’s precisely because the Christian Right can be so damned sneaky that I am rather stumped as to how to effectively stop them in a manner that does not hopelessly complicate the issue, or alternatively, leave gaping loopholes to be exploited.