Writing on the wall of separation: understanding the public posting of religious duties and sectarian versions of sacred texts as an Establishment Clause violation in Ten Commandments cases.

AuthorPollack, David C.


When a moving company arrived in Montgomery last summer to relieve the Alabama State Judicial Building of a two-and-a-half ton granite monument entrenched in its rotunda, the movers were greeted by shouts of "Pray the wheels crumble!" and "Lord, it's never too late to repent." (1) One protester even demanded: "Cowards! Open the door! Let me in there!" (2) The monument was inscribed with a translation of the Ten Commandments (3) from the King James Bible and was often the site of prayer services attended by government officials and other members of the public. (4) Its shape--two adjacent tablets, each rounded at the top (5)--recalled that most ancient of religious documents, which in keeping with its namesake, summons divine authority to literally command its readers to obey between ten and twelve religious duties. (6) Installed in 2001 by former Alabama Supreme Court Chief Justice Roy Moore, shortly after his election and campaign as the "Ten Commandments Judge," (7) the monument and its removal signaled the end of an ordeal that lasted more than a decade. (8) This legal sideshow featured everything from popular protest (9) and wasteful lawsuits (10) to threats of civil disobedience by Moore (11) and a governor's rhetoric recalling Alabama's notorious stand against desegregation. (12) It was only pursuant to multiple federal court orders, (13) the last coming in no uncertain terms from the Eleventh Circuit, (14) that Moore's penchant for Decalogue-posting ceased. (15)

The Alabama spectacle and other cases involving the posting of the Ten Commandments on government property scream out for a clear response to the question: On which side of Thomas Jefferson's "wall of separation between church and State" (16) do public displays of the Ten Commandments fall? This Note seeks to answer the question by analyzing the text of the Ten Commandments as a religious document. Because many of the Commandments explicitly purport to mandate and forbid particular theological beliefs and worship, and because the document is vulnerable to a number of conflicting sectarian interpretations, I will argue that the Establishment Clause of the First Amendment (17) forbids its public posting.

Part I of this Note discusses the religious obligations set forth in apodictic fashion in the Decalogue. It also explains that three major religions--Judaism, Catholicism, and Protestantism--each maintain a disparate and conflicting version of the document, notwithstanding the endeavors of some to elide all differences in so-called "ecumenical" or hybrid versions of the text. Part II considers the case law in the area, discussing the relevant applications of the Establishment Clause to Ten Commandments displays. Part III then examines the split between courts regarding the constitutional implications of publicly posting a version of the Ten Commandments inspired by Protestant translation and enumeration. Part III also looks at the posting of the hybrid versions of the Commandments and the split between courts over whether the putative amalgamation of the versions fairs any better under constitutional scrutiny. Finally, Part IV suggests an answer to each split, arguing both that the choice of the recognized Protestant version impermissibly endorses one denomination over all others and that the ecumenical version of the Commandments is no less constitutionally infirm.


Because some may be unfamiliar with the Ten Commandments, (18) section A of this part of the Note briefly discusses their place in Western religion. Section B then analyzes the text of the Commandments themselves, focusing on both the theological nature of the edicts and the substantive differences between the authoritative versions of the Decalogue propagated by the major religious denominations. (19) Finally, Section C considers the various hybrid versions of the Ten Commandments in America and proposes federal and state legislation seeking to guarantee their public posting.

  1. Background

    According to the Hebrew Bible, the ancestors of the Jewish people, referred to as the Hebrews, were enslaved in Egypt until a deity known as "YHVH," or God, brought them out of the land through a series of miracles. (20) Amidst thunder and lightning, and atop a cloud-covered mountain outside Egypt, the narrative states, God gave two stone tablets to the leader of the Hebrews, Moses. (21) On the tablets, God inscribed what many refer to--not without a controversy in its own right (22)--as the Ten Commandments. (23) Although most sects of the major western religions accept the basis of this account, they are wedded to their particular interpretations of the Hebrew text. (24) This is true not only with respect to the choice of translation of the Bible as a whole--the King James version for Protestants, for instance (25)--but also with respect to the divisions, enumeration, and translation of the Decalogue in particular. (26)

  2. Religious Obligations Within--and Sectarian Disputes Over--the Decalogue

    1. The Duty to Worship God Alone

      The first obligation enumerated in the Decalogue is a purely religious one: "I the LORD am your God who brought you out of the land of Egypt, the house of bondage." (27) These words constitute a requirement to "believe in God's existence ... [i.e. to believe in] a cause and motive force behind all that exists," to "accept the yoke of God's sovereignty [and] to recognize God as the Supreme Authority." (28) Thus, anyone sympathetic to the notion that God might not exist, including atheists and agnostics, (29) are guilty of "a sin against the virtue of religion" through their beliefs. (30) According to one research group, 902,000 atheists and 991,000 agnostics lived in America in 2001. (31)

      Although Judaism and Christianity are in agreement that God alone must be worshiped, they differ with regard to how this tenet is expressed in the revelatory text. The prevailing Hebrew version of the Decalogue makes the words "I am the LORD thy God, who brought thee out of the land of Egypt, out of the house of bondage," the First Commandment, (32) while Christian denominations often consider this verse a prologue to the rest of the text. (33) In addition, Christian versions of the Decalogue often omit the reference to redemption from Egypt. As one commentator observed, this difference is not only "important and real," but "theologically inspired." (34) It reflects the fact that the Exodus story is fundamental to the Jewish faith, while it occupies a less prominent role in Christianity. (35)

      The Second Commandment in Judaism is thus the First Commandment according to most Christian denominations. (36) It prohibits polytheism and any other religious practice not centered on the author-deity: "You shall (37) have no other gods beside me." (38) While the Commandment can also refer, metaphorically, to an obligation to refrain from "rever[ing] a creature in place of God... [such as] power, pleasure, race ... etc," (39) the most obvious reading regards beliefs in other "gods or demons" and clearly forbids "false pagan worship." (40) Thus, the text explicitly rejects the beliefs maintained by Wiccans and other arguably polytheistic and nontheistic faiths, such as Buddhism and Hinduism. (41) There were 1,082,000 Buddhists, 766,000 Hindus, and 307,000 Wiccans (42) residing in the United States in 2001; (43) other non-biblical faiths such as Sikhism and Native American religions grew at rates greater than one-hundred percent between 1990 and 2000. (44)

    2. "Graven Images"

      According to the Jewish version of the Decalogue, the following passage is a continuation of the injunction against polytheism:

      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 parents upon the children, upon the third and upon the fourth generations of those who reject Me, but showing kindness to the thousandth generation of those who love Me and keep My commandments. (45) In most Protestant sects (and in Eastern Orthodox Christianity), however, the prohibition of polytheistic belief stands alone as the First Commandment, while the duty to refrain from creating "graven images," (46) comprises the Second Commandment in its entirety. (47) More significantly, according to Catholic sources, the injunction against graven images is either encompassed within the First Commandment (the injunction against polytheism) or omitted entirely. (48) This fact not only distinguishes the numbering of the Catholic version--each successive Catholic Commandment is one ordinal number behind its counterpart in the Protestant and Jewish versions--but also reflects deep divisions at the core of Protestant and Catholic identity. (49)

      On the one hand, the Commandment against graven images played a crucial role in the Protestant Reformation. (50) In what was "[o]ne of the earliest, and certainly one of the most intense controversies to erupt in the sixteenth century," (51) according to one historian of Christianity, Reformed Church leaders brandished their Second Commandment to advocate the removal of paintings and sculptures. (52) They argued that the use of religious icons could and did lead to veneration of inanimate objects, fettering meaningful religious worship. (53) In fact, John Calvin and other fathers of Protestantism also saw the rejection of the Eucharist--a rejection central to the doctrine of most Reformed Churches--as inextricably linked to the directive of the Second Commandment. (54) "[T]he veneration of the elements of bread and wine" was, for these leaders, like "the veneration of images and icons ... substituting the creature for the creator, robbing God of the glory that belongs to God alone." (55)

      On the other...

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