REMEMBER THY HISTORY, HOLY OR NOT II. HONOR SUPREME COURT PRECEDENT, THAT THY DISPLAY'S DAYS MAY BE LONG UPON GOVERNMENT PROPERTY III. THOU SHALT NOT PROFFER SHAM PURPOSES A. From Whence Cometh Secular Purpose? B. Whither Goeth Secular Purpose? 1. Stone v. Graham 2. Parsing the Sham Purpose from the Sincere One IV. THOU SHALT NOT CIRCUMVENT THE COURT A. Older Displays and Legal Necromancy B. "If at first you don't succeed....": Modified Displays V. THOU SHALT HANG EIGHTEEN, NOT TEN The Ten Commandments
1 And God spake all these words, saying,
2 I am the LORD thy God, which have brought thee out of the land of Egypt, out of the house of bondage.
3 Thou shalt have no other gods before me.
4 Thou shalt not make unto thee any graven image, or any likeness of any thing that is in heaven above, or that is in the earth beneath, or that is in the water under the earth:
5 Thou shalt not bow down thyself to them, nor serve them: for I the LORD thy God am a jealous God, visiting the iniquity of the fathers upon the children unto the third and fourth generation of them that hate me;
6 And showing mercy unto thousands of them that love me, and keep my commandments.
7 Thou shalt not take the name of the LORD thy God in vain: for the LORD will not hold him guiltless that taketh his name in vain.
8 Remember the sabbath day, to keep it holy.
9 Six days shalt thou labor, and do all thy work:
10 But the seventh day is the sabbath of the LORD thy God: in it thou shalt not do any work, thou, nor thy son, nor thy daughter, thy manservant, nor thy maidservant, nor thy cattle, nor thy stranger that is within thy gates:
11 for in six days the LORD made heaven and earth, the sea, and all that in them is, and rested the seventh day: wherefore the LORD blessed the sabbath day, and hallowed it.
12 Honor thy father and thy mother: that thy days may be long upon the land which the LORD thy God giveth thee.
13 Thou shalt not kill.
14 Thou shalt not commit adultery.
15 Thou shalt not steal.
16 Thou shalt not bear false witness against thy neighbor.
17 Thou shalt not covet thy neighbor's house, thou shalt not covet thy neighbor's wife, nor his manservant, nor his maidservant, nor his ox, nor his ass, nor any thing that is thy neighbor's. (1)
Last fall, the nation watched as Chief Justice Roy Moore of the Alabama Supreme Court proudly erected a two-and-a-half-ton granite monument right in the center of the rotunda of the state's courthouse. The monument was engraved with the Ten Commandments and other references to God from documents and people important to American history. (2) Courts quickly found the display unconstitutional, (3) amidst much public outcry from Moore's supporters. (4) Moore was removed from the bench by the Alabama Court of the Judiciary for violating canons of judicial ethics. (5)
While the courts were absolutely right to find the monument unconstitutional under current Supreme Court precedent, the incident highlights the importance of religious symbols to many American citizens. (6) Around the country, courts have faced constitutional challenges to the display of religious symbols on government property. (7)
Under the United States Constitution, "Congress shall make no law respecting an establishment of religion or prohibiting the free exercise thereof." (8) Thomas Jefferson once used the metaphor of a "wall of separation between church and State" to describe the First Amendment. (9) Justice Hugo Black, a strong supporter of a strict separation of church and State, accorded that resonant metaphor an almost liturgical quality and added a chorus: "The wall must be kept high and impregnable." (10) Although scholars and judges have questioned whether this metaphor accurately portrays the legal effect of the Establishment Clause, (11) polls show that Americans generally agree with this portrayal of the church-state relationship. (12)
Yet, the experience in Alabama demonstrates that Americans may perceive the Establishment Clause's parameters slightly differently in practice. A recent poll by the Public Broadcasting System found that 40% of Americans surveyed believe the nation is "guided ... by Judeo-Christian beliefs inspired by God," and 68% believe it "should be permissible to install a monument to the 10 Commandments" in a courthouse. (13) Notwithstanding Supreme Court rulings suggesting that religious symbols standing alone on government property are unconstitutional, (14) a number of organizations, the most well-known of which are the Family Research Council and Focus on the Family, have mobilized support for defending Ten Commandments displays on government property. (15) Lawmakers in Kentucky and Indiana have made a concerted effort to post the Ten Commandments in schools. (16) Indeed, Justice Roy Moore built his career on posting the Ten Commandments in courthouses (17)--a career that even contemplated a third-party run for the presidency. (18)
That posting the Ten Commandments has become a popular rallying cry with certain conservative segments of the population indicates that religious symbol displays will continue to spawn litigation. But, the body of applicable precedent is murky at best. The fact-intensive inquiry required by the endorsement test, which typically governs First Amendment analysis of religious symbol cases, (19) yields little predictability. Requiring the display to have a secular purpose clouds the issue further.
Only one presentation of the Ten Commandments on government property has the Supreme Court's explicit blessing: the one in its courtroom. That frieze on the north and south walls features civilization leaders, including Moses, Hammurabi, Solomon, Confucius, and Octavian. (20) As Justice Stevens has noted, the carving "signals respect not for great proselytizers, but for great lawgivers." (21)
Depictions of the Ten Commandments elsewhere have fared less well. (22) More often than not, courts find them unconstitutional, in part because they believe the government entity in question intended to advance religion. Accurately discerning intent, however, is far from an exact science. (23) In fact, courts often derive evidence of purpose from the overall effect of the display. (24) Given the problems inherent in convincing a hostile court that a display featuring a religious symbol has a secular purpose, (25) and the fact that secular purpose analysis rarely changes the ultimate conclusion, (26) streamlining the analysis by focusing solely on the observer's perception of the overall effect (27) would improve both the court's clarity of reasoning and its credibility with the average American without eroding the Establishment Clause's protection.
REMEMBER THY HISTORY, HOLY OR NOT
In erecting Ten Commandments displays, the articulated purpose most often alludes either to the document's role in the evolution of law or to the need for a universal moral code. (28) The Ten Commandments laid the foundation for the English common law and the Napoleonic Code, which, in turn, laid the foundation for American jurisprudence. (29) Indeed, the laws of King Alfred, founder of the English common law, began with the Ten Commandments. (30) Even former presidents have readily acknowledged the importance of the Decalogue to the law. (31)
More generally, elements of Judeo-Christian tradition pervade many aspects of our society, and have since the time of the country's founding with the blessing of the founding fathers. (32) The currency bears the slogan "In God We Trust." Thanksgiving, a national holiday, began when George Washington proclaimed a day of prayer "to be observed by acknowledging with grateful hearts the many and signal favors of almighty God." (33) Thomas Jefferson arranged for annual cash support for a Roman Catholic priest to provide services to the Indian tribes. (34) Congress pays a salary to a legislative chaplain. (35) The Supreme Court opens its sessions with "God save the United States and this Honorable Court." (36) Since 1954, the Pledge of Allegiance has included the words "under God." (37)
The Ten Commandments are similarly a part of American society. Many contemporary laws have parallels in the Ten Commandments, including prohibitions against murder, blasphemy, adultery, theft, lying, and even Sunday closings. (38) Judicial opinions from a half-century ago regularly mention the Ten Commandments as part of a universally recognized code of conduct. This example from 1950 is illustrative:
In American life the family is the foundation on which democratic institutions are reared. The church and the school are but auxiliaries to the family. The school, private, public and college is the offspring of the church. Different species of democracy have existed for more than 2,000 years, but democracy as we know it has never existed among the unchurched. A people unschooled about the sovereignty of God, the ten commandments and the ethics of Jesus, could never have evolved the Bill of Rights, the Declaration of Independence and the Constitution. There is not one solitary fundamental principle of our democratic policy that did not stem directly from the basis moral concepts as embodied in the Decalog [sic] and the ethics of Jesus. (39) A criminal case from Colorado in 1945 concludes: "One of the ten commandments is, 'Thou shalt not kill.' This is incorporated into our statute. Defendant violated the laws of both God and man...." (40) A New York bigamy case, also from 1945, explains that "[t]he natural law was codified in the Ten Commandments. By the natural law, the unity of the matrimonial bond and its indissolubility and permanency are essential properties of conjugal society." (41)
In describing a fiduciary's duty of loyalty to his principal, a Texas court noted: "It has long been known and recognized by mankind throughout all the ages. It is written in the Ten Commandments, on the Twelve Tables, in the laws of every nation, and in the heart of every man." (42) A Wyoming court...
"Thou shalt not bear false witness": "sham" secular purposes in Ten Commandments displays.
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COPYRIGHT GALE, Cengage Learning. All rights reserved.
COPYRIGHT GALE, Cengage Learning. All rights reserved.