Why the commandments make for such messy law.
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 TheDa 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.
Rod Smolla is dean of the University of Richmond School of Law.