Commandments on government property vs. Commandments in government courthouse

June 27, 2005

The Supreme Court issued two rulings today on public support for the Ten Commandments. They came to two different conclusions about where the church-state line rests. Context, in these cases, was everything.

The first case was McCreary County v. ACLU, which dealt with a controversy out of Kentucky in which county officials displayed the religious code on the walls of its courthouse. When a federal judge ruled the move unconstitutional, the same officials added some other legal documents to the display that purported to show America’s “Christian heritage.” The second display was rejected in federal court as well.

In this case, local officials admitted that they were using their official power to try to promote Christianity. Indeed, upon placing Commandments displays in courtrooms, the same officials passed a resolution lauding America as a “Christian nation.” This morning, the Supreme Court said — in a 5-4 ruling — that the officials in Kentucky violated the First Amendment. As I wrote earlier, this was a no-brainer for anyone who takes church-state separation seriously.

And then there was the other one. The Van Orden v. Perry case is out of Texas and challenged a granite Ten Commandments display found on the 22-acre grounds of the Texas state capitol. Here, the Commandments monument stands alongside other monuments, most of which are war memorials. The Texas controversy seemed less offensive because the religious display was part of a much larger collection of monuments, but the Van Orden case nevertheless dealt with a clear case of state-sponsored religion. The tablet in Texas not only promotes the Protestant version of the Commandments (instead of the Catholic or Jewish versions), but the monument also includes two Stars of David and the Greek letters chi and rho, which, when superimposed, stand for Christ.

However, in this case, the religious display is smaller than the other monuments around it and it has been there since the Fraternal Order of the Eagles donated it, through private funds, in 1961. With these details in mind, the justices, in another 5-4 ruling, said this Commandments display was constitutionally permissible.

For civil libertarians, it was a mixed bag of results, but it could have been far worse. Roy Moore-like religious shrines in government buildings will not be legally permissible, but every religious activist looking to the state to endorse his or her sacred text now has a legal roadmap: surround the Decalogue with secular items and the displays will be legal.

June 27, 2005 at 11:53 am

The tablet in Texas not only promotes the Protestant version of the Commandments (instead of the Catholic or Jewish versions), but the monument also includes two Stars of David and the Greek letters chi and rho, which, when superimposed, stand for Christ.

This description isn’t correct. The monuments that the Fraternal Order of Eagles donated to Texas and many other government entities across the nation were specifically tailored to an ecumenical version of the Commandments. The text of the tablets was subjected to review by a priest, a rabbi, and a protestant minister. The Star of David, of course, is at least as much a Judaic symbol as a Christian one. Also, the monument tipped its hat to America’s deist traditions, as it bore an eye-in-a-pyramid symbol such as appears on our money.

I still think it should have been yanked, but certainly not for favoring Protestantism over Catholicism or Judaism.

Sorry, Matt, but I’m afraid you’re mistaken on this one. The FOP monuments feature the version generally used by most Protestant faith traditions. There is no such thing as an “ecumenical version of the Commandments.”

The Decalogue appears in the books of Exodus and Deuteronomy in 17 verses, not 10. The three main traditions (Protestant, Catholic, Jewish) number and word the Commandments in different ways. The display in Texas, like most Commandments displays that have arisen nationwide, used the Protestant version.

It wasn’t a critical point in the legal proceedings, but I think it’s worth remembering as part of the debate. To promote a Commandments display is to necessarily favor one tradition over others.

All I can tell you is what’s on the record from the cases, which I had to research pretty extensively when litigating Van Orden in Moot Court. They definitely had three clerics go over the Commandments to arrive at a mutually-acceptable version. For the most thorough treatment of these facts, see the first of the FOE monument cases, Boots v. City of Elkhart. Then we can talk again.

It might be Books, not Boots.

Here you go

Disappointing, to say the least, but not unexpected.
Actually, I feared worse.

The “no brainer” in Kentucky came down only 5-4. That’s frightening. Where are the brains of the
dissenting four?

Texas, too, should have been a no brainer, but this
one we lost. I can imagine an IQ test for ten year
olds – 17 monuments lined up, all secular but for
the Ten Commandments. The question for the kiddies
is: which monument doesn’t belong in this display?
Bet most of them get it right.

So what happens now? A nationwide movement to
erect historical monuments in public parks so that
the Ten Commandments can be shoehorned into each?
If 17 seculars is okay, what about a dozen? How
about six? Maybe even three? How about if the
TC is larger than the rest?

How silly can this Court be?

I’m a little concerned that the Supremes took the opportunity of having these two cases on hand at the same time to throw some meat to both sets of lions and basically hand off the responsibility of a truly definitive decision to another generation.

At the same time, they did do the right thing on the more important issue and taking the other one on a case by case basis isn’t the worst way to have dealt with it. It’s not perfect, but it definitely could have been worse.

Is the Texas display Catholic, Protestant, Jewish, or ecumenical?

Looking at the picture here (squinting real hard) …
http://www.foe.com/10commandments/texas.html

And reviewing the absolutely invaluable description of the differences here …
http://www.prospect.org/web/page.ww?section=root&name=ViewWeb&articleId=908

I’d say the display does a pretty good job of skirting the differences:

It starts with “I AM the LORD thy God”, essential to Jews and acceptable to Catholics and Protestants.

It leaves out “who brought you out of the land of Egypt, out of the house of bondage” – The Jewish interpretation takes a hit here

It doesn’t number them or list verses, which gets around a fair amount of contention

The list includes separated coveting commandments, which makes the Catholics happy

The problem in all this is that our law is losing its consistancy. Part of the central reason that courts look to precedent is consistancy- and thus citizens being reasonably able to anticipate whether or not a certain action is constitutional or not. And with Establishment Clause litigation, the only guideposts we have are “historical context” and not being too “in your face” (my terms here, not the courts). Law is not a study of subtle aesthetics. As usual, Scalia does a great job in his dissent mocking the lack of any good legal reference point in traversing this hazardous terrain.

In this court session, the greatest travesty is that private property rights have been dealt a deathblow by the left wing judges on the bench. Somebody please explain to me how displacing an 80 year old couple from their home in a nice, but not blighted, nor up-scale neighborhood comprised mostly of blue collar workers- only to turn around and hand it over to some private developer is a just exercise of emmenent domain powers? Absolutely outrageous. Now, we’re all screwed- left and right.

The problem in all this is that our law is losing its consistancy.

Well, the Ten Commandments cases were pretty damned consistent with Establishment Clause jurisprudence over the last twenty years or so. Unfortunately, consistency in this case means a firm commitment to context, which means that all these cases have to be litigated one by one.

“Unfortunately, consistency in this case means a firm commitment to context, which means that all these cases have to be litigated one by one.”

I agree. The anaylsis is consistently stated as context, but contextual analysis of aesthetics, interior & exterior decorating etc., is in inself hopelessly inconsistent- and thus a poor body of law.

I may be wrong, but I’m fairly confident that Establishment Clause Jurisprudence is the only cause of action at law that requires no examination of standing that is applied to all other cases by the Supreme Court: existence of “injury” at law that is incurred by the plaintiff because of the defendant, ripeness, mootness, etc. Somebody jump in here- which case is it that ruled this was not necessary for EC petitions? Analytical Liberal might know it. I’ll hit it on westlaw if no-one pipes up.

I may be wrong, but I’m fairly confident that Establishment Clause Jurisprudence is the only cause of action at law that requires no examination of standing

It’s not no standing requirement, but it is quite lax. Thomas Van Orden was able to clear the standing hurdle by stating that he was “subjected” to the monument on “several” occasions. The monument’s existence itself wouldn’t confer standing on a person who never ran into contact with it.

As for ripeness, I doubt that courts would hear an Establishment Clause case based on purely speculative harms, but probably would allow somebody to enjoin an impending installation of a decalogue or a creche.

Incidentally, there is an even lower threshold for standing in certain trademark actions where people claim that a trademark is offensive to them. (E.g., the Washington Redskins can be sued by Native Americans who find the team’s trade dress offensive. Standing is REALLY wide-open on those claims.)

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