Efforts by government officials to display the Ten Commandments on public property is one of the most divisive church-state issues experienced in the United States for the past 25 years. Perhaps second only to state-sponsored prayer in the public schools, the posting of the Ten Commandments has spawned widespread debate throughout the nation and its courts. How ironic that a sacred text that millions regard as the word of God should be the source for so much discord.
The United States Supreme Court will consider two cases challenging Ten Commandments displays under the First Amendment's establishment clause this term. One case, Van Orden v. Perry (03-1500), involves a Ten Commandments monolith donated in 1961 by the Fraternal Order of Eagles, and displayed with the authorization of the Texas legislature on the grounds of the Texas capitol. The constitutionality of this display was upheld by the Fifth U.S. Circuit Court of Appeals. The court ruled that the monument has a secular purpose of teaching about our legal system, and denied that any reasonable observer would view it as an endorsement of religion. The second case, McCreary County v. ACLU (03-1693), involves displays in courthouses in two Kentucky counties. There the Sixth Circuit ruled that these displays do not have a sufficiently secular purpose and have the primary effect of endorsing religion. These cases are expected to be decided before the end of the Court term in June 2005. 
Media tend to present the dispute as a clash between forces of secularism trying to ban religion from the public square and people of faith bent on promoting morality through the offices of government. This dichotomy is unfortunate and misleading. Many people of faith and religious organizations oppose government endorsements of the Ten Commandments for reasons having everything to do with religion and religious liberty.* Everyone's religious liberty is denied when government officials select the preferred religion, pick out a particular passage of sacred text, and display it in a way that carries with it the full endorsement of the state.
Opposition to government-sponsored displays of the Ten Commandments is buttressed by several rationales. Such displays are often unconstitutional, based on bad theology, predicated on a misreading of history, and contrary to notions of fundamental fairness.
Government is presumed to endorse the message that it communicates in its official displays. It is possible to affirmatively negate the appearance of an endorsement, but none of the governmental bodies in these cases did so. Although the capitol grounds in Austin contain 17 different monuments, they are spread out over nearly 20 acres. Thus the Ten Commandments monument is essentially freestanding, and none of the other monuments have anything to do with religion, or bear a religious text. The content of this Ten Commandments display is undeniably religious.
The Ten Commandments displays in Kentucky, though less dramatic in size and presented on the walls of courthouses, amount no less to an endorsement of religion. After the litigation began, Kentucky officials added some secular documents, but the message endorsing the Decalogue remained clear.
The unconstitutionality of these endorsements of sacred texts is supported by Supreme Court precedent. In Stone v. Graham, 449 U.S. 39 (1980), the Court ruled that the posting of the Ten Commandments by the state of Kentucky in public school classrooms violated the establishment clause. The Court reasoned:
"The Ten Commandments are undeniably a sacred text in the Jewish and Christian faiths, and no legislative recitation of a supposed secular purpose can blind us to that fact. The Commandments do not confine themselves to arguably secular matters. . . . Rather, the first part of the Commandments concerns the religious duties of believers: worshipping the Lord God alone, avoiding idolatry, not using the Lord's name in vain, and observing the Sabbath Day… If the posted copies of the Ten Commandments are to have any effect at all, it will be to induce the schoolchildren to read, meditate upon, perhaps to venerate and obey, the Commandments. However desirable this might be as a matter of private devotion, it is not a permissible state objective under the Establishment Clause."
There are also important theological reasons that many people of faith object to government posting and endorsing of holy writ. It puts government officials in the role of priests, making fundamentally theological determinations that they are ill-suited to make. How can they speak to questions such as: The commandments of Deuteronomy 5 or Exodus 20? Is it an English Old Testament version, or the Hebrew Bible, or maybe the Septuagint in Greek? If in English, is it a Catholic or Protestant one? If Protestant, which version-King James, New International, Revised Standard? All of these vary in language and theological import. For example, the Hebrew Bible is translated "murder," while the various English versions render the word "kill." The Catholic version says nothing about "graven images," but has two commandments on "coveting." There are many "Ten Commandments," not just one, and government officials are not competent to pick and choose from among them. These decisions are best left to families, churches, and synagogues.
Moreover, one cannot properly interpret a sacred text without considering the context. The Ten Commandments, including the first one-"I am the Lord your God… You shall have no other gods before me" (Exodus 20:2, 3)†-are part of a covenant between God and the Hebrew people. The text is betrayed when Moses and the Israelites are replaced with politicians and American citizens. One has to wonder why some Christians are so intent on posting the Ten Commandments. The commandments emphasize law and rules, leaving out crucial Christian concepts such as God's grace, faith in Christ, personal conversion, and New Testament ethics. The commandments, while foundational in their teachings, fail to capture the full hope of Christianity.
Finally, the Ten Commandments are often posted with the idea of making them a talisman-something of a good luck charm-to help protect our culture from the influences of secularism. This risks violating the first commandment against having other gods and the second commandment against making graven images. How strange it is to violate two of the commandments by endorsing all ten!
Governmental attempts to post the Ten Commandments are also based on bad history. Proponents often argue that such postings are justified because the American system of law is predicated on the Ten Commandments. Indeed, the United States Department of Justice has filed a brief in the Supreme Court claiming as much.
Although there is a vague sense in which a Judeo-Christian ethic underpins our legal system, the connection is too attenuated to justify government officially endorsing that religion's sacred text. Only some of the commandments-such as killing, stealing, and bearing false witness-are the proper subjects of secular law. The others are demonstrably religious. American law is based on the common law of England. But these prohibitions were already a part of Anglo-Saxon jurisprudence before England was Christianized. The fundamental notion that it is wrong to murder, steal another's property, or bear false witness was already well ensconced among the Saxons before they ever heard of the Ten Commandments.
Moreover, documents that have directly influenced our legal system-the Magna Carta, English Bill of Rights, Mayflower Compact, Declaration of Independence, Federalist Papers-say very little about religion and nothing about the Ten Commandments. Most important, our Constitution-the civil compact that governs our public life together-mentions religion only once, in Article VI, and then only to disallow a religious test for public office. And the First Amendment makes clear that the federal government is not permitted to advance or inhibit religion. In sum, although the Ten Commandments-along with many other ancient secular and sacred legal codes-stand in the backdrop to American law, that alone does not justify government officials endorsing this one distant precursor.
Last, posting of the Ten Commandments by governmental officials violates common notions of fair play. It is simply unfair for government to endorse this one expression of faith. Nothing is more basic to our sense of fairness than the golden rule. People of faith and no faith embrace it. How does the golden rule play out in church-state relations? In this way. I cannot ask government to promote my religion if I don't want government to promote someone else's religion. I cannot permit government to ignore someone else's religion in order to promote my religion.
In our pluralistic nation one of the worst things government can do is to take sides in matters of religion. One of the reasons we have had precious little religious strife-despite our dizzying diversity-is that government has generally remained neutral in such matters. Those who follow religious traditions other than Judaism and Christianity can rightly question why their sacred text is ignored and that of the dominant religious tradition is acknowledged and approved.
Finally, although governmental endorsement of the Ten Commandments is unconstitutional, theologically suspect, predicated on faulty history, and fundamentally unfair, there are ways in which government may deal with the Ten Commandments.
First, the Decalogue sometimes can be included as part of a cultural and historical display. For example, the frieze encircling the ceiling of the courtroom at the Supreme Court shows a Moses figure holding tablets with several Hebrew letters. However, along with Moses, the frieze depicts 17 other "great lawgivers of history," including the likes of Hammurabi, Confucius, Justinian, Muhammad, Charlemagne, William Blackstone, and John Marshall. The overall effect of the entire frieze is not to endorse Judaism, Christianity, or even religion in general. Rather, it is simply an architectural depiction of law in history.
Moreover, the Ten Commandments can be taken up in our public schools in an effort to teach about religion in a course on comparative religion or on the Bible as literature, as long as it serves an educational rather than a devotional purpose. The contents of the "second table" of the Ten Commandments, dealing with our relationship to one another rather than with God, can be advanced by government, even in the public schools. School officials, of course, can teach students that it is wrong to kill, steal, or lie.
And finally, nothing prohibits private citizens from displaying the Ten Commandments in public places. Justice Sandra Day O'Connor has repeatedly emphasized the crucial difference between government speech endorsing religion, which the establishment clause prohibits, and private religious speech, which the Constitution protects. The Ten Commandments can be posted in front of every church and synagogue in the land in full public view. They can be displayed by private citizens, even on public property, if the site is open to all forms of expression. And best of all, we can take a lesson from the prophet Jeremiah and write the commandments on our hearts instead of on stone or on paper, thereby providing a living witness to the principles embodied in those teachings.
In conclusion, the debate is not about whether the commandments teach sound theology or wholesome ethics-particularly for Jews and Christians. The question is Who is the right teacher-politicians or parents, public officials or pastors, government committees or families? As a Baptist minister I can think of little better than for everyone to obey the Ten Commandments, but as a constitutional lawyer I can think of little worse than for public officials to tell us to do it.
* The Baptist Joint Committee (BJC) along with the Interfaith Alliance Foundation, has filed friend-of-the-court briefs in both of these cases. I express gratitude to Professor Douglas Laycock, of the University of Texas School of Law, and K. Hollyn Hollman, general counsel of the BJC, for writing and editing these briefs. The briefs are available on the BJC Web site: www.bjcpa.org.
† Scripture quotations in this article are from the Holy Bible, New International Version. Copyright © 1973, 1978, 1984, International Bible Society. Used by permission of Zondervan Bible Publishers.
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J. Brent Walker, a lawyer and ordained minister, is executive director of the Baptist Joint Committee for religious liberty, based in Washington, D.C.
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