Breaktime
Ronald B. Flowers July/August 2000
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Television comedian David Letterman always regales his audience with a "top 10 list." They are designed to be funny and often are, although the humor is frequently in poor taste, insulting, gross, and/or scatological. It turns out that within the past year the Congress of the United States, especially the House of Representatives, has advanced its own "top 10." To its credit, Congress has chosen for its "top 10" the Ten Commandments, the central text of two of the world's major religions. Unfortunately, the motivations for congressional advocacy of the Ten Commandments and the debates that lead up to the legislation or resolution are often in poor taste, insulting, and gross, if not scatological.
The congressional initiatives to bring the Ten Commandments to public attention have been in response to a number of spectacularly violent acts, especially some perpetrated by public school students, that seem to point to a lack of morality in our society. Congress is now presuming to be moral teacher for society. And the principal mechanism seems to be the posting of the Ten Commandments in public buildings or recommending that the states do the same.
The public schools have been a particular target of those who would post the Ten Commandments. The issue came up as long ago as 1978, when the Kentucky legislature passed a bill requiring the posting of the Ten Commandments in every public school classroom in the state. As political, social, and theological conservatism increased across the country, many noted the declining ability of the public schools to reach to high academic standards and to teach values and morality. The Kentucky legislature decided to address the latter issue, with the cooperation, if not the instigation, of the Lexington Heritage Foundation, by requiring the posting of the Ten Commandments in public schools. Apparently the legislature foresaw a constitutional challenge, because the placards were funded by private, not state, money, and they each contained a statement at the bottom: "The secular application of the Ten Commandments is clearly seen in its adoption as the fundamental legal code of Western Civilization and the Common Law of the United States."(1) (This same rationale for the states' posting the Ten Commandments-that they are the basis of Western civilization and American law and jurisprudence-continues to be used today.) In spite of these defense mechanisms, it was clear that the posters were placed in public school classrooms because the legislature passed a law requiring it.
The law was challenged as a violation of the Establishment Clause. Both a trial court and the Supreme Court of Kentucky had found the statute constitutional on the grounds that its "avowed purpose" was secular. But in Stone v. Graham (2) the U.S. Supreme Court disagreed with that judgment. It was a curious case: decided without oral argument before the Court and issued as an unsigned opinion. Nonetheless, the Court found that the Kentucky Ten Commandments statute was unconstitutional because it had the purpose of advancing religion.(3) The reason was obviously that the first four of the commandments are clearly religious.
"The preeminent purpose for posting the Ten Commandments on schoolroom walls is plainly religious in nature. The Ten Commandments is 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, such as honoring one's parents, killing or murder, adultery, stealing, false witness, and covetousness. 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."(4)
The disclaimer at the bottom of the posters did not change the religious nature of the commandments. The fact that they were paid for with private funds also did not affect their unconstitutionality; they were placed in classrooms because the legislature mandated it.
Justice William Rehnquist(5) dissented.(6) He believed the Court should have given great deference to the views of the Kentucky legislature and the courts below that the act requiring the posting of the commandments did have a secular purpose. He reached this conclusion because he agreed with the argument of the commandments' exceptional influence on the development of secular legal codes in the western world."(7)
In spite of this Supreme Court ruling, the Ten Commandments have continued to be posted in public buildings. A favorite place has been courthouses and courtrooms. For example, in Cobb County, Georgia, a panel containing the Ten Commandments and Jesus' "great commandment" of Matthew 22:37-40 was given to the county by a private donor. It was hung in a prominent place in the courthouse and became the object of litigation in 1993.(8) The federal district court found that the display violated the primary effect part of the Lemon test, as it had been modified in Allegheny County v. ACLU of Pittsburgh.(9) That is, a law has an impermissible effect if it conveys the message that a religion is favored or preferred by the government. The court also held this broadly. "'The clearest command of the Establishment Clause is that one religious denomination cannot be officially preferred over another.' . . . Nor can government favor religion over nonreligion."(10) So it was not a defense that the display contained both Jewish and Christian texts. Consequently, the exhibit of the religious quotations in the county courthouse was unconstitutional.
Judge Roy Moore, a state judge in Alabama, was not deterred by this legal precedent. Beginning in 1995, he displayed the Ten Commandments in the courtroom where he presides. It caught the attention of the nation. When his practice was questioned by civil libertarians he persisted, and thousands of Alabamans rallied in his defense. In litigation brought by the ACLU, the trial court ruled against Judge Moore, declaring that his hanging of the Ten Commandments in a prominent place in a state courtroom, where they were clearly visible from the jury box, violated the Establishment Clause. However, the state supreme court, on a technicality, dismissed the suit. The court held that the matter of the Ten Commandments in the court was a nonjudiciable political issue.(11) As a result, Judge Moore continues to display the Ten Commandments in the courtroom where he presides. Although he has a multitude of supporters, it is obvious that he has the plaque hanging in the courtroom because of his personal desire and decision, seemingly oblivious to the fact that it is the people's courtroom, not his.
This point is especially relevant in the light that even within the Judeo-Christian tradition, there is no unanimity about the form or content of the Ten Commandments. Not all groups translate the Hebrew in the same way, nor do they divide or number the commandments in the same way.(12) Consequently, when Judge Moore displays a particular version of the Ten Commandments, whichever one it is, he is preferring one religion over another. For a judge to do that in his official capacity is clearly an impermissible establishment of religion.(13) For him to display any religious text as part of the courtroom is to prefer religion over nonreligion, also a violation of the no-establishment principle.(14) It is the people's courtroom, not the judge's, and they have the right to expect that justice will be dispensed impartially, without bias based on the religious belief of the judge.
The nation was horrified by the April 20, 1999, massacre at Columbine High School in Colorado. Members of the House of Representatives responded with a comprehensive Juvenile Justice Bill, designed to minimize the possibility of more such tragedies. But the hyperpious in Congress, notably Representative Robert Aderholt (R-Ala.), used this opportunity to introduce legislation authorizing the states to post the Ten Commandments in public places, particularly schools. His "Ten Commandments Defense Act" had been languishing in committee for more than a year, but trading on this tragedy, he inserted it into the Juvenile Justice Bill, and it passed, 248-180.(15) Apparently not embarrassed at trading on tragedy, Representative Aderholt acknowledged the limited effect his resolution would have. "I understand that simply posting the Ten Commandments will not instantly change the moral character of our nation. However, it is an important step to promote morality, and an end of children killing children."(16) Unfortunately, it did not prevent the killing of several young people in a church in my hometown of Fort Worth on September 15, 1999, although one would assume the Ten Commandments were somewhere in that church.(17)
The point of this addition to the Juvenile Justice Bill was to authorize the states to post the Ten Commandments if they chose.(18) But in reality it gave the states no more authority than they had had before-none. Because Stone v. Graham made state-authorized posting of the Ten Commandments unconstitutional, the states will receive no new authority by this legislation, even if it should survive Senate scrutiny and become law. So in the end it amounts to political grandstanding in a time of national trauma.
America is a religiously pluralistic society. This has always been so, but never more than now. There are the nonreligious, but also Muslims, Hindus, Buddhists, believers in Native American traditions, and others who do not fit into the Judeo-Christian tradition. Posting the Ten Commandments in public buildings and schools, or endorsing them by Congress, is an affront to Americans who do not share that faith to which they are important. To take the example of Islam, the religion closest to Judaism and Christianity in theological heritage. The Koran has two sets of legal precepts that are roughly equivalent to the Ten Commandments, one quite long(19) and the other much shorter.(20) But although Islam has legal codes, the Ten Commandments, in any version, are not the same as theirs. A Muslim colleague says that when he hears of or sees the Ten Commandments, he identifies them with Judaism and Christianity. So when government in some way promotes the Ten Commandments, those of other religions see a kind of "in your face" arrogance.
Once when the South Carolina Board of Education was discussing posting the Ten Commandments in the state's schools, the suggestion was made that non-Christians might object. A member of the board, Henry Jordan, said, "Screw the Buddhists and kill the Muslims. And put that in the minutes."(21) That is the most extreme form of the kind of theological imperialism that is implicit in the concept of governmental displays of the Ten Commandments in a pluralistic society.
Of course, the posting of the Ten Commandments is not just a matter of theological hooliganism directed at minority religions. From this perspective also, it is a violation of the Establishment Clause. That clause has been interpreted to forbid government endorsement of religion.
"Endorsement sends a message to nonadherents that they are outsiders, not full members of the political community, and an accompanying message to adherents that they are insiders, favored members of the political community. Disapproval sends the opposite message."(22)
It is clear that government promotion of the Ten Commandments sends the message to all who are not Jews or Christians that they are outsiders, disfavored in the community. That is a violation of the Constitution's no-establishment principle.
There are also theological problems with the current craze by governments to endorse and display the Ten Commandments. When one posts the commandments in the belief that this will make things better (even if only gradually), it makes them a talisman,(23) a fetish,(24) an instrument of magic. Scholars of preliterate religions note that such religions strongly believe in mana, an impersonal power that exists within both animate and inanimate objects and can be manipulated by people for good or ill.(25) Mana is controlled through magic. Many scholars make a radical distinction between magic and religion. Magic, simply defined, is humans' attempts to impose their will on nature or even the divine for their benefit. Religion, on the other hand, is humans' submission to the power and will of the divine, one's obedience to the divine.(26)
Put into a monotheistic context, magic is humans' attempt to control God for their own welfare, whereas religion is humans' response or obedience to God. The pattern evident in government officials' posting the Ten Commandments in courtrooms and public schools is much closer to magic than authentic religion. The commandments have become an amulet,(27) a magical charm, to do the posters' will. The original majestic meaning of the Ten Commandments, to be an expression of the will of God to which humans are to be obedient, is thereby diminished.
A different perspective is provided by the Bible itself. In Exodus 32 the Hebrew people, having tired of waiting for Moses to come down from Mount Sinai, persuaded Aaron to make a golden calf for them to worship. When that was done, Aaron said, "These are your gods, O Israel, who brought you up out of the land of Egypt" (Exodus 32:4, NIV*). And the people worshiped the idol. When Moses saw this, he angrily broke the tablets of the Ten Commandments. He knew that the people had substituted their own gods for God, and thus had denied what the Ten Commandments were all about.
By using the Ten Commandments as a political weapon, proponents of posting violate at least three of the commandments. "You shall have no other gods before me" is undermined when politicians' and judges' object of worship becomes inflicting religious precepts on the population through the mechanisms of government contrary to the constitutional law of the land. "You shall make no graven images" is violated by the posting of the Ten Commandments themselves. These displays become objects of worship in the civil religion espoused by the Ten Commandments advocates. "You shall not covet" is violated by those who lust after political and moralistic power in the nation. Their number is legion, including those who would manipulate religion to their political advantage.
Finally, these Ten Commandments initiatives have the same theological flaw as all attempts to promote religion through state institutions. They are a danger to institutional religion, in this case, the church and the synagogue. Any time the state is asked to promote religion, it marginalizes religious institutions. To be sure, several of the Ten Commandments express values that are embedded in the civil law of America. But as the Supreme Court pointed out in Stone v. Graham,(28) in the Ten Commandments those values clearly rest on a religious base, and that religious dimension is explicitly spelled out in the first four commandments. So whenever the state promotes the Ten Commandments, it usurps the role of those religious institutions to which the commandments are important doctrine. To that extent, that makes those institutions increasingly irrelevant in American society. The advocates of state-sponsored displays of the Ten Commandments are enemies of the churches and synagogues of this country.
Ronald B. Flowers is John F. Weatherly professor of religion at Texas Christian University.
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FOOTNOTES:
(1) Stone v. Graham, 449 U.S. 39 at 41 (1980).
(2) Ibid.
(3) To be constitutional under the Establishment Clause, a law must have a secular purpose, a primary effect that neither advances nor hinders religion, and does not create excessive entanglement between religion and civil authority. This is known as the Lemon test, from the case in which it was first expressed, Lemon v. Kurtzman, 403 U.S. 602 (1971).
(4) 449 U.S. 39 at 41, 42. In the same year the U.S. District Court for the Northeastern Division of North Dakota struck down a similar law, Ring v. Grand Forks Public School District Number 1, 483 F.Supp. 272 (1980). This statute required the posting of "the ten commandments of the Christian religion" in every public school classroom. This court, also, found the law, first enacted in 1927, to violate the secular purpose part of the Lemon test, particularly since it explicitly identified the Ten Commandments with Christianity. "The document is clearly a sectarian religious document and serves no secular purpose. . . . Freedom of religion is one of the most important of the individual rights that have been excluded by our Constitution from control or infringement by the government. Any infringement, however well intended, takes something away from that aspect of our freedom that may never be recovered. Of even more concern, it serves as a basis for further infringement" (p. 274).
(5) This was before he was appointed chief justice.
(6) Chief Justice Warren Burger and Justices Harry Blackmun and Potter Stewart also dissented, but only on procedural grounds. They believed the case should have been argued before the Court.
(7) 449 U.S. 39 at 45.
(8) Harvey v. Cobb County, Georgia, 811 F.Supp. 669 (1993), affirmed without opinion 15 F.3d 1097 (11th Cir.) (1994).
(9) 492 U.S. 573 (1989).
(10) 811 F. Supp 669 at 676, quoting Allegheny v. ACLU 492 U.S. 573 at 605, quoting Larsen v. Valente, 456 U.S. 288 at 244, and Allegheny, p. 593.
(11) Associated Press, Jan. 24, 1998.
(12) See, for example, Bill Broadway, "There Are 10, but Their Order Isn't Carved in Stone," Washington Post, Feb. 21, 1998. Broadway labels the different renditions the "Jewish Version," the "Catholic-Lutheran Version," and the "Protestant Version."
(13) Steve Lubet, "Decalogue Divisiveness," Church and State, May 1999, pp. 13, 14.
(14) See note 10 and accompanying text.
(15) Hanna Rosin, "Winning by the Book: Columbine Helps Christian Activists Pass Long-sought Amendments," Washington Post, June 21, 199. Ms. Rosin describes the situation: "In the end, the tragedy in Littleton, Colorado, gave a core of committed activists the momentum they needed to push legislation through the House that would never have stood a chance otherwise. . . . For the lately beleaguered religious conservatives, it was a Willy Wonka moment: The golden ticket that had long eluded them was now in their pockets."
The legislation is H.R. 1501, Title XII, ''1201, 1202.
(16) Ellen G. Pearson, "Ten Commandments Defense Act: A Good Start," National Catholic Register, July 4-10.
(17) Although one must confess that the shooter at Wedgewood Baptist Church, Fort Worth, Texas, was an adult, not a child.
(18) Representative Aderholt's press secretary said: "We want to emphasize that this amendment does not require that the Ten Commandments be posted in classrooms. It simply shifts the decision-making process about posting the Ten Commandments from the federal government back to the states."
(19) Koran 17: 22-38.
(20) Koran 6:151-153. "Say: 'Come, I will rehearse what God hath (really) prohibited you from': join not anything as equal with Him: be good to your parents: kill not your children on a plea of want;-We provide sustenance for you and for them;-come not night to shameful deeds, whether open or secret; take not life, which God hath made sacred, except by way of justice and law; thus doth He command you, that ye may learn wisdom. And come not nigh to the orphan's property, except to improve it, until he attain the age of full strength; give measure and weight with (full) justice;- no burden do We place on any soul, but that which it can bear;-whenever ye speak, speak justly, even if a near relative is concerned; and fulfill the Covenant of God; thus doth He command you, that ye may remember."
(21) American Civil Liberties Union Freedom Network News, May 19, 1997.
(22) Lynch v. Donnelly, 465 U.S. 668 at 688 (1984). This clearest summary of the test is only a concurring opinion. But it has been used as the deciding principle in majority opinions and thus has the force of law. See Wallace v. Jaffree, 472 U.S. 38 at 55-56 (1985); Allegheny v. ACLU, 492 U.S. 573 at 592-597 (1989); Texas Monthly v. Bullock, 489 U.S. 1 at 8, 9 (1989).
(23) "A magical object that is believed to guarantee good fortune, health, or other benefits. A talisman is often worn concealed on the person or in a dwelling." James C. Livingston, Anatomy of the Sacred: An Introduction to Religion, 3rd ed. (Upper Saddle River, N.J.: Prentice Hall, 1998), p. 452.
(24) "In religion, refers to various objects, either natural or artificial, that are endowed with supernatural magical power or virtue and are capable of averting evil or bringing good" (ibid., p. 446).
(25) Roger Schmidt et al., Patterns of Religion (Belmont, Calif.: Wadsworth Pub. Co., 1999), pp. 132, 133.
(26) Ibid., p. 25.
(27) "An object that is carried on a person or is displayed in a home or a place of business to ward off or repel disease, evil, or the assaults of demonic spirits" (Livingston, p. 443).
(28) See note 4 and accompanying text.