THE YEAR 2005 TEN COMMANDMENTS CASES BEFORE THE U.S. SUPREME
COURT, FROM KENTUCKY AND TEXAS
The issue, recent court decisions, public opinion, reactions,
What, precisely, is the issue?
The precise nature of the conflict is often obscured.
Some media accounts say that religiously liberal and secular groups are
trying to prevent all displays of the Ten Commandments which are open to
the public. For example, some representatives of Fundamentalist and other
Evangelical Christian groups have said the following:
||Kelly Shackelford of the Liberty Legal Institute, which filed briefs in favor of retaining the
Decalogue monument in front of the Texas capital, said: "What they're really advocating on the other
side is a religious cleansing from our history. It should be treated with
respect as our part of history, not some new form of pornography that has to
be banned from our public arena."
||Tony Perkins of the Family Research Council
wrote: "Yesterday, the Supreme Court heard arguments on whether the Ten
Commandments are too offensive for public display." 2
||Don Hodel, president of the Focus on the Family wrote: "...the separation of church and state means the complete exclusion of religion from the public square."
It is important to remember:
||There are absolutely no problems associated with the public display of
the Ten Commandments, or any other religious statements, as long as they are
located on land or in buildings owned by religious institutions, or by
individuals or by companies. In fact their right to display religious
material is protected by the First Amendment of the U.S. Constitution.|
||There are absolutely no problems if the Decalogue is shown in government
offices, public land, courts, public schools as part of a cultural display
containing similar material from other religions, and from secular sources.|
||Problems can arise if a Ten Commandments document is shown in a
government office, public land, courts, or public school:|
||By itself in isolation, as in the Texas case.
||As part of a cultural display which excludes comparable secular
||As part of a cultural display which excludes comparable documents
from other religions as in the Kentucky case.
Past courts have interpreted the First Amendment of
the U.S. Constitution as requiring a separation of church and state. That is,
the government cannot promote:
||Secularism in preference to a religious lifestyle.
||A religious lifestyle in preference to secularism.
||One religion as being superior to any other faith.
About the content of the Ten Commandments:
One factor that does not appear in the media reports is that the Ten
Commandments is actually formed of over twenty instructions. They can be grouped
into two parts:
||The first section is a series of orders that people must recognize
Yahweh as the only deity. These deny the legitimacy of other religions and a
secular lifestyle. This is a purely religious document. It threatens
non-believers with retribution from God which will affect the non-believer,
their children, their grand-children, etc. It produces some
real First Amendment concerns since it promotes a specific religious
tradition. It also implies that other religions are without merit.
||The second part is a slightly longer series of commands forbidding such
behaviors as lying, stealing, committing adultery, murdering people, etc.
This set of behavioral laws were combined with elements of Pagan Roman law,
and facets of other legal systems to produce systems of laws common to many
jurisdictions in the western world.
Most Americans are aware of the second part, particularly the commandments
against murder, stealing, and committing adultery. A surprising percentage are
unaware of the threats and religious commands which form part of the first
section. However, many followers of non-Judeo-Christian religions are very aware
of such phrases as "Thou shalt
have no other gods before me." Some find the words to be very
Recent major Supreme Court decisions in this area:
Current public opinion:
A CNN/USA Today/Gallup poll was taken during the
last week in 2005-FEB. They asked the question: "Do you believe that it is
proper or improper for the Ten Commandments to be displayed in a government
building?" They concluded that:
American adults support the Ten Commandment displays
||21% are opposed;
||3% have no
opinion or did not state one.
The margin of error of the poll is ~+mn~4.5
percentage points. 4
Presumably, the 21% who are opposed would not like
to see the Decalogue displayed in a government office or court under any
circumstances. But the 76% who favor Decalogue displays are probably split among
those who would:
||Allow the Decalogue, but only if it is in a
cultural display with secular documents and similar documents from
||Allow the Decalogue if it is in a cultural
display with secular documents, even if it is the only religious material
||Allow the Decalogue to be displayed by itself
or together with any other documents.
Unfortunately, public opinion polls tend to be
organized to expect a yes or no response. The possibility of a variety of
responses is rarely explored.
It is unlikely that the Supreme Court will allow
the Decalogue to be displayed under any conditions; they are unlikely to ban it
entirely in government offices, courts and public schools. Their task is to find
a middle ground that is consistent with the Establishment Clause of the First
Amendment, and to express this clearly so that municipalities, public school
boards, state and federal offices will know precisely what is constitutional and
what is not. That is not a trivial task.
Comments on the lawsuits:
In the days before the oral arguments were heard by the Supreme Court on 2005-MAR-03:
||Charles Haynes, a religious liberty expert at the First Amendment Center
said: "These are cases courts like the least; they stir raw emotions.
Whatever they decide will be misunderstood; I don't think any side will be
happy with the result. Even the winning side loses because of the deep
divisions that will result." 4
||The National Council of Churches said that
they could not take a stand on these lawsuits because their member
denominations do not have a common belief.
||The Roman Catholic Church
-- the largest Christian denomination in the U.S., -- and the Southern
Baptist Convention -- the largest Protestant denomination, and other
religious organizations -- are largely
||Atheist and Humanist groups have filed briefs opposing the displays.
||Muslim leaders have also remained silent.
||Barry Lynn, executive director of Americans United for Separation of
Church and State said: "Thou shalt not merge religion and government.
Promoting religion is the job of houses of worship, not government. Our
legal system especially must avoid even the appearance of bias on the basis
||Mat Staver of Liberty Counsel wrote: "We are very pleased that the
United States of America and twenty-two states have weighed in on our side. This
broad-based show of support reveals the broad impact a decision on the Ten
Commandments will have on America and our shared religious heritage. There is no
question that the Ten Commandments influenced our law and government. It is
nonsense to suggest that public acknowledgments of religion in general, or of
the Ten Commandments in particular, somehow establish a religion. To exclude the
Ten Commandments from a display on law would be like eliminating stars and
stripes from the Flag." 5
||Former Chief Justice Moore and the Foundation for Moral Law, Inc. argued in
their brief to the Supreme Court "that because judges swear an oath to support
the written Constitution, the Court should look at the words in the
Establishment Clause of the First Amendment to determine whether the Ten
Commandments displays are constitutional. The Establishment Clause says that
'Congress shall make no law respecting an establishment of
religion.' By putting up Ten Commandments in their courthouses, the
Foundation argued, the Kentucky
courthouses were simply not making a law respecting an establishment of
religion. The Foundation urged the U.S. Supreme Court to reverse the lower
courts and hold that the Ten Commandments
are a constitutionally permissible manner of acknowledging God in our public
The possibility of future reversals:
If the Court decides that either the display or monument is
unconstitutional, that ruling will probably be reversed in the near future.
President Bush is expected to appoint several new justices to the Supreme
Court. He has indicated that he plans to select nominees similar in
philosophy to Justices Scalia and Thomas.
They are often referred to as "strict
constructionists." They interpret a legal document as meaning "today
not what current society (much less the Court) thinks it ought to mean, but
what it meant when it was adopted." 3,7 They interpret the First Amendment and the rest of the U.S.
Constitution as an enduring document. They interpret the text according to
the belief systems of the time when the Constitution was written. They are
most unlikely to support the principle of separation of church and state
which past Supreme Courts have interpreted the First Amendment as implying.
They are more likely to say that the First Amendment means what it literally
states: that the government cannot promote an official religion.
Jim Vertuno, "Homeless ex-lawyer behind Ten Commandments suit," Chicago Sun-Times, 2005-FEB-27, at:
Tony Perkins. "Faith Under Fire," Washington Update, Family
Research Council, 2005-MAR-03.
Dan Hodel, "The Real Ten Commandments Issue," Focus on the
Family, 2003-AUG-23, at:
Bill Mears, "Ten Commandments before high court. Explosive church-state issues from Kentucky, Texas," CNN,com Law Center, 2005-MAR-01,
"United States Supreme Court Announces Today That Ten Commandments Cases
To Be Argued On March 2, 2005," News Release, Liberty Counsel, 2004-DEC-15,
"Chief Justice Moore and Foundation File Brief in U.S. Supreme Court
Arguing That Kentucky Ten Commandments Displays Do Not Violate First
Amendment Text," Foundation for Moral Law, Inc., at:
Antonin Scalaia, "God's Justice and Ours," First Things 123, 2002-MAY, Page 17 to 21.
Copyright © 2005 by Ontario Consultants on Religious
Originally written: 2005-MAR-02
Latest update: 2005-MAR-05
Author: B.A. Robinson