The Five Commandments

George Will notes the idiocy of the Supreme Court’s church-state jurisprudence –

Decades ago, the court ruled that the establishment clause was violated if government supplied books to religious schools but not if it supplied maps. Pat Moynihan wondered mischievously: What about atlases, which are books of maps?

– and he concludes:

Here is a one-sentence opinion that should suffice in such cases: “Because the display on public grounds does not do what the establishment clause was written to prevent — does not impose a state-sponsored creed or significantly advantage or disadvantage one sect or sects — the display is constitutional.”

I can beat that. Since the opinions of the Supremes in this area, as in so many others, are more legislative than judicial, balancing interests and splitting fine factual hairs about the degree to which this or that display is really religious as opposed to secular, it would be much simpler for the Court to handle these 10 Commandments cases in the classic legislative manner: by splitting the difference, and allowing the posting of 5 Amendments (any 5 will do). That would make as much sense, and would be much easier to understand and act upon in the future, than trying to untangle the lessons of the 10 separate opinions that were just delivered in the recent case from Texas (10 Commandments stone monument O.K.) and Kentucky (framed 10 Commandments not O.K.) Why not just let Texas have five and Kentucky have five?

The primary distinction between the two cases, according to a Washington Post article, turned not on the actual nature of the displays but on the motivation behind placing them in public space.

In a pair of 5 to 4 votes, the court ruled that the commandments were put up in Kentucky six years ago with the unconstitutional purpose of favoring monotheistic religion but that the Texas monument, erected in 1961, is a less blatantly religious statement tinged with secular historical and educational meaning as part of a group of similar markers on the grounds.

The main difference between the two displays, in short, was not that Kentucky’s was religious and Texas’s was “less blatantly religious.” (What kind of standard is that, anyway?). It is that the Kentucky counties’ motive in posting the display was more blatantly religious. From the WaPo article linked above:

The two Kentucky counties, McCreary and Pulaski, first posted copies of the King James version of the commandments in their respective courthouses in the summer of 1999.

After the ACLU sued, the two counties passed resolutions calling the commandments the “precedent legal code” for Kentucky’s laws. They also added other religious-themed historical documents, such as President Abraham Lincoln’s declaration of a national day of prayer in 1863.

After a federal judge ordered that display taken down in 2000, the counties added several secular documents, such as the Magna Carta and the lyrics of “The Star-Spangled Banner.”

But Souter wrote that the changes could not disguise the counties’ true purpose, which, he said, was “to emphasize and celebrate the Commandments’ religious message.”

For Souter, as for Breyer (see here and here), “strict official ‘neutrality’ toward religion is the best antidote to contemporary culture wars.”

“We are centuries away from the St. Bartholomew’s Day Massacre and the treatment of heretics in early Massachusetts, but the divisiveness of religion in current public life is inescapable,” [Souter] wrote. “This is no time to deny the prudence of understanding the [First Amendment] to require the Government to stay neutral on religious belief, which is reserved for the conscience of the individual.”

I have already noted more than once (see the “here” links above) the oddity of this fierce determination to preserve religious neutrality in order to avoid religious “divisiveness” coexisting incongruously with an apparent blindness, or at least lack of concern, with the easily observable fact that the absence of neutrality regarding race produces extensive racial divisiveness.

But leave that aside for now, and join me in assuming, for the sake of argument, that all those who insist on religious neutrality mean what they say, keeping in mind as you do so that this neutrality must prevent not only preferential treatment among religions and sects but also between religion in general and secularism. Keeping this requirement in mind, imagine with me that, say, the City and County of San Francisco had barred the display of any religious symbols because, as a hypothetical memo put it, “religion today is no longer the opiate of the masses that it once was. Now it is the crack cocaine of the masses.”

Presumably all the religion neutralists would agree that such an official policy pronouncement from a public official is unconstitutional. But so what? That is, what should we make of all the walls in all the San Francisco courts and other buildings and other public spaces that are all bereft of anything that a reasonable observer could regard as having any religious content at all. Wouldn’t such an absence, if it could be traced to the (in my hypothetical example) official hostility to religion be as unconstitutional as the framed Ten Commandments in Kentucky that was placed on the wall to further a religious purpose?

Let’s say that, under threat of legal action, the City and County of San Francisco rescinded that offensive memo. Still, wouldn’t the absence of any public religious content in San Francisco (in my example) be analogous to the absence of integration after Brown in those school districts that no longer assigned students on the basis of race?

Indeed, shouldn’t those who profess to believe in the sanctity of “diversity” insist some religious content must be displayed in public spaces wherever secular items are displayed?

Maybe portable Ten Commandment monuments could be bused from courthouse to courthouse across the country….

Say What? (6)

  1. actus June 29, 2005 at 6:00 pm | | Reply

    “: by splitting the difference, and allowing the posting of 5 Amendments (any 5 will do). ”

    why not limit it to the 3 (or 4, adultery may not be so) that cover illegal things?

    we talk about how they are a foundation of of our legal system, but most of them obviously cannot be enforced in our legal sytem. Coveting? having other gods? sabbath?

  2. Richard Nieporent June 29, 2005 at 6:16 pm | | Reply

    Since religion is so uniquely divisive in current public life, then it would seem that it is incumbent on the Court to ban all religious expression in the public sphere. We should therefore make sure that no religious symbol can be seen when one is standing on government land. Thus, no church should be allowed to be in line of sight of any public building. And just to be on the safe side, we should ban all churches from having any external religious symbols because we can’t be certain that a government building will not be built near it in the future. And while we are at it, we should also ban the display of any internal religious symbols if there are windows in the building though which they can be seen. I am sure that should satisfy Souter’s concerns, at least for now.

  3. Cobra June 29, 2005 at 9:46 pm | | Reply

    As Actus points out, one stumbling block comes from the very first commandment:

    “I. Thou shalt have no other gods before me.”

    There’s no grey area, or nuance to that. There isn’t any room for interpretation. It’s implications are quite evident. In a pluralistic society, what is the relevant argument for the STATE posting, sponsoring, or building an ediface with this commandment?

    –Cobra

  4. John Rosenberg June 30, 2005 at 2:04 pm | | Reply

    … what is the relevant argument for the STATE posting, sponsoring, or building an ediface with this commandment?

    If other religious expressions or viewpoints are excluded, none. If others are not excluded, then the justification is similar to the justification for “the STATE” giving tax exemptions, fire protection, police protection, maintained public access roads, etc., to churches.

  5. dustbury.com July 1, 2005 at 7:19 am | | Reply

    Here, have a tablet

    If you’re a bit baffled by those two Ten Commandments cases fielded by the Supreme Court last week, John Rosenberg proposes to invoke the wisdom of Solomon: Since the opinions…

  6. TJ Jackson July 4, 2005 at 11:29 pm | | Reply

    What hogwash in 1892 the Supreme Court declared the US to be a Christian nation. I’ve never seen a decision reversing this. I realize that posting something prohibiting lying, theft, and coveting your neighbor’s wife would constitute creating a hostile work envirnonment for most lawyers, fundamentalist secularists and Actus and his ilk.

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