WASHINGTON (ABP) — Two friend-of-the-court briefs filed recently in the U.S. Supreme Court present differing views on the role of the Ten Commandments in American history and whether government entities can display them.
The Bush administration, represented by the Justice Department, and a group of religious leaders, led by the Baptist Joint Committee for Religious Liberty and the Interfaith Alliance, have filed briefs in two highly anticipated cases involving government displays of the Decalogue.
The Baptist Joint Committee submitted its brief to the Supreme Court Dec. 13 in Van Orden vs. Perry, a Texas case the justices will hear next year. The week before, Bush administration officials submitted a brief in McCreary County vs. Kentucky.
In the Texas case, BJC General Counsel Holly Hollman and University of Texas Law School professor Doug Laycock ask the high court to overturn a decision delivered last year by the 5th U.S. Circuit Court of Appeals.
In it, a three-judge panel of the appellate court ruled unanimously that a massive, freestanding granite monument of the Protestant translation of the Ten Commandments, located on the grounds of the Texas Capitol in Austin, does not violate the First Amendment's ban on government establishment of religion.
In that ruling, Judge Patrick Higginbotham, writing for the court, said the commandments monument had a secular purpose in teaching about the history of the development of the state's legal system, and could not be viewed by a reasonable observer as an endorsement of religion.
“Even those who would see the Decalogue as wise counsel born of man's experience rather than as divinely inspired religious teaching cannot deny its influence upon the civil and criminal laws of this country,” Higginbotham wrote.
But the BJC brief argues that the display, as it currently exists, cannot be viewed as simply or primarily secular in its purpose or effects.
“The alleged secular effect of demonstrating the commandments' important role in the development of American law is not explicitly stated at the site of the display, is not known to the reasonable observer, and depends on a premise that is demonstrably false,” it says.
The brief notes that the introductory line of the commandments, “I am the LORD thy GOD,” appears in larger type than the rest of the text, near the top of the Texas monument.
The religious leaders' brief further observes that, although a few of the commandments mirror prohibitions against murder and theft found in laws of societies around the world and throughout history, the Decalogue begins with a set of explicitly religious instructions on idolatry, honoring the Sabbath, blasphemy and other topics.
“The two tables of the commandments are a unified whole, and Texas displays them as such,” the brief says. “So even 'Thou shalt not kill' is not a mere statement of secular ethics, or of Texas law; Christians and Jews believe it to be a direct command from God, personally delivered to Moses on Mt. Sinai.”
But, the brief contends, the very arguments that attorneys must put forth in support of government-sponsored displays of the commandments can undermine the texts' religious meaning. For such a display to avoid running afoul of the First Amendment's ban on government support of religion, government lawyers must prove that it has neither a primarily religious purpose nor effect.
“Structuring the litigation in this way demeans the religious teachings that governments set out to endorse,” the brief reads. “Time after time, in litigation that is nearly always highly publicized, government minimizes the religious significance of government-sponsored religious practices or displays. Government insists that sacred texts are really primarily secular in their meaning, or that they have been displayed primarily for secular purposes and have primarily secular effects.
“In this process, government lends its weight to distorted readings of sacred texts; indeed, government litigators deliberately desacralize these sacred texts. Secular readings of the text are promoted; the religious understanding of the faith groups to whom the text is sacred are deemphasized or ignored.
The Bush administration's brief came in McCreary County, Ky. vs. ACLU. In that case, a divided panel of the 6th U.S. Circuit Court of Appeals found in late 2003 that Ten Commandments displays in courthouses and a school district in three different Kentucky counties violated the First Amendment. The majority judges said the displays were not erected with a sufficiently secular purpose and that they appeared to endorse religion, even though they had later been modified to incorporate legal and historical documents beyond the commandments.
In the Bush administration brief, Acting Solicitor General Paul Clement and a group of Justice Department attorneys argue that the Kentucky displays do not violate the First Amendment, in part because “justices of this court, decisions of lower courts, and the writings of countless historians and academics have long recognized the significant influence that the Ten Commandments have had on the development of American law.
“As this court has repeatedly recognized, the political and legal history of the United States is infused with religious influences, and the [First Amendment's] establishment clause does not require government to ignore or minimize that reality,” they argue.
The Justice Department officials also decry one of the requirements set forth for such displays by the lower court. “To hold, as the court of appeals did here, that any acknowledgement of religious history must be accompanied by elaborate disclaimers or explanations bespeaks a fundamental hostility to or suspicion of religion that has no place in establishment clause jurisprudence,” they contend.
But in BJC brief for the Texas case, the religious groups note assertions that the Ten Commandments have had a significant influence in forming the nation's laws may be ill-founded, no matter what judges may have said in the past.
“To say that the Ten Commandments exercised 'extraordinary influence' on American law…is to wrap a kernel of truth in such a vast overstatement as to demonstrate that the statement is a pretext to justify displaying the commandments,” they contend.
“What is plausibly true is that three of the Ten Commandments are an early example of prohibitions on homicide, theft, and false witness… and that the commandments have been more visible than other ancient sources because they are part of the sacred text of the dominant religious tradition in Western culture. It is hard to plausibly claim any more than that.”
Furthermore, the brief argues, “Penalties for murder, theft, perjury, and defamation tend to appear early in the development of all legal systems, including those of ancient civilizations with no reliance on the Jewish scriptures.”
And, it continues, early American prohibitions on such crimes stemmed directly from long-accepted tenets of English common law, the forerunners of which were pre-Christian in origin: “The American law of murder, theft, perjury, and defamation thus traces back through centuries of English law to the barbarian laws of non-Christian Germanic tribes — and this line of development is far more direct than any development from the Ten Commandments.”
The U.S. Supreme Court often agrees to hear cases to resolve conflicting decisions between different appeals-court circuits. However, these cases mark the first time since 1980 that the high court has dealt with the issue of Ten Commandments displays on government property. That year, the court decided Stone vs. Graham, in which they found unconstitutional a Kentucky law requiring public schools to post the commandments on the walls of each classroom.
Since then, the lower federal courts have developed a hodge-podge of rules on allowing Ten Commandments displays in public settings — with some displays found acceptable when they are included as a part of a larger exhibit on the development of America's legal system and some displays are found unconstitutional. In their brief, BJC and the Interfaith Alliance ask the court to create a clear standard for what is constitutionally acceptable in such cases.
“By holding governmental units to an objective standard, much sham litigation will be avoided, and this court will no longer invite governmental units to desacralize sacred texts,” they write.
The justices will hear oral arguments in Van Orden vs. Perry (No. 03-1500) and McCreary County vs. ACLU (No. 03-1693) March 2 and are expected render decisions in the cases before the court adjourns in July.