Guest Editorial for March 10, 2005
By Robert Marus
The Supreme Court is considering the constitutionality of government displays of the Ten Commandments, and one local official thinks he knows why such displays are legal.
“American law is all about God,” said Allan Watson, mayor of Monroe County, Tenn. Watson, a member of First Baptist Church in Madisonville, Tenn., is fighting a legal battle to keep a display of the commandments in the county's courthouse. The dispute is on hold pending the outcome of two similar cases argued before the high court March 2.
In a more nuanced way, many other defenders of Decalogue displays assert the legality of such monuments-saying that the commandments played such an integral role in the formation of Western legal codes that commemorating them in courthouses or other government buildings is natural.
“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,” wrote Acting Solicitor General Paul Clement in a brief submitted to the Supreme Court. Clement-representing President Bush's administration-was arguing in favor of Ten Commandments displays in the McCreary and Pulaski County, Ky., courthouses.
Likewise, during oral arguments before the Supreme Court March 2 on that case and another Ten Commandments case, some members of the high court themselves made similar statements.
“Of course it [our system of laws] stemmed from the religious beliefs of those who came to the United States,” said Justice Steven Breyer, addressing the attorney for the group suing for the Kentucky display's removal.
And the Kentucky counties included an explanatory document in their display, claiming “The Ten Commandments provide the moral background of the Declaration of Independence and the foundation of our legal tradition.”
But those presumptions may be incorrect, according to some church-state and history experts.
“On the contrary, the historical record reveals that: the influences on early American law are largely secular; any early religious influences declined during the nation's founding; the American government's central founding documents have nothing to do with the commandments; and, to the extent that the Ten Commandments' non-religious precepts are consistent with current law, those precepts are universal [and even predate the Ten Commandments],” wrote David Friedman, representing the American Civil Liberties Union of Kentucky in their lawsuit against the counties, in his brief to the high court.
In fact, according to Yeshiva University law professor Marci Hamilton, early American law grew almost entirely out of English Common Law-which, in turn, was pre-Christian in its origins.
“The development of the Common Law grew out of the Roman Empire,” she said. “So, the notion that you can identify at one point in time the primary influence any one set of commands had on our law-it's just indefensible.”
Hamilton, a Presbyterian, specializes in church-state law and American history. She once served as a law clerk to Justice Sandra Day O'Connor, a moderate who is considered a “swing vote” on church-state cases.
Hamilton said a quick reading of the commandments themselves makes her case. The first five laws-demanding the worship of God alone, barring graven images, prohibiting taking God's name in vain, observing the Sabbath, and honoring one's parents “so that thy days may be long upon the land which the Lord thy God giveth thee”-are explicitly religious in nature.
And, she noted, although the last five commandments-banning murder, adultery, theft, perjury and covetousness-aren't explicitly religious, many of them have parallels in virtually every other legal system in the history of humankind. That includes law codes, such as the famous Code of Hammurabi, that predate the Decalogue.
“There are all these different influences that contributed to what we have now,” Hamilton said, “and this attempt to own the culture” by asserting that one religious tradition was the primary or even a significant source of the laws “is indefensible-it's hubris, unfortunately.”
Hamilton's argument is similar to those found in friend-of-the-court briefs submitted in the case-including one that University of Texas Law School professor Doug Laycock penned for the Baptist Joint Committee for Religious Liberty.
But Brigham Young University law professor Brett Scharffs said that, even given those considerations, the Ten Commandments still are an important symbol of the development of law in the Western tradition. Though American law may not show a direct linear descent from the Decalogue, he said, “I think the Ten Commandments are very much in the background in the creation of the American government as an example of lawmaking or lawgiving.”
They are important to legal history, Scharffs asserted, because “Moses as a lawgiver is an important early example of what law is or what law means.”
However, he acknowledged, there's a reason that the Code of Hammurabi and the Seven Pillars of Islam aren't commemorated in scores of government buildings around the nation like the commandments are.
“I think the people who donate [such monuments] are interested in communicating the religious message. I think they're making a point about what they believe to be eternal and important,” Scharffs said. “So, if we're going to say they're going to be displayed because of their historical significance, I don't think it's a really accurate account of the reason they're displayed.”
Special to the Herald
Robert Marus is chief of ABP's Washington bureau.