They Shalt Not

THE SUPREME COURT OUGHT TO uphold the several displays of the Ten Commandments on government property whose constitutionality it considered last week. But how might it do that?

If the Court had a sense of humor, perhaps it would sustain the displays (the cases are from Texas and Kentucky) by observing that the Decalogue is foreign law, and that foreign law is always good law, often even better than our own. Think of the opinion that could be crafted, perhaps by Justice Anthony Kennedy, who last week cited developments in foreign law in declaring that the Constitution condemns capital punishment for crimes committed by persons under 18. Kennedy could observe that the Decalogue was received on Mt. Sinai by one Moses, an Israelite from Egypt, and that it was originally written in Hebrew, and that it has been translated the world over, and that . . .

Of course, the Court isn't going to hand down any such opinion (though it would be interesting to see how it dealt with the part about the text coming from the finger of God). Instead it is going to produce a ruling that applies First Amendment jurisprudence. One trembles at the thought: No area of constitutional law is in a state of greater confusion.

Over the years, the Court has invented first this test, then that to determine whether government involvement with religion violates the First Amendment's ban on establishment. The Court has searched for illicit purposes and bad primary effects and excessive entanglements. It has asked whether government is endorsing religion such that non-adherents feel they are outsiders and adherents insiders. It has theorized that "a reasonable observer" can reliably tell us whether unconstitutional establishment has occurred. It has set forth a "coercion" test to make sure that government doesn't force people to support or participate in religion, and has regarded even "peer pressure" as unconstitutionally coercive.

The Court has used one test for one case, another test for another, and sometimes it has wearied of its tests and used none at all. In 1984, confronted with the question of whether chaplaincies in legislatures violate the First Amendment, the justices said they'd rather shelve their tests than strike down a practice dating to the very first Congress. So whatever has a long history that has "become part of the fabric of our society" and is a "tolerable acknowledgment of beliefs widely held among the people of this country" may well escape condemnation under the First Amendment--unless the Court decides otherwise.

Last year in the Pledge of Allegiance case (does "under God" violate the First Amendment?), Justice Sandra Day O'Connor proposed yet another test--a four-parter. Government may acknowledge religion so long as the policy or program or action at issue satisfies standards of "history and ubiquity," does not include worship or prayer, is "nonsectarian," and possesses "minimal religious content."

In last week's Ten Commandments case from Kentucky, the Court is being asked to apply this four-part test. Advocates out to prove that the display in one county courthouse has "minimal religious content" have counted the words it contains (not just in the Decalogue but also in the Star-Spangled Banner, the Mayflower Compact, the Bill of Rights, the Magna Carta, the National Motto in the Great Seal of the United States, and the Preamble to the Kentucky Constitution) and found that of the 8,462 words in the entire exhibit only 199 are in the Ten Commandments, and the words "God" and "Lord" occur only four times. To think that constitutional law might come to this.

The Court could usefully set aside its many tests and instead consider what various majorities have affirmed on no fewer than five occasions since 1952, to wit: "We are a religious people whose institutions presuppose a Supreme Being." As such a people, Americans for more than two centuries have made that presupposition explicit in numerous ways that involve government. Think of the words "In God We Trust" on our coins or the aforementioned legislative chaplaincies. The Ten Commandments displays do the same thing--a point Justice Scalia was making, if clumsily, when he said during the argument in the Texas case that "government comes from God. That's what this case is about."

The question for the Court is whether the First Amendment really does prevent public displays that indicate what our institutions presuppose. One is hard pressed to discern in the original meaning of the religion clause a rule that says, "Thou shalt not." Which is why these displays of the Ten Commandments deserve to survive the Court's review.

The Court could usefully set aside its many tests and instead consider what various majorities have affirmed on no fewer than five occasions since 1952,

Don't forget the hundreds of times BEFORE then, either!

Christianity is part of the Common, or Natural Law. Therefore it is Christianity that is the basis of our government. Religion of any other type is not synonymous with the American experience of Liberty!"

God . . . is the promulgator as well as the author of natural law.

Justice James Wilson, a signer of the Declaration, the Constitution, Original Justice on the U. S. Supreme Court, and the father of the first organized legal training in America.

"It is the duty as well as the privilege and interest for our Christian nation to select and prefer Christians to be their representatives, as this is a Christian republic

- Justice John Jay, Supreme Court Justice

“It is the right as well as the duty of all men in society publicly and at stated seasons, to worship the Supreme Being, the great Creator and Preserver of the universe: . . . As the happiness of a people and the good order and preservation of civil government essential depend upon piety, religion, and morality, and as these cannot be generally diffused through a community but by the institution of the public worship of God and of Public instructions in piety, religion and morality...”

Justice Brewer Trinity v. United States. 1892

In the supposed state of nature, all men are equally bound by the laws of nature, or to speak more properly, the laws of the Creator.

Samuel Adams, Father of the American Revolution, Signer of the Declaration

[T]he laws of nature . . . of course presupposes the existence of a God, the moral ruler of the universe, and a rule of right and wrong, of just and unjust, binding upon man, preceding all institutions of human society and government.

John Quincy Adams

The law of nature, “which, being coeval with mankind and dictated by God Himself, is, of course, superior in obligation to any other. It is binding over all the globe, in all countries, and at all times. No human laws are of any validity, if contrary to this.”

Alexander Hamilton, Signer of the Constitution

The “law of nature” is a rule of conduct arising out of the natural relations of human beings established by the Creator and existing prior to any positive precept. . . . [These] have been established by the Creator, and are, with a peculiar felicity of expression, denominated in Scripture, “ordinances of heaven.”

Noah Webster, Judge and Legislator

Affidavit in Support of the Ten Commandments

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