Kentucky's Ten Commandments Display at the Supreme Court:
Part Two of a Two-Part Series on This Term's Ten Commandments Cases

By MARCI HAMILTON


hamilton02@aol.com
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Tuesday, Mar. 22, 2005

The Supreme Court this Term is considering two cases that raise the issue of whether Ten Commandments displays violate the First Amendment's Establishment Clause.

In a previous column, I analyzed Van Orden v. Perry, which involves a monument situated on the Texas state capitol grounds, amidst other, secular monuments that are primarily dedicated to war heroes. In this column, I will discuss McCreary County v. ACLU, which involves the posting of the Ten Commandments in a Kentucky courthouse.

The Kentucky Display: The Facts and Holdings that Led to the Current Exhibit

Initially, McCreary County, Kentucky, displayed a plaque of the Ten Commandments - placing it by itself, rather than within the context of other documents or items in a larger exhibit.

The County's version of the Commandments was the Protestant version. (Indeed, the County's attorney recently told the Supreme Court that county officials did not "even think about whether there were different versions." One can hardly imagine a more telling concession that the County officers operated from within their own Protestant world view.)

A lawsuit was brought alleging that the lone Ten Commandments display violated the Establishment Clause - and the judge ruled for the plaintiff.

In response, the county added to the display excerpts of religious language from other historical documents. It also issued a resolution that declared that the Ten Commandments were the basis of the Declaration of Independence and American law, along with mention of Jesus. However, another lawsuit was brought - and the new, revised display was also found to violate the Establishment Clause.

Again, the county altered the exhibit. Now, the Ten Commandments are displayed in the context of other historical sources of American law. (It never repealed or rescinded the resolution declaring the Ten Commandments to be the source of American law.)

Again, suit was brought - and this time, it made its way all the way up to the Supreme Court. There, McCreary County has defended all three displays - though the Court's focus has rested upon the second and third displays, in which the Ten Commandments were placed in a broader context

In contrast, the County has not strongly defended its resolution - and that is a good thing, for as I will explain, the resolution is blatantly unconstitutional.

The McCreary County Resolution Is Wrong as a Matter of Historical Fact.

As with all history, American legal history is complicated and messy. It might be nice, or at least efficient, if one could reduce our legal heritage to a single moment, document, or individual. But to do so would be dishonest, lazy, or both.

For those who know the historical facts, it is plain that the McCreary County resolution's claim that the Ten Commandments are the source of American law is simply false. Our form of republican government has been as successful as it has been, in large part because the Framers and their generation borrowed from a vast array of historical, philosophical, and, yes, religious sources.

They took lessons from the failures of ancient Greece and Rome. Many of them were steeped in political philosophy, including the works of John Locke, Rousseau, David Hume, and Thomas Hobbes. A number were influenced by the Presbyterian Rev. John Witherspoon at the College of New Jersey (now Princeton University). Witherspoon taught that government had to be fitted to the people and was an experimental task -- meaning that when one form failed, others should be tried.

The American Constitution was also based on the knowledge gleaned from the awful failures of the Articles of Confederation, our first Constitution. Finally, the choice of a common, rather than civil, law system guaranteed that American law would develop and evolve incrementally, case by case.

Ironically, diverse theologies contributed to the principles undergirding the Establishment Clause itself. Puritans contributed the separation of functions between government and the church. Quakers taught and enacted in Pennsylvania the principle of tolerance of all faiths. Presbyterians contributed the concept the government must treat all religions equally. Baptists were ardent advocates from the separation of church and state, through their great preachers John Leland and Isaac Backus.

These faiths' very coexistence, and the irreducible differences between them, also led the fledgling nation to prohibit the government from forcing anyone in public office from having to declare a religious oath dictated by government. In short, the nations' diversity not only belies the claim that our law has a single (or dominant) source, it also spurred the drafting of the Establishment Clause in the first place.

A County's Declaring the Commandments the Sole Source of Law Is Unconstitutional

The resolution's claim, then, that the Ten Commandments are the sole source of American law is patently false as a factual matter. But does such a claim, when made by the government, violate the Establishment Clause?

Not all false claims do - and not even all false claims about religion do. But in this case, the false claim is also an endorsement of a particular religious tradition - and that violates the Establishment Clause.

There are, in fact, so many sources of American law that to claim the central dictates of one religious tradition are the sole source of law is, in effect, to endorse that religion. Put another way, given our history, a government that publicly declares the Ten Commandments as the centerpiece of American governance has chosen to carry the banner for a limited group of faiths.

In so doing, it leaves out significant numbers of believers, including Muslims, Hindus, and Buddhists, as well as nonbelievers. Moreover, it has endorsed a plainly religious set of rules -- half of which have nothing to do with civil government, but rather with a believer's relationship to a unitary God. So not only has the government put its stamp of approval on a set of religious faiths, it has also indicated its approval of their religious law.

The resolution, therefore, is plainly unconstitutional. And so long as it is the county's last word on its Ten Commandments display, McCreary County is not going to prevail.

Indeed, before the Supreme Court, the county's attorney conceded as much -- saying at the very end of his rebuttal time that his client would "repeal" or "repudiate" the resolution. Good idea.

The Oral Argument: Focusing on the Third Display's Constitutionality

The hard question in the McCreary case, therefore, involves the final, third display - the one that puts the Ten Commandments in the context of other historic sources of law.

In a sense, the question here is whether a local government that starts on such wrong footing can correct its mistakes in this arena. Presumably it can do so somehow. But is it enough for the County here to place the Commandments in the context of a few historical texts?

Only Justice Scalia, at oral argument, seemed clearly convinced that the County's actions should pass constitutional muster. He even tried to assist the county's attorney by pointing out that the Supreme Court had in the past said that "we are a religious people." (The attorney pounced on Scalia's lifeline, echoing the statement.) Scalia seems ready to accept government endorsement of any version the Commandments - on the ground that they all stand for the principle of "the direction of human affairs by God," and that he thinks government can endorse that belief, which he takes as fact.

The other Justices who spoke at oral argument took positions far less extreme than Scalia's. In particular, they wrestled with several questions: What would it take to cleanse the county's actions of their plainly unconstitutional purpose? And what message, in reality, is the county sending with its third and final display?

Justice Souter seemed to be deeply bothered by the notion that a plain constitutional error could be cured by simply adding a few things to the display. He said, "Everybody knows what was going on. Everybody knows that the present context is simply litigation dressing and that the object for what is going on is the object that was revealed in the first place." If Souter is right, the County's original, unconstitutional message of endorsement of religious is still being sent - and the Establishment Clause is still being violated.

Souter put it this way: "[I]t would be crazy law from this Court that said you can engage in religious endorsement, promotions, et cetera, so long as you hide the ball well enough." And he has a point: If all the county has done is to throw some other symbols on the courthouse walls, all the while winking and grinning at its citizens, then it has not re-entered constitutional territory. The County should not be able to employ a ruse to avoid the Constitution's dictates.

Justice Souter and Scalia, thus, were the bookends of the argument. For Justice Scalia, there was no harm in the displays even if a clearly religious message was being sent by government, because "we are a religious people." For Justice Souter, not only is overt endorsement unconstitutional, but the subtle (and not-so-subtle) means by which government may try to insinuate its beliefs on the people must also be taken into account.

The Court Must Recognize America's Religious Diversity and Respond to It

As I explained in my earlier column, this case, and the Texas case I discussed there, present the Court with a stark choice.

On one hand, the Court may opt to shore up the image of America as a "Christian country" - an image that was never wholly accurate, and is inaccurate today. To insist on America's Christian character is an exercise in mythmaking, because no one can make of this multi-faith country a homogeneous set of believers.

On the other hand, the Court may - and I believe it should - acknowledge the reality of the staggering and increasing diversity of religious belief among this country's citizens. This is the only option that can make sense of the twin constitutional guarantees about religion: that Americans will have absolute freedom of religious belief, and that the government will not dictate or endorse beliefs in order to force them on those who dissent.

It would be a terrible mistake if Supreme Court Justices choose to define "We the People" in a way that excludes many of the religious faiths this country attracted through its freedoms and stable government. To include in that "we" only those who believe in a unitary God, or those who believe God is the source of the law, is to miss the signal achievement of our system. Such a view not only offends the atheist, the Sikh, the Muslim, and the Buddhist, but it is also sure to offend the Constitution itself.


Marci A. Hamilton is the Paul R. Verkuil Chair in Public Law at Benjamin N. Cardozo School of Law, Yeshiva University. An archive of her columns on church/state issues - as well as other topics -- can be found on this site. Her email address is hamilton02@aol.com. Professor Hamilton's book, God vs. the Gavel: Religion and the Rule of Law (Cambridge University Press), will be published later this year.

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