THE TEN COMMANDMENTS IN COURT:
Power And Its Abuse

By MARCI HAMILTON


hamilton02@aol.com
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Thursday, Mar. 14, 2002

As I have noted in an earlier column, serious constitutional problems arise when the government displays the Ten Commandments. The typical defense is that they are the ground for much of our criminal law, and therefore constitute a legal and historical document - not a religious one. But this argument, upon examination, is so weak it ought to be rejected out of hand.

Indeed, the only real question the argument raises is why some courts have found its flawed logic persuasive. To that question, I will offer two possible answers.

Dividing the Ten Commandments In Two

The misguided argument that the Ten Commandments are merely legal and historical treats them as though they are an indissoluble whole. Of course, they are not.

To be sure, the principles expressed in the last six commandments--honor thy mother and father, don't steal, don't kill, don't covet, don't commit adultery, and don't lie--can be found in many laws in the United States. The first four commandments, though, contain directives that no government official in this land of religious liberty may say or endorse on behalf of the government.

Were the President to give a speech (which he, of course, would not) that reminded Americans to obey the first four commandments--there shall be only one God, there shall be no graven images, keep holy the Lord's day, and do not take the Lord's name in vain--there would be a huge uprising in opposition. Those are not messages this government may say, and thank God for that.

Similarly, when the government displays the Ten Commandments, the unconstitutional endorsement of a particular religion is patently obvious. This is not a hard case, despite the divisions among the courts that have addressed the issue.

Discrimination Against Nonbelievers

So how does one explain the lower courts' inability to embrace the clear, simple, and obviously true proposition that the Ten Commandments are religious? The answer is that there are two forces at work in these cases that tend to muddy the constitutional waters.

For example, in the Pennsylvania case, the female plaintiffs - atheists who brought the suit with the help of the ACLU - were threatened and harassed both before and after the court's decision validating their argument. In Texas, students challenging government-sponsored prayer at football games asked (and were granted the right) not to be named in the lawsuit so they could avoid harassment. Who are the actual and feared harassers? Believers, of course.

This is an unfortunate example of the intolerance of a majority whose members ought to know better. After all, if the believers were to be told by the government that they must stop believing in God tomorrow, they would heat up their lobbying machines and their members to a fever pitch. Their representatives in the state and federal legislatures would self-righteously decry the violation of the believers' rights. Believers know well how to defend, and defend strenuously, their rights to believe as they choose - as well they should.

But when a nonbeliever suggests that the government ought not endorse a religious message, the same believers tell the nonbeliever to "get over it," and move on to another issue. If the nonbeliever, too, must have his view, he should at least drop them, or keep them to himself, when they conflict with the believers' agenda. The believers' attitude is: Commitment and conviction for me, but not for thee. And you can be sure no member of Congress or a state legislature will defend the nonbeliever's rights.

As a believer, I find this all rather embarrassing. I find embarrassing and unfortunate, too, believers' efforts to lobby for government support for their beliefs - whether through the posting of the Ten Commandments or otherwise. Actions like these make all believers look bad.

The Ten Commandments Retain Their Strong Religious Connotation

The second argument that has muddied the waters for courts is the claim, recently repeated over and over, that the Ten Commandments can be displayed by the government, because they have lost their religious connotation. According to this argument, the Commandments are nothing but legal history.

Think about this. Government, pandering to religious voters, goes out on a limb, engaging in expensive and risky litigation, to defend the display of a document that is deeply religious for both Jews and Christians, on the theory that it is no longer truly religious. The very reason that the government is attempting to post the Commandments - because believers so fervently want them posted - belies the claim that the Commandments are not religious.

This is secularization as a cover for the drive to power, and it is too transparent to be believed. The next time a believer complains about "secularization," one might ask who has been pushing secularization the hardest, and for what purpose.

Those who bemoan the "loss" of the power of religion in public life should pause before attempting to drain a powerful, moving, sacred, and overwhelmingly significant religious document of its power by pretending it is not even religious in the first place. Sometimes ends do not justify the means, particularly when the means involve being disingenuous about the very institution one is purportedly defending.


Marci Hamilton is Thomas H. Lee Chair in Public Law at Benjamin N. Cardozo School of Law. Her e-mail address is Hamilton02@aol.com. Her prior columns on church/state issues may be found in the archive of her pieces on this site.

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