Ten Commandments Case on Wednesday

On Wednesday, the Supreme Court will hear oral argument on two cases involving the Ten Commandments being posted in government buildings and courthouses, one in Kentucky (McCreary) and one in Texas (Van Orden). Linda Greenhouse, the excellent legal reporter for the NY Times, had an article yesterday on the cases. One of the fascinating things to me about the case is how eager so many Christians are to void the essential religious meaning from the Ten Commandments and declare them to be merely symbolic of the rule of law, or to be of purely historical importance:

At the same event, Jay Sekulow, chief counsel of the American Center for Law and Justice, a law firm established by the Rev. Pat Robertson that litigates for evangelicals and other religious communities, offered a different perspective. The Ten Commandments have acquired secular as well as religious meaning, he said, and have come to be "uniquely symbolic of law."

The eminent church/state scholar, Douglas Laycock, rightly questioned this attempt to negate the obviously religious nature of the biblical text and noted that to do so is offensive to many Christians, including the group of Baptists on whose behalf he filed a brief in the Van Orden case:

Professor Laycock, who filed a brief on behalf of the Baptist Joint Committee against the display in the Texas case, Van Orden v. Perry, No. 03-1500, disparaged as "sham litigation" the effort to depict the Commandments as anything other than profoundly religious. To defend the Commandments as a historical or legal document is "to desacralize a sacred text, to rip it out of context and distort its meaning and significance," he said. "It ought to be unconvincing to people outside the religious tradition and insulting to those within it."

One of the problems in all disputes concerning church and state is how eager the anti-separation crowd is to portray it as a battle between Christians and atheists. But as I have pointed out many times, some of the staunchest supporters of strict separation have been Christians, particularly Baptists, who have a very long history of advocating separation. Even the Southern Baptist Convention adhered to a strongly separationist position until the fundamentalist takeover of that organization in the early 80s. In addition, there have been many briefs filed against allowing the Ten Commandments to be posted by other religious organizations, including the most prominent Jewish groups. You can see the brief filed by the Anti-Defamation League and the Center for Christian-Jewish Learning at Boston College here. The American Jewish Congress also filed a brief in this case, along with several other faith groups, and make the same point about the kinds of arguments made by Sekulow above:

"The display of religious symbols, including the Ten Commandments, on public property, violates the constitutional principle of separation of church and state, and sends the message to non-adherents that they are outsiders in their own communities," said Jeffrey Sinensky, AJC's general counsel. "Such displays are especially inappropriate in situations where people of all faiths and of no faith convene daily to seek justice."

The AJC brief was filed with a coalition of Christian, Jewish and interfaith organizations. "When government attempts to rationalize its display of sacred texts by claiming secular purposes and secular effects, the inevitable tendency is to distort and desacralize the sacred text," the brief states.

Sekulow also makes this profoundly silly argument that we hear constantly from the religious right whenever the Ten Commandments displays come up:

Mr. Sekulow noted that the marble frieze in the courtroom of the Supreme Court Building itself depicts Moses, holding the tablets, in a procession of "great lawgivers of history." (The 17 other figures in the frieze include Hammurabi, Confucius, Justinian, Napoleon, Chief Justice John Marshall and Muhammad, who holds the Koran.) "Does the Supreme Court now issue an opinion that requires a sandblaster to come in? I think not," Mr. Sekulow said.

Sekulow is of course well informed enough and smart enough to understand the difference that the context makes in this regard. Numerous Supreme Court rulings on public displays of religious symbols have noted the distinction that context makes in terms of whether it could reasonably be viewed as an endorsement or not. In the Supreme Court frieze, as noted above, the Ten Commandments appears along with numerous other non-biblical sources of law, including Hammurabi, Confucius and Muhammed. Hence, there is no implicit endorsement of any one of them. But a freestanding display of only the Ten Commandments is obviously quite different without that context.

Paul Finkelman of the University of Tulsa College of Law was kind enough to send me a copy of a Fordham Law Review article he wrote on this subject. His article has been cited in several of the briefs that have been filed in these cases. In that article he notes:

In addition to being religious in the most obvious sense of the term, any display of the Ten Commandments will inevitably favor one faith or one denomination over all others. As I will demonstrate below, Jews, Catholics, Lutherans, and most Protestants differ in the way they number and organize the Commandments. These religions, and denominations within them, also differ in how they translate the Commandments from the original Hebrew into English. Thus, any display of the Commandments is inherently sectarian, because it must choose a translation, ordering, and numbering system that will favor, or endorse one or more religions, and therefore disfavor other religions. Such monuments are, in constitutional terms, preferential, and as such fail the endorsement test set out in County of Allegheny v. ACLU.

As I have said many times, the true test of whether the arguments made for the constitutionality of such a display is whether those making the arguments would also make them if the display was from another religion. If a Muslim judge decided to erect a monument in his courtroom of legal commandments from the Quran, with no other references at all, would Jay Sekulow be arguing that this is not an endorsement of religion? I highly doubt it. I certainly don't believe that most of the folks who are swayed by Sekulow's rhetoric would be on the same side in such a case.

The best news in this case is that it is being argued by none other than Matthew Staver, the man who came up with, in my opinion, perhaps the single dumbest argument ever taken to the Supreme Court (if anyone knows of arguments any more absurd than this one, I'd love to see them). He actually argued that the Supreme Court should have overturned the Massachusetts State Supreme Court decision allowing gay marriage because it violated the constitution's guarantee that each state would have a "republican form of government." I only wish that the court had granted cert in that case just so that Staver would have had to deliver that argument orally before the court. I don't imagine even Antonin Scalia, who is quite opposed to gay marriage, could have avoided openly snickering at such a ridiculous line of argument. One hopes he will be similarly incompetent in this case.