The Pew Forum on Religion and Public Life held a public discussion of the Ten Commandments cases to be heard by the Supreme Court this week. That discussion featured Douglas Laycock, one of the foremost church/state scholars in the nation and the associate dean of the University of Texas Law School, and Jay Sekulow, chief counsel for Pat Robertson's American Center for Law and Justice. Laycock, as always, presented a devestating case and really nailed the essential dishonesty at the heart of the opposition's argument. After noting that the Supreme Court has repeatedly ruled that the Establishment Clause requires that the government not take stands on explicitly religious matters, he says:
So all this litigation, then, is about some explanation of why the Ten Commandments are up there, apart from the fact that we want you to believe the Ten Commandments. This is all sham litigation. Everybody knows the Ten Commandments are there because a vocal majority thinks they're a good religious teaching and they ought to be displayed, but government officials are forced to say, "That isn't why we did it at all." They may not like the rule that they can't endorse religion, but a majority of the court seems committed to that rule and so all the cases have to be argued within the boundaries of a rule against governmental endorsements of religion.And so the claim from the governmental side is always, "We're not really endorsing the religion; we don't really care about the religious teaching of the Ten Commandments. Their primary purpose, in effect, is secular." And some religious folks are comfortable supporting that position. But others say, "Look, what you're doing is systematically attempting to de-sacralize a sacred text. You're taking the religious and sacred meaning out of it, at least for litigation purposes, and offering these transparently phony secular explanations." And the principle - the secular explanation of choice for the Ten Commandments - is that these are important: the American law or the law of Western civilization or the Western legal tradition is based on, derived from, the Ten Commandments. These are the foundations of American law.
Now, if you think about the content of the Ten Commandments, that's not very plausible. The Texas display begins following roughly a condensed version of the King James version - with some changes - but it begins in larger type with the phrase, "I am the Lord thy God," and then says, "Thou shalt have no other gods before me. Thou shalt not make any graven images." That sounds like religion. The first half of the Commandments really have no secular equivalents. They are purely and entirely about one's duties towards God. The second half do have some secular equivalents: "Thou shalt not kill, Thou shalt not steal, Thou shalt not bear false witness," are indeed embedded, in one form or another, in the law of murder, the law of theft, the law of perjury and defamation. "Thou shalt not covet" could have a secular moral equivalent but obviously has never been part of our law, and so far as I can tell, national economic policy is based on encouraging us all to covet freely and grandly. (Laughter.)
So we've got three out the 10 that have some corresponding provision in law. Now, it turns out, of course, that killing, stealing, perjuring and defamation are very basic principles that appear early in every legal system, including legal systems not affected by the Ten Commandments. They were part of ancient Jewish law; they were part of ancient Egyptian law and Mesopotamian law, and ancient Greek law, and Roman law before the Christianization of Rome. And more relevant to the origins of American law, we got these rules from the common law of England, and the common law of England got them from the earliest inhabitants of England. Murder, theft, perjury and defamation were part of Anglo-Saxon law before the Christianization of the Anglo-Saxons and before they had ever heard of the Ten Commandments. These rules did not come from the Ten Commandments. And to say the Ten Commandments are about law is to rip them out of context, to strip away the clearly religious ones - "Have no other gods before me" - put all the focus on just the three that have secular equivalents, and then to distort the meaning and significance of those secular equivalents.
He's right, of course. Jay Sekulow and the other Christian proponents of posting the Ten Commandments know that these are explicitly religious documents, and they know that they are being posted solely because the various government officials who make such decisions want people to read them and believe them, because they think they are true. But they can't admit that, so they have to pretend that they aren't really religious at all, despite the fact that the first 5 commandments are explicitly about religion and only religion.
As I have noted before, this kind of prevarication is nothing new for Sekulow. He routinely distorts the record of the ACLU, for instance, in order to raise money for his organization. Ironically, this man who so vociferously defends the Ten Commandments regularly breaks the one against bearing false witness.
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Those are the four best paragraphs I've ever seen on the subject. Laycock summarized, and explained, and persuaded in that short space, however long it took to deliver. Very impressive.
He glossed the differences among the versions of the commandments (i.e.: Sekulow wants the ten he likes, and he wants them posted because he wants me to believe the same ten), but I don't think that matters. The main point is the same: display proponents are lying about the meaning and purpose of the text they want displayed.
No short piece demonstrates that as clearly as Laycock's.
It's similar to their approach on teaching the judeo-christian creation mythology as biology in public schools. Everyone knows that the motives are religious, but they pretend they are not, and everyone else is supposed to play along. Basically, they are liars, and not very good examples of what their "morality" produces. Or perhaps they are good examples -- good in the sense of representative.
Just to point out, Ed, quite frankly, you have way too many interesting blog posts that really deserve extensive and nuanced responses, and there isn't enough time in the day to respond to them all. Although I disagree with you on some issues--less so on the result than on the nuance--quite frankly this is without a doubt one of the best blogs I have come across.
Hey, it's my brush with fame moment; I had Professor Laycock for Remedies back in the day. Of course, he has argued for religious liberty in the Supreme Court before, in the case of a Santeria church being discriminated against by city ordinance in Church of the Lukumi Babalu Aye v. Hialeah.
I think the pro-posting group has a more cynical aim. They are using the posting of the Ten as a signpost on the road towards theocracy.
If they can push this through, and rub the face of non-believers (non-believing in their version of religion) in the posting of the commandments, it is a signal that they can and will start demanding more powerful endorsements. If they are denied the right to erect the signpost, they will use this example of "persecution and hostility" to rally the troops for more radical assaults on freedom. Either way, as they see it, they will win.
It's all about political power: lusting for Caesar, while pretending to live for God.
Laycock is indeed powerful in his presentation--and we should all be grateful that he argued the Texas case before the Court today. I don't know who represented the Kentucky plaintiffs, but I'm sure some of Laycock's argument will accrue to that case's advantage as well. The only question in my mind will be what kind of argument Scalia will muster in defense of the displays.
I've also noted the similarity between the arguments for Ten Commandment displays and creationism/ID in the classroom. In both cases the Sekulows pretend their goal is entirely secular/civic, and religion couldn't be farther from their minds. They're lying, of course, but I seriously doubt they think it's lying. They are evangelicals, after all, and what do evangelicals do? They evangelize! Their religious beliefs compel them to "spread the good news" to the unsaved through any means possible, and that includes lying, which isn't lying if done in the service of their lord. In their worldview, their behavior is a religious obligation and entirely rational. We should expect them to do literally almost anything, including criminal conduct on the part of some, to promote their cause.
And your comment that Sekulow distorts the record of the ACLU in his fundraising efforts is much like what I heard yesterday from Richard Thompson, President and Chief Counsel of the Thomas More Law Center and pro bono defense attorney for the Dover (PA) Area School Board in their effort to promote ID. He labeled the ACLU as unchristian and anti-American, claimed the US was a Christian nation, and asserted that the Santorum amendment was the law of the land. He also made the oft used claim that the First Amendment applies only to Congress and no other unit of government but went further in stating that several states maintained state religions well into the 19th century and that the establishment clause was intended to prevent Congress from imposing a different religion on those states that wanted to maintain their own churches. He also delivered those assertions in an authoritatively stentorian voice as if he were god himself! If he takes those arguments and that posturing into the courtroom when the Dover case is argued, I cannot conceive of the judge having anything other than a negative reaction.
Laycock is indeed powerful in his presentation--and we should all be grateful that he argued the Texas case before the Court today. I don't know who represented the Kentucky plaintiffs, but I'm sure some of Laycock's argument will accrue to that case's advantage as well. The only question in my mind will be what kind of argument Scalia will muster in defense of the displays.
I don't think Laycock actually argued the case today, but he did file a brief on behalf of Van Orden in the Texas case. I received an email from him less than an hour ago on the religion law mailing list, so I can't imagine he was actually the one doing the oral argument.
And your comment that Sekulow distorts the record of the ACLU in his fundraising efforts is much like what I heard yesterday from Richard Thompson, President and Chief Counsel of the Thomas More Law Center and pro bono defense attorney for the Dover (PA) Area School Board in their effort to promote ID. He labeled the ACLU as unchristian and anti-American, claimed the US was a Christian nation, and asserted that the Santorum amendment was the law of the land. He also made the oft used claim that the First Amendment applies only to Congress and no other unit of government but went further in stating that several states maintained state religions well into the 19th century and that the establishment clause was intended to prevent Congress from imposing a different religion on those states that wanted to maintain their own churches.
Thompson appears to be quite uncivil for a man in his position. His response to the letter from the UPenn biologists to the Dover school board was incredibly vitriolic, especially coming from a guy who is involved in ongoing litigation in a highly public case. Attorneys just don't talk the way he talked in that letter. Where did you hear him speak on these subjects yesterday? I'd love to have a transcript of it if one is available.
Of course it's largely a sham, and to the extent that it isn't, it's willful ignorance and wishful thinking. These same people aren't plopping 10 Commandment monuments on their own lawns, which would be perfectly legal. Their only concern is with emblazoning their sect's holy object and declarations onto the government's crown.
I also agree with Keanus that these arguments sound rather familiar. The veneer of secularism is so thin as to be diaphanous.
That was a great point. It is too bad that the court will nonetheless rule 7-2 in favor of keeping the damn things.
It is too bad that the court will nonetheless rule 7-2 in favor of keeping the damn things.
Not so sure about that, myself. I learned long ago that trying to predict what the Court might do is all so much guesswork, but here goes, just for fun. Van Orden gets reversed 5 to 3 (if Chief Justice Rehnquist does not participate) or 5 to 4 (if Chief Justice Rehnquist does participate), with Justice O'Connor writing the plurality opinion. McCreary gets reversed 5 to 4; Chief Justice Rehnquist will participate to break a 4 to 4 tie. Justice Scalia will write the majority opinion. I agree with Professor Laycock that this opinion is quite likely to include "some phony argument about how this is connected to American law." And I also agree with him that these decisions will not do anything to clarify Establishment Clause jurisprudence.
In the end, I see this as just the sort of split double-header presented by Gratz and Grutter two terms ago. The Court is too divided to go one way or the other with both of these cases, which makes me wonder, when all is said and done, why they took the cases to begin with. The safe move is to just divide the baby down the middle and give each side something upon which to declare victory. Bad jurisprudence, expedient politics.
We should start a pool on the outcome. I also predict a split decision, one of which will be written by O'Connor in her maddeningly vague and contradictory way to forge some bizarre compromise that leaves both sides shaking their heads.
We should start a pool on the outcome.
I'm in for $20. Which tells you about all you need to know of my confidence in my own predictive powers when it comes to this Court...
Doug Laycock is the man.
I can't decide which is the bigger design flaw at this site. grouping the commenter's name on the wrong side of the horizontal line, or putting the permalink in the time, I presume only because there wasn't a more irrelevant and opaque place for it.