Acknowledgement without Endorsement: Defending the Ten Commandments

Article excerpt

When most Americans hear "Thou shalt have no other gods before me,"1 they envision Charlton Heston holding two rounded stone tablets, trembling before the powerful voice of an invisible God. Cecil B. DeMille's 1956 epic production of The Ten Commandments portrays the Sinai covenant as a divinely ordered pact between God and the Israelites. As a theocratic society, the Israelites had no purely secular laws. But, as religion and the body politic have evolved into more distinct spheres over the last several thousand years,3 the Ten Commandments have stood the test of time as a secular document.

The twin tablets symbolizing the stones on which Moses took the Ten Commandments to the Israelites were so universally recognizable (even without DeMille) that they became a symbol for law itself.4 In fact, the shape of those tablets inscribed with roman numerals I-X appear on the bronze gates and doors of the chambers of the United States Supreme Court.5 Moses himself appears three times: with tablets on a frieze on the East Pediment, flanked by other lawgivers in a frieze on the North Wall of the chambers of the Supreme Court, and in the Great Hall.6

The Ten Commandments contain secular principles. "Thou shalt not kill."7 "Thou shalt not steal."8 "Thou shalt not bear false witness against thy neighbor."9 These principles from the Ten Commandments find effect in modern laws against murder, theft, and perjury. But, as one would expect from laws governing a theocratic society, the Ten Commandments also have an undeniable sacred aspect: "Thou shall not make unto thee any graven image";10 "Thou shalt not take the name of the Lord thy God in vain";11 "Remember the Sabbath day, to keep it holy."12 When the Ten Commandments appear on government property, their religious aspect does not automatically render their display unconstitutional. Rather, the government may display religious symbols as long as it has a valid secular purpose and an effect that does not show favoritism toward religion.13

The First Amendment reads: "Congress shall make no law respecting an establishment of religion or prohibiting the free exercise thereof."14 Even though the plain text of the Constitution does not indicate how an "establishment of religion" might relate to religious displays, the Supreme Court has interpreted the Establishment Clause as allowing government to erect religious symbols on its property so long as the government does not "appear[] to take a position on questions of religious belief."15

Over the last several years, courts around the country have heard numerous cases challenging the propriety of displaying the Ten Commandments on state property.16 Perhaps the most notable of these was former Alabama Chief Justice Roy Moore's erection of a two-and-a-half-ton granite monument (which the district court and the Eleventh Circuit held unconstitutional) in the Alabama State Courthouse.17 Now, for the first time in over fifteen years, the Supreme Court will address the constitutionality of displaying religious symbols on public property.18 For the first time in twenty-five years, it will consider the constitutionality of displaying the Ten Commandments itself. The Court's guidance in Van Orden should bring some clarity to the arcane murk that discrepancies among the lower court opinions have created.19

Government can and should acknowledge the impact of the Ten Commandments on our law and culture without endorsing or favoring a particular religious message. The Texas monument strikes precisely that delicate balance.

I. OVERVIEW

For over four decades, a granite monument depicting the Ten Commandments has stood on the Texas Capitol Grounds. The Grounds qualify as a "museum" and are maintained by a professional curator. They feature seventeen different monuments and twenty-one historical markers to people, events, and ideals that have contributed to the diversity, culture, and history of Texas. The reasonable observer on the Capitol Grounds could no more miss this museum-like context than could a visitor standing on the National Mall in Washington, D. …