Pretexts and Commandments

An Issue of Representative Government

    (1) A historical debate is being recharacterized as a religious debate in order to apply to it the First Amendment Establishment Clause (which deals with religion, not history);

    (2) In order to characterize this debate as religious in order to fit it within the constraints of the Establishment Clause, the purpose of the people's elected representatives, no matter how much they state their purpose is historical, is treated as though their purpose is religious.

    (This reasoning has dictated the outcome: If the government officials or representatives decide to add other historical documents later to the Commandments, their sincerity of purpose is usually focused on and made the central issue of the case.  Undoubtedly, the outcome is then based on the assumption that the purpose is a pretext: That the mere fact the other documents were added later means the purpose cannot be historical--even though the display is a collection of historical documents.)

    The issue of representative government (its correct functioning) is what a lot of people are missing in the debate about whether or not government should be allowed to acknowledge that the Ten Commandments were the historical foundation of American law.  There are two sides to this issue: (1) Those who (correctly) realize that, on the basis of historical evidence, the Ten Commandments were the foundation for American law; and (2) Those who either deny or downplay the historical evidence, and, simultaneously, frame the subject as a religious issue--thus deciding whether or not to put a historical interpretation into the classification of "history" or the classification of some other word category.

History: A Secular Purpose

    Credit should be given to the United States Court of Appeals for the Third Circuit (Circuit Judges Becker (writing for the court), Barry, and Bright) for their decision to uphold the constitutionality of a Ten Commandments plaque affixed to the historic Chester County Courthouse in West Chester, Pennsylvania based on the Commandments' historical significance to American law (Freethought Society v. Chester County, Pennsylvania, No. 02-1765 (3rd Cir. June 26, 2003).

    However: Ten Commandments monuments, part of "'Foundations of American Law and Government' displays located on the property of four Adams County [Ohio] High Schools," were ordered to be removed (and indeed were removed, according to news reports, in June 2003; quote is from first paragraph of the following order), pursuant to the United States Court of Appeals order in Baker v. Adams County/Ohio Valley School Board, No. 02-3777 (6th Cir. November 19, 2002) (per curiam) (KEITH, KENNEDY, and MOORE, C.J.) (with KENNEDY dissenting).  According to the Sixth Circuit's reasoning:

In the instant case, the Ten Commandments monuments were initially displayed alone.  Only after the litigation was commenced were they incorporated into the larger Foundations of American Law and Government displays.  The district court found that the alteration of the Ten Commandments displays to include four other nonreligious monuments was insufficient to support the defendant's avowed secular purpose in permitting the displays on school property

Id. (denial of motion for stay pending appeal).

    However, one of the three-judge panel, Circuit Judge Kennedy, submitted a dissent in which he said the following:

    The display in its present configuration, flanked by texts from other secular historical sources, can appear to (1) serve a secular purpose, (2) does not demonstrate an impermissible government purpose and (3) does not foster an excessive entanglement of government with religion.  The majority acknowledges the school district has raised serious appellate issues.

    I would only add, in holding the present display unconstitutional, the district court relied heavily on the prior display of the Commandments alone to determine the second and third requirements of the Lemon test (Lemon v. Kurtzman, 403 U.S. 602 (1971)).  Here, the school district sought to remedy the prior unconstitutional display of the lone Ten Commandments by including a display of historical documents.  In cases involving the display of creches, courts have permitted government bodies to add non-religious holiday symbols to create constitutional displays, or at least have not enjoined such displays because of earlier displays of a creche alone.

Id. (KENNEDY, C.J., dissenting).

    (For comparisons of Ten Commandments cases with creche cases, see: ACLU v. Mercer County, Kentucky (E.D. Ky.) (2002).)   

    On May 30, 2003, the United States Court of Appeals for the Eleventh Circuit decided an unusual Ten Commandments case (King v. Richmond County, Georgia) that upheld the constitutionality of an outline of the Ten Commandments (minus the text) as a symbolic representation of the rule of law.  (See discussion below.)

    And another case is American Civil Liberties Union of Tennessee v. Hamilton County, Tennessee, 202 F.Supp.2d 757 (E.D. Tenn. 2002) (involving Ten Commandments displays on the county courthouse and in city courts building), which had this to say:


   In determining purpose, we look to whether the government subjectively intended to convey a message of endorsement or disapproval of religion.  [* * *]  If the Hamilton County Commission had a secular purpose in posting the Ten Commandments, its action cannot survive this First Amendment challenge if that purpose was dominated by a religious purpose.  [* * *]  It is not enough for the defendants to merely say that they had a secular purpose.   The Commission's action cannot stand if its real purpose was religious.   In other words, the Commission's asserted secular purpose must not be a sham.   [* * *]

    In determining the purpose of the posting, one need look no further than the text of the posted plaques.  The text of the plaques comes directly from the Bible, a religious document.  The plaques make this very clear by citing Exodus 20 as their source.  The Bible's text in Exodus 20, as well as that in Deuteronomy 5, says that these commandments come straight from God.  [* * *]

[* * * * *]

    The Commission evidently believed that all laws come from the Ten Commandments, and that this is recognized by our nation.  While the Commission may hold this view, there are some in our nation who might cite other sources of law such as the ancient Code of Hammurabi, the Magna Carta, or English common law.   See Adland v. Russ, 107 F.Supp.2d 782, 786 (E.D. Ky. 2000).  [* * *]

202 F.Supp.2d at 763-764 (citations omitted) (emphasis added).

    The last line shows that this is a historical debate, involving different historical views about the source of American law.  Not mentioned, however, is that two of the three other sources mentioned--the Magna Carta and the English common law--were themselves derived from principles embodied in the Ten Commandments--in the case of the former, a respect for individual liberty. 

    Early American political discussions which prove illuminating with regard to the true source of United States law and government are the following: Samuel Cooke, The True Principles of Civil Government (1770), and Ezra Stiles, The United States Elevated to Glory and Honor (1783)

    See also the statement by esteemed eighteenth-century jurist Sir William Blackstone, quoted in Reflections on the Ten Commandments; and the acclaimed early-nineteenth century Constitutional commentary by United States Supreme Court Justice Joseph Story quoted in Jaffree v. Board of School Commissioners of Mobile County (1983)

    All of these examples assumed, as their core basis, that Early American (Colonial and Early National) law was based on the Ten Commandments.  Looking at these works in total, one can't help but be impressed with the extent to which the principles of liberty, fairness, righteousness, and justice pervaded virtually every aspect of Early American jurisprudence and legal history.  These principles encoded in the Ten Commandments is the obvious explanation for the American worldview.  

    To say that laws and charters based on the Ten Commandments are "other" sources of law separate from the Ten Commandments is inaccurate, because they aren't separate.   It's a misreading of legal history to say they are "other" sources, like they were somehow unrelated to those Commandments.  And it's the principles upon which laws are based that really matter, in terms of giving content and meaning to those laws.

    The United States didn't construct its body of law starting from scratch in 1776 or 1787--rather, state and federal law adopted much of the common law already in the colonies.  Like the Magna Carta, this common law was based upon "higher law" reasoning that valued people's rights and liberties.   Individual liberty and the fairness of equality are values embodied in the Ten Commandments.  (Worship God with your whole being, and do to others as you would have them do to you is the summation of those Commandments, Jesus said.  "[...]' "Love the Lord your God with all your heart and with all your soul and with all your mind."  This is the first and greatest commandment.  And the second is like it:  "Love your neighbor as yourself."  All the Law and the Prophets hang on these two commandments.' "  (Matthew 22:37-40))  There are fundamental differences between those values and the unfairness of the ancient Babylonian Code of Hammarubi.   (See especially the end of Ezra Stiles' The United States Elevated to Glory and Honor for his contrast between the Christian and democratic laws of the United States and the tyrannical and undemocratic laws of other nations.)  

    One needs to realize that throwing in an ancient Babylonian code and mixing it in with historical sources of Anglo-American law for the sake of current political diversity doesn't mean that code was historically a source of Anglo-American law.    Furthermore, some codes are based on worldviews in sharp contrast to the principles of Anglo-American constitutionalism--the fairness and respect for all human life that Western civilization has taken for granted as being "democratic" values.  Fairness and respect for all human life, in fact are based upon the value placed upon human life by our own Creator:  The Creator decided to create all humans in His own image; therefore, all humans are valuable to Him.  This is a principle embodied in the Ten Commandments.

    Therefore, the Ten Commandments--and not extraneous, extra-historical material--should be included in American historical displays of documents illustrative of America's legal history.  The reason why one shouldn't include symbols of other religions in an American historical display is because such religions were not historically relevant to America's founding legal principles.

    (It is interesting that one Babylonian ruler who stood for "the rule of law, and not of men" was in fact the Jewish prophet Daniel--and Babylonian King Nebuchadnezzar allowed for no freedom of religion.  (See Standing Up to Autocracy.)  Daniel's values were different from Nebuchadnezzar's because Daniel adhered to God's principles expressed in the Ten Commandments--which specifies that no man (including the king) is to receive the worship that only God is due.  God respected His own Law so much that He died on a cross in order to uphold it (His own principles of justice) for all who wish to avail themselves of the status of perfect law-abiding creations (i.e., righteousness) that He, in His mercy, wishes to confer upon them.)

    The British common law was influenced by the Ten Commandments because the Bible was revered during Britain's post-pagan history.  For hundreds of years before the founding of the American colonies, Britain had followed a largely Christian ethos, and the British American colonies--from Puritan New England to Anglican Virginia--naturally derived their governments and legal codes from Britain's seventeenth and eighteenth-century law and polity.  If one examines Early American laws, one finds they closely resemble the principles and reasoning expressed in the Ten Commandments.     

    Therefore, the historically correct conclusion, after looking at the evidence of Early American history, is that the United States laws and government were indeed based on the Ten Commandments.

    Furthermore, the government does not have to have an exclusively secular purpose for its actions.  Chief Judge Forester stated in American Civil Liberties Union of Kentucky v. Mercer County, Kentucky, 219 F.Supp.2d 777 (E.D. Ky. 2002) (read the whole opinion):

The plaintiffs may wish as a normative matter that our common law was not influenced by the Ten Commandments, but neither their wishes nor any court of law may change history.

[* * * * *]

    The above cases merely state what any sober student of history knows: for good or bad, right or wrong, the Ten Commandments did have an influence upon the development of United States law and it can be constitutional to display the Ten Commandments in the appropriate context.  The first prong of the Lemon test merely requires that the government act with a secular purpose.  The law distinguishes between a religious purpose (which is impermissibly normative) and a secular purpose for the display, such as acknowledging history. [* * *]   The Court is obviously not required to determine whether the secular purpose is morally or politically correct--because the government acts neutrally so long as the purpose is one other than advancing religion.  [* * *]  However, the plaintiffs dispute the Ten Commandments' secular nature and further challenge the influence of the Commandments on the development of our laws.  Apparently, the plaintiffs argue that the Commandments lack a secular nature, and instead have an overwhelmingly religious nature; thus, any articulated secular purpose for the display must be a sham.  As stated above, the secular purpose of acknowledging the Commandments' influence on our laws is not a sham because such a purpose has historic support and there is an absence of evidence indicating that the stated reasons for the display constitute a sham.

[* * * * *]

    An en banc Sixth Circuit recently stated that the mere fact that a governmental action does not have an exclusively secular purpose does not mean that the action violates the Lemon test.  [* * * *]

219 F.Supp.2d at 784-785, 789 (citations and footnote 2 omitted).

    Judge Forester said in footnote 2:

    The Court notes the textbook "black or white" fallacy inherent in the plaintiffs' argument that the religious or sacred nature of the decalogue forecloses a finding of a secular purpose for the display.  [* * *]

Id. at 784 n. 2.

    So, something can have both a secular and a religious purpose, depending on the context.   Just because the citation for the display is Biblical doesn't necessarily mean that the secular purpose is somehow "overwhelmed" or "overridden" by the citation.  To go this far is to fashion an overbroad interpretation of United States Supreme Court case law pertaining to the First Amendment.

     Another case wrestling with history and purpose in the name of religion is American Civil Liberties Union of Ohio v. Ashbrook, 211 F.Supp.2d 873 (N.D. Ohio 2002), in which the facts include these:

    The framed poster of the Ten Commandments at issue in this case hangs in Courtroom Number One in Richland County, Ohio--the courtroom of Judge DeWeese, an elected judge of the General Division of the Court of Common Pleas.  [* * *]   The poster is located on the side wall of the courtroom, near the front of the audience section.  [* * *]  Directly opposite and across the gallery from the poster of the Ten Commandments hangs a similarly styled and framed poster of the Bill of Rights.

[* * * * *]

    The style of both posters is identical; at the top, in the largest-sized, bold typeface, are the words "the rule of law."  [* * * *]   Although the Judge is not sure, he believes that he used an encyclopedia as the source for both documents. 

[* * * * *]

    Courtroom Number One is located on the third floor of the Richland County Courthouse.  In the center of this floor is a common area, or lobby, [.....]  [* * *]  There are two other displays in this lobby area.  [* * *]   The first is a self-contained display of twenty-nine photographic reproductions of historical documents arranged by the National Exchange Club and collectively entitled the "Freedom Shrine."  [* * *]  It contains historical documents, such as the Mayflower Compact, presidential inaugural speeches, and the text of the Star Spangled Banner.  The twenty-nine documents were "chosen to exemplify the beginnings of our nation and those subsequent turning points of importance which shaped our national character and eminence." [* * *]

211 F.Supp.2d at 875-877 (citations and footnotes omitted).  

    The Ashbrook court then followed the well-worn track of examining the elected official's subjective purpose:

When a governmental entity specifically decides to display the Ten Commandments, whether or not part of a larger display, Courts generally find that action to have a religious rather than a secular purpose.  [* * *]   When, on the other hand, the Ten Commandments are an incidental or essentially inconspicuous part of a larger secular display or are integrated within a larger secular goal, Courts generally find a secular purpose and, thus, no violation.  [* * *]

Id. at 886-887 (emphasis in original).

    But one can specifically (i.e., clearly state) a secular purpose as well.  Making constitutional analyses depend upon guessing somebody's subjective purpose and whether or not it fits the category of "specific" or "incidental" is something akin to either mind-reading or word games.  A better approach would be to recognize that: the Ten Commandments don't have to be watered-down or "inconspicuous" in order to be constitutional.  (See further discussion of this below, in the context of the 2003 Richmond County case.)

    Interestingly, the Mercer County opinion analyzed a significant point:

    If this Court were to engage in an analysis comparing the relative religiosity of the Ten Commandments [...]  then this would first require a determination of whether the four commandments textually referring to religion, in isolation from the other six commandments textually referring to secular duties, are solely religious in nature and then a consideration whether these four commandments represent a greater degree of religiosity than the creche in Lynch.  Likewise, if this above would-be isolation of the secular versus the religious nature of the challenged item were possible, then Allegheny and Lynch would have considered the depiction of the infant Jesus in isolation from the secular crib in the creche display.   Allegheny and Lynch obviously did not undertake the constitutional analysis by considering the challenged item in isolation from its constituent parts or in isolation from the constituent parts of the entire display.

[* * * * *]

Moreover, when a  particular challenged item has undisputed religious significance, neither this Court nor any other may accurately evaluate the degree of "sacredness" with which the item is held by religious groups or the public at large. [* * *]

219 F.Supp.2d at 793 (footnote 6 omitted).

    The Ashbrook opinion went on to say:

    He [Judge DeWeese] decided that, in his educational role as a judge, he needed to "point out the conflict going on in our country between moral absolutes and moral relativism and how fundamentally important it was to our country."  [* * *]  He felt it was important to point out that "we don't have a rule of men in which men decide what they can do and what they can't do for themselves, but that we have limits beyond which people are not permitted to go."   [* * *]  In the Judge's view, the Constitution represents the ultimate legal authority, the Bill of Rights represents a limit on that authority, and the Ten Commandments represent moral limits we should set for ourselves.  [* * *]  The Judge believes that the Ten Commandments are "emblematic of moral absolutes."   [* * *]  The Judge asserts that, "when we're talking about moral absolutes, when we're talking about morality, it seems to me that what they're emblematic of is the fact that God is the ultimate authority in law as opposed to the view that man is the ultimate authority on law."   [* * *]

[* * * * *]

    Thus, according to Judge DeWeese, his purpose in hanging the Ten Commandments and Bill of Rights was not so much to foster a philosophical debate between moral absolutism and moral relativism, but, rather, to let people know that "our legal history in this country was based on the view there were moral absolutes," which flow directly from God as the "ultimate authority in law."  [* * *]  The Judge believes that he would be hampered in his ability to discuss the "philosophy of law" if he were forced to be silent on the question of the origins of the law, which he believes lie in moral absolutes--of which the Ten Commandments are a "supreme emblem."  [* * *]

[* * * * *]

Despite characterizing the purpose behind hanging the Ten Commandments on his courtroom wall as secular, the Court cannot help but conclude that Judge DeWeese's purpose is, at heart, religious in nature.  The "moral absolutes" the Judge has chosen to display are those embraced by particular religious groups.   

211 F.Supp.2d at 887-888 (citations omitted) (emphasis added).   

    Apart from focusing on subjectivity again, the Court's opinion appears to disagree with Judge DeWeese's historical interpretation that the United States was founded on a certain philosophy.  (The way to resolve this would be to look at the historical evidence itself.)  If the historical evidence shows that the United States was indeed founded on this philosophy, then to deny government the right to acknowledge this, would be using the First Amendment religion clause to deny government the right to present a historical interpretation.   

    Once again, the Mercer County opinion is enlightening:

    However, the fact remains that the Ten Commandments are not the exclusive province of religious groups or those who happen to believe in the truth of the individual Commandments.  [* * *]  In reality, the plaintiffs [in the Mercer County case] are seeking the Court to endorse their philosophical or aesthetic preference for the extra constitutional, rigid view of the establishment clause that demands absolute separation between government and things with a dual religious and secular nature.  Instead, the Constitution, the Supreme Court and the Sixth Circuit require accommodation, not hostility, towards religion.  As emphasized recently by the Sixth Circuit, "[t]he mere fact that something done by the government may offend us philosophically or aesthetically does not mean, ipso facto, that the Constitution is offended."  ACLU of Ohio v. Capitol Square, 243 F.3d at 309.

219 F.Supp.2d at 796.  

    Thus, the debate over the Ten Commandments is really a contest between political philosophies and historical interpretations dressed up as an issue about religion.  Those who don't like the historical evidence that the United States was founded on a political philosophy different from their own try to deny that history by denying the historical evidence that the United States was indeed founded on such a philosophy. 

    (See the opinion in Mercer County; see also discussions about government acknowledgment of God's sovereignty in Prayer or Patriotism and Good Cheer Signs for All Times in the Belcher Foundation Christian Law Library.)

"Political" History

    Jurisprudence (the philosophy of law) is the science of law--the system of legal principles upon which laws are based.  And "philosophy of law" as well as history was what Judge DeWeese wanted to discuss and illustrate by using the Ten Commandments as a kind of "talking points."  The rule of law he mentioned has a basis in jurisprudential history: In fact, it was the basis for representative government in the first place.  (See Prayer or Patriotism and Standing Up to Autocracy: An American Value (a Good Cheer Chronicles essay).)

    In examining whether American law was based on the Ten Commandments, courts shouldn't focus exclusively on how many times the name "God" was mentioned in Early American laws, or whether or not some of the Commandments deal with worship and not secular law.  That's being too superficial and simplistic.  Rather, one should look at the philosophical origins of the ideas embodied in Early American law and government--the chief jurisprudential idea being "the rule of law, and not of men."  That is, law has a higher origin, a higher basis, than the mere whims of human beings: Law ultimately is based on the law of God.  (To have this view is to hold God in the highest reverence--the principle expressed in the first commandment.)  That was the basis for declaring that laws were bad when they went against that higher Law, and good when they conformed to it. 

    The United States of America was founded upon fairness and respect for all people ("all men [people] are created equal", "endowed by their Creator" with the right to "life [and] liberty", in the words of the Declaration of Independence).  These latter two principles were derived from the fact that God is mankind's Creator (the first four Commandments' rationale: as our Creator, He is our one and only God and is entitled to our respect) and the respect for human life inherent throughout the Ten Commandments.   

    Ezra Stiles, The United States Elevated to Glory and Honor (1783),  though containing much information concerning ancient cultures, didn't dwell on the Babylonian code.  And Samuel Cooke, The True Principles of Civil Government (1770), stated: "We have a view of our nature in its most abject state when we read the senseless laws of the Medes and Persians [....]"  Rather, the ancient polities the American founders liked to talk about, in terms of debating their validity or invalidity as republican or imperial political examples, were Greece and Rome.

    A comparative law commentator, Sir Henry Sumner Maine (1822-1888), wrote in Ancient Law: Its Connection with the Early History of Society and Its Relation to Modern Ideas (1861):

    "The Romans described their legal system as consisting of two ingredients.  'All nations,' says the Institutional Treatise published under the authority of the Emperor Justinian, 'who are ruled by laws and customs, are governed partly by their own particular laws, and partly by those laws which are common to all mankind.  The law which a people enacts is called the Civil Law of that people, but that which natural reason appoints for all mankind is called the Law of Nations, because all nations use it.'  [...]  Elsewhere it is styled more simply Jus Naturale, or the Law of Nature; and its ordinances are said to be dictated by Natural Equity (naturalis aequitas) as well as by natural reason." 

    With regard to revolutionary France, Maine said:

    "The study which in the last century would best have corrected the misapprehensions into which an exclusive attention to legal antiquities is apt to betray was the study of religion.   But Greek religion, as then understood, was dissipated in imaginative myths.   The Oriental religions, if noticed at all, appeared to be lost in vain cosmogonies.   There was but one body of primitive records which was worth studying--the early history of the Jews.  But resort to this was prevented by the [French Enlightenment] prejudices of the time.  One of the few characteristics which the school of [French utopian philosopher] Rousseau had in common with the school of [French Enlightenment philosopher] Voltaire was an utter disdain of all religious antiquities; and, more than all, of those of the Hebrew[s] [...]  It is well known that it was a point of honor with the reasoners of that day to assume not merely that the institutions called after Moses were not divinely dictated, nor even that they were codified at a later date than that attributed to them, but that they and the entire Pentateuch were a gratuitous forgery, executed after the return from the Captivity.  Debarred, therefore, from one chief security against speculative delusion, the philosophers of France, in their eagerness to escape from what they deemed a superstition of the priests, flung themselves headlong into a superstition of the lawyers."

    Ironically, what the French Enlightenment philosophers said about the Ten Commandments in the eighteenth century is what some who want to deny those Commandments' influence on Anglo-American law and polity are saying today.  The French philosophers, though, had an agenda: They disliked the Ten Commandments because they disliked Christianity.

    (See Ezra Stiles' pertinent discussion about deism vs, Christianity.)


Liberty and Equality are American--and Christian--Values

    Individual liberty and equality principles are American, derived from  Anglo-American constitutionalism.  Therefore, the United States--and the European Union and other nations, for that matter--would do well to follow these American principles.

    The principle of equality, which comported with natural law theory as well as Christianity, spilled over into the European and American legal tradition through the writings of the Dutch founder of international law, Hugo Grotius (1583-1645).  Sir Henry Sumner Maine stated in 1861:

    "Grotius, with his immediate predecessors and his immediate successors, [...] laid down unreservedly that Natural Law is the code of states, and thus put in operation a process which has continued almost down to our own day [....]   There is too one consequence of immense practical importance to mankind which, though not unknown during the early modern history of Europe, was never clearly or universally acknowledged till the doctrines of the Grotian school had prevailed.  If the society of nations is governed by Natural Law, the atoms which compose it must be absolutely equal.  Men under the sceptre of Nature are all equal, and accordingly commonwealths are equal if the international state be one of nature." 

    The higher law origins of America's law and government was what Judge DeWeese wished to acknowledge.  To characterize this as merely someone's private view is subtly denying that this was, in fact, the history behind American law.  Many years ago, the majority of the people knew it.  The fact that, due to lack of education on the subject, less people know that history today than did yesterday, does not make the history any less true.  The only thing less people knowing history today changes, is the increasing potential to deny that history without many people realizing it.

    Since America's founding fathers relied on principles elucidated in the Ten Commandments to frame the United States Constitution, federal and state law, and other founding documents like the Bill of Rights, then of course government should be allowed to acknowledge history as history.  Similarly, since the spirit of American laws was based on Biblical principles,  the text of the Ten Commandments, and not just the outline or silhouette of them, should be displayed by government.

    The alternative is truly serious: If a valid historical interpretation is prevented from being voiced in the public square, then the view wanting to prevent the display of that valid historical interpretation is practicing "political" history.  The way "political" history is used here, it means that one view is declared to be "politically correct--or rather, incorrect--history" because one ideological view wants it to be so, and that alternate views are not tolerated.  By this reasoning, only one version of history is to be allowed in the public square--no matter how contrary to the historical facts that interpretation may be.

    The historical evidence itself is compelling.   For instance, look at United States Supreme Court Justice Joseph Story's A Familiar Exposition of the Constitution of the United States (1833) (pertinent excerpts from it are quoted in Jaffree v. Board of School Commissioners of Mobile County (1983).)  Reading that work, highly esteemed over the course of 170 years, leads one to the inescapable conclusion that the United States was founded on Christian principles (God's law, the Ten Commandments).  Story's references to this are clear and specific; for example, consider this quote from Story's Commentaries (quoted in Jaffree v. Bd. of Sch. Commissioners at 1124):

    "'Probably at the time of the adoption of the [first] amendment now under consideration, the general if not the universal sentiment in America was, that Christianity ought to receive encouragement from the state, so far as not incompatible with the private rights of conscience and the freedom of religious worship.'"

    Story's reasoning reveals the inaccuracy of current historical denial/revisionism regarding the American founding era.  Rather, the founding lawmakers acknowledged that the political philosophy and legal principles upon which the United States' laws and Constitution were based were derived from America's Christian consensus on morality and God's sovereignty.  The government, said Justice Story, should encourage Christianity and not "level all religions" or show "indifference" to religion: That was his interpretation of the Constitution's religion clauses--and Story was very close to the Founding generation.   (Incidentally, he was also married to a descendant of Governor Jonathan Belcher's sister; see the Belcher Foundation introduction to Jaffree v. Board of School Commissioners for more details.)

    Justice Story was one of the most brilliant and honored of all the Supreme Court justices.  As Story indicated, the American founders acknowledged God as the sovereign head of the government and the source of the State's power.  To suggest otherwise, said Story, would have been offensive to the founders and would have angered all American society.  Needless to say, if Story was alive today and could read the current decisions striking down the Ten Commandments, likely he would feel that "universal indignation" he talked about.  After reading Story's commentary, one comes to the inescapable conclusion that he would be appalled by such decisions.  That is the real issue that needs to be looked at--not that whoever put up the Ten Commandments expressed a jurisprudential philosophy and historical understanding that, amazingly, were right in line with Joseph Story's (which Story said were representative of the views of the founding fathers).

    Therefore, the issue of the Ten Commandments is not automatically pre-determined as unconstitutional.  It never will be completely settled--until people take an honest look at history.  To claim that there is no higher power in law than the State (as one recent decision striking down the Ten Commandments did--see Prayer or Patriotism for details--a decision affirmed by the 11th Circuit Court of Appeals on July 1, 2003), is to change the entire philosophical presuppositions upon which United States law and government are based.  It is substituting the political philosophy and jurisprudence upon which the American founders operated, and placing in its stead  the views of totalitarian political philosophies (on both ends of the political spectrum) that believe in the supreme power of the State.  It is, in actuality, a replacement of the political philosophy upon which the United States was founded and substituting in its place a different political philosophy, all done under the guise of upholding the constitutionality of the mythical "wall of separation between church and state."  But really, it puts a wall of separation between the state and its history.

    Even one case, though it ruled not in favor of a historical display containing the Ten Commandments and again recited the subjective language about the representatives' purpose being a sham, still gave recognition to the historical significance of the Commandments.  The following are excerpts from American Civil Liberties Union of Tennessee v. Rutherford County, Tennessee, 209 F.Supp.2d 799 (M.D. Tenn. 2002) (ECHOLS, J.):, 209 F.Supp.2d 799 (M.D. Tenn. 2002) (ECHOLS, J.):

       The [Rutherford County] Commission next considered the subject of posting the Ten Commandments at its meeting on April 11, 2002.  At this meeting, the Commission passed, in a 16 to 5 vote, a third resolution pertaining to the posting of the Ten Commandments.  The full text of the resolution reads as follows:


    It is recognized by this Commission that many documents, taken as a whole, have special historical significance to our community, our county, and our country.  Some of these documents include, but are not limited to the Preamble to the Tennessee Constitution, our National Motto, our National Anthem, the Declaration of Independence, the Mayflower Compact, the Bill of rights [sic] to the United States Constitution, the Magna Carta and the Ten Commandments.

    A sense of historical context, civic duty and responsibility, and the general appreciation and understanding of the law of this land are all desirable components of the education of the citizens of this country.  We believe these above named documents positively contribute to the educational foundations and moral character of the citizens of this county.  We do not dispute the fact that there may be other documents, speeches, letters, and writings that are equally important as those mentioned above, but it is our opinion that these above mentioned documents, taken as a whole, are valuable examples of documents that may instill qualities desirable of the citizens of this county, and have had particular historical significance to the development of this country.

    For all of these reasons, BE IT RESOLVED by the Rutherford County Board of Commissioners that we do support these historical documents, and also support the public display of the above documents.

    RESOLVED this 11th day of April, 2002.

(Docket Entry No. 1, Ex. B).

    On April 18, 2002, as required by the March 14, 2002, resolution, County Executive Nancy Allen installed a display of ten frames on the first floor main lobby of the Rutherford County Courthouse entitled "Foundations of American Law and Government."  The display is located across from the Courthouse stairs and elevator.  Anyone who enters the Courthouse from the front door must pass by this display.  The display consists of eight documents, and a one-page explanation of the display, mounted in the same size gold frames in a single row.  From left to right, the frames include the following: (1) an explanation of each document in the display and its significance entitled "Foundations of American Law and Government Display," (2) the Mayflower Compact, (3) the Declaration of Independence, (4) the Ten Commandments, [***] (5) the Magna Carta (2 frames), (6) the lyrics of The Star Spangled Banner, (7) the Preamble to the Tennessee Constitution, (8) the Bill of Rights of the United States Constitution, and (9) a picture of Lady Justice together with an explanation of its significance.  The description of the Ten Commandments in the first frame reads as follows:

The Ten Commandments have profoundly influenced the formation of Western legal thought and the formation of our country.  That influence is clearly seen in the Declaration of Independence, which declared that "We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty, and the pursuit of Happiness."  The Ten Commandments provide the moral background of the Declaration of Independence and the foundation of our legal tradition.

(Pls.' Ex. 3 to Prelim. Inj. Hr'g).

[* * * * *]

    Thus, in this case, the Court must determine whether the Commission, in passing the resolutions requiring the posting of the "Foundations of American Law and Government" display, was motivated entirely by religious considerations or whether the Commission's actual intent was for the display to serve the secular purpose of educating Courthouse visitors about historic documents that have particular significance to the development of this country.  Lynch [v. Donnelly], 465 U.S. at 680, 104 S.Ct. 1355 ("The Court has invalidated legislation or governmental action on the ground that a secular purpose was lacking, but only when it has concluded there was no question that the statute or activity was motivated wholly by religious considerations."). 

[* * * * *]

    In the instant case, citing the language of the March 2002 resolution, the Commission claims that its purpose in erecting the challenged display is to educate the citizens of Rutherford County about the foundations of American law and government.  Normally, courts are deferential to the government's articulated purpose; however, the purpose must be sincere and not a sham.  

[* * * * *]

    The videotape of the March 14, 2002, Commission meeting reflects that at various times during the meeting, the county attorney attempted to advise the Commission of the Supreme Court's guidelines for posting religious documents or symbols at public buildings and the constitutional ramifications of the Commission's actions.  He specifically told the Commission that its actions would be challenged in court and that the reviewing court would examine the Commission's intent in passing the resolution requiring the posting.  His message, however, was either misunderstood or ignored.  In sum, the evidence leads the Court to conclude that the Commission's proffered reason for erecting the display, to educate the citizens of Rutherford County about the foundations of American law and government and its moral character through the posting of eight historical documents, was a ruse to mask the Commission's actual intent--to promote the Ten Commandments and its religious purpose of educating people of the laws given by God to Moses as recorded at Exodus 20 in the Bible and to encourage people to follow them for the common good.

[* * * * *]

    Two district courts within the Sixth Circuit have examined displays virtually identical to the Rutherford County Courthouse display and have determined that the displays have the primary effect of advancing or endorsing religion.   See ACLU of Ky. v. Grayson County, Ky., No. 4:01cv202 (W.D. Ky. May 15, 2002) (McKinley, J); ACLU of Ky. v. McCreary County, Ky., 145 F.Supp.2d 845 (E.D. Ky. 2001) (Coffman, J.). [* * *]  Both judges found that placing the Ten Commandments alongside American historical documents and no other religious symbols or moral codes accentuates its religious nature and sends a message that the county is endorsing one religious code as being on par with the secular symbols and documents cherished by this nation.  Grayson County, No. 4:01cv202, Mem. Op. at 9; McCreary II, 145 F.Supp.2d at 851.  The judges concluded that the setting of the displays--in county courthouses--had the effect of advancing religion.

    This Court, however, views such a display differently and believes that a display of documents, including the Ten Commandments, may be constitutional if properly selected, exhibited, and posted with a true educational motive.   Accordingly, the Court respectfully disagrees with the reasoning set forth in McCreary II and adopted in Grayson County.  Both opinions cite the Seventh Circuit Court of Appeal's decision in Books [v. City of Elkhart, Indiana, 235 F.3d 292 (7th Cir. 2000), cert. denied, 532 U.S. 1058, 121 S.Ct. 2209, 149 L.Ed.2d 1036 (2001)], in which the Court held that the city's display of a monument inscribed with the Ten Commandments on the front lawn of the city's municipal building had the primary effect of advancing or endorsing religion, and therefore violated the Establishment Clause.  235 F.3d 292.  The monument contained the text of the Ten Commandments along with the all-seeing eye, an American Eagle grasping the American flag, and two small stars of David.  Id. at 296.  Subjecting the display to "particularly careful scrutiny" because of its placement at the seat of government, the Seventh Circuit found that an objective observer familiar with its history and placement would perceive that the government approved of the law and justice required by the text of the Ten Commandments.  Id. at 306-06.  The Court further found that the symbols on the monument did not detract from the religious message inherent in the monument, explaining: "the placement of the American Eagle gripping the national colors at the top of the monument hardly detracts from the message of endorsement; rather it specifically links religion ... and civil government."  Id. at 307 (citation omitted).

    This reasoning seems to be at odds with the Supreme Court's decisions in Lynch v. Donnelly, 465 U.S. 668, 104 S.Ct. 1355, 79 L.Ed.2d 604 (1984), and County of Allegheny v. ACLU, Greater Pittsburgh Chapter, 492 U.S. 573, 109 S.Ct. 3086, 106 L.Ed.2d 472 (1989), in which the Supreme Court found that government displays of purely religious symbols, a creche and a menorah, when those symbols were part of a larger display did not violate the Establishment Clause.  In Lynch, the Supreme Court considered whether the city's annual display of a creche or nativity scene at Christmas violated the Establishment Clause.  The display, located in a park in the heart of the city's shopping district, also included a Santa Claus house, reindeer pulling Santa's sleigh, candy-striped poles, a Christmas tree, carolers, cutout figures representing such characters as a clown, an elephant, a teddy bear, hundreds of colored lights, and a large banner reading "SEASON'S GREETINGS."  Id. at 671, 104 S.Ct. 1355.  In applying the second prong of the Lemon test, the Court examined whether the nativity scene, while religious, could be said to advance religion.  Id. at 685-86, 104 S.Ct. 1355.  The Court held that given the overwhelmingly secular character of the display, "the inclusion of a single symbol of a particular historic religious event ... [did not] so 'taint' the city's exhibit as to render it violative of the Establishment Clause."  Id. at 686, 104 S.Ct. 1355.

    Five years later in Allegheny, the Supreme Court considered whether two recurring holiday displays located on public property violated the Establishment Clause: (1) a creche placed on the Grand Staircase of the county courthouse, surrounded on three sides by a wooden fence, decorated with poinsettias and a sign proclaiming "Glory to God in the Highest!", id. at 580-81, 109 S.Ct. 3086, and (2) a menorah displayed in front of the municipal building next to a Christmas tree, with a sign below the tree that read "Salute to Liberty," Id. at 587, 109 S.Ct. 3086.  The Court held that the creche displayed violated the Establishment Clause because "nothing in the content of the display detracts from the creche's religious message" because it stood alone as "the single element of the display on the Grand Staircase" which was "the 'main' and 'most beautiful part' of the building."  Id. at 598-99, 109 S.Ct. 3086.  Conversely, the Court held that the menorah display was constitutional because it created an "overall holiday setting" consisting of both religious and secular symbols.  Id. at 614, 109 S.Ct. 3086 (Blackman, J.).

    This Court agrees with the well-reasoned dissent by Chief Justice Rehnquist and Justices Scalia and Thomas in the Court's denial of certiorari in Books.   532 U.S. 1058, 121 S.Ct. 2209, 149 L.Ed.2d 1036 (2001).  Addressing the effect prong of the Lemon test, the Justices wrote:

In Allegheny, and in Lynch, we recognized the importance of context in evaluating whether displays or symbols with religious meaning send an "unmistakable message" of government support for, or endorsement of, religion.

    Considering the Ten Commandments monument in the context in which it appears, it sends no such message.  The city has displayed the monument outside the Municipal Building, which houses the local courts and local prosecutor's office.  This location emphasizes the foundational role of the Ten Commandments in secular, legal matters.  Indeed, a carving of Moses holding the Ten Commandments, surrounded by representations of other historical legal figures, adorns the frieze on the south wall of our courtroom, and we have said that the carving "signals respect not for great proselytizers but for great lawgivers."  Similarly, the Ten Commandments monument and the surrounding structures convey that the monument is part of the city's celebration of its cultural and historical roots, not a promotion of religious faith.  To that end, the monument shares the lawn outside the Municipal Building with the Revolutionary War Monument, which honors the Revolutionary War soldiers buried in Elkhart County, and a structure called the "Freedom Monument."  Above the entrance to the building is a bas-relief of an Elk's head, and the words "DEDICATUM JUSTITIAM."  Considered in that setting, the monument does not express the city's preference for particular religions or religious belief in general.  It simply reflects the Ten Commandments' role in the development of our legal system, just as the war memorial and Freedom Monument reflect the history and culture of the city of Elkhart.   Perhaps that is why, for four decades, no person has challenged the monument as an unconstitutional endorsement of religion.

Id. at 2112 (internal citation omitted).

    Like the creche in Lynch and the menorah in Allegheny, the Ten Commandments plaque at issue in the instant case stands not alone, but as part of a larger display. 

[* * * * *]

    In this case, [...] the "Foundations" display contains eight documents, only one of which is religious in nature.  The presence of the eight other documents, all with historical and patriotic significance to our nation and to the state of Tennessee, helps to place the Ten Commandments in the context of being a historic document of moral laws which served an important role in the development of our country's legal foundation.  Thus, the display, taken as a whole, conveys a secular message of patriotism and justice to a reasonable observer.  The location of the display at the courthouse where justice is administered under our legal system and local government is seated emphasizes the historical and foundational role of the Ten Commandments in secular, legal, and legislative matters.  Given the overall historical and secular character of the display here, "the inclusion of a single symbol of a particular historic religious event ... does not so 'taint' the ... exhibit as to render it violative of the Establishment Clause."  Lynch, 465 U.S. at 686, 104 S.Ct. 1355.  Therefore, the Court determines that the display as a whole does not have the primary effect of advancing or endorsing religion.

209 F.Supp.2d at 803-807, 809-812 (footnotes omitted). 

    Then, in a nod to "diversity" ("In spite of the clear influence of religion in the foundation of this country and the development of many of its institutions, the people have not always embraced the same religion.  We are continuing to become more diverse as more and more people immigrate to this country and become citizens.  But such diversity does not change this nation's religious history.  However, religious differences create [...] deep-seated emotions [....], id. at 814), the Rutherford County court went on to treat the historical display of the Ten Commandments as being potentially unconstitutional.

    Again, one is reminded of a perceptive comment in the Mercer County, Kentucky opinion:

The Court is obviously not required to determine whether the secular purpose is morally or politically correct--because the government acts neutrally so long as the purpose is one other than advancing religion.

219 F.Supp.2d at 785.

    And "the [Rutherford County] Court determines that the [Rutherford County] display as a whole does not have the primary effect of advancing or endorsing religion."  Rutherford County, 209 F.Supp.2d at 812.

Invisible Commandments

   In King v. Richmond County, Georgia, No. 02-14146 (11th Cir. May 30, 2003), the Commandments were not just inconspicuous, they were invisible--or rather, symbolic, since only an outline of the two tablets were present on a government seal.  In the case of Richmond County, the United States Court of Appeals for the Eleventh Circuit--the same court that declared the written Ten Commandments unconstitutional in Glassroth v. Moore and Maddox v. Moore, Nos. 02-16708 and 02-16949 (11th Cir. July 1, 2003)--held that the seal did not advance or endorse religion, in part because the text of the Commandments was not written or visible.  But--are the Ten Commandments as a recognized basis for our nation's laws allowed to be constitutional only if the principles upon which those laws were based are not written down for people to read?

    Is that stressing symbol over substance?

    The Richmond County opinion states (Kravitch, C.J., writing for the court):

    The question presented is whether the use of a court clerk's seal violates the Establishment Clause of the First Amendment when the seal contains an outline of the Ten Commandments, a sword, and the name of the court and is used solely to authenticate documents.  We conclude that it does not.

[* * * * *]

     After a summary bench trial, the District Court concluded that although the tablets depicted on the Seal represented the Ten Commandments, and that a reasonable observer could view them as such, there was no Establishment Clause violation.  The District Court found, and both parties agreed, that the Seal had been in use for more than 130 years but that there was no evidence of the purpose for the Seal's design or when it was adopted by the clerk of the superior court.

    Employing the Supreme Court's test in Lemon v. Kurtzman, 403 U.S. 602 (1971), the District Court examined the facts to determine (1) whether the Seal had a secular purpose, (2) whether its primary effect was to advance religion, and (3) whether it fostered excessive entanglement between government and religion.  On the first of these questions, the District Court found that the purpose of the Seal's design was "lost in the mists of history" but that pictographs of the Ten Commandments represented "both religious virtue and the rule of law."   Second, the court held that the Seal's primary effect was not to advance religion.   The court reasoned that the outline of the Ten Commandments was distinguishable from cases in which the text was displayed, indicating that a depiction without the text "would not lead a reasonable observer to conclude that religion was endorsed."   The court concluded that, given the Ten Commandments' "role in the secular development of our society" and legal system, a reasonable observer would view the Seal as "conveying the image of a widely recognized legal code used merely to notify the reader that the stamped documents are court documents."  The court emphasized that the use of the Seal was limited to the authentication of documents and was inconspicuous when compared to the governmental displays described in other cases.   Third, the court found that the use of the Seal had not caused an excessive entanglement between government and religion.

[* * * * *]


[* * * * *]

    In religious-symbols cases, the Supreme Court has applied the analysis outlined in Lemon v. Kurtzman, 403 U.S. 602 (1971).  See, e.g., County of Allegheny v. ACLU, Greater Pittsburgh Chapter, 492 U.S. 573, 592 (1989); Lynch v. Donnelly, 465 U.S. 668, 679 (1984); Stone v. Graham, 449 U.S. 39, 40-41 (1980) (per curiam).

[* * * * *]

A.    Purpose Prong

[* * * * *]

   In Stone, the Supreme Court invalidated a Kentucky statute that required the posting of the text of the Ten Commandments on the wall of every public-school classroom.  449 U.S. at 41.  Describing the Ten Commandments as an "undeniably sacred text," the Court found that the "pre-eminent purpose for posting the Ten Commandments on schoolroom walls is plainly religious in nature."   Id.  Stone, however, does not stand for the proposition that there can never be a permissible secular use of the Ten Commandments.  The opinion distinguishes Kentucky's posting the text of the Ten Commandments on schoolroom walls from constitutionally appropriate uses of the Commandments and other parts of the Bible in a public-school curriculum, such as "an appropriate study of history, civilization, ethics, comparative religion, or the like."  Id. at 42.   Accordingly, because governmental use of the Ten Commandments is not a per se violation of the purpose prong, we must continue our inquiry and determine whether the Seal's depiction of the Ten Commandments and sword has a secular purpose.

[* * * * *]

    As stated previously, the District Court found, and both parties concede, that there was no evidence regarding the original purpose for adopting the design of the Seal and that the Seal has existed in its current form since at least 1872.  The District Court hypothesized that, because approximately thirty-five percent of Georgia's population in 1872 was illiterate, the then-clerk of the court may have chosen the Ten Commandments and the sword as pictographs that were easily recognizable symbols of the law.  Additionally, the District Court found that a pictograph of the Ten Commandments was, in addition to being a religious symbol, a secular symbol for the rule of law.  Nevertheless, the court admitted that the purpose for adopting this particular seal design has been "lost in the mists of history."

    This case, therefore, presents the issue of how to apply the purpose test when there is no evidence of the government's intent for adopting a particular practice. 

[* * * * *]

    When there is no evidence of the original purpose for adopting a practice, the government may propose possible secular justifications for the challenged practice.  In Mueller v. Allen, 463 U.S. 388 (1983), the Supreme Court explained that it was reluctant to attribute an unconstitutional motive to the government where a "plausible secular purpose" may be discerned from the statute.  Id. at 394-95; see also Adler [v. Duval County Sch. Bd.], 206 F.3d at 1075. 

[* * * * *]

Because there is no evidence of the purpose in adopting the Seal's design and because Appellants have not shown that the articulated secular purpose is implausible, we conclude that Appellees have satisfied the first prong of the Lemon test.

[* * * * *]

B.    Effect Prong

[* * * * *]

    2.    Application of the Effect Prong

   Appellants argue that using a symbol of the Ten Commandments on the Seal violates the effect prong because it gives the appearance of governmental endorsement of religion.  As the Supreme Court has recognized, the Ten Commandments are "undeniably a sacred text in the Jewish and Christian faiths ...."  Stone, 449 U.S. at 41.  In many contexts, governmental use of the text of the Ten Commandments would convey a message of endorsement and thereby violate the Establishment Clause.  See id.

   Yet, as the Supreme Court explained in Lynch, it is improper to "[f]ocus exclusively on the religious component of any activity," as doing so "would inevitably lead to its invalidation under the Establishment Clause."  Lynch, 465 U.S. at 680.  Indeed, the Court in Stone noted that, in the context of public education, the Ten Commandments "may constitutionally be used in an appropriate study of history, civilization, ethics, comparative religion, or the like."  Stone, 449 U.S. at 42.  The issue under the effect prong in this case is whether, given the context in which the Seal is used and the Seal's overall appearance, the pictograph representing the Ten Commandments conveys a message of religious endorsement.

    Although the Ten Commandments are a predominantly religious symbol, they also possess a secular dimension.  As Stone pointed out, the first four Commandments concern an individual's relationship with God and "the religious duties of believers: worshipping the Lord God alone, avoiding idolatry, not using the Lord's name in vain, and observing the Sabbath day."  Id.   [* * *]  The final six commandments, however, deal with honoring one's parents, killing or murder, adultery, stealing, bearing false witness, and covetousness; [n. 8: Exodus 20:12-17] all of these prescribe rules of conduct for dealing with other people.  Much of our private and public law derives from these final six commandments.  See Stone, 449 U.S. at 45 (Rehnquist, J., dissenting) (noting the "undeniable" and "significant" impact that the Ten Commandments have had on "the development of legal codes of the Western World").  For this reason, although primarily having a religious connotation, the Ten Commandments can, in certain contexts, have a secular significance.  [* * *]

[* * * * *]

        c.    Size and Placement of the Seal

   [T]he Seal is relatively small, and because it is generally placed near the bottom or on the last page of legal documents, it is also discreet.

[* * * * *]

In Stone, the Court observed that the text of the Ten Commandments appeared on the wall of "each public elementary and secondary school classroom in the Commonwealth," where "[i]f the posted copies of the Ten Commandments [were] to have any effect at all, it [would] be to induce the schoolchildren to read, meditate upon," and perhaps "venerate and obey" the Commandments.  Stone, 449 U.S. at 39 n. 1, 42.

    Two circuit courts of appeals have dealt with Ten Commandments monuments that were located or that were to be located on the grounds of state capitols.   Adland v. Russ, 307 F.3d 471 (6th Cir. 2002); Ind. Civil Liberties Union v. O'Bannon, 259 F.3d 766 (7th Cir. 2001).  In both cases, the monuments were "prominently located" at "the heart of state government" and displayed the text of the Ten Commandments in "large lettering."  Adland, 307 F.3d at 486; see also Ind. Civil Liberties Union, 259 F.3d at 772-73.   Although the monument in Adland also contained text from other sources of secular law, the Ten Commandments "occup[ied] the bulk of the surface area and accordingly plainly dominate[d] the monument."  Adland, 307 F.3d at 486; see also Ind. Civil Liberties Union, 259 F.3d at 772-73 (affirming the grant of a preliminary injunction against constructing the monument because the monument was large and the lettering for the Commandments was larger than the lettering for the Bill of Rights).  The Adland court found that a reasonable observer would infer religious endorsement, because the "Ten Commandments monument physically dominate[d] the 'historical and cultural display' in the Capitol garden area" and its "sheer dimensions ... dwarf[ed] all the other memorials" in the area.

    All of these cases found the use of the religious symbols to be unconstitutional, and all but the Stone opinion specifically analyzed the effect that the symbols would have on a reasonable observer.  All of the cases involved displays that were large or "in your face" and occupied a place of prominence or special honor, often dominating the other objects surrounding them.[* * *]  In contrast, the pictograph of the tablets and sword is at most only one inch in diameter and is not the focal point of any governmental display in an important public building.   Consequently, the Seal's size and placement make it less likely that a reasonable observer would believe that the government intended to send a message of religious endorsement.[* * *]

[* * * * *]

        d.    Fact that Seal Does Not Contain the Ten Commandments Text

   Finally, unlike the depiction of the Ten Commandments in the Stone case, the text of the Commandments does not appear on the Seal.   This distinction is material under the effect test.  Because the words "Lord thy God" and the purely religious mandates (commandments one through four) do not appear on the Seal, a reasonable observer is less likely to focus on the religious aspects of the Ten Commandments.  Unlike the textual posting in Stone, the Seal does not "induce [observers] to read, meditate upon, perhaps to venerate and obey, the Commandments."  Stone, 449 U.S. at 42.  The fact that the Seal does not show the Commandments' text distinguishes this case from the monuments held to be unconstitutional in Adland v. Russ, 307 F.3d 471 (6th Cir. 2002), and Indiana Civil Liberties Union v. O'Bannon, 259 F.3d 766 (7th Cir. 2001) where the text appeared in large lettering.  Instead, the use of Roman numerals rather than text on the tablets--together with the other factors already discussed--allows a reasonable observer to infer that the government is using the Ten Commandments to symbolize the force of law.

[* * * * *]


    Because the use of the Seal does not have the purpose or primary effect of endorsing religion, we AFFIRM the District Court.

King v. Richmond County, Georgia, No. 02-14146 (11th Cir. May 30, 2003) (KRAVITCH, C.J.).

    So is the mere mention of the text considered to be a pretext?

    Since the principles embodied in the Ten Commandments were the basis for our laws and government, cannot those principles, written down, be acknowledged by government--as our legal history?

    Or, in order to be called constitutional, do those principles have to remain invisible?

    Inconspicuousness is a diminishment of history.


"He will speak against the Most High and oppress his saints

and try to change the set times and the laws." (Daniel 7:25)

    The historical relativism implicit in "politically correct" history interprets historical data through the lens of ideological bias(es).  The relativistic approach rejects the possibility of attaining absolute truth or objectivity.  Whereas the objectivist's social laws parallel the natural laws of the universe, relativists emphasize a social philosophy based on uncertainty and chaos--a worldview in which examination and interpretation of data are subjective and thus history can be whatever you want it to be.  According to the relativist's view, historiography represents each person's viewpoint, each person's own "take" on historical facts, which, in the relativist's view, is driven by his or her own personal agenda.  Thus, in a worldview governed by uncertainty, the achievement of absolute truth is not the goal.  Rather, the evidence is filtered through each historian's personal prism, producing only the colors that filter out from his or her own personal makeup--the colors from which he or she selects in order to construct what is to him or her, a so-called subjective "truth" (i.e., the "truth" for that person, in that person's own view).  His or her own biases, beliefs, knowledge, and prejudices determine what facts he or she filters out and what ideology is built into his or her choice of words.  It's interpreting history to fit a predetermined outcome, rather than objectively stating what the historical facts actually reveal.

    In contrast is the objective view, which strives for absolute truth--actually taking a good, long look at all the historical evidence with the goal of discovering (as much as is humanly possible) what really occurred in the historical past.  (See The Cornerstone for more thoughts about real history.) 

    And when past evidence reveals that the whole basis for representative government--the only legitimate basis for democracy--is Biblical principles, then so be it.  Turning away from those principles will cause America to cease functioning as a democracy.  Let that fact be acknowledged in the public square--freely, and tolerantly.   For historical--and eventually, political--totalitarianism is the alternative.

    Daniel, who knew very well what it was like to live during the reign of an autocrat (see: Standing Up to Autocracy), had this to say about a future totalitarian ruler:

    "The king will do as he pleases.  He will exalt and magnify himself above every god and will say unheard-of things against the God of gods." (Daniel 11:36)

    That is the ultimate definition of totalitarianism: Declaring that the will of a person or set of persons (appointed or elected) is superior to any Higher Law--i.e., the Law of God.  In doing so, the State and its ruler magnifies itself above God.  Such has been done by totalitarian governments for centuries: twentieth-century examples being the Germany of the 1930's-40's and the Soviet Union.

    "The king will do as he pleases."

    That is opposite to the meaning of the phrase "a government of laws, and not of men" that has been the linchpin of the Anglo-American constitutional tradition.  "The king [or any ruler or set of rulers] will do as he pleases"--that the law is whatever the State says it is, regardless of God's Higher Morality--fits the definition of a government of men.  It's not a government of laws.

    Thus, an opinion that defines "the rule of law" as being equivalent to "a government of men"--that the law is whatever the State (a ruler or set of rulers) says it is, regardless of God's Higher Law--flies in the face of the Anglo-American constitutional tradition.  It is a changing of that tradition.

    Actually, the true definition of "the rule of law" within the American constitutional tradition (dating back to Chief Justice John Marshall and beyond; see Prayer or Patriotism and Standing Up to Autocracy) is this: the rule of law is a government of laws.  Not a government of men (which is totalitarian government).

   However, the good cheer news is that "a government of men" does not last forever.  God's sovereign will ultimately wins out and determines history.  Daniel described God's defeat of the future ruler:

    "But the court will sit, and his power will be taken away, and completely destroyed forever.  Then the sovereignty, power, and greatness of the kingdoms under the whole heaven will be handed over to the saints, the people of the Most High.  His kingdom will be an everlasting kingdom, and all rulers will worship and obey him.  This is the end of the matter."  (Daniel 7:26-28).

The Original "Good Cheer" Formulation:

The Rule of Law as the Rule of Liberty

    The philosophical basis for the rule of law (a government of laws and not of men) was and is opposite to the unfair despotism of certain foreign countries.  (See commentary by Ezra Stiles.)  Also, these principles are opposite to atheistic systems like communism or to any system (which for any reason, secular or religious) elevates the State government system above the value of individual human liberty.  These principles--the Anglo-American rule of law--still affirmed God as the basis for higher law--and recognized that without that higher law (the real safeguard for individual liberty), nothing stood in the way between the destruction of individual liberty and the overarching, overweening power of the State (ultimately personified by an autocratic ruler).  Such an erosion of individual liberty sliding into the pit of autocracy was what eventually happened to the Romans--first a republic, then an empire with Caesar as their emperor, to whom worship was demanded, and by whom Christians were persecuted because they practiced individual liberty--the very liberty upon which the United States of America was based.

    Like the American Revolutionaries, we again need to realize that individual liberty is too important to slight or ignore; we must safeguard it again and again, in every generation.

    Thus, the higher Divine law is the only valid basis for world civilization.  Actually, it is in contrast to theocracy.  (A theocracy is a government in which religious leaders run the government and sometimes are the government officials, who declare that the law is what they say it is--even if their laws conflict with the Higher Law safeguards on fairness and individual liberty.  Thus, theocracy is actually a government of men--obviously a total contrast to a "government of laws and not of men" like the legal system that exists in the Anglo-American constitutional tradition that birthed democracy.)  Democracy, whether we realize it or not, was actually premised on the "higher law/natural law" philosophical basis.  One shouldn't be fooled into thinking this higher law is theocracy.  What it is, is liberty and equality.

    The rule of law--God's Law-- is righteousness and justice--fairness and freedom.  Legal codes of some other countries don't value these principles as much.  Are we to give up fairness, then?  As the Bible would say, "God forbid!"  For He does forbid it.  That's why His Law is the only valid Higher Law possible for a world that still aims to be peaceful and ordered, yet still remain tolerant and free.

For further reading about the rule of law:

Programming the Judicial Machines

True Heroism and the Rule of Law

Don't Hide God in a Closet

Justice Joseph Story on Church and State (1833)

Samuel West, [on Natural Law] (1776)

Samuel Stillman, The Duty of Magistrates (1779)

Ezra Stiles, The United States Elevated to Glory and Honor (1783)

Samuel Cooke, The True Principles of Civil Government (1770)

Jaffree v. Board of School Commissioners of Mobile County (1983)

Prayer or Patriotism (about "under God" in the Pledge of Allegiance)

Good Cheer Signs for All Times (about "under God", "In God We Trust", and similar phrases)

Reflections on the Ten Commandments (includes Justice Rehnquist's dissent in Stone v. Graham (1980))

Ten Commandments Issue Unresolved (includes the dissenting opinion in Indiana Civil Liberties Union v. O'Bannon (2001))

Scripture taken from the HOLY BIBLE, NEW INTERNATIONAL VERSION.   Copyright 1973, 1978, 1984 International Bible Society.  Used by permission of Zondervan Publishing House.  All rights reserved.

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