Reflections on the Ten Commandments
Adland v. Russ, 107 F.Supp.2d 782 (E.D. Ky. 2000) was upheld by the United States Court of Appeals for the Sixth Circuit on October 9, 2002. (For the dissenting opinion by Circuit Judge ALICE M. BATCHELDER, see Adland v. Russ, 307 F.3d 471, 490-494 (6th Cir. 2002) (Batchelder, J., dissenting).
This case directly pertains to the debate about whether or not to allow Ten Commandments displays to remain standing on government property on the grounds that the Commandments were the historical basis undergirding our nation's legal system. In the October 9, 2002 Adland v. Russ opinion (307 F.3d 471 (6th Cir. 2002)), a divided Sixth Circuit Court of Appeals, by a narrow majority (2-1) (two judges out of a three-judge panel), ruled against allowing the Commonwealth of Kentucky to include a Ten Commandments monument as part of a proposed "historical and cultural display" on Kentucky State Capitol grounds.
However, even Judge Sargus' concurrence in the October 9, 2002 Adland v. Russ decision acknowledged that "the Ten Commandments, which played a most significant role in the development of positive law and western civilization, may be displayed on public property in the context of their historical significance." 307 F.3d at 490.
(For further discussion about the Ten Commandments as historical documents (including comments by other judges), see the following commentary articles: Ten Commandments Issue Unresolved and Commandments, Wants, and Wishes in the Belcher Foundation Christian Law Library. For then-Justice (now Chief Justice of the United States Supreme Court) William Rehnquist's historic dissenting opinion in the "mother of the Ten Commandments cases", Stone v. Graham, 449 U.S. 39 (1980), see below.)
The Adland v. Russ (October 9, 2002) court relied heavily on the United States Supreme Court's decision in Stone v. Graham, another Kentucky case, which started the trend toward striking down the Ten Commandments. As Judge Sargus' concurrence in Adland (2002) stated: "I write separately to note that our decision is compelled by the Supreme Court's decision in Stone v. Graham, 449 U.S. 39, 101 S.Ct. 192, 66 L.Ed.2d 199 (1980) (per curiam) which found unconstitutional a Kentucky statute requiring the placement of the Ten Commandments in all public school classrooms." 307 F.3d at 490.
Needed: A Recognition of History as History
Denying inclusion of the Ten Commandments in a historical and cultural display is denying their historical significance to American law and culture. It is not giving due recognition to those Commandments' historical significance to not give them a place in historical displays alongside other historically significant signs, monuments, documents, or exhibits.
A similar instance recently arose in the City of Austin, Texas, according to a July 2002 news report. Someone has objected to the Ten Commandments monument on the state Capitol grounds. In contrast, the state correctly maintains that the Ten Commandments are historically important. Thus, they are worthy of acknowledgment by American government. In early October 2002, according to news reports, a federal district court allowed the Ten Commandments monument to remain on the state Capitol grounds in Austin, Texas.
As a matter of fact, historical scholars throughout history (including English jurist William Blackstone) have acknowledged the Ten Commandments to be the primary basis for the common law, which was the fundamental law of the American colonies upon which was based the United States legal system. This is a historical debate, not a religious one, and as such, is not really suited for First Amendment Establishment Clause analysis (unless, of course, one takes the view that the Establishment Clause prohibits the acknowledgment of the role of religion in American history--but this view flies in the face of Stone v. Graham itself, whose per curiam court opinion stated that "the Bible may constitutionally be used in an appropriate study of history, civilization, ethics, comparative religion, or the like." Stone v. Graham, 449 U.S. 39, 42 (1980)). It seems that a historical or cultural display, like a museum display viewed by schoolchildren and others, is pertinent to, or suited for, a "study of history, civilization, ethics, comparative religion, or the like." Presumably, the purpose of such displays are to teach or commemorate history and culture.
Another judge's opinion was given in Summum v. City of Ogden, 152 F.Supp.2d 1286 (D.Utah 2001) (JENKINS, Senior Judge), aff'd in part, rev'd in part, Summum v. City of Ogden, 297 F.3d 995 (10th Cir. 2002) (HENRY, Circuit Judge, writing for the three-judge panel) (affirming the district court's holding that a Ten Commandments monument was not a violation of the Establishment Clause, but reversing the district court's holding that the city did not have to display the "Seven Principles" of the Summum religion).
Senior District Judge Jenkins said the following regarding a Ten Commandments monument donated by the Fraternal Order of Eagles (which also donated the monument at issue in Adland v. Russ):
The second issue before the Court is whether the City of Ogden violated the Establishment Clause of the First Amendment when it adopted the expressions located on the monuments in the Municipal Gardens, particularly the text on the monument donated by the Eagles [...] and at the same time rejecting Summum's proffered gift to erect and display a permanent monument containing its own religious expressions.
A stone containing twelve tenets, identical in nature to that of the Fraternal Order of Eagles, and donated by the same organization to Salt Lake City was examined by the Tenth Circuit Court of Appeals in Anderson v. Salt Lake City Corp., 475 F.2d 29 (10th Cir.), cert. denied, 414 U.S. 879, 94 S.Ct. 50, 38 L.Ed.2d 124 (1973), in which it characterized that roster of statements as secular in nature.
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Apart from consideration of stare decisis, the Tenth Circuit Court of Appeals' holding in Anderson was rooted in a sound understanding of history. As the Anderson court noted, the Ten Commandments is at one and the same time, a secular symbol and an ecumenical symbol. See Anderson, 475 F.2d at 33. See also A. Powell Davies, The Ten Commandments 126 (1956). The "Ten Commandments," while a sacred text to some and an ethical code of conduct to others, is also a landmark in the history of the development of Western law. Because they have generally been characterized in history as a "religious text" does not change their secular history.
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Blackstone wrote that "the law of nature ... dictated by God himself ... is binding ... in all countries and at all times; no human laws are of any validity if contrary to this; and such of them as are valid derive all their force, and all their authority, mediately or immediately, from this original." W. Blackstone, 1 Commentaries, 41 (1765), reprinted in Harold J. Berman, Religion and Law: The First Amendment in Historical Perspective, 35 Emory L.J. 777, 789 (1986).
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Indeed, the very words that many are trying to eradicate from the governmental domain were included deliberately to demonstrate our nation's recognition of God. The country's coinage began reflecting references to God in 1864 at the direction of the Secretary of the Treasury, Salmon P. Chase, after receiving a letter from the Reverend M. R. Watkinson of Pennsylvania. Watkinson suggested in his letter that the Union risked being misinterpreted by posterity absent a public recognition of God on our nation's coinage. Watkinson wrote, "What if our Republic were now shattered beyond reconstruction? Would not the antiquaries of succeeding centuries rightly reason from our past that we were a heathen nation?" Chase directed the U.S. Mint to declare a national recognition of God to be included on our national coins. "In God We Trust" became the new motto at his suggestion. See Brian Burrell, The Words We Live By 189 (1997).
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We would take a myoptic view of history if we denied that our laws did not have early roots with an origin which some believed divine. The fact that various versions of the "Ten Commandments" are thought by some to be of divine origin ought not to deprive those who place emphasis on its secular origins--including the City of Ogden--of a chance to have their say. Religious groups do not have an exclusive claim to that code of conduct. It belongs to us all.
Summum v. City of Ogden, 152 F.Supp.2d 1286, 1294-1295, 1297 (D.Utah 2001) (footnote 7 omitted).
Thus, the Ten Commandments were the basis for American law during Early American history: witness the words of William Blackstone, quoted above, said by the premier eighteenth-century British jurist whose commentaries influenced Early American law and lawyers--some of whom were our nation's founding fathers.
Ten Commandments monuments, especially those displayed alongside other historical documents important to our nation's history, serve a historical function. The inclusion of the Ten Commandments (the principles followed by the American colonials and founding fathers when they established the background for the American legal system, which in turn was derived from the English common law (which in its turn, was based on the principles elucidated in the Ten Commandments), merely serves to acknowledge that these were the principles that were, in fact, the pillars upon which the American legal system was built. Some people today may object to those principles/pillars and call them "religious", but that does not negate the historical fact that these principles were the primary foundation of American legal history. To obscure that historical fact is to obscure American legal history and American principles of justice. Why do we even have laws against theft, perjury, and slander, for instance, if we aren't following the principles "Thou shalt not steal" and "Thou shalt not bear false witness against thy neighbor"? If we look closely, we can see that many, if not most, of our laws derived from the English common law, such as laws against theft and murder, were in fact derived from, and based upon, one or more of the Ten Commandments. They are the principles upon which the Anglo-American system of justice was built. This is not a "religious" matter; it is a historical and a legal one. What will serve as the basis for society's laws? What did serve in the past?
Whether the present generation likes it or not, our principles of justice, originally, were primarily based on the Ten Commandments. Merely taking down Ten Commandments monuments will not obliterate that historical fact. Acknowledging that fact is simply acknowledging truth. And denying that history is simply another way of denying truth or wishing it would go away--another way of trying to "re-write" history.
The "Mother" of the Ten Commandments Cases:
Stone v. Graham, 449 U.S. 39 (1980)
(United States Supreme Court per curiam decision)
Then-Justice (now Chief Justice of the United States Supreme Court) William Rehnquist wrote a historic dissent that brilliantly analyzed the Ten Commandments "historical or religious" debate and its relevance to Establishment Clause jurisprudence. The following is the text of Rehnquist's dissent in Stone v. Graham, 449 U.S. 39, 43-47 (1980):
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JUSTICE REHNQUIST, dissenting.
With no support beyond its own ipse dixit, the Court concludes that the Kentucky statute involved in this case "has no secular legislative purpose," ante, at 41 (emphasis supplied), and that "[t]he pre-eminent purpose for posting the Ten Commandments on schoolroom walls is plainly religious in nature," ibid. This even though, as the trial court found, "[t]he General Assembly thought the statute had a secular legislative purpose and specifically said so." App. to Pet. for Cert. 37. The Court's summary rejection of a secular purpose articulated by the legislature and confirmed by the state court is without precedent in Establishment Clause jurisprudence. This Court regularly looks to legislative articulations of a statute's purpose in Establishment Clause cases and accords such pronouncements the deference they are due. See, e.g., Committee for Public Education v. Nyquist, 413 U.S. 756, 773 (1973) ("we need touch only briefly on the requirement of a 'secular legislative purpose.' As the recitation of legislative purposes appended to New York's law indicates, each measure is adquately supported by legitimate, nonsectarian state interests"); Lemon v. Kurtzman, 403 U.S. 602, 613 (1971) ("the statutes themselves clearly state they are intended to enhance the quality of the secular education"); Sloan v. Lemon, 413 U.S. 825, 829-830 (1973); Board of Education v. Allen, 392 U.S. 236, 243 (1968). See also Florey v. Sioux Falls School District, 619 F.2d 1311, 1314 (CA8) (upholding rules permitting public school Christmas observances with religious elements as promoting the articulated secular purpose of "advanc[ing] the student's knowledge and appreciation of the role that our religious heritage has played in the social, cultural and historical development of civilization"), cert. denied, post, p. 987. The fact that the asserted secular purpose may overlap with what some may see as a religious objective does not render it unconstitutional. As this Court stated in McGowan v. Maryland, 366 U.S. 420, 445 (1961), in upholding the validity of Sunday closing laws, "the present purpose and effect of most of [these laws] is to provide a uniform day of rest for all citizens; the fact that this day is Sunday, a day of particular significance for the dominant Christian sects, does not bar the state from achieving its secular goals."
Abington School District v. Schempp, 374 U.S. 203 (1963), repeatedly cited by the Court, is not to the contrary. No statutory findings of secular purpose supported the challenged enactments in that case. In one of the two cases considered in Abington School District the trial court had determined that the challenged exercises were intended by the State to be religious exercises. Id., at 223. A contrary finding is presented here. In the other case no specific finding had been made, and "the religious character of the exercise was admitted by the State," id., at 224.(1)
The Court rejects the secular purpose articulated by the State because the Decalogue is "undeniably a sacred text," ante, at 41. It is equally undeniable, however, as the elected representatives of Kentucky determined, that the Ten Commandments have had a significant impact on the development of secular legal codes of the Western World. The trial court concluded that evidence submitted substantiated this determination. App. to Pet. for Cert. 38. See also Anderson v. Salt Lake City Corp., 475 F.2d 29, 33 (CA10 1973) (upholding construction on public land of monument inscribed with Ten Commandments because they have "substantial secular attributes"). Certainly the State was permitted to conclude that a document with such secular significance should be placed before its students, with an appropriate statement of the document's secular import. See id., at 34 ("It does not seem reasonable to require removal of a passive monument, involving no compulsion, because its accepted precepts, as a foundation for law, reflect the religious nature of an ancient era").(2) See also Opinion of the Justices, 108 N. H. 97, 228 A.2d 161 (1967) (upholding placement of plaques with the motto "In God We Trust" in public schools).
The Establishment Clause does not require that the public sector be insulated from all things which may have a religious significance or origin. This Court has recognized that "religion has been closely identified with our history and government," Abington School District, supra, at 212, and that "[t]he history of man is inseparable from the history of religion," Engel v. Vitale, 370 U.S. 421, 434 (1962). Kentucky has decided to make students aware of this fact by demonstrating the secular impact of the Ten Commandments. The words of Justice Jackson, concurring in McCollum v. Board of Education, 333 U.S. 203, 235-236 (1948), merit quotation at length:
"I think it remains to be demonstrated whether it is possible, even if desirable, to comply with such demands as plantiff's completely to isolate and cast out of secular education all that some people may reasonably regard as religious instruction. Perhaps subjects such as mathematics, physics or chemistry are, or can be, completely secularized. But it would not seem practical to teach either practice or appreciation of the arts if we are to forbid exposure of youth to any religious influences. Music without sacred music, architecture minus the cathedral, or painting without the scriptural themes would be eccentric and incomplete, even from a secular point of view .... I should suppose it is a proper, if not an indispensable, part of preparation for a worldly life to know the roles that religion and religions have played in the tragic story of mankind. The fact is that, for good or for ill, nearly everything in our culture worth transmitting, everything which gives meaning to life, is saturated with religious influences, derived from paganism, Judaism, Christianity--both Catholic and Protestant--and other faiths accepted by a large part of the world's peoples. One can hardly respect the system of education that would leave the student wholly ignorant of the currents of religious thought that move the world society for a part in which he is being prepared."
I therefore dissent from what I cannot refrain from describing as a cavalier summary reversal, without benefit of oral argument or briefs on the merits, of the highest court of Kentucky.
1. The Court noted that even if the State's purpose were not strictly religious, "it is sought to be accomplished through readings, without comment, from the Bible." 374 U.S., at 224. Here of course there was no compelled reading, and there was comment accompanying the text of the Commandments, mandated by statute and focusing on their secular significance.
2. The Court's emphasis on the religious nature of the first part of the Ten Commandments is beside the point. The document as a whole has had significant secular impact, and the Constitution does not require that Kentucky students see only an expurgated or redacted version containing only the elements with directly traceable secular effects.
The Bible's Own Reflection on the Ten Commandments:
Psalm 119:1-8, 17-24, 41-48, 65-78, 161-168 (NLT)
"Happy are people of integrity,
who follow the law of the LORD.
Happy are those who obey His decrees
and search for Him with all their hearts.
They do not compromise with evil,
and they walk only in His paths.
You have charged us
to keep Your commandments carefully.
Oh, that my actions would consistently
reflect Your principles!
Then I will not be disgraced
when I compare my life with Your commands.
When I learn Your righteous laws,
I will thank You by living as I should!
I will obey Your principles.
Please don't give up on me!
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Be good to Your servant,
that I may live and obey Your word.
Open my eyes to see
the wonderful truths in Your law.
I am but a foreigner here on earth;
I need the guidance of Your commands.
Don't hide them from me!
I am overwhelmed continually
with a desire for Your laws.
You rebuke those cursed proud ones
who wander from Your commands.
Don't let them scorn and insult me,
for I have obeyed Your decrees.
Even princes sit and speak against me,
but I will meditate on Your principles.
Your decrees please me;
they give me wise advice.
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LORD, give to me Your unfailing love,
the salvation that You promised me.
Then I will have an answer for those who taunt me,
for I trust in Your word.
Do not snatch Your word of truth from me,
for my only hope is in Your laws.
I will keep on obeying Your law
forever and forever.
I will walk in freedom,
for I have devoted myself to Your commandments.
I will speak to kings about Your decrees,
and I will not be ashamed.
How I delight in Your commands!
How I love them!
I honor and love Your commands.
I meditate on Your principles.
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You have done many good things for me, LORD,
just as You promised.
I believe in Your commands;
now teach me good judgment and knowledge.
I used to wander off until You disciplined me;
but now I closely follow Your word.
You are good and do only good;
teach me Your principles.
Arrogant people have made up lies about me,
but in truth I obey Your commandments with all my heart.
Their hearts are dull and stupid,
but I delight in Your law.
The suffering You sent was good for me,
for it taught me to pay attention to Your principles.
Your law is more valuable to me
than millions in gold and silver!
You made me; You created me.
Now give me the sense to follow Your commands.
May all who fear You find in me a cause for joy,
for I have put my hope in Your word.
I know, O LORD, that Your decisions are fair;
You disciplined me because I needed it.
Now let Your unfailing love comfort me,
just as You promised me, Your servant.
Surround me with Your tender mercies so I may live,
for Your law is my delight.
Bring disgrace upon the arrogant people who lied about me;
meanwhile, I will concentrate on Your commandments.
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Powerful people harass me without cause,
but my heart trembles only at Your word.
I rejoice in Your word
like one who finds a great treasure.
I hate and abhor all falsehood,
but I love Your law.
I will praise You seven times a day
because all Your laws are just.
Those who love Your law have great peace
and do not stumble.
I long for Your salvation, LORD,
so I have obeyed Your commands.
I have obeyed Your decrees,
and I love them very much.
Yes, I obey Your commandments and decrees,
because You know everything I do.
Scripture quotations marked NLT are taken from the Holy Bible, New Living Translation, copyright 1996. Used by permission of Tyndale House Publishers, Inc., Wheaton, Illinois 60189. All rights reserved.
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