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Who decided, and when did they decide, that the debate over the constitutionality of the 10 Commandments in governmentally-owned places was going to be a litmus test in the culture wars of the 21st century? First, from the perspective of Bibllical studies, the battle doesn't make sense. There are two versions of the Commandments (Ex.20 and Deut 5) and their texts do not agree with each other completely. Why don't the people fighting the war pick a text on which all agree? Second, there is the theological issue. Even though all Christian groups respect and honor the 10 Commandments, an argument can be made from the New Testament itself that the 10 Commandments have really been caught up in or subsumed under the "greatest commandment"--to love your neighbor.

Or, also speaking theologically, you can make the argument that Jesus' attitude toward the Decalogue in the Sermon on the Mount (Matt. 5-7) was to internalize its meaning rather than to emphasize its literal value. Finally, from an ethical perspective, the 10 Commandments are not really observed even by most Christians today. Oh, I am not suggesting that people are out killing one another because they have thrown off the Commandments; but the incidence of "sabbath keeping" is certainly down, and the simplest observer of American culture could rightly conclude that coveting is a major part of the American identity. Nevertheless, this has proved to be a resilient issue for the religious right and for those who believe that America needs to recover its religious roots. The Ten Commandments are rising almost to the level, in their symbolic status, of the Pledge of Allegiance (which they love) and Charlies Darwin (whom they hate) in the religious right's view of the world. And, the fact that 7 of the 9 Justices on the Court had to chime in with his or her own approach to the issue in this case means that no unitary understanding of the issues involved is shared by the Court. The remainder of this essay gives some factual background to the case; essays on the Ten Commandments and on my Critical Legal Issues page explore some of the opinions in more detail.

Relevant Facts

In 1961 the Fraternal Order of Eagles donated a monolith, 6' high and 3' wide, on which were inscribed words from the Exodus text of the 10 Commandments, to the State of Texas. The Eagles donated around 100 monoliths and thousands of paper copies of the Commandments beginning in the 1950s with the view of having them posted in county courthouses or displayed in public places. Cecil B. Demille, the legendary filmmaker and director of the Ten Commandments, teamed up with the Eagles to produce the basic type of the monolith. Why did the Eagles want to do it? Well, a Minnesota juvenile court judge, so the story goes, was mighty chagrined that one of the youthful violators in his courtroom hadn't even heard of the Ten Commandments. He felt that knowledge of the Commandments would go a long way to reducing juvenile delinquency. It is not exactly clear how Commandments on the state house lawn will contribute to reducing delinquency, but that was the good judge's hope.

Thus, for more than 40 years the monolith has been sitting on the grounds of the Texas State Capitol, surrounded by 16 other monuments and 21 historical markers commemorating the "people, ideals, and events that compose Texas identity." Whether there is a common theme that runs through the monuments can only be ultimately determined by an observer: some of the other monuments are of the Boy Scouts Statue of Liberty Replica, Pearl Harbor Veterans, a Texas Cowboy, Volunteer Fireman, Heroes of the Alamo, and Hood's Brigade. The legal question was whether this Ten Commandments display in this particular location, violated the First Amendment prohibition of government's Establishment of Religion. Both the trial and appeals court said that it did not. By a 5-4 vote, the Supreme Court agreed.

The Majority Opinion

Though I go into various majority and dissenting opinions at length elsewhere, there are two points I want to highlight from Chief Justice Rehnquist's majority opinion. First, his understanding of religion (shared by the majority and even at least one of the dissenters) is that recognitions of God by officials or in official documents/practices in our national past and present is fully consistent with the spirit of the First Amendment. As a matter of fact, recitation of various ways God was invoked by Presidents and Congresses in the past seems to suffice for him to allow such invocations today, as in the Ten Commandments monolith. Second, he is trying to redefine the nature of the Ten Commandments from the perspective of Supreme Court jurisprudence. In 1980 (Stone), the Court defined it as a religious text. Justice Souter's dissent in this case is premised on that notion. But Rehnquist deftly expands the definition of the Ten Commandments here--he says it is also a historical document. You may not think that this makes much difference; but it is easier to affirm that a "historical" or "historico-religious" document is constitutional than a purely religious one. Of course, this begs the question of what is religion, but let's not even go there now. In any case, by characterizing the Commandments as both religious and historical, and by arguing for the frequency of references to God in our national past, Rehnquist would argue that the display is constitutional.

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