July/August 2001 Church & State | Featured

According to the Book of Exodus, God handed down the Ten Commandments to Moses in a most dramatic fashion.

In the biblical account, lightning flashed in the sky and thunder boomed around Mt. Sinai. The entire mountain shook, and a horn blared out. The people trembled as Moses approached and ascended the cloud-covered summit. He emerged, after a personal encounter with God, carrying two stone tablets on which were engraved the Ten Commandments.

In light of this story, the religious nature of the Decalogue would seem to be beyond question. The list of commands itself bears this out: At least four of the decrees deal with specific matters of faith, admonishing believers to spurn false gods, reject graven images, avoid blasphemous speech and keep the Sabbath holy.

But to Chief Justice William H. Rehnquist, the Ten Commandments don't necessarily have to be religious. According to Rehnquist, they are also a document that has played a "foundational role...in secular, legal matters" that can be featured in a city's "celebration of its cultural and historical roots" without becoming "a promotion of religious faith."

Rehnquist's comments were made public May 29, when the Supreme Court issued an order stating that it would not hear an appeal of a lower court ruling striking down the government's display of a granite Ten Commandments monument in Elkhart, Ind. Rehnquist dissented from that action, and joined by Justices Clarence Thomas and Antonin Scalia, made it clear that he believes the court should have overturned the ruling, clearing the way for government at all levels to display the Ten Commandments.

Justice John Paul Stevens, an advocate for church-state separation, found the trio's reasoning convoluted. He noted that the monument in Elkhart contains two lines in large type that read, "THE TEN COMMANDMENTS I AM the LORD thy GOD." Observed Stevens, "The graphic emphasis placed on those first lines is rather hard to square with the proposition that the monument expresses no particular religious preference." After all, he continued, "the monument also depicts two Stars of David and a symbol composed of the Greek letters Chi and Rho superimposed on each other that represent Christ."

A few years ago, a handful of Religious Right organizations announced campaigns to get the Ten Commandments posted in government buildings and public schools all over the United States. The Supreme Court's decision not to hear the City of Elkhart v. Books case should help bring those efforts to a halt.

But it won't happen without a fight. Religious Right organizations were infuriated when the high court took a pass on the Indiana case and have vowed to find other ways to bring the matter before the justices. And they may have the chance at least 12 cases dealing with Ten Commandments displays are pending in seven states. (See "Commandments Controversies," page 13.) Meanwhile, in Elkhart, city officials are toying with open defiance.

Ironically, the monument that has sparked so much fuss was until a few years ago covered with weeds and vines. Many town residents didn't even know it was there until a groundskeeper cleaned it off one day in 1998.

The monument had found a home in front of the Elkhart City Hall four decades earlier as a tie-in for a promotional campaign for a movie Hollywood producer Cecil B. DeMille's biblical extravaganza "The Ten Commandments."

DeMille's involvement grew out of a nationwide campaign first launched in 1943 by E.J. Ruegemer, a Minnesota juvenile court judge and head of a Fraternal Order of Eagles (FOE) committee dealing with the problems of youth. Ruegemer claimed that many of the young people who ended up in his courtroom lacked a moral foundation, and he proposed posting paper copies of the Ten Commandments in juvenile courts to rectify that.

DeMille got wind of Ruegemer's project as he was working on his epic film, which starred Charlton Heston as Moses. DeMille, eager to drum up publicity for the 1956 movie, proposed displaying bronze tablets instead of paper copies, but Ruegemer felt that granite markers would be more appropriate, arguing that the original Ten Commandments were probably made of stone. DeMille agreed and authorized Ruegemer to contract with a Minnesota granite firm to begin production. Eagles units soon began donating them to cities around the country.

DeMille carefully exploited the situation to ensure maximum publicity for his movie, and some of the monument dedications were even timed to tie in with the release of the film. In one town, Dunseith, N.D., actor Heston appeared personally for the ceremony. In Milwaukee, a Ten Commandments monument was unveiled the same week the film debuted, with actor Yul Brynner Pharaoh in the movie on hand for the festivities.

Ruegemer, 98 and still living in Minnesota, told the South Bend Tribune in May that the Eagles were at first wary of taking on the project, fearing that it might be perceived as sectarian. To get around that, organizational leaders asked Catholic, Protestant and Jewish representatives to come together and decide on how to word and list the commandments in a way that was agreeable to all. (Roman Catholics, Protestants and Jews use different versions of the Ten Commandments. For example, in the Catholic version, the fourth commandment is "Honor your mother and father." In the Protestant and Jewish versions, it is "Remember the Sabbath and keep it holy.")

Thanks to the DeMille-Eagles partnership, more than 2,000 Ten Commandments monuments were donated to communities around the country. The FOE kept the project going long after the film opened, and some monuments did not get erected until 10 years later. Elkhart's monument was dedicated on Memorial Day of 1958, when local Protestant, Jewish and Catholic clergy in Elkhart, joined by FOE officers and city officials, unveiled it at a public ceremony.

Four decades passed. In 1998, when the monument was rediscovered, it immediately became a focus of controversy and the target of a lawsuit by the American Civil Liberties Union. A federal district court ruled against the ACLU, but the U.S. 7th Circuit Court of Appeals took the opposite tack.

In its Dec. 13, 2000, decision, the appellate panel insisted that government display of the religious text violates the constitutional separation of church and state, suggesting that some faith traditions are officially favored.

Court precedents "simply prevent government at any level from intruding into the religious life of our people by sponsoring or endorsing a particular perspective on religious matters," observed the 2-1 majority. "It prevents, as Justice O'Connor has pointed out, government from creating among our people 'ins' and 'outs' on the basis of religion."

Monument defenders, disappointed with the appeals court's decision, urged the Supreme Court to take the case. But the court said no over the strong objections of Scalia, Thomas and Rehnquist. (Four members of the high court must agree to take a case in order to get the dispute on the docket.)

Why all the sudden interest in the Ten Commandments? Much of the activity stems from the Religious Right. At least four organizations have been active in this area recently Liberty Counsel, TV preacher Pat Robertson's American Center For Law and Justice (ACLJ), the National Clergy Council and the Family Research Council (FRC).

Many of these organizations are still smarting from the Supreme Court's 1980 Stone v. Graham ruling. In Stone, the high court struck down a Kentucky law requiring the posting of the Ten Commandments in all public schools. Religious Right groups may see the current crusade as a way to spark a new challenge to that holding and build public support for their other political objectives.

The groups are also angry over more recent decisions by lower courts striking down government display of the Ten Commandments. In 1994 the U.S. 11th Circuit Court of Appeals ordered officials in Cobb County, Ga., to remove a Ten Commandments display from the courthouse. In addition, Americans United has won legal cases against government display of the Ten Commandments in Charleston, S.C., and Manhattan, Kan.

Undaunted by the string of legal defeats, FRC, a group loosely affiliated with radio counselor James C. Dobson's Focus on the Family, launched a special Ten Commandments project in November of 1999. Called "Hang Ten," the effort was designed to encourage state and local governments to post the Decalogue at government buildings and public schools as well as win passage of the "Ten Commandments Defense Act," legislation sponsored by Rep. Robert Aderholt (R-Ala.) that would have stripped the federal courts of their ability to even hear legal cases challenging government-sponsored Ten Commandments displays.

FRC announced the "Hang Ten" campaign with much fanfare, but the project hasn't achieved much so far. Aderholt's bill has never come to a vote in the House, and the crusade is going nowhere in the courts. Nevertheless, Religious Right leaders have vowed to keep fighting. On the day the Supreme Court refused the Elkhart case, several released statements blasting the court action.

Falwell, in his Falwell Confidential bulletin, asserted that "people of faith across the nation were disheartened" by the action. The Lynchburg televangelist went on to claim that "activist judges are deliberately ignoring the actuality of America's founding an actuality of dependence on the Bible and Judeo-Christian values."

The day after the high court rejected the case, ACLJ founder Robertson ranted about the justices' action on his "700 Club" program. The Virginia Beach televangelist called the action "the craziest thing" and wasted no time launching an attack on church-state separation.

Asserted Robertson, "There's nothing in the Constitution that ever intended this, nor and this is very important the phrase 'separation of church and state' does not appear in the United States Constitution. It was in the Constitution of the former Soviet Union, but not in the U.S. Constitution."

Robertson insisted that Congress should stand up to "the power of the black-robed justices." Congress, he said, "can take away their money. They can also take away their appellate jurisdiction if they so choose, because the Constitution gives that power."

The ACLJ, which helped defend the city of Elkhart and has worked on other Ten Commandments cases, issued a bland statement expressing disappointment. Earlier, however, the organization had bitterly criticized groups like Americans United for opposing such displays. In a shrill fund-raising letter mailed in March, ACLJ Chief Counsel Jay Sekulow asserted that court action against government display of the Ten Commandments could put the country on a "'slippery slope' toward moral ruin."

Religious Right legal groups have prodded local officials to continue fighting for the commandments, despite the prevailing legal trend.

Even in Elkhart, resistance remains. Local officials have pledged to find a way to keep the Ten Commandments monument in place. Mayor David Miller, a 44-year-old graphic artist who has led the campaign to defend the marker, told reporters, "I will fight to keep the monument standing right where it is."

During the legal battle, Miller went so far as to design pro-monument bumper stickers and led a petition drive to keep the commandments up. With his final legal appeal exhausted, Miller has proposed adding other types of historical documents and markers around the monument, which he argues will make the display constitutional.

Attorneys at the Indiana branch of the ACLU disagree and have proposed moving the monument to private property. U.S. District Judge Allen Sharp has been given the task of finding a solution. Sharp has been directed by the 7th Circuit Court of Appeals to ensure that "although the condition that offends the Constitution is eliminated, Elkhart retains the authority to make decisions regarding the placement of the monument." (One suggestion involves selling the monument and the land around it to a private group.)

An Internet poll sponsored by the Elkhart Truth newspaper found that 71 percent of respondents favored leaving the Ten Commandments where it is. Although such polls are not scientifically valid, city leaders insist that the overwhelming majority of residents oppose moving the marker.

Like the residents of Elkhart, most Americans, polls show, favor the idea of government promotion of the Ten Commandments. One survey, conducted in July of 1999, found 74 percent endorsing the idea of Ten Commandments displays in public schools. But those polls also show widespread ignorance about what the commandments say. A few years ago, a Gallup poll found that only 42 percent of Americans are able to name even five of the Ten Commandments.

Since most Americans don't know what the commandments say, it's not surprising that many of them persist in believing that the Decalogue is the basis for U.S. law. In Elkhart, for example, one official asserted that the monument should stay because the commandments, aside from their religious significance, have influenced secular law.

"This has tons of historical significance," said John Mann, a spokesman for Mayor Miller. "Let's say that hypothetically, Moses got the Ten Commandments from aliens or just made them up or something. Still, they are the basis for every modern legal system."

This claim, while frequently spouted by Religious Right activists, does not stand up to historical scrutiny, say church-state experts.

Steven K. Green, legal director for Americans United, researched this question in 1999-2000 for a scholarly article that appeared in the Journal of Law & Religion (Vol. XIV, No. 2). Green, who holds a Ph.D. in religious and constitutional history, concluded that the claim that U.S. law is based on the Ten Commandments is usually asserted and accepted as a given without historical evidence. For example, Chief Justice Rehnquist in his recent Elkhart dissent, referred to "the foundational role of the Ten Commandments in secular, legal matters." But he cited no precedent or scholarly authority for that view.

Green notes that American law is an outgrowth of British common law and "more generally, the Western legal tradition." Claims that the common law was based on the Bible, he says, were first put forth by scholar monks in the Dark Ages, who were trying to defend the supremacy of the Roman Catholic Church over temporal governments. The claim is shaky at best, Green writes, pointing out that the common law "relied primarily on custom."

Green also discovered that America's Founding Fathers adopted only that portion of British common law that "was consistent with republican ideals." He writes of the Founding period, "[I]t is not surprising that express references to the Decalogue or scripture as a source of law were nonexistent."

Even a cursory reading of the Constitution debunks the claim that U.S. law is based on the Ten Commandments. The Constitution contains no religious directives whatsoever and makes no mention of the Ten Commandments or even God. The Constitution, a secular document, instead establishes religious freedom for all by separating church and state in the First Amendment. In addition, both Thomas Jefferson and John Adams explicitly denied that Christianity is the basis for American common law.

(And, despite frequent repetition by the Religious Right, there is no evidence that James Madison ever stated, "We have staked the whole future of American civilization...upon the capacity of each of us to govern ourselves according to the Ten Commandments of God." This quotation pops up repeatedly in Religious Right circles, but it is almost certainly bogus.)

AU's Green concluded that arguments that U.S. law is based on the Ten Commandments or any religious code are specious. "At best, the most that could be said about the relationship of the Ten Commandments to the law is that the former has influenced legal notions of right and wrong...," Green concluded. "[T]hat has always been a noncontroversial fact. But to insist on a closer relationship or to hold the Ten Commandments up as having a special place in the development of American law lacks historical support."

Americans United Executive Director Barry W. Lynn said Green's research proving that the Ten Commandments are not the foundation of the American legal system will be extremely useful. Green's scholarship, said Lynn, shows that there is no "secular purpose" for government display of the Ten Commandments.

Concluded Lynn. "There's an easy solution to this controversy: Let religious groups promote the Ten Commandments. The government should stay out of it."