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Religious or Historical Displays? Court to Rule on Commandments

February 16, 2005
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Are the Ten Commandments a historical document or a religious symbol? That’s one of the questions that will be before the U.S. Supreme Court when it hears two cases early next month on the public display of the Decalogue on government property. The central issue is whether states and municipalities can acknowledge the Ten Commandments as the root of American law without endorsing faiths that follow their teachings.

Several Jewish groups have weighed in on the cases, with most opposing displays that they feel endorse Judeo-Christian values — and even push a Protestant message over Jewish and Catholic interpretations of the Ten Commandments.

A coalition of Orthodox groups has taken an opposing tack, saying that religious symbols also can have secular meaning and that the Ten Commandments’ role in modern legal codes should be acknowledged.

The court’s decision is expected to have a great impact on the growing debate about the role of religion in government and society. Approval of commandment displays could lead to a proliferation of similar displays, while rejection could spark a backlash similar to what was seen, beginning in 2002, against the removal of “under God” from the Pledge of Allegiance.

“The cases pending have a larger meaning,” said Marc Stern, counsel for the American Jewish Congress. “They are viewed as part of the cultural war” and the question of “to what extent the government can recognize and pay homage to religion’s special status in society.”

The court is scheduled to hear both Van Orden v. Perry and McCreary County v. ACLU of Kentucky on March 2.

The Van Orden case concerns a Ten Commandments display situated between the Texas State Capitol and the Texas Supreme Court in Austin, donated by the Fraternal Order of Eagles. The display also has several religious symbols within it, including two Stars of David.

In McCreary County, a printed display of the Ten Commandments is one of nine documents adorning courthouse walls in two Kentucky counties, part of a display on “The Foundations of American Law and Government.”

In both cases, opponents argue that any display of the Ten Commandments is unconstitutional because it inherently means endorsing one religion over another by the choice of text, and slighting religions that don’t believe in the Decalogue.

Opponents also claim there is no secular purpose to a display of the Decalogue on government property.

Defenders claim the secular purpose is to acknowledge the Ten Commandments’ role as the basis of American law. Further, they say the display does not endorse religion but merely acknowledges it, similar to acts of ceremonial deism, and liken the displays to museums that allow religious symbols or works.

The two cases may seem similar, but the Supreme Court could rule that stand-alone displays of the Ten Commandments are unconstitutional while broader displays, like the one in Kentucky, are legal.

Indeed, the court invalidated a Kentucky law requiring the posting of the Ten Commandments in public schools in 1980, ruling that there was not sufficient secular cause for it. But it has allowed privately funded religious displays, such as Chanukah menorahs and nativity scenes, on religious property.

Both displays now before the court were government-funded.

Ironically, the Supreme Court’s own walls include a carving of Moses carrying the Ten Commandments, alongside carvings of Confucius and Mohammed and such historical figures as Caesar Augustus and Napoleon.

Jewish groups do not object to the Supreme Court display because it is seen as part of a broader, historical context that embraces non-religious as well as religious leaders.

Many Jewish groups traditionally have opposed any infringement on the separation of church and state, and have been wary about all but the most bland references to God in government.

A coalition of Jewish groups — including the Reform movement, the American Jewish Congress, the American Jewish Committee, the Jewish Council for Public Affairs and Hadassah — has filed a brief arguing that displays of the Ten Commandments inherently imply a specific perspective on the biblical story and therefore are sectarian statements.

“The selection was motivated not by a desire to reflect history,” Stern said. “It bespeaks an intention to get religion in there somehow, some way.”

The issue gets more complicated because Jews and Christians have fundamental differences about what belongs on the two stone tablets, and most public displays follow the Protestant tradition. The Jewish version of the Ten Commandments is made up of 13 sentences; Christian variations of the Decalogue include 17 sentences.

In the Jewish version, the first line is “I the Lord am your God who brought you out of the land of Egypt, the house of bondage.” That second phrase does not appear in the Christian text, and some Jews see its omission as a rejection of Jewish tenets — or, at least, an implicit endorsement of a particular religious tradition.

In a separate brief, the Anti-Defamation League said that by selecting specific wording for the displays, “government is proclaiming a message, not inviting a discussion.”

But a group of Orthodox organizations, under the auspices of the National Jewish Coalition on Law and Public Affairs, argues that the displays should not be disqualified just because they have religious content.

“It’s recognition that the Ten Commandments has a certain historical significance,” said Nathan Lewin, the brief’s author. “They may have been Judeo-Christian, but in Western civilizations they had a very important role to play.”

Orthodox groups traditionally have supported public displays of religion, believing Jewish assimilation is a larger threat than government support for Christianity.

All involved hope the cases will help clarify the line of acceptable displays of religious symbols and affirmations.

Last year, the court chose not to rule on the merits of the term “Under God” in the Pledge of Allegiance. Statements of ceremonial deism, such as “In God We Trust,” are seen as a generic recognition of God that incorporates the religious traditions of most faiths.

Many Jewish groups did not oppose the language, deeming it benign and encompassing most faiths’ religious traditions. The Anti-Defamation League was the only Jewish group to oppose the pledge reference, a reversal of previous statements on the issue.

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