The Court and the Commandments

Excerpts from today's arguments:

Justice Sandra Day O'Connor: It's so hard to draw that line. If the legislature can open its own sessions attended by the public with a prayer, you say it cannot, in the same building, display the Ten Commandments.

Chemerinsky: That's right, because the message from the government is quite different. The message with legislative prayers, as this Court found in Chambers v. Marsh, is a recognition of a long historical practice. But when it comes to the Ten Commandments, it really is different than even a legislative prayer. This declares not only there is a God, but that God has proclaimed rules for behavior. The Ten Commandments come from sacred texts.

So true. In fact, there's never really been a historical practice of displaying the Ten Commandments in government buildings. One of the displays in question, for example, was donated to the State of Texas by Cecille B. DeMille as a way to promote his movie, The Ten Commandments. But the behavioral point is a good one too. While the vague prayer sessions that usually start legislative proceedings, as well as the proclamation before any Supreme Court session, don't really endorse any religion, or religion at all, simply the existence of God. The Ten Commandments are a lot more specific.

Justice John Paul Stevens: Would it equally be permissible to have a crucifix of the same size in the same location on the Capitol grounds?

Texas Attorney General Greg Abbott: I seriously question whether or not a crucifix would be constitutionally acceptable in that same location, and for the very same reasons which I'm articulating why the Ten Commandments would be acceptable in this location. The crucifix is not like the Ten Commandments in that it's not an historically recognized symbol of law. It doesn't send a secular message to all the people, regardless of whether they are believers or not believers of the important role the Ten Commandments have played in the development of law.

Justice Scalia: It's not a secular message. I mean, if you're watering it down to say that the only reason it's OK is it sends nothing but a secular message, I can't agree with you. I think the message it sends is that our institutions come from God. And if you don't think it conveys that message, I just think you're kidding yourself.

Again, the Ten Commandments are not a "historically recognized symbol of law" in the United States. Show me in the Declaration of Independence, or in the Constitution, the part that references the Ten Commandments. Those documents purposely distance themselves from the Ten Commandments. Remember that the original draft of the Declaration of Independence read "we hold these truths to be sacred" and it was Benjamin Franklin who convinced Jefferson to change it to self-evident to distance the new republic from religion, which they thought wasn't too far off from divine right and tyranny.