TEN COMMANDMENTS ON DISPLAY: A Discussion on Law, Religion & Public Life

by Ron Sider

(EDITOR'S NOTE: Ron Sider recently participated in a panel sponored by Beeson Divinity School and Samford University School of Law on the topic, "Should Government Publicly Display the Ten Commandments?" This issue been much in the news in recent years. In Alabama, State Supreme Court Justice Roy Moore posted a huge stone monument with the Ten Commandments. In June of this year, the Supreme Court decided two cases – forbidding the posting in two Kentucky counties and permitting them in a different setting in Texas. The issue continues to stir controversy. Judge Moore was deposed, but he is now running for governor.  Here follows the presentation Sider made at the Beeson/Samford panel.)

I want to start with a brief clarification, then discuss a few of what I consider the strongest arguments for displaying the Ten Commandments and finally discuss some reasons (which I think are decisive) why government should not display the Ten Commandments.

First the clarification. We are not debating whether displaying or publicly displaying the Ten Commandments is constitutional. Individuals and churches and a host of other non-governmental groups have every right to publicly display the Ten Commandments. The only issue in question is whether it is constitutional for GOVERNMENT to do so.

I find five arguments IN FAVOR OF government publicly displaying the Ten Commandments to carry some weight even if they are not finally convincing.

First, our society obviously is in desperate need of moral teaching. A quick look at the widespread moral decay in our nation underlines the fact that our society desperately needs to be reminded of fundamental moral laws such as the Ten Commandments' prohibition of lying, murder, adultery and theft. Government, as well as the society as a whole, urgently needs a reversal of the widespread moral decay.

But just because societal well-being requires something does not mean that government is the right agency to promote it. As a Christian, I am certain that societal well-being is significantly advanced when large numbers of people embrace Jesus Christ as Lord and Savior and experience the transforming power of the Holy Spirit, who remakes their character so it conforms more and more to that of Christ. But that does not mean government should promote Christian evangelism and conversion.

A second plausible argument is that the Ten Commandments have made an important historical contribution to American law and therefore government rightly posts the Ten Commandments as a recognition of that historical contribution.

One must be careful, however, not to overstate this point. Penalties against perjury, murder and theft are part of virtually all legal systems, including very ancient ones not at all influenced by the Hebrews' Ten Commandments. American law against perjury, murder and theft comes from the English common law which in turn goes back to pre-Christian Germanic tribes whose law already prohibited perjury, murder and theft before they knew anything about the Ten Commandments.

A third plausible argument starts with the very important fact that one of the most crucial foundations of freedom and limited government is the belief that government is finally accountable to a transcendent moral law. I consider this a very, very important issue. Does not government posting of the Ten Commandments promote this belief by showing that government itself recognizes that it is accountable to a transcendent moral law grounded in God?

Again the concern is important, but the means are wrong. Nor is it necessary for government to officially declare that it is accountable to God in order for belief in that truth to be widespread and effective. The constitutional prohibition against government endorsing any religious belief in no way prohibits vast numbers of citizens, religious groups and politicians to publicly express their own religious conviction that all government is in fact accountable to transcendent moral law and to God, the source of that law. (One example is a president's reference to God in a presidential address.) If large numbers of individual citizens, including prominent politicians, regularly express and act upon that belief, society will enjoy the benefits of this crucial conviction without government itself asserting this truth.

A fourth plausible argument is that some secular people today are trying to remove all references to the role religion has played in shaping American history and we must stop them.

Again the concern is valid. For example, there has been a widespread attempt to reduce or eliminate the discussion of religious beliefs and events in the textbooks used in the public school. We have rightly insisted that the history books be accurate. But the mere fact that secularists are at work does not mean they are always wrong. We have to carefully examine each case.

A fifth, and I think the strongest, argument is that laid out vigorously by Justice Scalia in his scathing dissent from the Supreme Court's 5-4 rejection of the posting of the Ten Commandments in two Kentucky counties (Union of Kentucky et al, June 27, 2005). Scalia showed very clearly that historically the Congress has often passed laws that refer to God. The day after Congress proposed the First Amendment, the very same Congress officially asked the President to proclaim a day of Thanksgiving and Prayer to "Almighty God." Scalia is surely correct that historically the U.S. government did not think that explicit, official government references to God violated the First Amendment.

It is less clear, however, that we should draw the same conclusion today at a time when American citizens have many different religious views – from historic Christianity to Hindu polytheism to atheism. Scalia himself acknowledges that government acknowledgment of God cannot be "entirely nondenominational"  i.e., that government cannot publicly thank God "without contradicting the beliefs of some people," and Scalia concludes that the Establishment clause "permits this DISREGARD of polytheists and believers in unconcerned deities just as it permits the DISREGARD of devout atheists." [emphasis mine]

I think that conclusion is highly problematic. I think the Establishment clause means that official government activities should not normally include religious statements that support one particular religious view and reject another.

Next I turn to the arguments AGAINST the government displaying the Ten Commandments.

The non-establishment clause of the First Amendment clearly means that government must not advocate inherently religious beliefs and practices. Any casual reading of the Ten Commandments makes it perfectly clear that the explicit setting and the first four commandments are fundamentally, essentially religious. The setting for them all and the authority for them all is stated at the beginning. "I am the Lord your God who brought you out of the land of Egypt" (Exodus 20:2). The first few commandments prohibit polytheism, graven images of God, using God's name lightly and working on the Sabbath. Clearly the Ten Commandments explicitly endorse monotheism (thus rejecting, to name a few alternative religious beliefs, atheism, Hindu polytheism, and those Buddhist traditions which do not believe in a personal God). The Ten Commandments not only endorse a belief in God, they endorse specific beliefs about God that significant numbers of U.S. citizens reject. For government to post and thus endorse these specific religious statements is clearly to violate the non-establishment clause.

Second, the free-exercise clause does not give Christians the right, as Carl Esbeck writes, "to seize the levers of government and employ the machinery of state in praying one's prayers and expounding one's scriptures"

It does of course give Christians the right to publicly declare their beliefs with as large a public display of the Ten Commandments or any other part of the Bible that they want to erect on private property.

Third, when government displays a religious text, it thereby endorses that text unless it is explicit and clear that that is not the case. For example, when a government school teaches a class on the history of religion and includes explicit religious texts from several different religions, it is clear that the posting of the several religious texts on the school website is not to endorse any of them, but to advance the neutral purpose of students studying all of them. Similarly, the pictures of Moses and/or the two tablets that appear in the Supreme Court building clearly do not constitute an endorsement of the Ten Commandments but rather represents the celebration of law and lawgivers because they appear with many other famous historical promulgators of law.

On the other hand, to install a large monument of the Ten Commandments as Judge Moore did in Alabama or to organize a movement to have public schools display the Ten Commandments is to wrongly ask government to endorse what is a religious document.

At the heart of the meaning of the non-establishment clause is the demand that government not discriminate in any way against any of its citizens on the basis of their religious beliefs or lack thereof. For government to post (and thus endorse) a document that specifically endorses one set of religious beliefs that some citizens share and others reject is clearly to engage in discrimination and show disrespect for some citizens' beliefs. It thus runs the danger of promoting social conflict. Government should be neutral, not favor one religion over another. If we do not want government to promote someone else's religion, we should not ask it to promote ours. If we do not want the U.S. government to promote Hindu polytheism or atheism, we should not ask it to promote theism.

*  *  *

WHAT DO YOU THINK?

On Sunday, February 5, 2006, Christians and Jews from around this nation and world will celebrate Ten Commandments Day, sponsored by the Ten Commandments Commission, a group "founded to counter the secular agenda and help restore the Ten Commandments and Judeo-Christian values to their rightful place in our society." Go to http://www.tencommandmentsday.com and let us know where you stand on this issue.

 

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