November 8, 2004
Private: Guest Blogger: Ten Commandments Monuments Violate First Amendment
by Paul Finkelman, Chapman Distinguished Professor, University of Tulsa College of Law
Three years ago Alabama's Chief Justice Roy Moore made headlines with the 5,500 pound Ten Commandments Monument he placed in the rotunda of the state Supreme Court Building. The U.S. District Court ordered the monument removed. Moore refused, appealed, lost all his appeals, and still refused. The rest of the Justices then removed Moore from the Court and the monument from their building. But, the issue of the Ten Commandments in public space remains on the table. The U.S. Supreme Court has just accepted two cases on the subject.
At first glance, the constitutionality - or rather the unconstitutionality - of these monuments seems to be almost too obvious to require much thought, litigation, or even analysis. The Ten Commandments is clearly religious. The commandments are found in two places in the Bible, Exodus 20 and Deuteronomy 5. For Jews the commandments (known in Judaism as the "Ten Words") are both a statement of faith and a declaration of rules or laws. For Christians they are a statement of rules. For most Christians and most Jews in the United States they have come to symbolize Biblical law. Thus, the commandments are clearly religious and sectarian. They are important to Jews and Christians. On the other hand, the commandments have no place at all in Hinduism, Buddhism, Toaism, or other non-western faiths. Moslems consider the Jewish Bible to be a holy text, and thus the Ten Commandments may have some religious value, but they are clearly not central to the faith.
Furthermore, the jurisprudence on the public display of the Ten Commandments seems clear. In Stone v. Graham, the Court held that posting the Ten Commandments in a public school violated the establishment clause. In the twenty-five years since that case the Court has favorably cited Stone in a number of cases and given no hint that it might be permissible to put the Ten Commandments on public property
Despite what would seem to be the obvious establishment clause violation from these monuments, supporters of public displays of the Ten Commandments argue, among other positions, that these monuments are religiously "neutral, not in effect sectarian and thus should be permitted.
This argument does not hold up to careful examination. The Commandments are sectarian. They are about religion. Moreover they cannot be "non-denominational." This is because major religious groups have different versions of the Ten Commandments. Jews, Catholics, most Protestants, and Lutherans all have different numbering systems and different translations. For example, Catholics and most Protestants translate one of the commandments as "You shall not kill." Jews and Protestants using more modern translations of the bible use the language "You shall not murder." Anyone who has taken first year criminal law knows there is a big difference between killing and murdering. Catholic translations prohibit worshipping "idols" while Jews and most Protestants prohibit making (not just worshipping, but making) "carved" or "graven" images. The differences are obvious as are the theological implications. If a government entity puts up a Ten Commandments monument that bans "graven images" a Catholic might logically conclude that her faith was under assault.
The numbering system is also different. For Jews the first commandment is "I the Lord am your God who brought you out of the land of Egypt, the house of bondage." This is a commandment for Jews, the First Commandment. For Christians this is a preface, a preamble, and not a commandment. For most Protestants the second commandment is a simple statement: "Thou shall not make to thyself any graven images." Catholics do not consider this a separate commandment, but rather it is part of the Catholic "first commandment" and the Catholics as I have noted, do not use the term "graven image" but rather use the term idols. All of the Ten Commandments monuments have this language as the Second Commandment, thus endorsing a Protestant version of the Commandments. The Seventh Commandment for Jews and most Protestants is a prohibition on adultery; the Seventh Commandment for Catholics and Lutherans is a prohibition on stealing. Clearly, when a monument lists the commandments, the monument takes a stand that is theological and sectarian. When on public property, this violates the First Amendment.
Professor Finkelman was an expert witness in the Alabama Ten Commandments Monument Case in 2001.