Ten Commandments on Display in Public Buildings

There are hundreds of monuments and plaques with the Ten Commandments on them scattered around the United States. Many have been posted by government; others have been posted by private groups with government sanction. In the 1950s and 1960s the Fraternal Order of the Eagles (FOE), with the financial backing of the movie producer Cecil B. DeMille, erected hundreds of Ten Commandments monuments throughout the nation, usually on public land. The FOE did this to combat juvenile delinquency on the theory that placing these monuments on courthouse lawns would help young kids avoid criminal behavior. DeMille used the monuments to promote his movie, The Ten Commandments, and sent the stars of the movie, Charlton Heston and Yul Brenner, to dedicate the monuments in various cities.

The issue of the posting of the Ten Commandments has been before the U.S. Supreme Court in three cases: Stone v. Graham (449 U.S. 39, 1981), McCreary County, Kentucky v. American Civil Liberties Union of Kentucky (125 S.Ct. 2722, 2005), and Van Orden v. Perry (125 S.Ct. 2854, 2005). In the first two cases the Court ordered the removal of Ten Commandments displays from public space. In the third case the court allowed a Ten Commandments monument to remain on a public space. In addition to these Supreme Court cases, there have been a number of lower court cases involving monuments and displays of the Ten Commandments.

In Stone v. Graham the Court summarily struck down a Kentucky statute that required the posting of the Ten Commandments in every classroom of every public school in the state. The copies of the Ten Commandments were purchased with private funds, but placed in public schools. In order to avoid the allegation that posting the Ten Commandments was an establishment of religion, the state placed below each plaque the following statement: ‘‘The secular application of the Ten Commandments is clearly seen in its adoption as the fundamental legal code of Western Civilization and the Common Law of the United States.’’ The state used the King James Bible translation of the Ten Commandments, which of course reflected Protestant theology.

In striking down this law the Supreme Court rejected Kentucky’s claims of posting the commandments as secular and also rejected the assertion that the Ten Commandments are in fact the basis of Western legal codes or the common law. In a per curium decision the Court held:

The pre-eminent purpose for posting the Ten Commandments on schoolroom walls is plainly religious in nature. The Ten Commandments are undeniably a sacred text in the Jewish and Christian faiths, and no legislative recitation of a supposed secular purpose can blind us to that fact. The Commandments do not confine themselves to arguably secular matters, such as honoring one’s parents, killing or murder, adultery, stealing, false witness, and covetousness. See Exodus 20: 12-17; Deuteronomy 5: 16-21. Rather, the first part of the Commandments concerns the religious duties of believers: worshipping the Lord God alone, avoiding idolatry, not using the Lord’s name in vain, and observing the Sabbath Day. See Exodus 20: 1-11; Deuteronomy 5:6- 15.

The Court noted that it would be permissible to teach about the Ten Commandments as part of a history, comparative religion, or ethics course in school but that posting the commandments amounted to an endorsement of them for religious purposes. The Court cited its decisions prohibiting prayer in public schools in summarily striking down the law. The Court did not order full arguments in the case because, for a majority of the justices, placing a religious text in a public school was obviously unconstitutional.

Justices Steward and Blackmun and Chief Justice Burger dissented, with a short statement, from the refusal of the Court to give the case a full hearing. It is not clear how they would have voted had there been a full hearing. The newest member of the Court at that time, Associate Justice William Rehnquist, wrote a longer opinion, essentially arguing that the Ten Commandments plaque did not violate the Constitution.

In 2005, the Court heard two more Ten Commandments cases. By this time only Chief Justice Rehnquist still remained from the Court that decided Stone v. Graham, and he was not chief justice. The result was a somewhat confusing pair of decisions. In McCreary County the Court considered the actions of county executives in Kentucky who, as the opinion of the Court noted,

put up in their respective courthouses large, gold-framed copies of an abridged text of the King James version of the Ten Commandments, including a citation to the Book of Exodus. In McCreary County, the placement of the Commandments responded to an order of the county legislative body requiring ‘‘the display [to] be posted in a very high traffic area of the courthouse.’’

The Court also noted that the impetus for these displays was a resolution of the state legislature, ‘‘in remembrance and honor of Jesus Christ, the Prince of Ethics.’’ While the displays also included various patriotic documents, such as the Declaration of Independence and the preamble to the Kentucky Constitution, these documents were smaller in size than the Ten Commandments, and not central to the displays. By a five-to-four vote, the Court ordered the removal of the Kentucky displays.

On the same day the Court decided Van Orden v. Perry, which involved an FOE Ten Commandments monument on the grounds of the Texas State Legislature. In this case Justice Stephen Breyer changed his vote, to uphold the monument. The justice noted that the Texas monument was surrounded by numerous other statues and monuments and that it was not ‘‘sacred.’’ He pointed out that, in addition to the text of the Ten Commandments, the Texas monument had various symbols, such as a Jewish star, a Catholic Chi-Rho, a pyramid with an eye in it, and an American eagle. Justice Breyer found this to be a ‘‘borderline case’’ but allowed the monument to remain because of the circumstances where it is found— surrounded by other monuments (but it really is not) and not in any way ‘‘sacred.’’ The other four justices in the majority—Chief Justice Rehnquist and Justices Kennedy, Scalia, and Thomas—accepted the argument that the Ten Commandments did not offend the Establishment Clause because it was the source of American law.

The four justices who joined Justice Breyer in Van Orden ignored the fact that Protestants, Catholics, orthodox Christians, and Jews all use different organizational schemes and translations for the Ten Commandments. For example, the Protestant second commandment prohibits ‘‘graven images’’ while the Roman Catholic first commandment prohibits ‘‘idols.’’ Similarly, the Catholic fifth commandment says you shall not ‘‘kill,’’ while the Jewish sixth commandment says you shall not ‘‘murder.’’ The King James Bible, which was used for the monuments in McCreary and Van Orden, also used the term ‘‘kill,’’ but other modern Protestant translations used the word ‘‘murder.’’

Similar differences occur throughout the commandments as they are organized and translated by different faiths. Thus, any Ten Commandments display must in effect endorse one faith or one religion and reject others. In addition, of course, the majority in Van Orden ignored the fact that an increasing number of Americans do not accept the Old Testament as a sacred text and thus for them the Ten Commandments have no religious value. The majority similarly ignored overwhelming evidence that the commandments are not the foundation of American law or common law, and that most of them could not be enacted into law under the U.S. Constitution. Indeed, many of the commandments are simply inapplicable to American law. It is hard to imagine, for example, how a law could require someone to ‘‘honor your father and mother’’ or how a law could prohibit someone from ‘‘coveting your neighbor’s house.’’

The push for public displays of the Ten Commandments comes from fundamentalist religious groups and leaders who want the government to endorse their religious values. Such displays tend to polarize communities in an increasingly religiously diverse society.

PAUL FINKELMAN

References and Further Reading

• Finkelman, Paul, The Ten Commandments on the Courthouse Lawn and Elsewhere, Fordham Law Review 73 (2005): 1477–1520.