June 12, 2005
Establishment Claus: Religion in the Public Square
by Guest Contributor
June 12, 2005 11:24 AM
Jason, Sean and I have all posted on issues of church and state recently, and Jed was nice enough to provide a fairly lengthy response in my comments section - which I appreciated. The point of blogging, after all, is the feedback.
I'm curious, in light of the widespread interest, what you all think of the two Ten Commandments cases Jason briefly mentioned. I think my read of current Establishment Clause jurisprudence is that they can stay up, although this area of law is so amorphous that it's pretty hard to tell. I'm also alright with that as a policy matter, but I'm sure there's a pretty broad variety of opinion here. (It's also a particularly easy area to disagree on, because the law is so vague).
Where do you all stand?
The mainstream legal opinion (or at least, my opinion) on state-sponsored Ten Commandments displays is that they are permissible when clearly and obviously part of a context of "historical stuff," just as a menorah is permissible when part of a context of "winter holiday stuff."
I wish I'd remembered the Van Orden case when I was at the State Capitol last month, so I could have walked around to see if the Texas Decalogue really did seem to be integrated into an overall historical presentation. Where exactly is the reference to Aztec prophets, for example, or any other mention of the Native American religions? The descriptions I've read of the various memorials make it sound like all the rest of them are honoring various groups, such as Confederate soldiers and pioneer women. In that context, where does a giant Ten Commandments monument fit in?
There's also the question of whether Gov. Perry really wants such a thing around while he's violating Thou Shalt Not Kill by OKing executions, or the legislature is ignoring the Honor Thy Mother and Father by cutting services for the elderly.
Well, 'Thou Shalt Not Kill' is actually a mistranslation of the Hebrew, so he doesn't have to worry too much about that one, but I'm with you on the second part. (The literal translation would be closer to 'Thou Shalt Not Murder,' which would explain why the ancient Hebrews were a pretty warlike people... or at least why they didn't feel like they were violating the Sixth Commandment while being warlike).
In this case, of course, the display's in history rather than comparative religion - I think the one you mentioned is the one that's got the Star-Spangled Banner and such up next to it, though I may have them mixed up.
The Texas monument is not part of any particular display. It is on the northwest section of the capitol grounds, and is a huge pink granite block. I was surprised when I walked by it, because I didn't expect something like that to be there.
It is certainly true that there are other statues and monuments around the capitol, but it does not seem to me that the Ten Commandments are part of a specific, larger monument about history. It's a free standing monument, and I don't recall anything being nearby.
I could be wrong about all that though since I haven't been down there in some months.