BLACKSBURG, VA., AND WASHINGTON — The Supreme Court heard arguments earlier this month in a potentially explosive set of cases that will determine whether the Ten Commandments can be displayed in or around government buildings. At issue is whether the displays constitute a government endorsement of religion or simply a recognition of the role that the Ten Commandments have played in American legal history.
Proponents of the public display of this code claim that it's the basis of the American legal order, and its placement in or near courts is a legitimate recognition of religion's role in the formation of law. Yet the founding legal document of the nation, the Constitution, mentions neither the Commandments nor God. It clearly stipulates that the nation's legal framework expresses the will of "We the People." When, in the First Amendment, the Constitution mentions religion, it is only to limit government's control over religion - forbidding the establishment of religion or the regulation of its exercise.
Those who advocate such public displays nonetheless maintain that the deeply religious attitude of the Founders can be observed in other places. They rightfully point out that the Declaration of Independence makes a number of references to God. But the declaration doesn't maintain that God has handed Americans their laws. It states that "all men are created equal, that they are endowed by their Creator with certain unalienable Rights," and that this is "self-evident." That is, the declaration holds that we know by natural reason that we have rights; it is not necessary to receive a historical revelation to know that God has endowed all people with them. Human beings may derive their rights from God, but humans are charged with the task of establishing governments, and this process grounds the legal legitimacy of those rights.
It's clear that the founding documents of our government support an understanding of legislation and political legitimacy quite different from that supposed by the Ten Commandments and Bible. The Declaration of Independence and the Constitution endorse a political order based on human freedom such that we can govern ourselves. The Commandments, however, are divinely ordained mandates. Rather than being the foundation of our democratic political order, they represent a very different - possibly incompatible - way of thinking about authority and law. So it's far from clear that the Commandments are, as Kentucky has claimed, "the fundamental legal code of Western Civilization and the Common Law of the United States."
Supporters of the displays simply assert the claim "that the Ten Commandments influenced American law and government can hardly be questioned" (from petitioners' brief, McCreary County, Kentucky v. ACLU of Kentucky). But such declarations do not constitute evidence.
For the most part, supporters don't regard the weakness of their position as a problem. Their strategy is to downplay the explicitly religious message of the Commandments. The displays, they argue, represent the government's "acknowledgment" of the Commandments' role in the development of our legal system, and as such aren't an endorsement of their particular religious principles or commitments. These displays therefore have a clear secular purpose that falls within the accepted interpretation of the First Amendment.
However, to argue that a public display of the Ten Commandments can serve a merely secular purpose is to undercut their sanctity. It is to ignore the very reason people regard them as sacred and want them displayed - and read and lived by. The Ten Commandments are not exhibited simply to provide a history lesson to those who have business with the court.
Justice Antonin Scalia recognized this during oral arguments when he chastised the lawyer defending the displays: "It's not a secular message.... 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 law is, and our institutions come, from God." He didn't stop there. The Ten Commandments, he claimed, are "a symbol of the fact that government ... derives its authority from God. And that is, it seems to me, an appropriate symbol to be on State grounds."
If Justice Scalia really maintains these views, then the Commandments ought to be displayed on account of their immanent religious message, not as history, because they make a claim regarding how government derives its very authority. Scalia has also held - in a statement at the University of Chicago - that government's moral authority ultimately rests on God (and, by implication, not on the people), citing Romans 13 as his proof text. If that is the case, however, Scalia might want to amend the Preamble to the Constitution to reflect this, because the purpose and structure of a divinely ordained government would be much different from our political tradition.
At least Scalia is forthright. Many religious groups argue for "acknowledgment" of the Commandments with a backdoor strategy, claiming that their sacred text has secular meaning as a historical document.
But doesn't such a "vain" secularization of this sacred text transgress, not only the proper basis of our legal system, but the Commandments themselves?
• Jerome Eric Copulsky is assistant professor and director of Judaic Studies at Virginia Tech. Michael Jon Kessler is assistant dean for strategic planning and faculty development in the College at Georgetown University. This article first appeared in 'Sightings,' a free e-mail publication of the Martin Marty Center at the University of Chicago Divinity School.