By John Furguson & David Hudson
Illustration By Sally Wern Comport
With a surge toward a violent culture, many things must happen to redirect our society. I understand that simply posting the Ten Commandments will not instantly change the moral character of our nation. However, allowing states the freedom to decide these matters is an important step in promoting morality and religious freedom in our society.-REP. ROBERT ADERHOLT (R. Ala.), sponsor of the Ten Commandments Defense Act of 2002. 
We'd all be better off if members of Congress started following the commandments and stopped using them for crass political purposes.-BARRY LYNN, Americans United for Separation of Church and State.
A divisive battle in the culture war over religion in public life concerns the display of the Ten Commandments on public property. The firing lines in this conflict include public interest groups, state and federal legislators, and even judges with different understandings of the establishment clause. The dispute has gained momentum after the Columbine High School and September 11 tragedies.
On February 6 Representative Brian Kerns introduced the Ten Commandments Public Display Resolution of 2002,1 which requires the prominent display of the Ten Commandments in the chambers of the House of Representatives and the Senate. Then in March, Representative Robert Aderholt followed suit by reintroducing his Ten Commandments Defense Act.2 This measure would empower state and local governments "to display the Ten Commandments" on public property. Representative Aderholt and others have championed such legislation since 1997, in the wake of the Judge Roy Moore controversy in Alabama.3
State Legislation
At the state level, representatives introduce Ten Commandments legislation at an even greater pace. Because of adverse court decisions, state bills focus on "historical documents" legislation. These measures call for the public display of the Ten Commandments alongside other important historical documents.
Examples include a measure in South Carolina that would allow the posting of the Ten Commandments on state-owned property, alongside the Magna Carta, the Declaration of Independence, and the U.S. Constitution.4 North Dakota passed a bill last year allowing schools to post the Ten Commandments as part of a larger display of religious and historical documents.5 Similar measures have been introduced in Alabama, Georgia, Michigan, Missouri, Mississippi, New York, Oklahoma, Pennsylvania, Tennessee, and Virginia.
Court Cases
As active as the legislative branch may be in this area, the judiciary bears the brunt of resolving the conflicts they create. Unfortunately, the U.S. Supreme Court declined to review two hotly contested cases from the state of Indiana, thus failing to provide clear answers for lower courts. O'Bannon v. Indiana Civil Liberties Union6 in 2001 and City of Elkhart v. Books7 in 2001 were both decided by a three-judge panel of the Seventh Circuit. In both instances the panel ruled 2-1 that a Ten Commandments monument violated the establishment clause.
The refusal by the Supreme Court to hear these cases was not without controversy. Three justices-Chief Justice William Rehnquist, Antonin Scalia, and Clarence Thomas-voted to review the Elkhart decision, and took the unconventional action of writing a dissent to the denial of review, stating that the marker "simply reflects the Ten Commandments' role in the development of the legal system."8
Split in the Lower Courts
Even as the Supreme Court declines to hear these cases, lower courts continue to issue rulings. In March a federal district court in Pennsylvania ruled in Freethought Society v. Chester County that government officials could not maintain a Ten Commandments plaque at the local courthouse, as it was found to be primarily a religious document.9 The court went so far as to count the number of words in the Ten Commandments. According to the court, "no less than 241 words are explicitly religious, while only 84 could be fairly regarding as conveying a secular, moral message." Federal judges in Nebraska and Tennessee have also recently ruled that Ten Commandments monuments must be removed from government buildings.
While most courts have struck down displays of the Decalogue, other courts disagree. In Anderson v. Salt Lake City Corporation, the Fifth Circuit upheld the constitutionality of a "passive monument" of the Ten Commandments on courthouse grounds.10 The court found that the Decalogue "has substantial secular attributes" and is "primarily secular." Also, in 1995 the Colorado Supreme Court ruled 4-3 in State of Colorado v. Freedom From Religion Foundation, Inc., that a Ten Commandments monument in a public park was constitutional.11 The majority noted that the monument was displayed in the context of many other secular symbols, representing "a cornucopia of different cultural events and experiences that make up the history of our nation and reflect upon a history that is Colorado."12
Controlling Authority
This is not to say the Supreme Court has never addressed the Ten Commandments controversy. In 1980 the High Court waded into the troubled waters with its decision in Stone v. Graham.13 The High Court struck down a Kentucky law requiring all public schools to post copies of the Ten Commandments in every classroom. The majority wrote "the preeminent purpose for posting the Ten Commandments on schoolroom walls is plainly religious in nature."14 This requires any use of the Ten Commandments to be part of the school's academic curriculum, in which students may be taught about the Decalogue. It forbids any devotional use of this portion of Scripture.
At least with regard to the disputes over the Ten Commandments in public schools, Stone v. Graham provides clear guidelines. However, when courts analyze the display of the Ten Commandments on public property outside of schools, they often look for other precedent. These courts say that Stone v. Graham is confined to the impressionable young minds of young students.
As the High Court has not definitively ruled on posting the Ten Commandments in public buildings outside of schools, lower courts must look other places for answers to this establishment clause question. For purposes of government displays of religious symbols, many courts have adopted Justice Sandra Day O'Connor's "endorsement" test, developed in her concurring opinion in the crèche display case Lynch v. Donnelly.15 This test asks whether the governmental act has "the purpose or effect of endorsing religion." Courts determine this primary effect by focusing on the content and the context in which the religious symbol appears. Courts using this method of analysis have found displays to be allowed in some circumstances (especially when the Ten Commandments are part of a larger display) and other times have found displays to be in violation of the Constitution.
As political and legal battles continue to rage over displays of the Ten Commandments on public property, certain recurring questions remain to be answered. Do these displays constitute an impermissible endorsement of religion or merely pay respect to the most important historical and legal document of Western civilization? Even if a constitutional means to post the commandments can be found, should the government do so?
Proponents argue that the Ten Commandments represent a shared moral code that reinforces important values, particularly among schoolchildren. They contend that the Decalogue includes "Thou shalt not kill," "Thou shalt not steal," and "Thou shalt not commit adultery." As such, they form the basis of the shared civic code in the Western world. They also argue that even the religious portions of the commandments should not be constitutionally problematic, as they are also part of the shared religious background of the West.
While initiatives to post the Ten Commandments are often proposed with the best of intentions, these attempts are misguided for several reasons. Barry Lynn of Americans United has even created a top-10 list of reasons for not posting the Decalogue in public places. Yet two reasons overshadow all the rest: the Ten Commandments are not a common civic code that everyone can agree on, and having the government post the Ten Commandments is bad for religion.
While posting proponents argue that the Ten Commandments are just a civic, moral code that forms the foundation of Western civil law, admonitions to "have no other gods before Me" and to "not make for yourself an idol" seem to contradict this view. Known by some as the first tablet, these commandments are specifically religious in nature. As U.S. District Judge Stewart Dalzell points out, more than three fourths of the words in the Ten Commandments directly address religious issues.16
It is not surprising that various groups differ theologically in their understanding of this portion of Scripture. Roman Catholics, evangelical Protestants, and Jewish groups all have different formulations of the commandments. While some argue these are minor points, these differences have led to political conflict and even violence in this country. The controversy over which version of the Ten Commandments the government should use has stretched intermittently over the past 160 years in America alone. In the Bible wars of the 1840s and 1850s Catholics and Protestants fought over whether the Catholic or Protestant version of the Bible should be used for daily Bible readings in the public schools. The rancor over this issue led to violence, mobs, riots, and even the deaths of several people.
In 1859, for example, Thomas Wall, a student at Eliot School in Boston, refused to recite the Protestant version of the Ten Commandments, at the instruction of both his father and his priest. Other Catholic students in the school had already received similar instruction, and when they failed to comply with teachers' requests to recite the Protestant version of the Ten Commandments, they were whipped. When Wall refused, he was turned over to the assistant principal, who placed him before the class, informing them that young Wall would be beaten with a rattan cane across the hands until he repeated the Protestant version of the Ten Commandments. After a half hour of beatings, his hands laid open and bleeding, Wall relented.
Such anti-Catholic sentiments remain. Many Web sites can be found that point to the ordering of the Ten Commandments as proof of Catholic error and Protestant superiority. In particular, the omission from the Catholic version of the prohibition against graven images that is found in Protestant versions has led to charges of idolatry by some. This charge is based on deeply held theological ideas about use of iconography and similarly fundamental differences between these two Christian groups.
This does not begin to mention the differences between Christian and Jewish versions of the Ten Commandments. The Jewish version of the first commandment is traditionally "I am the Lord your God, who brought you out of the land of Egypt, out of the house of slavery." Many Christian groups do not consider this a commandment at all, as there is not imperative (though Jews do not always perceive this as a group of commandments, preferring the Hebrew, which refers to the 10 words).
This creates a conundrum for those who wish to post the Ten Commandments on public buildings, for they must first pick which version will be posted. The solution to these variations in ordering involves either picking one faith group's version or finding some way of homogenizing the text. Obviously, picking one version over others will indicate a preference among religions. Even for the most devout proponents of displaying the Decalogue, such preferences should cause unease. The other option, which, sadly, has been proposed by some lawmakers, invites the government to alter the text of sacred Scripture to form some homogenized amalgam. In a nation as religiously and culturally diverse as America is today, any such solution is bound to lead to dissension and political conflict. Modern establishment clause jurisprudence is understood to keep government out of such controversies, thus providing the greatest freedom for all people.
Bad for Religion
The issue of which version of the Ten Commandments to post is divisive in the body politic because it causes the government to make preferences among religions. But political coopting of the Ten Commandments should be deeply offensive to religious people for another reason: it is harmful to religion. Allowing government to use sacred Scriptures for political purposes harms religion in two ways: it makes religious people lazy, and it taints religion in the eyes of the rest of society.
If the Ten Commandments are to play a part in changing American culture, it will not be because judges, legislators, and schoolteachers place them on the wall. Religious people should not look to the government to assume the responsibility of providing salt and light to the world. If people are really serious about changing the moral climate in this country, they should start by posting the Ten Commandments in their homes or, better yet, by living lives that comport with the commandments. Living a moral life will be a far better stimulant to the moral common weal than any plaque posted on a courthouse wall.
One of the most damaging aspects of posting the Ten Commandments is that it makes religion (and religious Scripture) into the handmaiden of the state. Politicians must not be allowed to use this controversy as a means of achieving personal political goals. The use of religion by the government reduces religion's prophetic position in society. How can religion adequately criticize and correct flaws in government and society when it is merely another appendage of the state? Religious advocates of posting the Decalogue should mind the words of Martin Luther King, Jr.: "The church must be reminded that it is not the master or the servant of the state, but rather the conscience of the state. 
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1 H. CON. RES. 315.
2 H.R. 3895.
3 As a circuit court judge, Moore had refused to remove a Ten Commandments display from his courtroom. Campaigning that he was "still fighting for the Ten Commandments," Moore later won a seat on the Alabama Supreme Court, eventually becoming the chief justice. Then last summer, without consulting or notifying his colleagues on the bench, Moore placed a 5,000-pound Ten Commandments monument in the rotunda of the state judicial building.
4 S.C. H.B. 4409.
5 N.D. Cent. Code, Section 15.1-06-17.1 (2001).
6 Indiana Civil Liberties Union v O'Bannon, 259 F.3d 766 (7th Cir. 2001).
7 Books v. City of Elkhart, 235 F.3d 292 (7th Cir. 2000).
8 City of Elkhart v. Books (00-1407).
9 Freethought Society v. Chester County, 2002 U.S. Dist. LEXIS 3588 (E.D. Pa. Mar. 6, 2002).
10 475 F.2d 29 (5th Cir. 1973).
11 898 P.2d 1013 (Colo. 1995).
12 Ibid, p. 1025.
13 449 U.S. 39 (1980).
14 Ibid, p. 41.
15 465 U.S. 658 (1984).
16 Freethought Society, p 18. ("Thus, discerning the 'purpose' from the face of the tablet, no less than 241 words are explicitly religious, while only 84 could be fairly regarded as conveying a secular, moral message.")
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John Ferguson and David Hudson are religious freedom attorneys with the First Amendment Center, Nashville, Tennessee.
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