Ten Commandments Fever

Decalogue Advocates Turn Up The Heat With Legislation In Congress, State Legislatures

When most Americans read the First Amendment, they see a wall of separation between church and state that has protected both institutions for over two centuries. When Rep. Robert Aderholt (R-Ala.) sees the Constitution's guarantee of religious liberty, he sees a barrier to freedom that he believes needs fixing.

"For too long, government has attempted to censor expression of religion," Aderholt said in March. "Discrimination against religion under the guise of separation of church and state needs to end."

To rectify this perceived injustice, Aderholt has developed a plan to change federal law to allow promotion of religion on public property from coast to coast.

On March 7, Aderholt unveiled the "Ten Commandments Defense Act," a bill that would allow government posting of the Decalogue in all public buildings.

"The Ten Commandments represent the very cornerstone of the values this nation was built upon, and the basis of so much of our legal system here in America," Aderholt said. "Do not kill or steal, obey your parents, do not commit adultery. Who can argue with these important rules for any functioning society?" He added that his legislation is intended to "clarify the First Amendment."

Aderholt's proposal to advance the Commandments, offered in spite of federal court rulings mandating official neutrality on religion, is just the tip of the iceberg. From city halls to state legislatures to Congress, proponents of government-sponsored religious displays are participating in a religious crusade that seeks political endorsement of their faith on a grand and unprecedented scale.

The Ten Commandments Defense Act is easily the highest profile of all the efforts. The legislation, labeled H.R. 3895 in the House of Representatives, would ignore court precedents and permit display of the Decalogue "on or within" any public building, which would include public schools, courthouses and municipal buildings.

Aderholt has said his plan is consistent with the First Amendment.

"[The bill] does not violate the Establishment Clause of the Constitution," Aderholt said in press materials distributed in February. "The Ten Commandments do not represent one single religion in fact they are tenets of Judaism, Islam and Christianity."

Critics have been quick to point out that this argument is fundamentally flawed. The Supreme Court has repeatedly said that constitutional law prohibits government from supporting religion generally or favoring one tradition over another. Moreover, Aderholt's assertion that the Commandments served as the basis for American law has been rejected and debunked by historians, constitutional scholars and legal experts.

With Aderholt's legal and historical analyses predicated on fallacies, many believe his plan is on shaky footing.

Americans United for Separation of Church and State said that the Alabama lawmaker's scheme should be rejected for several reasons.

"Aderholt isn't Moses, and Capitol Hill isn't Mt. Sinai," said the Rev. Barry W. Lynn, executive director of Americans United. "Americans don't need politicians giving us instruction about religion. We'd all be better off if members of Congress started following the Commandments and stopped using them for crass political purposes."

Lynn noted that Aderholt's plan to have political imprimatur for a religious code is only part of what makes the Ten Commandments Defense Act controversial.

While most of the attention has been focused on the religious elements of the legislation, the bill also takes the remarkable step of telling the judicial branch how to rule on future legal cases on this issue. In short, Aderholt's scheme orders the courts to rule that state-sponsored religious displays are consistent with the First Amendment.

AU's Lynn dismissed the Alabama congressman's legal approach as bordering on ridiculous.

"Aderholt is taking a reckless and radical approach to constitutional law," said Lynn. "Congress can't tell the courts how to rule on cases. Anyone who's taken a high school civics class recognizes the principle of the 'separation of powers' between branches of government. Samford Law School should call Aderholt's office and ask for its diploma back."

Aderholt approach is highly unorthodox, and without a basis in American law. Most citizens understand that different branches of the federal government have unique responsibilities Congress passes laws, the president enforces laws and the courts interpret the law. Aderholt, however, has said he believes Congress should have an "equal and independent authority" to interpret the Constitution.

During an interview with the Christian Broadcasting Network, Aderholt said plainly that the Supreme Court should not always be the final arbiter of the Constitution. He asserted, "[W]e would make the argument, the Supreme Court does not always have the final authority over the interpretation of the Constitution."

As a practical matter, this provision of the bill would severely limit the power of the federal judiciary if the legislation were passed. For example, if a public school erected a Ten Commandments monument in the school's lobby, and local parents sued the school in federal court, the judge in the case would be stripped of the authority to decide whether the display was unconstitutional.

The issue of government approval of the Decalogue has been a concern for Aderholt since he was elected.

In 1997, during his first year in office, Aderholt took note of the legal challenges facing Judge Roy Moore after the controversial jurist posted the Commandments in his Alabama courtroom. Aderholt reacted by introducing a House resolution endorsing the display of the Ten Commandments in all government buildings.

A year later, Aderholt sponsored the Ten Commandments Defense Act for the first time, but the bill went nowhere. This time may be different.

H.R. 3895 was introduced in the House with the support of 59 co-sponsors, including some of the most powerful lawmakers in Congress. Among the bill's supporters are House Majority Leader Dick Armey (R-Texas) and House Majority Whip Tom DeLay (R-Texas), as well as high-profile Republicans such as Reps. Bob Barr (R-Ga.) and Ernest Istook (R-Okla.). With this line-up, and others preparing to add their names to the growing list, Aderholt may have the political support necessary to get the bill moving through the legislative process.

While Aderholt has been at this for years, Rep. Brian Kerns (R-Ind.) is making his first foray onto the church-state battlefield with a Commandments project of his own.

In addition to supporting the Ten Commandments Defense Act, Kerns is sponsoring H.Con.Res. 315, a measure to have the Ten Commandments posted in the chambers of the U.S. House and Senate.

Kerns told Family News In Focus, a project of James Dobson's Focus on the Family, that the Commandments are important and should therefore receive government support at the highest levels including display in both congressional chambers.

"I think it's the right thing to do," Kerns said. "We're a nation founded under God, and I think it's appropriate and high time that we move forward with this piece of legislation."

Kerns has already sent correspondence to each of his fellow lawmakers in the House, urging them to join his effort. In the "Dear Colleague" letter, Kerns said the religious rules "have had a significant impact on the development of the legal principles of Western Civilization," and added, "Congress should set an example for the rest of the nation to follow."

Political prospects for Kerns' bill are not as promising as Aderholt's. By mid-March, over a month after being introduced, the scheme had garnered the support of only 10 co-sponsors.

While the debate over political sanction for religious documents will likely continue in Congress through the summer, the same dispute is even more common in state capitals.

According to research compiled by Americans United's Legislative Department, nine state legislatures have considered or will consider legislation on the issue of government approval for Ten Commandments displays.

Lawmakers in Georgia, Virginia and South Carolina have introduced measures to post the Decalogue in public schools, while Oklahoma and Tennessee have bills pending that would display the religious code in all public buildings. Two states Michigan, Mississippi have multiple Commandments proposals in their legislatures. (Another state, Pennsylvania, has a bill pending that would endorse the display of Commandments in the Allegheny County Courthouse, which is fighting a lawsuit filed by Americans United.)

As is often the case with church-state debates, Alabama is in a league of its own. Not only are legislators prepared to pass a bill in both chambers that would require all state schools to display the Commandments, nearly identical to a Kentucky plan already struck down by the U.S. Supreme Court, but state lawmakers are also considering amending the Alabama Constitution on the issue.

For months, members of the Alabama House and Senate have debated the amendment, which would allow the Commandments to be displayed in any public building. This would satisfy those who wish to bring religion to public schools as well as those offering support to the religious monument in the Alabama Judicial Building brought by Roy Moore.

Supporters of the amendment drive appear to recognize the plan's conflict with existing law, but they've decided to proceed nevertheless. Rep. Ken Guin (D-Carbon Hill), chairman of the House Elections Committee, for example, is well aware of the Constitution.

"I still think this bill is unconstitutional, but the members of the legislature want an opportunity to vote on it, and I'm not going to stand in the way of the members voting," Guin told the Associated Press after voting for the bill in January.

Even Dean Young, executive director of the Christian Family Association and now a candidate for Alabama's secretary of state, knows the Supreme Court said that school religious displays are unconstitutional in 1980's Stone v. Graham. Young, however, remains optimistic about his chances in court because, as he told the AP, "The Supreme Court is much more conservative now."

The composition of the high court's justices may be different than it was 20 years ago, but federal courts continue to reject state-sponsored religious displays at the same pace. In fact, recent court rulings on this issue will offer cold comfort to those who seeking judicial support for their religious movement.

On March 7, a federal judge in Pennsylvania ordered the state to remove a bronze Ten Commandments display from an outside wall of the Chester County Courthouse near Philadelphia. The display, which was erected 82 years ago, featured the Protestant version of the religious text.

"The tablet's necessary effect on those who see it is to endorse or advance the unique importance of this predominantly religious text for mainline Protestantism," U.S. District Judge Stewart Dalzell wrote in his ruling.

Outside the legal arena, the Chester County dispute demonstrates how divisive these religious displays can be, and the kind of strain it puts on diverse religious communities.

Margaret Downey, founder and president of the Freethought Society of Greater Philadelphia, helped file the case, believing that the display was an obvious violation of the First Amendment. While the federal judge agreed and ruled in her favor, some of her neighbors apparently felt differently. Within 24 hours of Dalzell's ruling, Downey received threatening messages via phone and email, including one call from a man who left an obscenity-laced message with a "You're going to get it" warning. Police are investigating.

Stefan Presser, legal director of the American Civil Liberties Union in Philadelphia, which helped file Downey's lawsuit, told the Philadelphia Inquirer the threats make evident the problem inherent in government interference with religion.

"People don't threaten to hurt other people over secular documents," Presser said.

In a similar case, a federal judge in Nebraska has ruled that a Commandments monument on display in a Plattsmouth public park runs afoul of the First Amendment.

In February, U.S. District Judge Richard Kopf said the religious display, which was unveiled 36 years ago and features two stars of David on the sides of the Commandments monument, must be removed from public property.

Officials from the Plattsmouth City Council, which has aggressively defended the display, argued that the religious monument was supported by a majority of the community. Kopf found this unpersuasive.

"The city has not presented any evidence that negates the overwhelming religious nature of the monument," Kopf said. "It conveys a message that Christianity and Judaism are favored religions."

Another legal battle over a Commandments display appeared to be over, but is actually just starting over again.

In Elkart, Ind., a Ten Commandments monument was erected in front of the city municipal building in 1958. Local residents William Books and Michael Suetkamp filed suit against the city in 1998 over the granite tablet, which is 6 feet tall and stands alone in front of the city building.

In December 2000, the U.S. 7th Circuit Court of Appeals ruled that the display violates the separation of church and state. When the Supreme Court announced a year ago that it would not hear the case on appeal, the monument was supposed to be removed and the matter seemed to be closed.

Instead, Elkart officials, with assistance from Robertson's American Center for Law and Justice, decided to test the law further by adding four similarly sized monuments alongside the Commandments display, which will feature excerpts from the Declaration of Independence, the preamble to the Constitution, the Bill of Rights and the Magna Carta.

On March 7, U.S. District Court Judge Allen Sharp was satisfied that the additional lawn monuments made the religious display legal. The Indiana Civil Liberties Union, which helped file the case, disagreed and has announced that unless Sharp changes his mind, the case will be going back to the 7th Circuit on appeal again.

Unfortunately, as the religious crusade continues, and an increasing number of government officials seek official support for religious texts, the number of lawsuits is likely to increase. Since January, for example, multiple North Carolina communities have taken up requests to post the Ten Commandments in schools and courthouses. Americans United's Legal Department has contacted administrators in Hamilton, New Hanover, Rockingham, Craven and Pamlico counties about the constitutional problems associated with these efforts. Final decisions on the displays have not yet been made.

Considering the regularity with which opponents of church-state separation are pushing for government endorsement of their religion, AU's Lynn believes there are likely to be many legal fights over Commandments displays over the next several years.

"Public buildings should display patriotic symbols that bring us together, not religious symbols that divide us," Lynn said. "All Americans should feel welcome when they walk into a city hall, a courthouse or a public school. The posting of religious symbols there says some religious groups are better than others."

"Here's a new commandment we all need to follow: Thou shalt not mix religion and government," Lynn concluded. "Houses of worship should sponsor religious displays, not politicians."