America’s Embrace of the Ten Commandments
The Ten Commandments are back in the news. Nearly twenty years ago, they made headlines and are doing so again now. In 2005, two cases involving the display of the Ten Commandments were brought to the US Supreme Court — Van Orden v. Perry and McCreary County v. American Civil Liberties Union of Kentucky — with very different rulings. Read an extract from Jenna Weissman Joselit’s Set in Stone: America’s Embrace of the Ten Commandments about these cases and what they meant for America below.
The ACLU took the Kentucky counties to court, where, eventually, McCreary County v. American Civil Liberties Union of Kentucky ended up before the nation’s highest tribunal.
“The profile of the Ten Commandments, it seems, has rarely been higher, or their ability to attract lawsuits greater,” observed Linda Greenhouse of the New York Times, adding that the two cases before the Supreme Court were of great moment when it came to pinpointing the appropriate constitutional boundaries between church and state. True enough. But the law was not the only thing on trial. So too was another form of precedent: the weight of the past. The role of the Ten Commandments in the shaping of America’s national character — a role that was at once historic and ongoing — was also in the dock. The divine sayings had become increasingly associated with conflict and debate, inflaming rather than stabilizing the public square. In twenty-first-century America, they symbolized a looming cultural divide between those eager to blur the line between church and state and those just as eager to keep it intact, between those who promoted religion everywhere and those who preferred to have it privatized.
With so much at stake, feelings ran especially high on the bench.
Then again, the legal standing of the Ten Commandments was not only a referendum on the role of religion in contemporary America. It was also a referendum on history, on the nation’s understanding of its past, on the degree to which religion — or, more to the point, biblical values and ideals — defined American identity. Mingling past and present, current concerns about the direction in which the country was headed with an awareness of what had gone before, the Ten Commandments cases went to the very heart of how contemporary America saw itself: pursuing its own course or following in the footsteps of history. Notionally about America’s cultural heritage, as well as its legal system, they “are about more than a Ten Commandments monument in front of a state capitol or hanging on the wall of a courthouse,” acknowledged one contemporary observer. “They are about the kind of America we are going to have.”
With so much at stake, feelings ran especially high on the bench. If the published remarks of the justices are any indication, they shared Greenhouse’s sense of occasion. Justice Antonin Scalia, who voted to retain the Ten Commandments in stone and in paper, declared rather scathingly that those of his colleagues who sought their removal were angling to “sandblast the Ten Commandments from the public square” and to “abandon our heritage in favor of unprincipled expressions of personal preference.” Those on the receiving end of his tongue- lashing responded in kind. “It is true that many Americans find the Ten Commandments in accord with their personal beliefs,” observed Justice Sandra Day O’Connor. “But we do not count heads before enforcing the First Amendment.”
Ultimately, the court decided in favor of one display and against the other, “immunizing the first from constitutional challenge,” while barring the second. Both decisions pivoted on the issue of context. “Our cases, Janus-like, point in two directions,” acknowledged Chief Justice William Rehnquist. “One face looks toward the strong role played by religion and religious traditions throughout our Nation’s history… . The other face looks toward the principle that governmental intervention in religious matters can itself endanger religious freedom.” Tiptoeing between history and the law, the Rehnquist Court, in a five-to-four decision, ruled that the Texas Ten Commandments did not violate the Establishment Clause. “A passive monument” did not constitute an endorsement of religion so much as a recognition of the role that religion had played in American life,” concluded a plurality of the justices, who, in rendering their decision, took both the form and the pedigree, the historical context, of the Eagles’ Ten Commandments into account. For them, the pull of history was too strong to be resisted, much less discounted. As the court put it, the “Ten Commandments have an undeniable historical meaning.”
At the same time, the justices ruled, also in a split decision, that the Kentucky versions, cloaking their religious intentions in a “transparent claim to secularity,” clearly “ran afoul” of the Establishment Clause. There was no mistaking the counties’ motivation, explained Justice Souter, who wrote the majority opinion. When, at the dedication of the Ten Commandments display in Pulaski County, its county executive was accompanied by his pastor, any “reasonable observer could only think that the Counties meant to emphasize and celebrate the Commandments’ religious message.” For other members of the bench, such as Justice Stephen Breyer, the current cultural context — polyglot America — was equally key. “A more contemporary state effort to focus attention upon a religious text is certainly likely to prove divisive in a way that this longstanding, pre- existing monument had not,” he related, distinguishing between the Texas Ten Commandments and the Kentucky version, between America of the 1960s and its twenty-first-century counterpart.
The legal community was none too happy either.
Such fine-bore distinctions were lost on the grass roots, which preferred a definitive, unequivocal ruling — “yea” or “nay” — to one that trafficked in the niceties of history and sociology. As the Wall Street Journal baldly put it in the wake of the court’s decision: “What gives?” Van Orden, for his part, declared himself “not happy” by the judicial outcome. He was not the only one. James Dobson, the founder of Focus on the Family Action, an influential conservative Christian lobbying group, took the court to task for “failing to decide whether it will stand up for religion and freedom of expression or if it will allow liberal interests to banish God from the public sphere.” The legal community was none too happy either. It too would have preferred a clear-cut ruling instead of the kind of dueling perspectives that opened the floodgates of analysis, generating reams of commentary in legal periodicals that ran the gamut from the Texas Review of Law & Politics to the Harvard Journal of Law & Public Policy. Muddying the waters, the situation, as legal expert Noah Feldman put it, was a “mess.”
Jenna Weissman Joselit is the Charles E. Smith Professor of Judaic Studies and Professor of History at George Washington University. She is the author of several books on American daily life in the nineteenth and twentieth centuries, including The Wonders of America, winner of the National Jewish Book Award in History, A Perfect Fit: Clothes, Character, and the Promise of America, and A Parade of Faiths: Immigration and American Religion.
