It’s not uncommon nowadays to pop onto one of the news sites and find a story about disputes regarding displays of a religious nature on public property. It’s more common around Christmas time, when many cases of people either setting up nativity scenes or protesting them appear, but disputes occur year-round and all over the place.

This used to be a subject I didn’t have much of an opinion on, believing that it fell into mountain-out-of-molehill land. Upon further consideration, and in light of my beliefs regarding tax dollars for contraception, abortion and other reproductive services (contraception should be legal, abortion should be legal at least up to a certain stage of pregnancy, IVF, counseling and other services should be legal, but none of them should be funded by tax dollars or mandated for insurance coverage by government regulators), I felt that it would be inconsistent to shrug my shoulders at public expenditures on religious displays.

I’ve read a number of arguments on the subject, with a spectrum of positions that exceeds a binary “yes/no.” The most interesting one to me is an argument that suggests things like nativity scenes are “going too far” but that a carving of the Ten Commandments in a courthouse is not. It has been posited that the Ten Commandments can be considered secularly as one of the root origins of our modern set of laws, something that’s not hard to see when considering “thou shalt not kill” and “thou shalt not steal.” Thus, displaying the Ten Commandments on public property, it is argued, does not violate the Establishment clause of the First Amendment.

Upon consideration, I see no way to “break” the Ten Commandments from religion and no way to resolve them as a whole with the stricture against establishment of religion. Consider:

The Ten Commandments prohibit killing, stealing, and bearing false witness – all good rules for an orderly society. They also suggest we treat Mom and Dad with respect and entreat us against jealousy – also good rules for getting along with each other and for a healthy society. However, they also prohibit working on the Sabbath, enjoin us from worshiping other gods, statues and the like, or blaspheming. There is no way these rules can be considered secularly, given that they are entirely about demanding that those who follow the Commandments believe in and worship one particular God. People who aren’t of the Abrahamic religions, be they Hindu, or Confucian, or Buddhist, or Taoist, or Sikh are told by these Commandments that their belief sets are wrong, and that there are rules they aren’t following but should. The same is true for the non-religious or less-religious, be they agnostic, atheist, “spiritual” and so forth. By putting the Ten Commandments in the public square, government is, whether it intends to or not, positioning a particular religion in an elevated status.

One can argue that people are free to ignore a plaque or statue, and they are. One can also argue that those who take offense at such a display aren’t any more entitled to redress than those that aren’t, an argument I agree with. We do not have the right not to be offended. However, offense is irrelevant. The plain language of the 1st Amendment says:

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof

Nowhere in that statement is opinion or personal affront even hinted at. Brevity is beautiful, and in that regard (and in many others) the Constitution is one of the greatest creations in the history of humanity, and “shall make no law” is about as brief as you can get. It is also a secular document but not an affirmatively atheistic one, given that it defends the free practice of religion in whatever form and one that debars any sort of religious test as a qualification for public office.

If we are to consider the Ten Commandments with a less literal mindset, do we find a way around the establishment clause? Is merely considering them as “historical” a justification for spending public money on displays? Can we consider that the tradition of law in the West derives from Mosaic Law, of which the Ten Commandments is a part? If we do so, we run into not only the same problem as before i.e. that several of the Commandments are overt mandates that one worship a particular god, but we then run into the problem that Mosaic Law has all sorts of other rules that modern society doesn’t want any part of (I could digress into a cataloging of those rules, but there’s no need to – they’re irrelevant to the argument at hand). The argument against the latter is that Christianity supersedes many of the Old Testament decrees, but this is an argument based on a particular religion and that just takes us in the wrong direction.

The non-Left (correctly) admonishes the Left for treating the Constitution like a menu rather than a binding document. I see no way of making this declaration honestly if one simultaneously takes a strict interpretation of some Commandments and a loose or dismissive interpretation of others, and it is only in the latter sense that the Ten Commandments can be seen as not establishing religion. But, lets say we do simply want to consider it from the perspective of a guiding piece of history. Why this particular piece? Yes, the nation’s roots are in Europe and England in particular, the land where common law arose. But English Common Law isn’t the Ten Commandments, and there’s a whole lot of other stuff, before, after, between and parallel, that contributed to the stew that is our modern legal system. The excuse can be made that the Ten Commandments is a particularly noteworthy piece, and that it’s important to many, possibly a large majority of, people in this country. This is an excuse, because the reason for making the argument is religious in nature. People of faith who want the Ten Commandments in the public square should admit they are elevating them because of their faith.

I chose to argue the case of the Ten Commandments in the public square because it is a “midpoint” in the broader argument. In making the case as I attempt to herein that the Ten Commandments should not be put on display in the public square nor should public money be used in making such a display, I obviate the need to analyze a position regarding more overt displays. If the Ten Commandments are a no-go, then neither is anything else of a religious nature. I also want to pre-empt the question about whether donated displays would be OK by referring back to the 1st Amendment, which debars any law, not just any expenditure. Given that OK’ing a display would require the enactment of a law (even a simple “yes” vote by a local town board is enactment of a law), the plain language remains plain. And, while the 1st Amendment says “Congress shall make no law,” the principle of incorporation in the 14th Amendment imposes that stricture on lower levels of government.

Much of this analysis will be of no interest to those who don’t accept the premise that our government is secular and that the First Amendment is clear regarding religion’s place in society and government. I can’t count the number of times I’ve read and been told that this is a Christian or Judeo-Christian nation, and when it comes to beliefs such as this, logic and argument take a distant back seat. This is a broader fight, one that the reader can figure out where I stand on, and one that I have argued and will argue again. For now, though, I will simply ask the question – what benefit does the side of the religious gain from arguing in favor of religious displays on publicly owned property? Why is it necessary to fight this fight, and risk alienating many who are perfectly comfortable with others practicing their religion as they wish but don’t want their tax money supporting that practice? Defend your liberty, defend your right to believe as you wish – those are the good fights, there’s plenty to fight for and many to fight against, and I and many others have your back on them. But picking battles on uncertain turf or when there’s a lot working against you – that doesn’t seem wise or beneficial.

For years, as I noted at the head of the essay, I gave little heed to this particular issue. Unfortunately, it has become a front-page fight. I write “unfortunately” because it has become (been made into) a distraction from what’s really troubling the nation, and it’s used as “chum in the water” by people from both ends of the left-right spectrum to agitate regarding religion in general. One side considers opposition to this sort of public expenditure and display as a declaration that one opposes religion of any sort in the nation, and the other side considers demands for this sort of public expenditure and display as an effort to turn the nation into a Christian theocracy. Lost or unmentioned in all this is a position where one can be a strong adherent to his faith yet still oppose the expenditure of public money on religious displays. The limited government litmus test can something be a good idea but nevertheless not the government’s business? gets lost in all the shouting. It is not only possible but desirable to advocate for freedom of religion, including the right to be as religious and deeply faithful as you wish, yet also argue that public property should not have religion-endorsing displays on it.

A post-script. A reductio-ad-absurdum argument that has arisen and may arise regards crosses on graves, including military graves. A fundamental point lost on those who’d argue against those is that these symbols do not do anything to “establish” religion, but rather denote the beliefs of those buried under them and honor them in their deaths and sacrifices. This argument extends to far more mundane questions, such as whether a public employee can put a picture frame with the Lord’s Prayer on his desk. From a First Amendment standpoint, prohibiting that display would be as proscribed as mandating it (see “the free exercise thereof” part). The government is not mandated by the Constitution to exclude any sign of religion from public view, only from establishing/endorsing a particular one as the religion of the land.

AN ADDENDUM – 12/27/14

What does the First Commandment say? Isn’t it the establishment of religion?

What does the Second Commandment say? Isn’t it a restriction on free exercise of religion?

What does the Third Commandment say? Isn’t it a restriction on free speech?

Neither the Fourth nor the Fifth are reflected in secular law.

The Sixth, Seventh and Ninth are mirrored in law, but other societies that didn’t develop under the Ten Commandments established similar or identical laws.

The Eight is only a law insofar as it affects divorce settlements.

The Tenth is thought policing.

I’m not writing this to bash the Ten Commandments or the Judeo-Christian belief system. I simply find the argument that their place in the public square is as a demonstration of the basis of our laws. There’s more in the Ten Commandments that stands in opposition to our rights than there is as a basis of law.

Peter Venetoklis

About Peter Venetoklis

I am twice-retired, a former rocket engineer and a former small business owner. At the very least, it makes for interesting party conversation. I'm also a life-long libertarian, I engage in an expanse of entertainments, and I squabble for sport.

Nowadays, I spend a good bit of my time arguing politics and editing this website.

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