How History Was Used by All Sides in the Supreme Court Debate About the 10 Commandments
Last week the United States Supreme Court considered two cases which concerned the placement of the 10 Commandments in public settings on government property. One case involved the display of the 10 Commandments in a glass case at a courthouse in Kentucky. The other involved a monument on the grounds of the state capitol in Austin. Lawyers on all sides of the issue, including members of the Court, used history to bolster their claims and strengthen their arguments.
PRO: THE 10 COMMANDMENTS SHOULD BE ALLOWED TO APPEAR IN PUBLIC SETTINGS ON GOVERNMENT PROPERTY
Texas Attorney General Abbot (Oral arguments)
As an easy example, on the National Mall, there is, of course, the Lincoln Memorial and in the Lincoln Memorial, there is text from the King James version of Bible. The Nation commemorates and acknowledges Lincoln and what he has said. But by that display, the United States is not trying to endorse the King James version of the Bible or a particular religious message in that.
http://wid.ap.org/documents/scotus/050302perry.pdf
Brief of Fraternal Order of Eagles as Amicus Curiae in support of respondents
On at least four occasions, members of the Supreme Court of the United States have expressly recognized the secular significance of the ten commandments. (…)This secular significance of the Ten Commandments and their role in the foundation of our legal system is undeniable. Sir William Blackstone, the preeminent legal educator of the Framers of the Constitution, wrote that all human laws depend upon two foundations: the law of nature and the law of revelation; the doctrine of which “are to be found only in the Holy Scriptures.” (…) Whether one agrees with this philosophy or not, it is an undeniable part of our history and the development of our system of law.
The Ten Commandments are thus far from being a mere religious text sacred to certain religious groups. Their place in the history of our legal system renders them a powerful symbol of the rule of law.
Source:http://www.alliancealert.org/2005/commandments/vanorden/eagles.pdf
Brief of Amicus Curiae Foundation for Moral Law, Inc. Suggesting Affirmance, in support of respondents
The prominence of God in our nation’s development continued during and after the American Revolution. God is referenced four times in the Declaration of Independence: He is called our “Creator” Who “endowed” us with “certain unalienable rights”; “Nature’s God” Who instituted the “Laws of Nature”; the “Supreme judge of the world”; and the One on Whom the Founding Fathers called upon for “the protection of divine Providence,” as they pledged their lives, fortunes, and “sacred Honor” to the cause of independence. Demonstrating that these references were not mere rhetorical flourish, the Continental Congress, on November 1, 1777, declared a day of national thanksgiving even in the midst of the war for independence because they believed “it is the indispensable Duty of all Men to adore the superintending Providence of Almighty God; to acknowledge with Gratitude their Obligation to him for benefits received, and to implore such further Blessings as they stand in Need of.
http://www.alliancealet.org/2005/commandments/vanorden/morallaw.pdf
Brief Amici Curiae of Focus on the Family and Family Research Council in support of Respondent
After analyzing the actions of the early Congresses regarding religion, one scholarly study concluded: “The practices of the times following ratification of the First Amendment attest that this generation accepted as normal the use of governmental funds to encourage religion and religious education…the Congress…was agreeable to using public funds to see that persons had ample opportunities for exposure to religion.”
The “secular purpose” prong is also out-of-step with this nation’s religious heritage. The founding generation unequivocally acknowledged the religious underpinnings of this nation, and the need for robust faith among the citizenry. Georges Washington chose the occasion of his farewell to public life to address the importance of religion to American society:
Of all the dispositions and habits which lead to political prosperity, Religion and Morality are indispensable supports… Whatever may be conceded to the influence of refined education on minds of peculiar structure, reason and experience both forbid us to expect that national morality can prevail in exclusion of religious principle.
http://www.alliancealert.org/2005/commandments/vanorden/foffrc.pdf
CON: THE 10 COMMANDMENTS SHOULD NOT BE ALLOWED TO APPEAR IN PUBLIC SETTINGS ON GOVERNMENT PROPERTY
Brief of Baptist Joint Committee and the Interfaith Alliance Foundation, as Amici Curiae in Support of Petitioner
The provisions of American law do not trace in any significant way to the Ten Commandments. Penalties for murder, theft, perjury, and defamation tend to appear early in the development of all legal systems, including those of ancient civilizations with no reliance on the Jewish scriptures. The American states inherited prohibitions on murder, theft, perjury, and defamation from English law. Such rules appear in the earliest surviving sources of English law, the “dooms” of seventh-century Anglo-Saxon kings. These dooms compiled pre-existing customs; the substance of these laws had existed among the Germanic tribes before they were written down and before the Anglo-Saxon were Christianized. The American law of murder, theft, perjury, and defamation thus traces back through centuries of English law to the barbarian laws of non-Christian Germanic tribes-and this line of development is far more direct than any development from the Ten Commandments. (…) Of course the Christianization of England contributed ideas that influenced law. But these ideas were nothing so basic as the points of overlap between secular law and the Ten Commandments. (…) In sum, only three of the Commandments are a significant part of American law, and those three were part of the law of England before England learned of the Commandments.
http://www.alliancealert.org/2005/commandments/vanorden/bjcommittee.pdf
Brief of the Council for Secular Humanism as Amicus Curiae in support of Petitioner Thomas Van Orden
One of the best expressions of this unbroken line of holdings by this Court is:
Government in our democracy, state and national, must be neutral in matters of religious theory, doctrine, and practice. It may not be hostile to any religion or to the advocacy of no religion; and it may not aid, foster, or promote one religion or religious theory against another or even against the militant opposite. The First Amendment mandates government neutrality between religion and religion, and between religion and non religion.
As Justice Souter pointed out in his thorough concurring opinion in Lee v. Weisman, 505 U.S. 577 (1992), the Framers of the Bill of Rights, including the Members of Congress in 1789, repeatedly considered and rejected language that would have allowed government to aid all religions, even if no preference of favoritism were shown to any one over any other. Rather, the Framers of the First Amendment intended to prohibit government support or favoritism for religion in general. As Justice Souter points out, James Madison, the initial principal author of the First Amendment, had only a few years earlier collaborated with Thomas Jefferson in the composition of the Virginia Statute for Religious Freedom, in which all nonpreferential aid to religion, in general, was rejected, 505 U.S. at 615.
http://www.alliancealert.org/2005/commandments/vanorden/cshumanism.pdf
Brief of the Council for Secular Humanism as Amicus Curiae in support of Petitioner Thomas Van Orden
As shown in Section I of this Brief, James Madison, the initial principal author of the First Amendment, was heavily influenced by Thomas Jefferson in the quest to achieve a governmental system in which there would be no favoritism in favor of belief or nonbelief. Though Jefferson was in Paris at the time of the introduction into Congress of the First Amendment, he continued to influence Madison by way of correspondence. In 1787, one year after Jefferson and Madison successfully achieved passage in the Virginia Legislature of their Virginia Statue for Religious Freedom, Jefferson published his Notes on Virginia. The portion relevant here was written by him between 1782 and 1786. In Query XVII of the Notes, Jefferson wrote:
The legitimate powers of government extend to such acts only as are injurious to others. But it does me no injury for my neighbor to say there are 20 gods, or no god. It neither picks my pocket nor breaks my leg.
The scheme of the Framers was to create a governmental system in which not even the slightest government favoritism can be manifested in favor of religious belief over nonbelief. Once the Fourteenth Amendment made the Bill of Rights binding on the state, the Framers intentions now apply to every branch of government in the nation. No state should be permitted to hold up a religious document and suggest in any way that such a religious text is a founding pillar of that state’s legal system.”
http://www.alliancealert.org/2005/commandments/vanorden/cshumanism.pdf
Brief of Freedom from Religion Foundation as Amicus Curiae in support of the petitioner
Moses is also depicted among the “procession of great lawgivers of history”, which portray the development of the law in the North and South Courtroom friezes. The friezes portray eight allegorical figures and eighteen historical lawgivers, which include the religious figures of Moses and Muhammad, as well as the secular figures of William Blackstone, John Marshall and Napoleon. Muhammad is depicted with the Qur’an, and “Moses is depicted in the frieze holding two overlapping tablets, written in Hebrew. Commandments six through ten are partially visible.” Courtroom Friezes: North and South Walls Information Sheet.
The East Pediment and the Courtroom friezes focus on the historical lawgivers; the bronze doors on the front portico depict “significant events in the evolution of justice in the Western tradition.” The Bronze DoorsInformation Sheet. These significant events allude to, without actually displaying, specific legal codes, including the Justinian Code, the Magna Carta, the Westminster Statute and the Court’s decision in Marbury v. Madison.
Each of these lawgivers and events is commemorated, even celebrated, at the Supreme Court. But even though some of the lawgivers are religious figures, each is celebrated for his contribution to the development of the law, not for his contribution to religion.”
http://www.alliancealert.org/2005/commandments/vanorden/ffreligion.htm
MEMBERS OF THE U.S. SUPREME COURT
Justice Breyer (Oral arguments)
[W]e are a religious nation, where most of people do believe in God and most of our institutions flow from the religious nature of our people. The City on the Hill, proclaim liberty throughout the land. All of those are religious. So how can the government, without what they call the pervasive and brooding commitment to secularism, which they think would be wrong, become necessarily involved because of our tradition, but not go too far.
http://wid.ap.org/documents/scotus/050302perry.pdf
Justice Souter (Oral arguments 3-2-05)
You’ve got Moses up there with at least the last five commandments showing. But Moses is in the company of a group of individuals who are nothing but law givers. You’ve got Menes and Hammurabi and John Marshall and the rest of them. There is an obvious theme.
http://wid.ap.org/documents/scotus/050302perry.pdf
Justice Ginsburg (Oral arguments 3-2-05)
They see blank tablets. They don’t see any writing. This is the only one that has script on it. It has numbers and in fact it is confusing because one of them, the people think it is the Ten Commandments is the Bill of Rights.