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CIVIO, A Civil Rights GameThe content on this page supplements CIVIO, a civil rights strategy card game designed by and available from Reach and Teach. Learn more>>

The Ten Commandments and Religious Freedom

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by Derrick Kikuchi, Reach and Teach

2/24/2005 - "When the U.S. Supreme Court hears oral arguments next week in two disputes over government displays of the Ten Commandments, some school law experts will be listening almost as closely as if the words were rolling down from Mount Sinai." (From Civilrights.org news release)

On March 2, 2005, in back to back cases (McCreary County v ACLU and Van Orden v Perry), the Court will be hearing arguments concerning whether the Ten Commandments can be displayed in government buildings. At the center of the controversy is a conflict between freedom of expression and freedom of religion, both First Amendment rights under the Constitution.

In the past, the Court defended the right of a school to censor the content of a school newspaper (Hazelwood School District v Kuhlmeier) while making it illegal for a school requiring students to recite a school prayer (Engel v Vitale). The Court said that campaign expenditures can't be restricted or regulated (Buckley v Valeo) but legislation that primarily benefits private religious-based schools is illegal (Lemon v Kurtzman). It is legal to burn the American flag (Texas v Johnson). The right of a student to protest a war by wearing an armband to school is also defended by the Court (Tinker v Des Moines).

When one looks at the Court's decisions over time, it appears there is a very different bar that is set for freedom of expression and issues involving freedom of religion and freedom from governmental establishment of religion. Broader lattitude appears to be given to free speech although there are exceptions (Schenck v US). Much tighter scrutiny is given to governmental action that appears to have a religious agenda although there are exceptions (Zelman v Simmon-Harris). Is this true, and if so, why?

The Court's decision in Buckley v Valeo seems to articulate best why this bar is set differently for these two important freedoms. Quoting from that decision, "The historical bases of the Religion and Speech Clauses are markedly different. Intolerable persecutions throughout history led to the Framers' firm determination that religious worship - both in method and belief - must be strictly protected from government intervention. 'Another purpose of the Establishment Clause rested upon an awareness of the historical fact that governmentally established religions and religious persecutions go hand in hand. (Engel v. Vitale)' "

Ultimately, it is this last observation in the Buckley v Valeo decision that also drives the majority decision in Engel v Vitale. This is best exemplified by this text in Engel v Vitale:

"[The framers of the Constitution] knew that the First Amendment, which tried to put an end to governmental control of religion and of prayer, was not written to destroy either. They knew rather that it was written to quiet well-justified fears which nearly all of them felt arising out of an awareness that governments of the past had shackled men's tongues to make them speak only the religious thoughts that government wanted them to speak and to pray only to the God that government wanted them to pray to." - Engel v Vitale

Does a display of the Ten Commandments as a representation of law in a government building violate the Constitution?

Quotes from amicus briefs and other legal documents filed re: McCreary County v ACLU and Van Orden v Perry

"[The] petitioner fails to account for the practical reality that the image of the Ten Commandments is a uniquely potent and commonly recognized symbol of the law."- Bush administration

" The alleged secular effect of demonstrating the Commandments' important role in the development of American law is not explicitly stated at the site of the display, is not known to the reasonable observer, and depends on a premise that is demonstrably false." - Baptist Joint Committee

Aside from the Declaration of Independence, the Constitution, and the Bill of Rights, it is difficult to argue that there is any single work that has had a greater or more far-reaching impact on four centuries of American life, law, and culture than the Ten Commandments. For this reason alone, the Ten Commandments merits display. - National Legal Foundation

"The notion that there is a one-size-fits-all Ten Commandments at the heart of American law and society is convenient, but not really true... There is no way to pick one version of the Ten Commandments, display it and say that this represents American secular tradition.  In doing so, you are not respecting people who are not Jewish or Christian, or who come from other religious traditions." - Anti-Defamation League

“. . . the widespread and longstanding recognition by government and secular society of the Decalogue's foundational role is firmly embedded in American culture . . .[the lower court decision should be overturned because the] “court's erroneous reasoning is constitutionally unwarranted and historically myopic and would lead to the bulldozing of the Nation's cultural landscape.” - ACLJ

“When distilled to their essence, the courthouse displays demonstrate that [petitioners] intend to convey the bald assertion that the Ten Commandments formed the foundation of American legal tradition.” Because the display asserted “that the Ten Commandments provide the moral background of the Declaration of Independence and the foundation of our legal tradition”... the Sixth Circuit concluded that the district court did not abuse its discretion in finding that petitioners’ primary “purposes were religious.” - ACLU quoting the Sixth Court decision on ACLU Kentucky v McCreary

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