It is shocking that the U.S. Supreme Court commands us to murder, steal and commit adultery -- that's the English translation of the Adolph A. Weinman's bas-relief of Moses overlapping tablets on the South Wall Frieze of its courtroom: 

"Thou shall murder" (line 1), "Thou shall steal" (line 2) and "Commit adultery" (line 3). (Translation by Avrahaum Segol; verified at pp. 12-13 of the oral argument transcript of Pleasant Grove City v. Summum, Nov. 12, 2008.) (Photo: Steve Petteway, Collection of the Supreme Court of the United States.)

By: Robert V. Ritter, Founder, Jefferson Madison Center for Religious Liberty

Are Arkansas Christians bad at math and history?

I don't get it: Are Christians in Arkansas bad at math and history? Or is it just their legislators?

Here's the deal. I was reading a blog post today at Religion Clause in which Howard Friedman informed us that the Arkansas legislature had passed S.B. 939. The bill, called The  Ten Commandments Monument Display Act (full text), directs the secretary of state to arrange for private groups to erect a 10C monument on the State Capitol grounds.The text of its commandments would read (I've added numbers for clarity):

1. Thou shalt have no other gods before me.
2. Thou shalt not make to thyself any graven images.
3. Thou shalt not take the Name of the Lord thy God in vain.
4. Remember the Sabbath day, to keep it holy.
5. Honor thy father and thy mother, that thy days may be long upon the land which the Lord thy God giveth thee.
6. Thou shalt not kill.
7. Thou shalt not commit adultery.
8. Thou shalt not steal.
9. Thou shalt not bear false witness against thy neighbor.
10. Thou shalt not covet thy neighbor's house.
11. Thou shalt not covet thy neighbor's wife, nor his manservant, nor his 34 maidservant, nor his cattle, nor anything that is thy neighbor's.

As you can clearly see, there are eleven commandments not ten. I feel sad for Arkansas students who are taught this kind of crazy math.

But, you know, it's not just Arkansas. The Fraternal Order of Eagles had a similar problem on some of its Ten (or Eleven) Commandments monuments that it erected in public parks, state capital grounds, courthouses, libraries and public schools.

Even more troubling is the Arkansas legislature's revisionist American history. Our founders did not believe that "God" ordained our government. Our founding document--the Constitution of the United States of America--explicitly says in the Preamble: "We the People of the United States ... do ordain and establish this Constitution of the United States of America."

While I'm quibbling, the bill also states: "The Ten Commandments ... are an important component of the moral foundation of the laws and legal system of the United States ..." What? Commandments 1, 2, 3, 4, 5, 7, 10 and 11 (above) are not part of our legal system. Moreover, commandments 6 (not kill), 8 (not steal) and 9 (not bear false witness) are secular in nature and are common in non-Judeo-Christian societies.

And did you know that the words "Ten (or Eleven) Commandments)", "Creator", "God", "Supreme Being", "Jesus" and "Christianity" are not mentioned in the Constitution?  Not once.

The conclusion is unmistakeable, neither the Biblical Ten Commandments nor Arkansas' Eleven Commandments had little or no influence in the founding of our system of governance in the United States.

Robert V. Ritter

Myth #12: 40 Years Maketh a Wrong Right

[Chapter 9, post #14]

“Forty years after the monument's erection and six years after Van Orden began to encounter the monument frequently, he sued.” [1]

Chief Justice William Rehnquist

All too often, justice is slow in coming.  Justice delayed is justice denied.[2]

Justice Breyer’s concurrence in Van Orden provided the pivotal fifth vote upholding lower court rulings that the display of an Eagles-donated tombstone to Jesus Christ on the Texas State Capitol grounds did not violate the Establishment Clause.  For Justice Breyer, it was time to move after forty years on rather than to correct an injustice.[3]  He opined: 

This display has stood apparently uncontested for nearly two generations. That experience helps us understand that as a practical matter of degree this display is unlikely to prove divisive. And this matter of degree is, I believe, critical in a borderline case such as this one.[4]

The essence of Chief Justice Rehnquist’s and Justice Breyer’s argument is that the passage of time makes a claim stale – that if the alleged violation was really significant, the person offended would have brought the claim sooner.  There may be a tinge of truth to the argument, but it’s a very weak argument in this case where the monument’s display is not merely a past violation of the First Amendment, but a continuing violation as well.

Time, money and frustration are at major reasons why potential plaintiffs decline to bring or delay bringing meritorious lawsuit.  There are four other considerations which explain the time delay.

First, Separationists didn’t wait 40 years to file the first lawsuit challenging the placement of Eagles-donated Ten Commandments monuments on public property.  In 1972, a lawsuit was filed against the Salt Lake City seeking the removal its Eagles-donated monument.[5]  Numerous other challenges to Eagles-donated monuments were filed prior to the decision in Van Orden being handed down on June 27, 2005, and others have been filed since.  Lawsuits challenging Eagles-donated Ten Commandments monuments are pending in Fargo, North Dakota,[6] Connellsville, Pennsylvania[7] and New Kensington, Pennsylvania.[8]

Second, Ten Commandment monument cases are not a criminal case or other type where material evidence will be lost due to the passage of time, including the memory of witnesses.  There is no harm if it takes one year, ten years or 40 years to bring the lawsuit – for the religious nature of the monuments speaks for themselves.  Each and every day is an ongoing violation of the First Amendment.

Third, there is also a flip side to the Chief Justice and Justice Breyer’s argument.  Nonbelievers are the most hated group in America of which Van Orden was a member.[9]  While I am not aware that Thomas Van Orden felt intimidated, I can that during the course of my representing plaintiffs in Newdow v. Roberts,[10] one of the plaintiffs had had her house burned down by an arsonist who was upset with prior litigation the plaintiff was involved in.  Further, Presidents Lincoln and Kennedy were shot to death by assassins who ideologically disagreed with their policies.  Similarly, churches have been burned down, persons hanged, beaten or burned to death by persons who disagreed with the victim’s race, religion, national origin or gender identity.  There is an ugly side to America to which a lawsuit exposes a person to..[11]

And fourth, plaintiffs seek to avoid the stigmatization as a second class citizen that follows the filing a lawsuit challenging a practice of the majority religion

Justice Souter offered a most delightful rebuttal to the Chief Justice and Justice Breyer:

“I doubt that a slow walk to the courthouse, even one that took 40 years, is much evidentiary help in applying the Establishment Clause.”[12]

In this myth, I have tried to make the point that year after year of wrongdoing does not make an unconstitutional act right.  It took 58 years to correct the insidious “separate but equal” holding in Plessy v. Ferguson[13] and 133 years to grant women the right to vote.[14]  Perhaps 40 years is not such a slow walk after all!

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[1]  Van Orden v. Perry, 545 U.S. 677, 682 (2005).

[2]  See Justice delayed is justice denied at http://en.wikipedia.org/wiki/Justice_delayed_is_justice_denied.

[3]  The Eagles-donated monument was placed on the Texas State Capitol grounds in 1961.

[4]  Ibid., at 704.

[5]  Anderson v. Salt Lake City Corp., 348 F.Supp. 1170, 1171 (D. Utah, 1972); reversed 476 F.2d 29 (10th Cir. 1973).

[6]  Red River Freethinkers v. Fargo, No. 10-3214 (8th Cir., May 25, 2012) – reversed U.S. Dist. Court’s denial of standing and remanded for further proceedings.

[7]  Freedom From Religion Foundation v. Connellsville Area School Dist. (W.D. Pa., complaint filed Sept. 27, 2012).

[8]  Freedom From Religion Foundation v. New Kensington –Arnold School  Dist. (W.D. Pa., complaint filed Sept. 14, 2012).

[9]  As I write this blog post, the federal government is shut down because of a rift between Tea Party Republicans in the U.S. House of Representatives and the rest of Congress.  So, at least for today, Congress may be the most hated group. 

[10]  Newdow v. Roberts, 603 F. 3d 1002 (2010), cert. den., 131 S. Ct. 2441 (2011) challenged the religious practices of the 2008 presidential inaugural ceremony.  

[11]  I was recently involved in a Phoenix, Arizona lawsuit that had been going on for several years.  The plaintiff had accused her teacher of using the classroom to proselytize Christianity.  Ultimately, the plaintiff was intimidated into dropping her lawsuit (which amply supported by the evidence) by the defendants’ attorney who threaten the plaintiff with substantial attorneys fees.

[12]  Ibid., at 747.

[13]  Plessy v. Ferguson, 163 U.S. 537 (1896) was overturned by Brown v. Board of Education, 347 U.S. 483 (1954).

[14] The 19^th Amendment, which prohibits the United States or any State from denying a citizen the right to vote on account of sex, was ratified on August 18, 1920.

Myth #11: Removal of the Tombstone to Jesus Christ Would Constitute Hostility Towards Religion

[Chapter 9, post #13]

 “[W]e find no constitutional requirement which makes it necessary for government to be hostile to religion and to throw its weight against efforts to widen the effective scope of religious influence.”[1]

Chief Justice William Rehnquist

Perhaps the most incredulous of all Christian apologies[2] made by Chief Justice Rehnquist in his Van Orden plurality opinion is that removal of the Eagles-donated Ten Commandments tombstone would evince a hostility towards (the Christian) religion.

The quote of the Chief Justice[3] at the beginning is disingenuous.  It suggests that it is constitutionally permissible for the state of Texas to conspire with the Fraternal Order of Eagles to promote religion – Christianity preferred – through the erection of Eagles-donated tombstones to Jesus Christ but it would be unconstitutional for the Court to require Texas to remove the tombstone because to do so would be an act of hostility towards religion. 

The opposite is true.  It is not “neutral” to favor religion over the absence of religion.[4]  Rather, the absence of religious symbols or messages is an environment where people of religious and nonreligious beliefs can co-exist without divisiveness.

The origin of the “hostility” claim comes from the 1952 Supreme Court decision in Zorach v. Clauson.[5]  Justice Douglas, writing for the Court, said: “[W]e find no constitutional requirement which makes it necessary for government to be hostile to religion and to throw its weight against efforts to widen the effective scope of religious influence.  The government must be neutral when it comes to competition between sects.”[6]  Justice Douglas concluded with the statement: “We cannot read into the Bill of Rights such a philosophy of hostility to religion.”[7]

Zorach and Van Orden are vastly different cases.  Zorach is primarily a religious accommodation case where the “activity” – religious instruction – occurs on private property.  On the other hand, the religious monument in Van Orden is on public property and is “government speech” advancing Judaism and Christianity.  On these simple facts, the cases merit different treatment.[8]

In a concurring opinion, Justice Thomas puts forth a similar specious argument: “For the adherent, this analysis takes no account of the message sent by removal of the sign or display, which may well appear to him to be an act hostile to his religious faith.”[9]  I don’t disagree with the literal truth of Justice Thomas’s statement.  Rather, I believe that Justice Thomas has an duty to inform the “adherents” that the Constitution prohibits government from preferring one religion and another, and between religion and nonreligion AND that to permit Texas to retain the Eagles-donated Ten Commandments monument would be an impermissible preference of the Abrahamic religions of Judaism, Christianity and Islam.  Justice Thomas also appears to be oblivious of the fact that the presence of the Eagles-donated monument is hostile to nonbelievers and non-Abrahamic minority religions.

Shockingly, Justice Breyer reiterates the same nonsense in his opinion concurring in the judgment arguing that removal of the Eagles-donated tombstone to Jesus Christ would “exhibit a hostility toward religion that has no place in our Establishment Clause traditions.”[10]  Again, the flaw in the argument is that removal of the monument would be in furtherance of religious neutrality, not hositility.

No, Mr. Chief Justice and Justices Scalia, Kennedy, Thomas and Breyer, the removal of the Eagles-donated Ten Commandments monument from the Texas State Capitol grounds would have demonstrated faithfulness to the Constitution by enforcing the First Amendment prohibition against governmental acts “respecting an establishment of religion.”

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[1]  Id., at 684, quoting Zorach v. Clauson, 343 U.S. 306, 313-314 (1952).

[2]  Christian apologetics is the branch of philosophy that defends Christianity through pseudo rational argument.  See Christian apologetics at http://en.wikipedia.org/wiki/Christian_apologetics and Christian Apologetics and Research Ministry at http://carm.org/.

[3]  The Chief Justice was joined in his plurality opinion by Justices Scalia, Kennedy and Thomas.

[4]  The absence of religion is not the same as to favor nonreligion.  Favoring nonreligion would be, for example, to permit groups such as American Atheists, American Humanist Association or Freedom From Religion Foundation to erect their symbols or place their messages on public property without permitting Jewish, Christian or Islamic groups the opportunity to do the same. 

[5]  Zorach v. Clauson, 343 U.S. 306 (1952) – the Supreme Court held that a New Your City program which permitted its public schools to release students during the school day so that they could attend off-site religious instruction or devotional exercises did not violate the Establishment Clause.

[6]  Id., at 314.

[7]  Id., at 315.

[8]  I believe, however, that Zorach was wrongly decided because the case was not so much about the offsite instruction as it was the release time during the normal school day.  In this context, the program’s purpose and effect was to promote religion and, therefore, violated the Establishment Clause (in my opinion).

[9]  Id. (Thomas,  J., concurring), at 697 (2005).

[10]  Id. (Breyer, concurring in the judgment), at 704.  Justice Breyer’s concurrence in Van Orden makes no sense given On the same day – Black Friday (June 25, 2005), Justice Breyer was in the majority in McCreary County v. ACLU of Ky., which held that the display of the Ten Commandments in the McCreary County Courthouse violated the Establishment Clause.

Myth #10: The Eagles’s Tombstones are Nonsectarian

[Chapter 9, post #12]

“The Eagles’ consultation with a committee composed of members of several faiths in order to find a nonsectarian text underscores the group’s ethics-based motives.”[1]

Justice Stephen Breyer

The question raised by Myth #10 is whether the Eagles-donated Ten Commandments monument on the Texas State Capitol grounds is “sectarian.”  A sectarian Ten Commandments monument would be one whose text of the Ten Commandments is: “narrowly confined or devoted to a particular sect.”[2]  This issue most frequently arises before the courts in legislative prayer cases – that is, challenges to the practice of opening legislatures and local boards with a prayer to solemnize the meeting.[3]

Justice Breyer took a bite of the Eagles’ poisonous apple and provided the pivotal fifth vote in Van Orden v. Perry. One of Justice Breyer’s rationales for finding no Establishment Clause violation was that a committee of clergy had developed nonsectarian version of the Ten Commandments.  Some justices are of the view that under our Constitution government is permitted to advance religion as long as no single religion is preferred.[4]  I suppose that Justice Breyer was counting Judaism, Christianity and Islam as diverse religions eventho they are derivative of the religion of Abraham.

I discussed the “committee” more fully in the chapter Ruegemer Soars On Eagles Wings.  The essence is this – Judge E.J. Ruegemer established a local[5] committee of Jewish, Catholic and Protestant clergy to draft a nondenominational version of the Ten Commandments.  He believed that such universality would give him cover for the conspiracy he was about to undertake – collusion with state and local governments to violate the civil liberties of Americans – getting permission from governmental entities to erect tombstones to Jesus Christ on public property and proselytize “God’s law.”

It is not surprising that the version of the Ten Commandments that Ruegemer’s committee came up with most closely resembles the Catholic version in that the numbering of the first three commandments being man’s obligations to God[6] and the “covet” commandments are split in two as the ninth and tenth commandments.  Judge Ruegemer was a devout Catholic.

To many, it does not matter which version of the Ten Commandments is in the public square – as long as “God’s law” law is there for everyone to see.[7]  

To others, the version matters.  Often, parents do not want their children being indoctrinated in a religion different from their own – even a different Christian denomination.  This may seem exaggerated to some.  It is not.  In May and July of 1844, for example, Philadelphia experienced the Bible Riots following nativist groups spreading a rumor that Catholics were trying to remove the Bible from public schools. Numerous deaths and injuries resulted, as well as, the burning of several Catholic churches.[8]  Again, the version matters a lot to some people.

And to others, the Eagles-donated Ten Commandments monuments placed on courthouse lawns, public parks and public schools represent a violation of the principle of separation of church and state embodied in the First Amendment and should be removed.[9]

Justice Breyer suggests that the Texas monument is nonsectarian.  Clearly, Justice Breyer either ignored reality or didn’t do his homework in this case.  Hardly could the Ruegemer committee take multiple versions of the Ten Commandments, mix them all together and produce a universal version.  Instead, what the committee produced was an “Eagles version” of the Ten Commandments.[10]  It turned out not to be so universal after all, inasmuch as, over the two decades of the program, the aeries erected multiple versions of the Ten Commandments on courthouse lawns, public parks and school yards.[11]

To summarize the salient facts:

1.      In 1940, the Supreme Court held that the Free Exercise Clause of the First Amendment applies to the states.[12]  Then, seven years later, the Court held that the Establishment Clause applied to the states. [13]

2.      Aware of this, Judge Ruegemer was concerned that selecting either the Jewish, Catholic or Protestant version of the Ten Commandments would be construed as “sectarian” and violate the Establishment Clause.  He needed a scheme to circumvent the First Amendment that had recently been made applicable to the states, including his state of Minnesota. 

3.      Judge Ruegemer established a St. Cloud, Minnesota committee of Catholic, Protestant and Jewish clergy to develop a universal version of the Ten Commandments for the Eagles Ten Commandments program.  There were no persons on the committee from non-Jewish minority faiths or persons without religious belief. 

4.      Judge Ruegemer was a devout Catholic.

5.      There are three major versions of the Ten Commandments, differing in both numbering and wording.[14]

6.      The Jewish, Christian and Protestant faiths number the Ten Commandments differently.  For example, the version adopted by the Ruegemer Committee[15] follows most closely the Catholic numbering system wherein (a) the religious commandments comprise the first three commandments, (b) the secular commandment “Honor thy father and thy mother” is the fourth commandment and (c) the two “covet” commandments are separated as commandments nine and ten.[16]

 

7.      Early Eagles-donated Ten Commandment monuments did not include “Thou shalt not make to thyself any graven images,” thus making those monuments more closely identifiable with the Catholic version.[17]

8.      Some early Eagles-donated monuments reflect the Catholic numbering.[18]

 

9.      The numbering and lack of the “graven images commandment on early Eagles-donated Ten Commandments monuments raised serious concerns about their sectarian nature.  Subsequently monuments generally dropped the numbering and included the “graven images” commandment in order to be more Protestant friendly, including the 1961 Ten Commandments monument located on the Texas State Capitol grounds.[19]  

10.  As mentioned previously, the wording of the Ten Commandments varies among religions.  For example, in the Jewish version of the sixth commandment God commands: “You shall not murder”; whereas, the King James version, God commands: “Thou shalt not kill.”  Many people gloss over this distinction as being trivial.  However, it is important to some people as an identifier of which version of the Ten Commandments is being displayed.  All of the Eagles-donated Ten Commandments monuments that I am aware of use “kill,” suggesting a Catholic-Protestant preference.

Justice Stevens summed it up this way: “Moreover, despite the Eagles’ best efforts to choose a benign nondenominational text, the Ten Commandments display projects not just a religious, but an inherently sectarian, message.”[20]

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[1]  Van Orden v. Perry, 545 U.S. 677, 701 (2005) (Breyer, concurring in the judgment).

[2]  Dictionary.com, adjective, definition 2.  Available at http://dictionary.reference.com/browse/sectarian.

[3]  The Supreme Court held in Marsh v. Chambers, 463 U.S. 783 (1983), held that government funding for chaplains was constitutional because of the “unique history” of the United States.  [Note: the Court had previously held in Abington School District v. Schempp, 374 U.S. 203 (1963) that school-sponsored Bible reading in public schools to be unconstitutional.]

[4]  The “nonsectarian” rationale flies in the face of McCreary County v. ACLU of Ky., 545 U.S. 844, 860 (2005), decided the same day as Van Orden, which held that “First Amendment mandates governmental neutrality between religion and religion, and between religion and nonreligion.”

[5]  St. Cloud, Minnesota.

[6]   The second commandment in the Protestant version is: “Thou shalt not make to thyself any graven images” – is not part of the Catholic version.  As a concession to Protestants, the committee appended it to the first commandment.  The Protestant version, the “covet” commandment s are combined.  It should also be noted that the Hebrew version uses the word “murder” instead of “kill.” 

[7]  As an Atheist, the Biblical story of God giving Moses tablets of the Ten Commandments on Mount Sinai is a myth and, therefore, the various versions are of no significance to me.  The critical point is that government is prohibited by the First and Fourteenth Amendments from displaying the Ten Commandments in the public square.

[8]  See Philadelphia Nativist Riots at http://en.wikipedia.org/wiki/Philadelphia_Nativist_Riots.  “During the 1840s, students in Philadelphia schools began the day with reading the Protestant version of the Bible.  On November 10, 1842, Philadelphia's Roman Catholic Bishop, Francis Kenrick, wrote a letter to the Board of Controllers of public schools, asking that Catholic children be allowed to read the Douai version of the Bible, used by Roman Catholics. He also asked that they be excused from other religious teaching while at school.  As a result, the Board of Controllers ordered that no child should be forced to participate in religious activities and stated that children were allowed whichever version of the Bible their parents wished.”  “After the riots, Bishop Kenrick ended his efforts to influence the public education system and began encouraging the creation of Catholic schools, with 17 being founded by 1860.”

[9]  To Separatists, the Eagles-donated Ten Commandments monuments are inherently religious and, therefore, their presence on public lands violates both the Supreme Court’s Lemon and neutrality tests.

[10]  I assume that the 1951 Brown and Bigelow 20x26 inch design incorporated the committee’s version of the Ten Commandments.  In that year, the Minnesota state aerie distributed “more than 7,000 smaller replicas of the framed Ten Commandments.”  Hoffman, The Real History of the Ten Commandments Project.  Hoffman calls the Eagles version “a universally acceptable translation of the Ten Commandments.”

[11]  Eagles historian and member Sue A Hoffman that “some criticism surfaced because of the different versions of the Ten Commandments and their numbering.  Changes were made after the first series of distributions regarding the numbering and wording of the Ten Commandments based on the Interdenominational Public School Format of 1958.  Some aeries still chose to keep the numbering system even after the change was offered.”  The Real History of the Ten Commandments Project, of the Fraternal Order of Eagles (2005), available at http://www.religioustolerance.org/hoffman01.htm. 

[12]  Cantwell v. Connecticut, 310 U.S. 296 (1940).

[13]  Everson v. Board of Education, 330 U.S. 1 (1947).

[14]  Jewish, Catholic and Protestant.  Altho Islam is an Abrahamic religion, there is no formal Islamic version of the Ten Commandments.

[15]  This conclusion assumes that the text adopted by the committee is reflected in the design by the artists of Brown and Bigelow who prepared the original decorative 20x26 inch version of the Ten Commandments.  See Sue A. Hoffman, The Real History of the Ten Commandments Project of the Fraternal Order of Eagles (2005) available at http://www.religioustolerance.org/hoffman01.htm.  [Note: Ms. Hoffman is a member of the F.O.E. She has identified over 150 Eagles-donated monuments in 34 states while researching for a book on the Eagles Ten Commandments Program.]

[16]  See photograph of an early 1950s Eagles Ten Commandments poster at http://wp.patheos.com.s3.amazonaws.com/blogs/poptheology/files/2012/10/10-C-Front.jpg.  Also note the two tablets at the top with Roman numerals I-III on the left tablet and IV-X on the right tablet are consistent with the Catholic faith.  This confirms the Catholic preference and sectarian nature of the Eagles Ten Commandments program.  In the Jewish and Protestant faiths, the first four commandments are religious and the last six are secular.

[17]  For example, the Denver, Colorado (1955), Helena, Montana (1956), Boone County, Indiana (1957) and Connellsville, Pennsylvania (1957) do not include the “graven images” commandment.

[18]  For example, Denver, Colorado (1955), Helena, Montana (1956), International Peace Garden (1956) (on the boarder of North Dakota and Canada), Boone County, Indiana (1957), Connellsville, Pennsylvania (1957) (image available at http://bloximages.newyork1.vip.townnews.com/heraldstandard.com/content/tncms/assets/v3/editorial/2/33/233b509d-253a-5812-9fe3-661bf02923b8/514ce5cf0c3af.image.jpg., Gastonia, North Carolina (1957) and Xenia (Greene County), Ohio (1957) (image available at http://www.flickr.com/photos/rubenrodz/1488741490/sizes/o/).

[19]  A photograph of the Eagles-donated Austin, Texas Ten Commandments monument is available at:  http://en.wikipedia.org/wiki/File:Ten_Commandments_Monument.jpg.

[20]  Van Orden (Stevens, J., dissenting), at 717.