TownHall.com George Will June 28, 2005
WASHINGTON — The Supreme Court on Monday rendered two more hairsplitting, migraine-inducing decisions about when religious displays on public property do and do not violate the First Amendment protection against “establishment” of religion. In a case from Texas, where a Ten Commandments monument stands outside the state Capitol, the court, splintered six ways from Sunday, said: We find no constitutional violation. The second case came from Kentucky, where the Commandments displayed in several courthouses are surrounded by historical symbols and documents — e.g., copies of the Mayflower Compact, the Declaration of Independence, the Star Spangled Banner — to comply with the “reindeer rule,” more about which anon. On Monday the court recoiled from Kentucky’s displays, saying, they are unconstitutionally motivated by a “predominately religious purpose.” Not enough reindeer?
Never mind the court’s minute reasoning about the finely tuned criteria it has spun over the years. Instead, consider — as the court should have done years ago, when it began policing religious displays — a few facts about the era in which the Establishment Clause was written.
Why are these rulings so hard to understand? They make sense to me.
Putting up religious displays can be permissible depending on the context in which they are displayed.
I guess I don’t really even see the point of putting the Commandments up within the walls of a government/secular court: maybe only a quarter of them are actually engraved into law (namely, the ones regarding theft/murder which are incidentally found in Buddhist and Hindu societies as well). We don’t criminalize blasphemy, coveting or working on Sunday. If we did, we may as well criminalize heresy as well (have fun trying to legislate that … adhering to Gnosticism would be a misdemeanor?)
Note 2 Short Answer:
First, you are incorrect, JamesK. If you review the American jurisprudence on criminal law you will see that the DEFINITIONS OF CRIMES and the CONCEPTS OF MORAL CULPALBILITY all come from the Judeo-Christian tradition. The Ten Commandments are an important part of this moral tradition but they do not constitute a complete statement of that tradition. There are many parts of the Old Testament which contain ideas that were adopted as part of the foundational thinking in the Western legal tradition. The simplistic idea that some of the provisions of the Ten Commandments were not direclty adopted as part of our criminal codes reveals a near total ignorance of the sources of American criminal law. Frankly, all of the important CONCEPTS found in American criminal law are derived from the Judeo-Christian tradition including its concepts of free will, different levels of moral culpability and various ideas about punishment and rehabilitation.
You should also reflect on the fact that America’s original thirteen colonies were English colonies. They were ruled by the English Common Law. The English Common Law developed over centuries in a country that had an established Christian church. (I will grant you that the Brits often burned each other at the stake over whether they were Prostestant or Roman Catholic Christians, but official church of the state was Christian.)
America’s foundational documents refer to God. Theories about God and the source of the rights protected by American law are grounded in ideas about God.
The Establishment clause can be read to merely prohibit the creation of a church sponsored by, approved by and supported by the government as the official church of the country. It was not until relatively recently that the Establishment Clause was held to prohibit a display of a historical document with religious roots which has IN FACT served as a foundation of our current American law.
This topic has many complex issues, which I cannot address at this time. However, the idea that because some of the individual commandments found in the Ten Commandments are not codified as part of our criminal law, does not even begin to touch the merits of the debate.
Yes, the ruling is very easy to understand. Personally, if all religious references were eliminated from government, that wouldn’t bother me, because I don’t think they benefit either government or religion or individuals. As Mark Twain is reported to have said “In God We Trust. It is the choicest compliment that has ever been paid us, and the most gratifying to our feelings. It is simple, direct, gracefully phrased; it always sounds well — In God We Trust. I don’t believe it would sound any better if it were true.”
But also, the problem isn’t just the Ten Commandments or religious references per se. We also have to look at the context in which these occur. Forty years ago some jurisdiction might put up a Ten Commandments monument just because of a kind of sentimental or emotional attachment. Today, when a Ten Commandments monument goes up, it’s because the religious right is engaged in a power grab, and such a monument is a property marker. It’s like a gang tag, only in stone or under glass. It’s just an artful way of saying “we’re here, we won, screw the rest of you.” It’s about the right-wing taking control, and everyone with more than 615 grams of brain tissue knows that.
The idea that these new Ten Commandments things aren’t religious is ridiculous. When these groups put them up they say “oh, this is not religious at all, this just indicates the role of the Judeo-Christian heritage in the formation of our laws.” But then when the courts order these things removed they say “the evil secularists are taking God out of government!!” and we find out right away what the real motivation is.
Of course we don’t criminalize blashpemy, coveting (unless of course it leads to thievery), or working on Sunday (unless of course it runs afoul of child labor laws. etc.). The point is not that non-desirable behaviors are not criminalized. The point is that a reference higher than the law itself is necessary to recognize those behaviors that are undesirable in the first place. Law cannot be divorced from morality since all law draws from a moral well in order to determine what behaviors are permissible and what behaviors need the restraint of law. Remove this moral dimension, and law becomes free-floating and arbitrary, such as the recent Supreme Court decision allowing the confiscation of private property to enrich other private parties.
Law divorced from morality leads to tyranny. The wellspring of morality is religion.
Jim Holman: Completing Fr. Hans last sentence …and the wellspring of religion is spirituality (which means outward and inward practices) and theology. And that Jim is the irreducible connection between God and earthly law. It is impossible to have a real secular society unless one embraces either anarchy or tyranny. Everybody has a theology, it may be unconscious, rude, even blasphemous, but it is there. Even atheists define their beliefs in relation to and by an understanding of God.
I’ve never understood the struggle with the existence of God that so many people seem to have. I do understand the struggle to express who He is, how we are intertwined with Him, and how He wants us to act. I understand the questions about Christianity, Orthodox Christianity especially. I have asked them all in my life. Fortunately, I asked them with a mind and heart that really wanted to know. That is why I’ve gotten answers that are cogent and meaningful in my life.
The question most people start with is why is there evil, pain, suffering. For me Christianity provided the most complete answer to that question AND a way to conquer in spite of evil. Orthodox Christianity teaches quite clearly that God is not the source of evil, separation from God is the source of evil. More specifically, Satan as the one who first separated from his Creator continues to lead others down that same path for his own twisted pleasure. Law is designed to identify the most egregious acts against individuals and the communitiy that Satan leads us to. From that perspective we then have to decide as a community how to protect ourselves (various types of separation and punishments).
Whether you or a culture believes in Christianity or not, Satan or not, there still has to be a foundation that recognizes evil. Like it or not Jim, the essential foundation of law, therefore the definition of what is evil, in the United States is Judeo/Christian. Take that out of our system and the rule of law first evaporates, then has to be reconstituted. Do you really want that to happen?
Note 4: Any doctrine taken to its logical conclusion results in tyranny, but I don’t think most people live that way outside of a few diehard extremists. Spain was considered to be a Catholic’s dream for many years. The Church had an astonishing degree of influence in all realms of public life. Yet, it still ended with many tragic abuses whereby the State punished transgressors against Church law in the harshest possible manner. Now obviously most Catholics don’t wish for such a mode of government, yet to think a “religious minded” government would prevent such abuses from ever occuring is to deny the evidence.
It seems that the enemy is not really “secularism” or “religion” as such, but ideological extremism of any kind. Democracy seems to have been set up to prevent both secularism AND religiosity from being taken to their logical conclusions in practice.
My understanding is that U.S. law comes from a variety of sources, one of which is the Jewish and Christian traditions. The idea of democracy is certainly neither Jewish nor Christian. And in many cases the church stood in opposition to some of the very principles upon which the country was founded.
I just got an email from a friend who is visiting London for the first time. He noted that he “saw the Magna Carta at the British Museum. Right next to it was a papal bull written just 10 weeks later, condemning the MC as ‘shameful.'”
The debate is not whether U.S. law has a religious foundation, but as I said before, most of these controversies over the Ten Commandments are really about the extent to which the right wing is allowed to dominate our institutions.
In many cases the placement of the Ten Commandments in public areas is sold as a non-religious, historical commemoration. But when people protest such displays the right wing protests that we’re trying to get God out of government. So the whole historical argument is basically a pretext for having a display that everyone knows is a religious display in the first place.
To the extent that U.S. law is founded on Greek and Roman law having or not having a statue of Themis, goddess of justice, in a public building neither enhances or diminishes that influence, since the influence has already been incorporated into the law. Likewise, to the extent that U.S. law is founded on Judaism or Christianity or dependent on them, that influence has already been incorporated into the law. Having a display of the Ten Commandments doesn’t add to the law, nor does the absence of such a display diminish that influence.
Michael writes: “Like it or not Jim, the essential foundation of law, therefore the definition of what is evil, in the United States is Judeo/Christian. Take that out of our system and the rule of law first evaporates, then has to be reconstituted. Do you really want that to happen?”
It’s not clear to me how a Ten Commandments monument prevents that from happening. In any case, your argument is interesting. It may even be correct. I just don’t think that a public building is the proper venue for that argument to be made. The problem is that Judaism and Christianity have all sorts of different aspects, some of which relate to civil life, others of which relate to religious life. Several of the Ten Commandments have nothing do to with civil or criminal law but are strictly religious in nature. And many of the evils condemned in Christianity have nothing to do with civil or criminal law. For example, one of the evils condemned in Christianity is unbelief.
Displays of statues of the goddess Themis are completely empty of religious content. Such displays have a metaphorical or historical significance, but no one looks at them as being religious in any sense. This is simply not the case with the Ten Commandments, and both the supporters and opponents of those displays know that.
Note 5. I can’t speak for the Catholic Church, but the philosophical materialism that informs secularism is responsible for the unleashing of evils on a scale unpredented in human history — the concentration camps, Gulags, Pol-Pot’s killing fields, Mao’s “Great Leap Forward”, Idi Amin’s regime, Castro’s prisons — the list goes on.
Read Solzhenitsyn’s A World Split Apart (Harvard Address).
Note 6. Yes, of course the opponents of the 10 Commandments recognize the implicit moral authority the display contains. That’s precisely why they want to remove it. Erase the symbols of the moral tradition upon which the civil law draws, and soon that tradition fades even further from the collective memory. Historical revisionism is promoted as a virtue, such as the attempt to remove the cross from the seal of the City of Los Angeles.
Nothing regarding morality is neutral, especially secular morality which has proven itself intolerant of all assertions that challenge the absolutist character of secular relativism.*
*The secularist says that morality is relative. He doesn’t see that the statement functions as a moral absolute. The statement is self-negating, IOW. Everyone sees this except the secularist.
Fr. Hans writes: “Yes, of course the opponents of the 10 Commandments recognize the implicit moral authority the display contains. That�s precisely why they want to remove it.”
The people I know who feel strongly about the TC monuments do so because they feel that such displays represent the supporters of a version of religion that they find morally reprehensible and irrational. Let’s face it, there’s a lot of stuff in the Bible that is hardly uplifting.
The God of the OT commands that disobedient children be stoned to death, including many others.
In some cases the Jews are commanded to go into a place and kill all men, women, children, and even animals: “And they utterly destroyed all that was in the city, both man and woman, young and old, and ox, and sheep, and ass, with the edge of the sword.” Joshua 6:21
You have the killing of the firstborn of Egypt, the Psalmist’s wishes to bash heads of the Babylonian babies on the rocks.
The list goes on and on; there are entire web sites devoted to this topic so I won’t belabor the point here.
And these, unfortunately, are not just abstract examples. Many fundamentalists take stories such as these as literal examples to be emulated. In just the last few months I have heard fundamentalist Christians argue that the U.S. should have used nuclear weapons in Vietnam. I have heard several fundamentalists argue that the Israelis should drive out the Palestinians at gunpoint, and that any who don’t leave should be killed. Reconstructionist Christians want to remake the country in the image of the Old Testament and bring back the execution of disobedient children and “biblical” slavery.
In other words, for many people the TC don’t represent a moral tradition, but an immoral tradition.
Fr. Hans: “The secularist says that morality is relative.”
In most cases moral decisions are relative in this sense: most moral decisions involve weighing various moral principles against each other. While it is true that there are some moral situations in which the direction is unambiguous, in many situations that is not the case. We often have to determine which of several moral principles have the greatest applicability in a given situation.
Concerning “secularists,” I think that it is helpful to look at what they have to say. I recently talked to a friend who I suppose would be described as a secularist. He said that he first exposure to Christianity came during a Christmas school play in which he had to recite various passages from the Bible. He said that the picture of God as portrayed in the Bible struck him as cruel and unbelievable. He said further that in his years of pondering ethical issues (Ph.D. in Philosophy) he never found a situation in which theological arguments ever cleared anything up. If anything they only made the situation more difficult to understand and harder to work with.
Your mileage may vary. But I think that his sentiment is understandable and hardly represents a abandonment of morality.
That some people find Christianity “reprehensible and irrational” and thus want the 10 Commandments removed from public view confirms my point that such decisions are themselves religious. I’m not too sure where they think that their basic morality comes from but it resembles in any way the precepts of the moral tradition (let’s assume they find, say, murder or adultery morally objectionable for example), then they are children of that tradition whether or not they know it, like it, or even believe it. Of course, if they want to divorce themselves from that tradition, they too ought to divorce themselves from the social benefit it fosters as well (what remains of it anyway).
These objections, so easy to make but often so pitifully short of real wisdom, remind me of the objections of George Bernard Shaw, Mark Twain and other luminaries of the past century, who so confidently asserted their objections against the Christian faith, all the while basking in the freedom and opportunity that only a Christian culture could give them. So foolish they were, undermining the very foundation on which they stood. Presumably they would know better if they saw what the philosophical materialism that replaced faith in the Western world has wrought this past century.
As for secularism and morality, yes, moral principles are always weighed. My point however requires one more step that asks: from where are those principles derived? Remember, the Nazi’s really thought killing all those Jews, infirmed, and others was socially enlightened policy. Heck, today people think killing Terri Schiavo is socially progressive. There is no real way to tell who is right until you look at the intellectual, and ultimately religious, pedigree of those principles. So yes, weigh the principles, but weigh them soberly and with intelligence.
Fr. Hans writes: “That some people find Christianity ‘reprehensible and irrational’ and thus want the 10 Commandments removed from public view confirms my point that such decisions are themselves religious.”
What people find reprehensible is not Christianity per se but certain things in the Bible. Let me put it this way: were Terri Schiavo a Caananite when the Jews showed up, she would have had a very short life ending in being hacked to death with a sword.
Not that Christianity helps much either. According to some flavors of Christianity God has predestined that the greater part of humankind will be tortured in hell forever. And some modern Christians want to reinstitute Old Testament laws in which disobedient children would be stoned to death, and “biblical” slavery would be implemented.
Granted that these “difficult passages” are no longer central to many versions of Christianity (in particular the “liberal” versions), I think that a reasonable person could and should be offended by such things.
Fr. Hans: “I’m not too sure where they think that their basic morality comes from but it resembles in any way the precepts of the moral tradition (let’s assume they find, say, murder or adultery morally objectionable for example), then they are children of that tradition whether or not they know it, like it, or even believe it.”
There have been a number of different sources of western ethics, only some of which came from Judaism or Christianity, and we are indeed children of all those traditions, religious or not.
You believe that an erosion of the religious traditions will lead to an erosion of the moral precepts derived from those traditions. That may or may not be true. In some cases that has already happened. For example, the Bible condemns “usury” as immoral in a large number of passages throughout the Old Testament, but lending money at interest is the foundation of all modern economies, and I am unaware of any Christians who protest that practice. No rational Christians want to stone children to death, reinstitute slavery, or commit genocide in the name of God.
In other words, when religious ethics evolve over time, no one sees any problem with that. But when secular or philosophical ethics evolve over time, that is denounced as “relativism.”
But back to the Ten Commandments. Even if your analysis is correct — that an erosion of religion will undermine ethical principles derived from religion, it’s not clear to me how bolting a Ten Commandments monument to the floor of a courthouse helps that. We have tens of thousand of churches and synagogues in the country, all tax-exempt. There are a couple of religious broadcasting networks and hundreds of Christian radio stations. There are Christian foundations, think-tanks, journals, and publishing houses. There are probably tens of hundreds of thousands of Christian web sites. And we have a democracy in which religious speech is protected, and citizens can elect Christian politicians. If all of this is insufficient to maintain religious ethical principles, then a TC monument isn’t going to help. And if it is sufficient, then the TC monument is not needed.
Interesting that you mention “usury” because I blessed a new dental office today which included the scripture reading on the the Parable of the Ten Talents. In the parable the unworthy servant was castigated for not increasing his talent, with the instruction that he should have given the one talent to the bankers so that it would have at least earned interest. Usury, I suspect, deals more with exploitative interest (20% interest rates at Citibank perhaps?), than a condemnation of the borrowing of capital altogether.
Moving on, one Ten Commandment display probably means little in the broader view of things. But we would be naive to assume that the entire argument can be reduced to just one display. The issue here, and both sides are very clear about this, is secular morality vs. the morality of the received tradition.
Secular morality draws from philosophical materialism. The received tradition draws from Judeo/Christian precepts, with the Biblical text as the primacy source of that tradition. That people find some things in that text offensive is to be expected but largely beside the point.* As for secularism, from a historical perspective secularism is a new phenomena that could only arise in Christian culture.
Your point about Terri Shiavo confirms my point. You critize those who object to her killing with the rejoinder that if she were a Canaanite, the Jews would have “hacked” her to death. Overlooking the hermeneutical method for the moment, note that you implicitly invoke the commandment “Thou shalt not kill” in your critique. Fair enough. But if the prohibition applies to the Jews and the Canaanites, why don’t you apply it to Terri Schiavo? Your appeal to the commandment allows nothing else yet you defend Schiavo’s death by dehydration. This selective application of the commandment (inadvertently?) reveals the moral relativism that is characteristic of secularism.
*The reason the offense is besides the point is that only the reasons that constitute the offense matter. I submit those reasons are themselves often drawn from the tradition. Secular thinkers usually don’t see that they cannabalize the precepts (and vocabulary) of the moral tradition in their attempts to overturn it. I discuss this idea in more practical terms in my essay The Artist as Vandal: Culture and the desecration of religious symbols. (We should also dispense with the idea that everytime some complains that they are offended we need to rearrange the furniture to their liking.)
This is what the old USSR Constitution stated about religion:
1.The Russian Federation shall be a secular state. No religion may be instituted as state-sponsored or mandatory religion.
2. Religious associations shall be separated from the state, and shall be equal before the law.
This is what the US Constitution states:
Congress shall make no law respecting an establishment of religion,
Based on these two Constitutions, which one does our new Supreme Court ruling support?