Decalogue-display disputes have roots in film history

Sunday, August 8, 2010

As long as the Ten Commandments endure, American judges will find themselves deciding cases about whether displays of them on public property square with the Constitution.

In a new reminder of this axiom of U.S. law, this summer witnessed the latest scene in a multi-year legal drama concerning a small religious sect’s fight to place a monument outlining its sacred tenets in a Pleasant Grove City, Utah, public park, where a Ten Commandments monument has stood since its donation to the city by the Fraternal Order of Eagles nearly 40 years ago.

Challenges involving public displays of the Ten Commandments — like the one that Summum, a small religious movement that adheres to its own “Seven Aphorisms,” has been waging in Utah — have gained prominence in recent years. But the history of such disputes takes us down an odd, tortuous road back to filmmaker Cecil B. DeMille’s repeated attempts to bring the Decalogue to the big screen.

Summum’s legal fight in 2008 actually reached the U.S. Supreme Court, the final arbiter of First Amendment disputes in this country. That case, however, Pleasant Grove City, Utah v. Summum, was analyzed and decided exclusively under the free-speech clause of the First Amendment, as Summum had argued that the city cannot favor certain speech by displaying some donated monuments while refusing others.

Writing for a unanimous Court, Justice Samuel Alito saw the Ten Commandments display as government speech, distinct from private speech in a public forum. “When a government entity arranges for the construction of a monument, it does so because it wishes to convey some thought or instill some feeling in those who see the structure,” he wrote. “Just as government-commissioned and government-financed monuments speak for the government, so do privately financed and donated monuments that the government accepts and displays to the public on government land.”

The Court did not directly address, though, whether the park’s Ten Commandments monument squared with the establishment clause prohibiting government endorsement of religion. Thus it left an opening for Summum to continue to litigate its case on different grounds.

“The interaction between the ‘government speech doctrine’ and Establishment Clause principles has not … begun to be worked out,” Justice David Souter warned.

In June, U.S. District Judge Dale Kimball dismissed Summum’s amended complaint on establishment-clause grounds, finding that “Pleasant Grove has, since the beginning, displayed the monument for reasons of history, not religion.”

Kimball did not have to dig deep into case law for the ruling, as the Supreme Court in 2005 upheld 5-4 the constitutionality of a nearly identical Ten Commandments display on the Texas Capitol state grounds in Van Orden v. Perry. Justice Stephen Breyer, who voted with the majority but did not join the plurality opinion, produced his own concurring opinion in which he focused on the broad message conveyed by the monument.

“Focusing on the text of the Commandments alone cannot conclusively resolve this case,” he wrote. “Rather, to determine the message that the text here conveys, we must examine how the test is used. And that inquiry requires us to consider the context of the display.” (In a companion case, McCreary County, Ky. v. ACLU, Breyer was the swing vote in another 5-4 decision finding the display of the commandments in a Kentucky courthouse to be unconstitutional; the context of the Kentucky display was dominantly religious, Breyer said.)

Four years later, in Summum, Justice Alito went a bit further, employing what might be called a deconstructionist approach to understanding the meaning of the Utah Ten Commandments display. Rather than ascribing static meaning to the monument’s text, Alito said its meaning was relative to the person viewing it and to the time period in which it was read: “Even when a monument features the written word, the monument may be intended to be interpreted, and may in fact be interpreted by different observers, in a variety of ways.” Furthermore, he said, “the ‘message’ conveyed by a monument may change over time.”

Possibly Justices Antonin Scalia and Clarence Thomas, who joined in the opinion, would not agree that constitutions assume the same evolving meaning as monuments apparently do. District Judge Kimball, taking a cue from Alito, did not focus on “the Eagles’ intended message” in donating the monument in 1971. If, however, we were to search for the donors’ true intent — in true originalist fashion — what would we find?

Strangely enough, we would have to delve into film history.

The story might begin in 1923, when the already famous move director Cecil B. DeMille released his first version of the film “The Ten Commandments” — 30 years before Charlton Heston would don his robes as Moses. The 1923 epic delivered the familiar Exodus story, but it also presented a morality tale about two brothers, rich and poor, the former vowing to break each of Moses’ laws, the latter obediently following them.

The film was immediately recognized as a breakthrough for the industry, with its use of new technology (limited color as a special effect), its unprecedentedly large budget ($1.4 million), and its construction of the largest movie set in film history. “It is probable that no more wonderful spectacle has ever been put before the public in shadow-form,” The New York Times declared.

DeMille’s film, which required 3,500 actors, 5,000 animals, and a million pounds of statuary, broke box-office records and was shown in theaters around the country for more than a year. Decades later, though, DeMille was unsatisfied with it.

His remake of “The Ten Commandments” in 1956, the popular version featuring Heston, was to convey the drama, passion and jubilation of the Exodus story in a way no other film had. Once again produced with a then-record-setting $13.5 million budget, the four-hour film became the highest-grossing movie of the year and, with adjustment for inflation, one of the top 10 grossing films in Hollywood history.

DeMille believed in film — his films — as spectacle pervading the physical sphere of daily life. Spectacular films required spectacular advertisements and promotions. In 1923, for example, a towering, glittering advertisement for “The Ten Commandments” was installed in New York City’s Times Square. The New York Times heralded a “new wonder in the Square,” describing the incandescent display as “one of the largest ever seen on Broadway.”

In 1956, DeMille sought something grander — and more enduring. While filming, he had caught wind of an initiative by a Minnesota judge affiliated with the Fraternal Order of Eagles, E.J. Ruegemer, to place thousands of paper copies of the Ten Commandments in juvenile courtrooms to reduce delinquency rates. Realizing the potential for a massive publicity campaign, DeMille persuaded Paramount Pictures to fund the creation of large, granite copies of the Decalogue.

The Eagles were at first concerned viewers would perceive the monuments as sectarian (Protestants, Catholics and Jews use different versions of the Ten Commandments), but after Judge Ruegemer sought input from Protestant, Catholic and Jewish leaders, the Eagles designed a version that would offend none, or so they thought. Working with the Eagles, DeMille donated the granite monuments to communities across the country, usually placing them near government buildings or in public squares.

Charlton Heston himself officiated at a the Decalogue dedication ceremony in Dunseith, N.D., with more than 5,000 fans, and Yul Brynner, who played Pharaoh for DeMille, attended a similar event in Milwaukee in 1957 to coincide with the premiere of “The Ten Commandments” in that city.

Impressed by the success of the Ten Commandments campaign, the Eagles continued to donate the monoliths to towns around the country until 1985, and over the course of three decades nearly 150 monuments were erected.

DeMille’s Decalogues found their way to the state capitol grounds in Denver and in Jefferson City, Mo.; to the lawn in front of the municipal building in Elkhart, Ind.; to city halls in Duluth, Minn., and Xenia, Ohio; to city parks in Plattsmouth, Neb., and La Crosse, Wis.; to the county courthouses in Wallace, Idaho and Roswell, N.M.; to a public war memorial in Ft. Lauderdale, Fla.; and to dozens of other sites around the country.

As early as 1958, these imposing structures began to trigger legal challenges, perhaps foreshadowing the growing unease among some Americans of invocations of the Almighty in the public square.

By 2001, at least 12 Ten Commandments cases were pending in several states. The many monuments produced a proliferation of court cases, inevitably leading to a split in opinion among the federal circuit courts of appeal.

The constitutionality of the nearly identical Ten Commandments monuments was affirmed by the 10th U.S. Circuit Court of Appeal in 1973 (Anderson v. Salt Lake City Corp.) and by the 5th Circuit in 2003 (Van Orden v. Perry), but rejected by the 7th Circuit in 2000 (Books v. Elkhart), by the 6th Circuit in 2002 (Adland v. Russ), and by the 8th Circuit in 2004 (ACLU Nebraska Foundation v. City of Plattsmouth).

It is no surprise, then, that the Decalogue monument, spawned by DeMille’s film, found its way into the Supreme Court in 2005. Neither the Supreme Court decision in that case nor the one in the Summum case in 2009, though, seems to have resolved the matter. The split decisions in Van Orden and McCreary left judges to assess the constitutionality of Ten Commandments displays on a case-by-case basis, ensuring that the court cases will continue into the future.

After the 2005 Supreme Court decisions, one editorial cartoon showed a reporter asking a frumpy justice, “So, can the Ten Commandments be displayed in public, or would it violate the separation of church and state?” To which the justice responds, “Yes.”

The opinion of District Judge Kimball in June, one of the most recent appearances of the Ten Commandments in the courtroom, suggests that the camera lights have not stopped shining on the Decalogue. The drama continues. Cecil B. DeMille might wince at the thought of anyone’s challenging his monuments, but he would love the spectacle.

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