Displays of Ten Commandments can be constitutional, but at what cost?

Tuesday, March 30, 1999

You can fault their intentions, their logic and their understanding of the First Amendment, but you can’t fault their persistence.

Despite the 1980 U.S. Supreme Court ruling in Stone v. Graham that public school administrators may not place copies of the Ten Commandments in classrooms, government officials across the country continue to attempt to display the religious codes on public property. In doing so, they ignore the Court’s holding that such conduct violates the separation of church and state.

The proponents of these displays, however, care little about the law. In Arkansas, for example, state Rep. Andrew Morris introduced legislation that would allow public schools to display the Ten Commandments. Such state legislation cannot overrule the Supreme Court’s contrary holding, but Morris said that he was not concerned about court cases.

In Georgia, the Rev. Joel Crotzer persuaded the Lumpkin County Commission to place the Ten Commandments on a courthouse wall, arguing that the religious codes were superior to the laws enforced in the courthouse. “The Lord founded this nation,” he said. “All other laws are secondary to God’s law. There is no separation of church and state.”

Crotzer’s brazenness seemed too much for even the county commissioners, who initially decided to remove the display after complaints by state civil liberties groups. However, the commissioners have recently decided to keep the religious codes.

Civil libertarians have been busy in other states as well. In Ohio, the state affiliate of the American Civil Liberties Union is representing a student suing a school board for displaying the Ten Commandments outside of the high school’s main entrance. In Utah, the Freedom From Religion Foundation has sued the Ogden City Council for refusing to remove a Ten Commandments monument from the front lawn of a municipal building. In South Carolina, Americans United for Separation of Church and State successfully sued the Charleston County Council, which had displayed the Ten Commandments outside of its chambers.

As these cases are litigated, they look increasingly like Nativity scene disputes. In many of the crèche cases, for example, the local government initially defends the display by claiming that the courthouse lawn or public park at issue is open for all to exhibit holiday symbols. The officials, however, then refuse to permit a minority group to create an unpopular display.

A similar pattern is developing in Ogden, Utah. Shortly after the Freedom From Religion Foundation sued the city council, a Salt Lake City religious group filed another action, asking that, if the Ten Commandments are allowed to remain, it be allowed to display its religious beliefs on the same lawn. These beliefs include statements such as “Nothing rests; everything moves; everything vibrates.” So far, this display has not been allowed.

The other trademark of Nativity scene cases is the attempt by the government to secularize the religious symbols by surrounding them with Frosty the Snowman, Santa Claus and Rudolph the Red-Nosed Reindeer. The Charleston County Council took a similar approach with its Ten Commandments plaque, surrounding it with pictures of former council chairmen. The council then argued that the Ten Commandments were part of a larger, secular display and that the pictures diluted the plaque’s religious meaning.

The court ruled against the council, finding that the pictures were not enough to neutralize the governmental endorsement of religion associated with displaying the Ten Commandments. With a little tweaking, though, the Charleston approach might find support among the politicians and judges who have embraced the Frosty/Baby Jesus holiday displays.

As we’ve seen in these cases, religious symbols can’t be effectively secularized unless the secular part of the display is as crass as the religious symbols are sacred. This way, the reasoning apparently goes, the secular can negate the religious. The secular symbols also must bear some relation to the religious ones. While Frosty might be able to secularize Christmas, the Tooth Fairly probably would not.

Using this logic, the best way to secularize the Ten Commandments is to include them as part of a display of other secular lists. A David Letterman Top Ten list, for example. Or do’s and don’ts from Martha Stewart. Maybe throw in the checkout rules from the local video store. Or “no shoes, no shirt, no service.”

As silly as this approach seems, don’t be surprised if it’s ultimately used. As we’ve learned, those who want to display religious symbols on public property will do almost anything to get their way, including blaspheming their own symbols.

Douglas Lee is a partner in the Dixon, Ill., law firm of Ehrmann Gehlbach Beckman Badger & Lee and a legal correspondent for the First Amendment Center.