Rewrite of 10 Commandments still fails test

Friday, December 24, 1999

The judge who gets this one is going to have his or her hands full.

On one side is the Scott County, Ind., school board, which has voted to post 11 “common precepts” in classrooms and hallways throughout its district. These precepts, which are derived from the Ten Commandments, begin with “Trust in God” and include admonitions to “Save sex for marriage” and “Respect authority.”

On the other side is the Indiana Civil Liberties Union, which will ask a federal court to block the displays. The prohibition against posting the Ten Commandments in public schools, the ICLU argues, cannot be circumvented simply by rewording the commandments.

This case, however, will be vastly more complicated than the typical lawsuit over a public display of the Ten Commandments. At issue in this case will be the distinction between religion and morality and whether moral teachings are necessarily religious ones. While a courtroom probably isn’t the best place to probe these questions, the nature of this controversy will place those issues squarely in a judge’s lap.

The seed that has grown into Scott County’s common precepts was planted in 1980, when the U.S. Supreme Court held in Stone v. Graham that public schools that posted the Ten Commandments were unconstitutionally endorsing religion. As sound as this ruling is, it has been attacked in recent years by parent groups and school boards desperate to find a place for God in schools. Many state legislatures have encouraged these efforts by passing laws permitting the display of religious codes in all public buildings.

For the most part, courts have refused to chip away at the Supreme Court’s 1980 ruling. As the debate has raged, however, courts have demonstrated increasing sympathy for school administrators charged — legally or practically — with teaching moral values. Yes, these courts have said, the Ten Commandments contain important moral lessons, lessons that should be taught in schools. Under the First Amendment, however, you cannot teach these lessons by teaching the Ten Commandments.

Scott County’s common precepts seize upon the distinction between religion and morality. The precepts were drafted by school Superintendent Robert Hooker, who admittedly rephrased the Ten Commandments in secular terms. The Constitution, he maintains, does not prohibit schools from teaching children to respect authority, honor their parents and retain their virginity.

In recasting the Ten Commandments, however, Hooker also included “Trust in God,” a red flag the ICLU could not ignore.

“A school can’t put up a proclamation that you should trust in God as part of the code that a good student should believe in,” ICLU lawyer Kenneth Falk told the Associated Press. “Regardless of the jurisprudence around the issue of the Ten Commandments, that statement alone is a violation of the establishment clause.”

Hooker obviously does not agree, but his reasoning should send shivers down the spines of all believers.

The “Trust in God” precept, Hooker told the Associated Press, is derived from “In God we trust,” which is printed on all U.S. money. Because of this common usage, Hooker said, the phrase is no longer strictly religious.

If Hooker is right, if we have secularized even God, the entire establishment clause is probably moot. More likely, though, Hooker’s defense of “Trust in God” is an overstatement, one that will not pass constitutional muster.

The other 10 precepts, however, should survive First Amendment scrutiny. While the moral beliefs they endorse certainly are based on Judeo-Christian teaching, so are many of our criminal laws. These beliefs are the moral underpinnings of our society and they surely can be taught in public schools without endorsing religion.

The ICLU almost concedes as much. While Falk maintains that rewording the Ten Commandments is not enough to avoid the endorsement of religion, he admitted to the Associated Press that the constitutionality of the other 10 Scott County precepts is “a much closer call” than the legality of “Trust in God.” One gets the feeling that the ICLU wouldn’t even challenge the precepts if the school district dropped the reference to God.

To those who believe that God needs a seat in the classroom, such a compromise probably seems appalling. They should realize, however, that the other 10 precepts are a potential breakthrough in the often-heated battle about the place of religion and morality in public schools. As these 10 precepts demonstrate, schools might just be able to teach morality without teaching religion.

And, if they do so without a hidden religious agenda, they can do so without violating the First Amendment.

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