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The Ten Commandments (a.k.a. the Decalogue)

Legal & constitutional aspects

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This essay includes material on the following topics:

bulletConstitutional aspects
bulletTen Commandment monuments
bulletFederal laws and resolutions
bulletTypical court decisions
bulletLegally posting the 10 commandments

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Constitutional aspects:

Most people's recollection of the Ten Commandments centers on the "thou shalt not" requirements: to not murder, steal, commit adultery, lie in court, covet the neighbor's possessions, etc. 1 Many feel that these rules are nearly universal; they are followed by adherents of all of the world's religions; they are a useful standard for everyone to base their values upon. Thus the posting of the Ten Commandments may be viewed as an innocuous decision which shouldn't offend anybody. The Commandments are very widely held ethical standards that everyone agrees with. They may elevate the readers' spirituality and encourage them to act morally. 

Posting a series of commands, paraphrased from the Protestant version of Commandments 5 to 10, might well be quite legal, because it represents commonly held beliefs by Christians, Jews, followers of non-Judeo-Christian religions, Agnostics, Atheists, Humanists, and other secularists. The references to slavery might be a little dated; categorizing a wife as a possession might disturb some feminists. But the following sign would be generally innocuous:


Everyone should:

bulletBe nice to your parents;
bulletNot murder people;
bulletIf you are a man, never engage in sexual intercourse with a woman owned by some other man (i.e. his wife or fiancée);
bulletNot kidnap people and sell them into slavery;
bulletTell the truth in court;
bulletAvoid serious craving of your neighbor's house, or any of his possessions, including his wife or slaves.

But to add the following four commandments to the above six instructions would probably make the notice quite unconstitutional, if they were posted in a public school, on government land, in a government building, etc.  


The God of the Hebrew Bible says: 

bulletDon't worship any of the other Gods; only me.
bulletDon't make any statues, draw paintings or take any photographs of anything in heaven or on earth. Do not bow down before other Gods. If you do, I will punish you, your children, your grand-children, etc. onto the 4th generation.
bulletDon't break any legal contracts that were sworn to using My name.
bulletSaturdays are reserved for resting and going to religious services. This applies to you, your children, slaves, animals and visitors.

The combination would be clearly unconstitutional because it contains a purely theological component that is unique to Judaism and Christianity. By posting the Ten Commandments, a government or school is in effect telling its citizens and students:

bulletThat Yahweh/Jehovah is the only or most senior God.
bulletThat the Gods and Goddesses of Buddhism, Hinduism, Sikhism, Wicca and hundreds of other religions are non-existent and/or are deities that are inferior to the one true God: Jehovah. By government decree, they are not to be worshipped. 
bulletStudents and citizens have an obligation to worship Him. 
bulletSaturday is a religiously imposed time of rest.
bulletSaturday is the only appropriate day for weekly religious observance.
bulletA religious lifestyle is superior to a secular one. 

By posting the Ten Commandments, the government would make a strong statement against tolerance of non-Judeo-Christian religions. This would take a major step towards establishing an official state religion. It would also increase divisions within the school or office along religious lines. If the goal is to decrease school shootings and violence, it might be best to not post the Ten Commandments, unless they are accompanied by similar codes of other religions and of secular origin. 

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Monuments to the Ten Commandments:

Director Cecil B. DeMille's made two films based on the Jewish Exodus from Egypt, titled the Ten Commandments. The first was in 1923. The movie set is now an archaeological dig. 10 The second, a blockbuster movie hit in color, was released in 1956. 11 As a method of publicizing the latter film DeMille joined with the Fraternal Order of Eagles -- a volunteer men's service organization -- to erect a series of monuments containing the text of the Ten Commandments on municipal land throughout the U.S. 12 Apparently hundreds of granite monuments were donated to municipalities by the Eagles. The American Civil Liberty Association (ACLU) and other groups devoted to the separation of church and state have initiated dozens of lawsuits to have these monuments removed completely or at least relocated to non-government land.

One case that achieved national prominence was in Elkhart, IN. An Eagles monument has stood outside the municipal building since 1958. A lengthy and expensive legal battle ensued. The monument was found constitutional by a District Court judge in 1999. On appeal, the U.S. Seventh Circuit Court of Appeals ruled that it was unconstitutional. In 2001, the case was appealed to the U.S. Supreme Court, who declined to hear the case. In 2002, the Supreme Court also turned down the opportunity to hear a similar case from Indiana. At least four of the nine Supreme Court justices must agree before the court will accept a case. The Court's three most conservative Justices wanted the court to hear the Elkhart case. Justice William Rehnquist said that the monument "simply reflects the Ten Commandments' role in the development of our legal system. [It is]...part of the city's celebration of its cultural and historical roots, not a promotion of religious faith." Justices Clarence Thomas and Antonin Scalia agreed. 13

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Federal laws and resolutions:

A number of Federal resolutions and bills have been proposed recently. All seem clearly unconstitutional under the U.S. Supreme Court's interpretation of the establishment clause of the 1st Amendment. Since they are so obviously unconstitutional, it is obvious that the legislators who propose these bills are violating their oath of office which requires them to support the U.S. Constitution. 

bullet1998-APR - Senate Resolution: Senator Jeff Sessions, (R-AL), introduced a non-binding resolution in 1998-APR which called for the Ten Commandments to be displayed in government buildings. It was adopted unanimously. It  states, in part: "The Ten Commandments set forth a code of moral conduct, observance of which is acknowledged to promote respect for our system of laws and the good of society.
bullet1998-JUL - House Bill: Rep. Robert Aderholt (R-AL) introduced the "Ten Commandments Defense Act" in Congress in 1998-JUL. HR 4154 would make government displays of Christian religious beliefs constitutional. It states in part that: 

"The organic laws of the United States Code and the constitution of every state, using various expressions, recognize God as the source of the blessings of liberty...[and therefore the] power to display the Ten Commandments on or within property owned or administered by the several States or political subdivisions thereof is hereby declared to be among the powers reserved to the States."

The law goes further than merely promote the Commandments. It would appear to permit the government to promote all types of religious activity in its offices, parks, etc. It says that the:

"expression of religious faith by individual persons on or within property owned or administered by the several states or political subdivisions thereof is hereby declared to be among the rights secured against laws respecting an establishment of religion or prohibiting the free exercise of religion made or enforced by the United States Government or by any department or executive or judicial officer."

Among the supporters of this bill at the launch news conference were three of the largest conservative Chistian activist groups: Focus on the Family, the Family Research Council and Prison Fellowship. 2 Concerned Women for America also supports the bill. The bill did not progress. There was no Senate version. 3 The full text is online. 4 It appears to have been superceded by the following bill.

bullet1999-JUN - House Bill: On 1999-JUN-17, the U.S. House of Representatives voted 248 to 180 to attach a "Ten Commandments Defense Act Amendment" to the Juvenile Justice Reform Act of 1999 (H.R.1501.PCS) Section 1202 of the bill states:  

RELIGIOUS LIBERTY RIGHTS DECLARED.

(a) DISPLAY OF TEN COMMANDMENTS - The power to display the Ten Commandments on or within property owned or administered by the several States or political subdivisions thereof is hereby declared to be among the powers reserved to the States respectively.

(b) EXPRESSION OF RELIGIOUS FAITH- The expression of religious faith by individual persons on or within property owned or administered by the several States or political subdivisions thereof is hereby--
(1) declared to be among the rights secured against laws respecting an establishment of religion or prohibiting the free exercise of religion made or enforced by the United States Government or by any department or executive or judicial officer thereof; and
(2) declared to be among the liberties of which no State shall deprive any person without due process of law made in pursuance of powers reserved to the States respectively.
(c) EXERCISE OF JUDICIAL POWER- The courts constituted, ordained, and established by the Congress shall exercise the judicial power in a manner consistent with the foregoing declarations.

If signed into law, it would allow states to authorize the display of the Ten Commandments in U.S. public schools, courts, and public buildings. The chances of this type of amendment passing a constitutional challenge in the courts is essentially zero, because it:
bulletWould give special recognition to Christianity and Judaism and thus, by implication, denigrate other religions, and
bulletWould imply that a religiously based life as superior to a secular lifestyle.

Both of these factors are prohibited by the U.S. Supreme Court's interpretation of the First Amendment to the Constitution.

We suspect that almost all of the 248 representatives are aware of its unconstitutionality. Most are probably lawyers; almost all would have more than a Grade 10 knowledge of constitutional law. "These 248 congressmen violated their oaths to support the Constitution by voting for a bill that clearly violates the 1st Amendment." 5 Members of congress are apparently free to violate their oaths without being held accountable.

On JUN-18, The Education Secretary issued a statement on this bill, saying: "...the U.S. Supreme Court in 1980 ruled that it is unconstitutional for a state to require posting of the Ten Commandments in public schools...Any student in an American public school today can pray, bring a Bible to school, say grace at lunch or voluntarily participate in 'see you at the flagpole' gatherings. The religious rights of all students -- Christian, non-Christian, and non-believers as well -- are very well protected...Religion is very much alive and well in America's public schools." Further developments about the act

bullet1999-JUL - House concurrent resolution: Representative Stearns submitted a concurrent resolution to the House of Representatives (H. CON. RES. 150):
Resolved by the House of Representatives (the Senate concurring), That the Ten Commandments shall be prominently posted for display in the chambers of the House of Representatives and the Senate of the United States.

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Typical court decisions in the past:

bullet1980: Kentucky: In 1980, the U.S. Supreme court ruled unanimously in Stone v. Graham. The state law had mandated the posting of the Ten Commandments in every public school classroom in the state. In its decision, the Supreme Court found that there was no secular purpose in posting the Commandments. They wrote: 

"The pre-eminent purpose for posting the Ten Commandments on schoolroom walls is plainly religious in nature. The Ten Commandments are undeniably a sacred text in the Jewish and Christian faiths, and no legislative recitation of a supposed secular purpose can blind us to that fact."

The case did not involve circumstances in which the "Ten Commandments are integrated into the school curriculum, where the Bible may constitutionally be used in an appropriate study of history, civilization, ethics, comparative religion, or the like...Posting of religious texts on the wall serves no such educational function. If the posted copies of the Ten Commandments are to have any effect at all, it will be to induce the schoolchildren to read, meditate upon, perhaps to venerate and obey, the Commandments. However desirable this might be as a matter of private devotion, it is not a permissible state objective under the Establishment Clause."

bullet1993: Cobb County, GA: In 1993, the 11th U.S. Circuit Court of Appeals ruled that a display of the Ten Commandments in a Georgia courthouse violated the separation of church and state. (Harvey vs. Cobb County). 
bullet1999: Charleston County, S.C.: During 1997, the Charleston County Council voted to display the Decalogue (the Ten Commandments) both inside and outside of its chambers. Three local residents, with the help of Americans United for Separation of Church and State sued the county. South Carolina judge R. Markley Dennis, Jr., ruled in 1999-MAR-25 that the plaques had to be removed. 7 He determined that they violated the establishment clause of the first Amendment of the U.S. Constitution. He wrote that "this court has little choice but to find that the resolution at issue, and the subsequent display of the Ten Commandments, were in violation of the Establishment Clause because they endorse religion in general and Judeo-Christianity in particular." Attorneys for the state had contend that pictures of former council chairmen and other secular items surrounded the Commandments, and created a display that was largely secular in nature. Judge Dennis disagreed; he felt that the pictures did not hide the codes' religious meaning.  County council gave the appearance that it was endorsing religion.

The attorney for the county apparently realized that the case was hopeless, and decided to not file an appeal.

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Legally posting the Ten commandments in schools and government offices:

It is difficult to visualize how the Ten Commandments can be constitutionally posted, by itself, in a court room or government office. However, it can appear as one text in a multi-faith/multi-national display of  law codes. If someone were to prepare an exhibit of codes, perhaps involving the Code of Hammurabi (an 18th century BCE king of Babylon), the Ten Commandments, some ancient Egyptian, Roman, and Greek secular and religious laws codes, the British Magna Carta, U.S. Constitution, etc. then the resultant display would probably be constitutional in a government location. Two examples of this are:

bulletThe Grant County Commission in Indiana signed an agreement on 1997-DEC-8 with the Indiana Civil Liberties Union. The settlement called for "the Ten Commandments to be posted in the Grant County Courthouse as part of the historical documents display." 8
bulletThe Altoona Area School District in Pennsylvania announced on 2000-FEB-28 that they would display a group of documents in their school libraries. Included are a selection of readings dealing with Humanism, Judeo-Christianity, gay rights, and Wicca. The Ten Commandments are also there, along with Affirmations of Humanism, The Cycle of the Goddess (Wiccan), History of the Pink Triangle (gay/lesbian), The Golden Rule (Baha'i). Documents are submitted by the public. A school district spokesperson commented: "It has been pretty quiet so far. I think people are smart enough to realize that if you allow that for one [part of the] community ... it opens the door.9  

As inferred in the Supreme Court decision cited above, the Ten Commandments could be displayed, read, and analyzed by teachers and students within "an appropriate study of history, civilization, ethics, comparative religion, or the like." But the course could not be a study that was restricted to Christianity; it would have to involve study of a range of religions and cultures.

Public school students are often given wide freedom in the selection of topics for personal projects and essays. Students might be asked to choose one law code and to analyze and present it in the form of a report. Under these circumstances, a student would be free to choose the Ten Commandments. Their freedom to make this selection is guaranteed by the Bill of Rights. Since the selection would be by the by the student, and not a imposed by the school system, it would probably be constitutional.

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Related essays on this site

bulletThe Ten Commandments menu
bulletRecent U.S. court rulings on separation of church and state
bulletThe Istook Constitutional Amendment
bulletPrayer in the public schools

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References:

  1. "The Ten Commandments," Electric Library, at: http://www.encyclopedia.com/articles/12716.html
  2. "[Gary] Bauer hails introduction of the Ten Commandments defense act," Family Research Council, at: http://www.frc.org/press/062598c.html 
  3. Jeremy Leaming, "Congressman introduces law to permit government display of religious codes," Freedom Forum, at: http://www.freedomforum.org/religion/1998/7/9tendefenseact.asp 
  4. "H.R. 4154 - the Ten Commandments Defense Act," text as of 1998-AUG-22 at: http://www.witchvox.com/wren/wren_archives/wn_we_980822.html 
  5. Alan Dershowitz, "Ten Commandments aren't gun control," Los Angeles Times, 1999-JUN-20. See: http://www.latimes.com:80/excite/990620/t000055467.html
  6. "Education Secretary statement on Ten Commandments House vote," U.S. Newswire, 1999-JUN-18.
  7. Jeremy Leaming, "S.C. judge invalidates posting of Ten Commandments in county building," Freedom Forum, at: http://www.freedomforum.org/religion/1999/3/26commandments.asp
  8. "County officials to modify display featuring the Ten Commandments," at:  http://www.freedomforum.org/religion/news/971208.asp 
  9. "School district to display beliefs of gays, Wiccans, Atheists," Associated Press, 2000-FEB-29.
  10. "Site of the 1923 Filming of the Ten Commandments," at:  http://www.tcsn.net/sloarchaeology/
  11. "The Ten Commandments," at: http://charltonhestonworld.homestead.com
  12. "Circuit court rules for 'Aphorisms' as squabbles over religious sloganeering, commandments continue," AANews, 2002-AUG-1.
  13. Jay Sekulow, "What's the Problem With Public Displays of the Ten Commandments?,"
    American Center for Law and Justice, at: http://www.aclj.org/resources/equal/

Copyright © 1999 to 2004 incl., by Ontario Consultants on Religious Tolerance
Originally posted: 1999-JUL
Latest update: 2004-AUG-01
Author: B.A. Robinson

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