MONUMENTAL ISSUE

Baldy Center speaker discusses

the Ten Commandments debate

currently before the U.S. Supreme Court

An issue of religion and the law, currently before the U.S. Supreme Court, was the topic of a Feb. 18th Baldy Center for Law and Social Policy lecture at UB by Paul Finkelman, Chapman Distinguished Professor at the University of Tulsa College of Law.

Finkelman’s address, “The Ten Commandments on the Courthouse Lawn and Elsewhere,” drew on his experience as the chief expert witness in Alabama district court in a widely publicized 2003 case. In that case, the court mandated the removal of a granite monument bearing the biblical Ten Commandments from Alabama’s state judicial building.

Supporters claim that the Ten Commandments are the moral foundation of American law and also religiously neutral, and thus such monuments on public property do not violate the First Amendment’s Establishment Clause.

Finkelman, who identified himself as a person of faith, began his talk with a bit of history. “There are hundreds of monuments like this around the country,” he said. They were put up by the Fraternal Order of Eagles, a social and service organization, at the behest of a Family Court judge in Minnesota who was convinced that widely posting the Ten Commandments would reduce juvenile delinquency.

Who could fund such an undertaking? None other than Cecil B. DeMille, producer of the epic movie The Ten Commandments, Finkelman said. Indeed, he said, Charlton Heston (the movie’s Moses) and co-star Yul Brynner would travel the country dedicating the monuments, wowing small towns across America with their star power.

The supposition of that long-ago judge – that merely posting the Commandments would reduce crime – was a dubious one, Finkelman said, noting wryly that generations of children have mangled the Lord’s Prayer (“Harold be thy name”) and the Pledge of Allegiance (“and to the Republic for Richard Stands”) and probably don’t take much moral instruction from those pillars of faith and patriotism.

But beyond the question of efficacy, the speaker disputed the arguments that support allowing such monuments in public spaces.

First, he said, the Ten Commandments are not “neutral” in their religious value. For one thing, different faiths – Judaism, Catholicism, Lutheranism and general Protestantism – have different versions of the Decalogue. The Commandments are numbered differently: “The Second Commandment for Catholics is actually the Third Commandment for Protestants and Jews.” As a result, “when you put the Ten Commandments on the courthouse lawn, you are choosing sides. You are saying, ‘I am endorsing the Catholic version or the Protestant version.’”

Further, Finkelman noted a number of issues related to translating the Commandments from their original Aramaic (the pre-cursor to Hebrew). For example, different faiths and denominations variously endorse “Thou shalt not kill” or “Thou shalt not murder.” As is obvious to anyone with legal training, he said, those are vastly different statements. Similarly, where the list endorsed by Protestants includes a prohibition against making “graven images,” the Catholic version prohibits the making of “idols” – in order to accommodate the Catholic practice of plentiful artwork representing God, Jesus and other figures of the faith.

“These are real theological issues,” Finkelman said. “This is not just playing around with words. ... You cannot have a Ten Commandments monument and be non-preferentialist. By definition you are choosing one version over another.”

And, of course, he said, for those outside of the Christian and Jewish faiths – the millions of Americans who are Muslim, Buddhist, Hindu, Jainist, practitioners of Native religions, and so on – the Ten Commandments are not religiously neutral.

To the other argument, that the Ten Commandments are the moral foundation of the American legal system, Finkelman took his listeners back to the days of the framers of the Constitution. Whereas the biblical source of the Ten Commandments is Yahweh, the God of the ancient Israelites, our legal system finds its origins in Thomas Jefferson’s dictum that governments derive their power from the consent of the governed. “The Ten Commandments is not about the consent of the governed,” he said. “It is about God telling the Israelites their laws.”

Finkelman also noted that most of the Commandments “could not constitutionally be enacted into law” if one tried to do so. For example, the prohibition of adultery was overturned by court decisions that ruled sexual intercourse between unmarried people to be legal. The admonition to honor the Sabbath – besides the question of whether the Sabbath should be Saturday or Sunday – is culturally overcome by the crowds that gather on fall Sundays at Ralph Wilson Stadium to cheer the Buffalo Bills. And that Commandment against coveting? For better or worse, Finkelman said, covetousness is at the heart of the American economy and the American dream.

Finally, he said, a search of Supreme Court proceedings turned up no instance when the court cited the Ten Commandments as a source of law, but plenty of citations of secular sources such as Jefferson, Locke and Montesquieu.

Finkelman concluded by saying, “Whenever the government becomes involved in religion, government gets to write the prayers.

“The danger to religion from government involvement (in religion) is just as great as the danger to a secular society.”