The role of religion in American public life is a legitimate subject for debate ever since Jesus answered the Pharisees, “Render therefore unto Caesar what is Caesar’s, and unto God the things that are God’s” (Matthew 22:21). In ancient Israel, there was a kind of separation of church and state; the priests came from the tribe of Levi, the kings from the tribe of Judah. But both received their authority from God, and both were subject to the Law of God.
Law is based upon morality, and morality has its roots in religion. Law and religion can never be completely separated, even in a society with limited government. If religion permeates society as it always has, and if government also permeates society as it increasingly does, then religion and government will inevitably overlap.
That leads us to ask whether the 10 Commandments are an exclusively religious document. The Montgomery Advertiser’s recent headline, “Alabama schools to display Ten Commandments,” assumes that the 10 Commandments are a religious display. And opponents of Alabama’s SB99, which was recently signed into law and requires the posting of the 10 Commandments in schools, think that if they can succeed in labeling the 10 Commandments “religious,” they have won the debate.
No one denies that the 10 Commandments have religious significance for Judaism and Christianity and many other religions as well. As John Quincy Adams said, “The law given from Sinai was a civil and municipal as well as a moral and religious code.”
Chief Justice William Rehnquist echoed the same theme in Van Orden v. Perry (2005) as he upheld a 10 Commandments monument on the grounds of the Texas State Capitol: “Of course, the Ten Commandments are religious … But Moses was a lawgiver as well as a religious leader. And the Ten Commandments have an undeniable historical meaning….”
When St. Patrick evangelized Ireland in the A.D. 400s, he carried with him copies of “Liber ex Lege Moisi” (Book of the Laws of Moses), which he gave to the Brehon judges to promote a biblical basis for law. When King Alfred the Great drafted the “Doom Book,” the first written legal code to govern all England, he began it with a recitation of the 10 Commandments, interspersing it with quotations from the Old and New Testaments. For hundreds of years, as law students pursued their studies at the English Inns of Court, a principal object of study was the Bible.
After the Reformation, as Protestant thinkers like John Selden, John Milton, Johannes Althusius, and others sought to develop a republican theory of government, they looked to the Hebrew republic as their model. And when Pilgrims and Puritans came to the shores of New England, they enacted legal codes that were largely codifications of the Mosaic Law, as did the other colonies to a lesser extent.
No wonder the U.S. Supreme Court building features Moses holding the 10 Commandments. On his right is the smaller figure of Confucius representing Eastern law, and on his left is the smaller figure of Solon representing Western law.
In October 2002, I conducted a Lexis search for the term “Ten Commandments” in U.S. Supreme Court, other federal court, and state supreme court decisions. I found that the term, coupled with “First Commandment,” etc., has been cited in decisions of courts of record at least 1,106 times. The Decalogue is truly the moral foundation of law.
The Montgomery Advertiser incorrectly stated that the SB99 requires that schools must “[i]nclude the Ten Commandments alongside founding-era documents.” That wouldn’t be a bad idea, but it’s not what the law says. The law simply says the Commandments must be posted alongside a poster explaining these founding-era documents.
The Montgomery Advertiser also said, “Generally displaying the Ten Commandments in classrooms is considered unconstitutional.” That statement is based on one case, Stone v. Graham (1980), in which the Supreme Court, by a 5-4 vote, invalidated a Kentucky law requiring the display of the Commandments. Stone relied on the now-discredited “Lemon” test of Lemon v. Kurtzman (1972), which has been overruled in Kennedy v. Bremerton School District (2022). Generally, when the Supreme Court overrules a prior decision, it implicitly overrules subsequent cases based on that decision. Furthermore, Stone concluded that Kentucky had failed to articulate a valid “secular purpose” for the law. In contrast, the Alabama Legislature in SB99 has carefully articulated very definite secular purposes for displaying the Commandments. And Stone’s conclusion that no secular purpose is served by having children read, meditate upon, and obey the 10 Commandments (including commandments not to kill, steal, lie, commit adultery, or dishonor their parents) is patently ludicrous.
In recent years, recognizing that the Supreme Court is following new First Amendment jurisprudence, several states have enacted laws similar to Alabama’s SB99. So far, the lower court results have been mixed.
Hopefully, the courts will discard the simplistic notion that a law, or a display like the 10 Commandments, must be either 100% religious or 100% nonreligious. Is the Declaration of Independence a religious document? It contains no fewer than five references to God. Is it unconstitutional to display the Declaration? How about the Mayflower Compact?
Rest assured, the Foundation for Moral Law will work diligently to persuade the courts to uphold these 10 Commandments laws. They are the foundation, not only of law, but of civilization itself.
1819 News will label this op-ed “opinion,” and rightly so. It is my opinion, although in my opinion, my opinion is correct.
The Montgomery Advertiser should have labeled its article “fiction.”
Colonel Eidsmoe serves as Professor of Constitutional Law for the Oak Brook College of Law & Government Policy (obcl.edu), as Senior Counsel for the Foundation for Moral Law (morallaw.org), and as Chairman of the Board of the Plymouth Rock Foundation (plymrock.org). He and his wife Marleen reside in rural Pike Road, Ala., and may be contacted for speaking engagements at [email protected].
The views and opinions expressed here are those of the author and do not necessarily reflect the policy or position of 1819 News. To comment, please send an email with your name and contact information to [email protected].
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