The year was 1898. J. H. Strickling, the prosecuting attorney for Tyler County, W. Va., was found guilty of gross immorality for having visited a “house of ill fame” and conducting himself lewdly therein. The circuit court therefore removed him from office.
Strickling sued, claiming that under West Virginia law he could not be removed from public office for an offense unless that offense involved “moral turpitude.” But the West Virginia Supreme Court of Appeals ruled that visiting a house of ill fame was moral turpitude because it violated the Decalogue’s prohibition against adultery. Concerning the 10 Commandments, the Court said:
These commandments, which, like a collection of diamonds, bear testimony to their own intrinsic worth, in themselves appeal to us as coming from a superhuman or divine source, and no conscientious or reasonable man has yet been able to find a flaw in them. Absolutely flawless, negative in terms, but positive in meaning, they easily stand at the head of our whole moral system, and no nation or people can long continue a happy existence in open violation of them.
Wait a minute! Are these the same 10 Commandments that Judge Myron Thompson ordered to be removed from the Alabama Judicial Building in 2002? The same 10 Commandments that, in the 1980 5-4 Stone v. Graham decision, the U.S. Supreme Court said could not be displayed in public schools?
During the 2002 10 Commandments battle in Alabama, I conducted a Lexis computer search to find out whether American courts ever cited the 10 Commandments. I found not only the Strickling case above, but a total of 1,106 cases in which courts of record (federal courts or state appellate courts) cited the 10 Commandments.
Sometimes the courts have cited a portion of the Decalogue to enhance the importance of a statute and underscore its moral authority. On other occasions the courts have employed the 10 Commandments to establish that a certain offense is part of the common law or to distinguish the common law from statutory offenses.
The courts also have used the 10 Commandments to interpret statutes. For example, in Addison v. Florida (1928), the word “steal” is given a broad definition: “The eighth commandment of the decalogue merely reads, ‘Thou shalt not steal,’ yet was it ever doubted that it prohibited larceny of all kinds?”
The Decalogue is also referenced by the courts in a literary fashion, as in Bray v. United States Net & Twine Co. (1895), in which the court considered a patent for a device used to prevent snagged fishing lines, which would also prevent fisherman from “indulg[ing] in expressions not altogether in harmony with the precepts of the decalogue.”
The point of my research is this: If it is appropriate for judges and justices to cite the 10 Commandments in official court opinions, it is also appropriate to display them in courthouses and in schools.
In the 1960s the U.S. Supreme Court began to adopt a radical separationist approach to the First Amendment, banning formal exercises of prayer and Bible reading, creation science, and even the 10 Commandments. But none of the justices who decided those cases are on the Court today. Thanks to Presidents Reagan, Bush I, Bush II and Trump, today’s justices are much more conservative than a generation ago.
The Court’s conservative majority has moved toward a more non-preferentialist approach to religious freedom cases, holding that government may aid religion in general but may not discriminate among religions. Hence the Court approved prayers before town board meetings in Town of Greece v. Galloway (2014), upheld a 32-foot Bladensburg Cross in American Legion v. American Humanist Association (2019), and justified Coach Kennedy’s prayers after football games in Kennedy v. Bremerton School District (2022). Very likely, the Court would now take a more favorable view of the display of the 10 Commandments.
Anticipating these changes, the Alabama Legislature approved, and 71.6% of Alabama voters ratified, the 10 Commandments Amendment to the Alabama Constitution in 2018, allowing the display of the Decalogue in schools and other public places. Earlier this month, Louisiana adopted a law requiring all public schools to display the 10 Commandments, accompanied by a 200-word statement explaining that the Commandments were “a prominent part of American education for almost three centuries.” If the Alabama law or the Louisiana law are challenged in court, they are likely to be upheld as constitutional, because:
First, the Courts seem ready to recognize that religion, including the acknowledgment of God, has a place in America’s public life.
Second, the 10 Commandments are not exclusively a Christian document. God gave them on Mt. Sinai 1,400 years before the time of Christ.
And third, the 10 Commandments are more than a religious symbol. They are a moral code by which we are to be governed, containing the basic principles of natural law that apply all over the world. As Martin Luther wrote half a millennium ago:
The Decalogue is not of Moses; nor did God give it to him first. On the contrary, the Decalogue belongs to the whole world; it was written and engraved in the minds of all human beings from the beginning of the world.
And again he wrote:
Natural law is the Ten Commandments. It is written in the heart of every human being by creation. It was clearly and comprehensively put on Mount Sinai, finer indeed than any philosopher has ever stated it. Natural law, then, is created and written in the heart; it does not come from men but is a created Law to which everyone who hears it cannot but consent.
The 10 Commandments, then, are "the law written in [our] hearts" (Romans 2:15), knowable by reason and conscience, which apply to all societies everywhere in all times and places. They belong not only in our hearts but in our courts and schoolhouses as well.
Colonel Eidsmoe serves as Professor of Constitutional Law for the Oak Brook College of Law & Government Policy (obcl.edu) and as Senior Counsel for the Foundation for Moral Law (morallaw.org). He may be contacted for speaking engagements at Eidsmoe ja@juno.com.
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 Commentary@1819news.com.
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