Ten Commandments Monuments and the First Amendment
By Paul Finkelman

On the last day of the 2004 term, the Supreme Court decided that Kentucky’s Ten Commandments display was unconstitutionally placed in county courthouses, but that a monument with the Ten Commandments on it could remain on the grounds of the Texas state Capitol.1 The key to this confusing outcome was Justice Breyer, who supported the majority in the Kentucky case but on very narrow grounds voted to allow the Texas monument.

Breyer found the Texas monument permissible because it was not essentially “sacred,” it was surrounded by nonreligious statuary, it had existed almost 50 years without anyone complaining, and the purpose for erecting the monument was to combat juvenile delinquency rather than support religion. Breyer’s opinion, however, makes clear that recently created Ten Commandments displays which are essentially about the commandments, such as the one in Haskell County, are not permissible.

The court found the Kentucky display violated the Lemon test because the county did not have a "secular purpose” in posting the Ten Commandments.2 This decision has a special significance to Oklahoma, because of the placement of a large Ten Commandments monument in front of the Haskell County Courthouse and the recent Tulsa Parks Board decision, since reversed, to erect a fundamentalist Christian display of the “creation” at the Tulsa Zoo.

At first glance, the unconstitutionality of these monuments and displays seems obvious. For Jews, the Ten Commandments are both a statement of faith and a declaration of rules or laws. Christians see the commandments as a statement of rules and part of their basic theology. For most American Christians and Jews, the Ten Commandments have come to symbolize biblical law. It is not unusual to find them in a sanctuary or on the outside walls of a house of worship. The commandments themselves are clearly religious in their origin and in their substance.

In addition to being religious in the most obvious sense of the term, any display of the Ten Commandments will inevitably favor one faith or one denomination over all others. Jews, Catholics, Orthodox Christians, Lutherans and most other Protestants differ in the way they number and organize the commandments and how they translate the commandments from the original Hebrew into English. Thus, any display of the commandments is inherently sectarian, because it must choose a translation, ordering and numbering system that will favor or endorse one or more religions, and therefore disfavor other religions. Furthermore, while important to Jews and Christians, the Ten Commandments have no place at all in Hinduism, Buddhism, Taoism or other non-western faiths. Thus, for all these reasons, Ten Commandments monuments are, in constitutional terms, preferential and as such fail the endorsement test set out in
County of Allegheny v. American Civil Liberties Union.3

Supporters of public displays of the Ten Commandments argue the displays are religiously “neutral” or non-sectarian and thus ought to be permitted. They also argue that the Ten Commandments are the moral foundation of American law, and thus these monuments are not religious at all but merely “historical.” The dissent in the recent Kentucky case and the plurality in the Texas case took this position. This article demonstrates that such claims cannot withstand careful scrutiny.

CAN A TEN COMMANDMENTS MONUMENT BE NEUTRAL?

There are at least five common versions of the ordering of the Ten Commandments: Jewish, Catholic, Orthodox Christian, Lutheran and general Protestant.4 These faiths, and various denominations within these faiths, use different translations of the commandments.5 Thus, no monument can be “neutral” or “non-sectarian,” because any ordering of the commandments or translation of the original Hebrew text will reflect the position of one or more faiths and exclude that of other faiths. An analysis of the biblical text and the use of that text by Jews, Catholics, Lutherans and most other Protestants illustrates the impossibility of a neutral or non-sectarian monument.

The Ten Commandments Text

The Ten Commandments text used on the public displays are from Exodus: 20. These displays rely on a translation of the original Hebrew into English. There is no such thing as a “neutral” or “non-sectarian” translation of this text. More importantly, major faiths differ in how they organize the text in their version of the ten commandments.6

Numbering the Commandments

While most Americans probably believe that the Ten Commandments are a universally accepted list of 10 “dos and don’ts,” this is emphatically not the case. There are in fact at least 13 separate admonitions in the “Ten” Commandments to “do” something or “not do” something. There are also a number of threats from God directed at those who do not obey these commandments. Different faiths divide these verses in different ways. Those faiths that accept the Ten Commandments do not agree on the numbering of the commandments, the content of each commandment, the translation of the commandments, or even their meaning. Jews, Catholics, Lutherans and other Protestants7 have different numbering systems for the commandments themselves.

The problem of numbering the commandments undermines any claim to “neutrality” in a Ten Commandments monument. The numbering system is a significant part of religious doctrine for all biblically based faiths. Any Ten Commandments monument must ultimately choose one numbering system or organization for the commandments, and by doing so, it will endorse one faith and of course reject or exclude other faiths.

For Jews, the first commandment is an affirmative statement: “I the LORD am your God who brought you out of the land of Egypt, the house of bondage[.]”8 For Jews, this sentence stands alone as a statement of faith that in itself is a commandment. It is a statement, of course, that can only apply to Jews, as they are the people who were “brought … out of the land of Egypt[.]”9 No Christians adopt this verse as a commandment. Most Protestants do not consider this to be part of the Ten Commandments; rather, it is for them simply a prefatory statement. Catholics, Orthodox Christians and Lutherans incorporate this sentence into their first commandment, but it does not stand alone. Thus, there are at least four versions of “the first commandment” — Jewish, Protestant, Orthodox and Catholic/Lutheran.

The second commandment is equally complicated. For Jews, this commandment contains verses 3-6 of Exodus 20, beginning with the words: “You shall have no other gods beside Me,” and continuing with verses 4-6. Verse 4 declares: “You shall not make for yourself a sculptured image, or any likeness of what is in the heavens above, or on the earth below, or in the waters under the earth.”10 For Protestants, the second commandment contains only verses 4-6, beginning with “Thou shalt not make unto thee any graven image, or any likeness of any thing that is in heaven above, or that is in the earth beneath, or that is in the water under the earth[.]”11 Thus, the Protestant first and second commandments form the entirety of the second commandment for Jews.

Catholics and Lutherans, on the other hand, consider their first commandment to include everything that is in the Jewish first and second commandments, as well as everything that is in the Protestant first and second commandments. Thus, their first commandment contains all of verses 2-6, although verse 2 is seen as a preamble, rather than as a theological assertion. Catholics translate verse 4 of this commandment as “You shall not carve idols for yourselves in the shape of anything in the sky above or on the earth below or in the waters beneath the earth.”12

The most obvious substantive difference in these numbering schemes concerns the emphasis on sculptured or graven images. The prohibition on “graven images” stands alone as the second commandment for Protestants, which reflects ideological and theological aspects of the Protestant reformation in most of Europe. Jews, Catholics and Lutherans, do not make this provision a separate commandment. Catholics also reject the language of “graven image.” Thus, monuments or displays — such as the one in Haskell County — that have as the second commandment a prohibition on graven images are distinctly Protestant and should be seen as an endorsement of mainstream Protestant theology, and a rejection of the faith of Jews, Catholics and Lutherans.

The fact that Jews, mainstream Protestants, Catholics, Lutherans and Orthodox Christians have different first and second commandments, leads to a different numbering system throughout the rest of the commandments. Jews, Protestants and Orthodox Christians finish their second commandment at the same place, with a ban on “sculptured”13 or “graven” images, a ban on bowing down or serving such sculptures and an admonition to “keep my commandments.”14 These three faiths have the same numbering system for commandments three through ten, but not the same translations. As already noted, the first commandment for Roman Catholics and Lutherans contains the verses that make up the first two Jewish and Protestant commandments. For the remaining commandments, Roman Catholics and Lutherans are essentially one commandment behind Jews and Protestants. For example, the seventh commandment for Catholics is a prohibition on stealing, while for Protestants and Jews the seventh commandment is a prohibition on adultery. An admonition from a Catholic to “remember the seventh commandment” [don’t steal] would have a very different meaning for a Protestant or a Jew [don’t commit adultery].

Thus, it is impossible to have a theologically “neutral” version of the Ten Commandments. Any monument that contains the Ten Commandments must choose among a variety of numbering systems, and in doing so endorse one religion over others.

Translating the Commandments

It is also impossible to have a “neutral” or “nondenominational” English version of the Ten Commandments. Any translation of the original Hebrew text requires a complex set of decisions that are influenced by religious belief and theology. For example, The King James Version of the Bible translates Exodus 20:4 as, “Thou shalt not make unto thee any graven image, or any likeness of any thing that is in heaven above, or that is in the earth beneath, or that is in the water under the earth[.]”15 The Catholic New American Bible, however, translates this as, “You shall not carve idols for yourselves in the shape of anything in the sky above or on the earth below or in the waters beneath the earth.”16 The Catholic translation to “not carve idols” is substantively different from the Protestant King James Bible translation not to make “any graven images” found on the monuments and displays in Kentucky, Texas and Haskell County.

These differences are of course theological. The Protestant reformation made it a point to destroy statues in Catholic churches and cathedrals, as the Reformationists turned these buildings into Protestant churches. The Catholic Church, however, retained statues of saints, the Virgin Mary and Jesus. Thus, the Catholic Church’s translation reflects theology and practice, as well as perhaps a goal to provide what the Catholic church believes is the “true” meaning of the commandment, rather than a word-for-word translation.

Another translation problem comes in Exodus 20:13. The King James Version of the Bible translates the verse as “Thou shalt not kill.”17 The Revised Standard Version modernizes the “thou” to “you,” translating the line into “You shall not kill,”18 as do American Catholic Bibles, such as The New American Bible.19 Jewish Bibles, following well accepted Jewish theological traditions and careful scholarly attention to the original Hebrew, translate this line as “You shall not murder.”20 Some modern Protestant translations, such as the New Revised Standard Bible21 and The Living Bible,22 also use the term “murder” instead of “kill.”

There is a clear legal difference between to “kill” and to “murder,” and this difference has had, and continues to have, important theological implications. Quakers and Mennonites, for example, in part base their pacifism on the grounds that “killing” violates the Ten Commandments. One Jewish commentary notes that “only unauthorized homicide is meant by the text, and the older translation ‘You shall not kill’ was too general and did not represent the more specific meaning” of the original Hebrew.23 The point here is not whether one translations is correct or not, but rather to illustrate how the choosing of one word — kill — rather than another word — murder — indicates that Ten Commandments displays, like the one in Haskell County, have in effect endorsed one religious and theological tradition and rejected another.

Similarly, the King James Version uses the words: “Thou shalt not take the name of the Lord thy God in vain” (Ex. 20:7). Other Bibles have a very different text. Jewish translations offer this text: “You shall not swear falsely by the name of the LORD your God.”24 The Living Bible translates this as: “You shall not use the name of Jehovah your God irreverently, nor use it to swear to a falsehood.”25 The Jehovah’s Witness text is: “You must not take up the name of Jehovah your God in a worthless way[.]”26 The International Children’s Bible simply states: “You must not use the name of the Lord your God thoughtlessly.”27 Catholic translations for this verse are inconsistent. The Jerusalem Bible translates it as “You shall not utter the name of Yahweh your God to misuse it,”28 while the authorized translation for English Catholics is “Thou shalt not take the name of the Lord thy God lightly on thy lips.”29 As with other verses, different faiths and denominations, using various translations of the Bible, offer different texts, which often contain different meanings. Again, these translation differences underscore the sectarian nature — the preferentialism — of Ten Commandments monuments.

Any translation of the Commandments is heavily connected to theology, religious practice and denominational needs. This once again underscores that any monument with a translation of the Ten Commandments would involve privileging one faith’s translation over another. Thus, it should be clear that a Ten Commandments monument on government property would in fact be an endorsement of one faith and a rejection of other faiths. There can be no “neutral” display of the Ten Commandments. When the government puts up a Ten Commandments monument, it in effect endorses one or more faiths and rejects others.

Non-Judeo/Christian Religions and the Ten Commandments

For an increasing number of Americans, the Ten Commandments have no religious significance. Buddhists, Hindus, Janes Toaists, Sikhs and Moslems do not accept the Pentateuch30 as a central text of their faith. For them, the Ten Commandments are not the foundation of their religion or their law. Indeed, the Ten Commandments were not meant for them.

The Ten Commandments were given to the ancient Israelites by their God and were initially directed to them. Exodus: 20 begins, “I am the Lord your God who brought you out of the land of Egypt, out of the house of slavery.” This is a statement from the God of the Israelites to the Israelite people. “Implicit in this biblical view is that God is Israel’s king, hence its legislator.”31 The commandments that followed were theologically directed to the people of Israel. Christians later adopted the commandments because, as one theological scholar notes, “Christians interpret the Old Testament in light of the New Testament”32 and “the prologue invokes not only the exodus narrative but also the story of the cross. For Christians, therefore, the prologue also says in effect, “I am the LORD your God, who was incarnate in Jesus Christ, born in a manger, died on a cross for you. So remember who you are and act accordingly.”33

Thus, while the Ten Commandments speak directly to Jews, and indirectly to Christians, they have no relevance to people who are not of these faiths. Supporters of Ten Commandments monuments argue that even if people do not accept the Bible, the commandments themselves are a set of universal truths that can apply to people of all faiths. But, this is clearly not true.

The first commandment for Jews is “I am the Lord your God who brought you out of the land of Egypt, out of the house of slavery.”34 This Commandment is hardly universal, it is in fact very specific and applies to Jews and only Jews. The Protestant first commandment —“You shall have no other Gods before me”35 — is obviously inapplicable to Hindus, Janists, or Sikhs who worship many Gods; Confucians who have deified Confucius; or Buddhists, who have a non-theistic concept of God. The ban on graven images, the second commandment for Protestants and part of the first commandment for Catholics (as a ban on idols), would make no sense to Hindus, Buddhists, Janists, Confucians, Sikhs or Shintoists. Similarly, it is hard to imagine how any of the followers of these faiths would find it wrong to take the name of the Israelite God in vain. None of these faiths even have a concept of a Sabbath, so followers surely could not be expected to “remember the Sabbath to keep it holy.”

Followers of these faiths may have very different notions of some of the other commandments. There is no evidence that all faiths condemn envy, which is the essential command of the Jewish and Protestant tenth commandment (and the Catholic and Lutheran ninth and tenth commandments). Notions of adultery vary from culture to culture and faith to faith. For some Hindus a ban on killing is central to their faith and might fit with the traditional (King James) translation of the Protestant sixth commandment “Thou shalt not kill,” but might not fit with the Jewish translation as “Thou shalt not murder.”

Thus, it is impossible to make a serious argument that the Ten Commandments are “universal,” or can in any way apply to the followers of most religions that do not accept the Jewish Bible as the basis of their theology and eschatology. A Ten Commandments monument on public space can be seen as an attack on the faith of many Americans and a statement that followers of non-western religions, as well as atheists and agnostics, are not true Americans and their faiths or beliefs are not worthy of respect.

THE TEN COMMANDMENTS AS THE MORAL FOUNDATION OF LAW

A second argument in favor of allowing Ten Commandments monuments to be displayed in public places focuses on the historical importance of the Ten Commandments and, more generally, the Bible. For example, Chief Justice Roy Moore of Alabama testified that he put a 5,500 pound Ten Commandments monument in the Alabama Supreme Court building “for the purpose of restoring the moral foundation of law. And to do that, one must recognize the source of those moral laws, which is God.” Moore believed that, in the suit directed at his Ten Commandments monument, “[w]hat’s on trial is the acknowledgment of God from which all our forefathers said justice is derived.”36

The essence of this argument is that American law is based primarily, or fundamentally, on Biblical law. There were some connections between early English law and the nation’s established church. Some colonial law was also biblically-based. However, the claim that the Ten Commandments, or even the Bible, are the moral foundation of American law simply does not stand up to careful scrutiny. Indeed, even in the colonial period the overwhelming majority of laws — which regulated land, crops, domestic animals, the sale of tobacco and rice, white-Indian relations, and slavery — had little or nothing to do with the Bible, much less the Ten Commandments.

The practice of invoking divine authority had ebbed by the time of the American founding. The Declaration of Independence includes references in the beginning to the “laws of nature and of nature’s God” a “creator,” and a reference in the end to “divine providence,” but these are non-Biblical references. The primary author of the declaration, Thomas Jefferson, was a deist. His references to a supreme being are clearly not references to the God of the Bible. Rather, they are invocations of enlightenment notions of natural rights. As a Deist, Jefferson notes that some basic concepts — equality and the rights to “life, liberty, and the pursuit of happiness” — are “self-evident” and are supported by “the laws of nature and nature’s God.”37 But, these are not references to the God of the Bible or to a Christian God. Rather, they are to a more generic, non-sectarian, non-theistic, higher authority.

More significantly, Jefferson appeals to notions of popular sovereignty and self-determination. He asserts the right of the colonists to create their own laws, through self-government. Jefferson does not invoke God’s name, or even “nature’s God” to justify this. Nor does he claim that the new nation is formed on the basis of God’s law or any biblical authority. Rather, he asserts that governments are created by the people — “the consent of the governed” — and not by God or by kings with divine rights to rule. Thus “it is the right of the people to alter or to abolish” a government if they wish.38 The declaration is devoid of any references to biblical law or the Ten Commandments.

The Declaration of Independence — not the Ten Commandments or the Bible — is central to the moral foundation of the United States. The assertions of self-government — that “governments are instituted among men, deriving their just powers from the consent of the governed” — and “self-evident” notions that “all men are created equal”39 — go to the heart of the moral and ethical foundation of American society and American law. Jefferson does not assert these moral truths based on the Bible, biblical law or the Ten Commandments. Rather, they are, like the declaration itself, created by the will of the people and exist in nature without the intervention of any religious code or writings. In essence, the moral foundation of American law becomes the right of the people to declare themselves independent and to assert their equality and their claim to self-government.

The central legal documents of the United States — the Constitution and the Bill of Rights — did not include even a perfunctory or formalistic reference to God. Rather than relying on divine authority, the Constitution is “ordain[ed]” by “the people of the United States.” The foundation of the law of the United States thus emanates from the nature of representative government — “the consent of the governed” — and needs no external or divine authority for its support. The United States Constitution is devoid of religious references, apart from banning religious tests for holding office and giving the president and other officers the choice of being sworn into office by either oath or affirmation. Indeed, these two clauses illustrate how the American founding was simultaneously deeply secular, respectful of religious diversity and conscious of the needs to protect religious minorities. The ban on religious tests for office-holding made the United States unique among western nations. Throughout Europe, office-holding was tied to religious belief. Americans believed that an oath of some kind was necessary to hold office, but declined to make it a religious oath, allowing office-holds to “swear (or affirm)” their support of the Constitution.40

The founding generation viewed the common law as embodying concepts of justice, equity and the rule of law, rather than representing divine principles. Americans cited the Magna Carta, Coke’s Institutes, Blackstone’s Commentaries, and the English Bill of Rights — not the Bible — in their struggle against the crown.

The founders understood from first hand experience the dangers of linking church and state. For example, in the decade before the American Revolution, Virginia — with its established Anglican church — jailed and whipped nearly 50 Baptist ministers for unlicensed preaching and other infractions.41 After the revolution, Virginia continued to persecute Baptists and other dissenters until 1786 when Virginia effectively disestablished its official church. Thus, in the Constitution and the Bill of Rights, framers like Madison worked to prohibit an establishment of religion at the federal level.

The debates over the United States Constitution in the Philadelphia Convention of 1787 illustrate the minor role of both the Bible and the Ten Commandments in American law. In these wide-ranging debates, the founders mentioned Roman law, European Continental law, British law and various other legal systems, but no delegate ever mentioned the Ten Commandments or the Bible. The only serious discussion of religion led to the clause prohibiting religious tests for office-holding.42

The words “Bible,” “Scripture” and “Ten Commandments” do not appear in any of The Federalist Papers, written to explain the Constitution. Clearly the three authors, James Madison, Alexander Hamilton and John Jay, saw no connection between either the Ten Commandments or the Bible and the Constitution they were defending. The Federalist Papers referred to the gods and religions of the ancient world in a few places and once, in Federalist 43 to “the transcendent law of nature and of nature’s God,” but otherwise never mentioned God. The reference to “nature’s God” is suggestive of the Deist views of Jefferson or Benjamin Franklin, rather than of the Old Testament God. The authors denounce religious intolerance and to note the dangers of mixing of church and state.

In Federalist 10 Madison famously pointed out, “A zeal for different opinions concerning religion, concerning government, and many other points, as well of speculation as of practice” has historically “divided mankind into parties, inflamed them with mutual animosity, and rendered them much more disposed to vex and oppress each other than to co-operate for their common good.” In another essay Alexander Hamilton asserted that, “in politics as in religion, it is equally absurd to aim at making proselytes by fire and sword. Heresies in either can rarely be cured by persecution.” Similarly, in Federalist 31, Hamilton declared that “those mysteries in religion, against which the batteries of infidelity have been so industriously leveled” are “incomprehensible to common sense.” Using examples of history to support the Constitution, Federalist 19 argued that in the Swiss Confederation “controversies on the subject of religion” had three times “kindled violent and bloody contests” that “severed the league.”43 The implication of this point was that America was better off under a Constitution that effectively separated religious and political issues.

Ten Commandments and American Jurisprudence

The claim that the Ten Commandments is a foundational document is not supported by the Supreme Court’s jurisprudence. The U.S. Supreme Court has never cited to the Ten Commandments as an authority for law, or even as a source of law. It has, however, cited many other sources of law that predate the American Revolution, as well as to some sources and public figures from the early national and antebellum periods. For example, there are more than 35 Supreme Court citations to the Federalist Papers, but, as already noted, the Federalist Papers did not rely on the Ten Commandments or the Bible. The court has also relied on other historical sources. For example, the Supreme Court has cited the Declaration of Independence more than 200 times.

There are at least 47 citations to President Abraham Lincoln. Many quote or cite to Lincoln favorably as a legitimate interpreter of American law. The court has cited or referred to Thomas Jefferson at least 175 times. There are over 350 cites to Blackstone’s Commentaries, many using Blackstone as an authority for our law. The court has also cited the great English jurist Chief Justice Lord Mansfield more than 325 times. The court has cited the Bill of Rights as a document more than 1,000 times, which suggests how important that document has been to the development of our legal culture. There are over 190 citations to the Magna Carta.

These citations to the Federalist Papers, Thomas Jefferson, Magna Carta, Abraham Lincoln, the English Bill of Rights, Blackstone’s Commentaries, the Bill of Rights and the Declaration of Independence illustrate the most important historical sources for our legal system and our constitutional development. Significantly, the Ten Commandments do not appear to have ever been used as a source or an authority by the highest court of the United States.

CONCLUSION

Monuments to the Ten Commandments thus do not reflect an objective or accurate representation of the historical development of American law. Rarely have American lawmakers turned to the commandments for guidance. Those laws which dovetail with the commandments, such as prohibitions on stealing or perjury, are found in virtually all cultures. However, most of the other provisions of the commandments have never been part of our law, at least since independence.

Rather than reflecting our legal heritage, to a great extent the Ten Commandments fly in the face of the evolution of American law, which has been towards secular freedoms and liberties and towards greater religious diversity. Furthermore, the founders of the United States did not turn to biblical sources in general, or the Ten Commandments in particular, as a source of law. Thus, there is no historical foundation for a claim that a monument to the Ten Commandments, such as the one in Haskell County, is rooted in our legal and political history. The framers of the Constitution and the founders of the nation valued freedom of expression, freedom of thought and freedom of belief and worship — they thus rejected as a source of law a set of precepts or “commandments” that would have limited the right of people to believe what they want and worship as they wish.

More importantly, the founders valued political self-determination. In creating the Constitution they did not appeal to the Bible, God or the Ten Commandments for authority, but rather, declared “We the people … do ordain and establish this Constitution for the United States of America.”44 In asserting their right to “ordain” their own form of government, the framers implemented Jefferson’s notion that “[g]overnments are instituted among men, deriving their just powers from the consent of the governed. . . .”45 Such a theory of government precluded relying on laws that were handed down to the people by any outside authority. By declaring in our Constitution that there would be no religious tests for national office-holding, the framers rejected the religious tests inherent in the Ten Commandments. The Ten Commandments require that adherents accept only “one God,” and have “no other God,” and “not bow down” to statues (or idols in the Catholic translation), but the Constitution has no such tests and does not require that anyone even believe in God in order to hold office. In McGowan v. Maryland46 the Supreme Court upheld this understanding of the Constitution. The framers clearly rejected religious orthodoxy in what was already a religiously diverse nation.

The Ten Commandments are a statement of faith and belief for Jews and Christians. Some of the Commandments offer universal “truths” found in most societies, such as prohibitions on adultery, stealing, perjury and, depending on the translation, murder. But other parts of the Commandments are clearly theological and sectarian, such as the assertion of one God, the creation of a Sabbath or the ban on graven images. Still other aspects of the Commandments are neither theological nor legalistic. The admonition to honor one’s parents has never been part of the law of the United States.

The last commandment for Jews and Protestants (which forms the last two commandments for Catholics and Lutherans) is an admonition against coveting. This text illustrates yet one more way in which the Ten Commandments are antithetical to the American legal and cultural experience. The King James Version of the Bible of this text says “Thou shalt not covet thy neighbour’s house,... Nor anything that is thy neighbour’s [sic].” This commandment seems to stand in opposition to a capitalist, consumer culture that has long been at the root of American life. Whole industries — advertising, automobiles, clothing and cosmetics — are predicated on the idea of wanting what your neighbor has. Americans learn from an early age to “covet thy neighbour’s house” and two huge industries, real estate and home building, thrive because of this. We even have a tax code that subsidizes this covetousness. “Keeping up with the Joneses” is a tried and true aspect of American culture. The prohibition on envy found at the end of the commandments may be an ethical goal of Judaism and Christianity, but it can hardly be seen as part of the foundation of either American law or culture.

Indeed, most of the commandments could not be enacted into law and withstand a constitutional challenge. The first five commandments for Protestants (one god, no graven images, not taking the Lord’s name in vain, observe the Sabbath and honor parents) would clearly be unconstitutional. It is hard to image how we could even have a statute requiring children to honor their parents. One wonders what its provisions might entail. The Protestant and Jewish seventh commandment (prohibiting adultery) was once enforceable in this country, but it is probably no longer enforceable. Indeed, the expansive protection of privacy and liberty in Lawrence v. Texas47 would seem to preclude prosecution for adultery. Similarly, the last commandment for Jews and Protestants (coveting) could hardly be banned by statute. Even the Protestant and Jewish ninth commandment, (prohibition on bearing false witness) is only enforceable under limited circumstances. In courts and when talking to police officials, we may be legally obligated to tell the truth, but this is not so in daily life, where lying is permissible. Thus, at most we can only be sure that laws against theft and murder (although not always killing) would be upheld under modern constitutional standards.

In the end, Ten Commandments displays are sectarian, supporting the theological interpretations and biblical translations of particular groups, usually Protestants. The commandments themselves speak, with only a few exceptions to ethical and religious values (believing in God, observing the Sabbath, etc.) that are beyond the reach of civil law. Furthermore, these displays endorse a particular version of Christianity, and, by doing so, exclude other Christians and Jews, agnostics and atheists, and followers of non-Western faiths, including Islam, Hinduism and Buddhism. By endorsing a particularistic version of the Ten Commandments, the state sends a message of inclusiveness to some Protestants or Lutherans, while in effect implying to others that they are outsiders, and that their religious traditions and beliefs have less value within the political culture of the nation. As such, these displays have no place on the courthouse lawn or on public property.

1. Am. Civil Liberties Union of Ky. v. McCreary County, Ky., 2005 WL 1498988 and Van Orden v. Perry, 2005 WL 1500276.

2. Lemon v. Kurtzman, 403 U.S. 602 (1971). The courts in the Alabama case noted the same thing. In his testimony in that case, Chief Justice Roy Moore, seemed to want to post the Ten Commandments to proclaim his view that we are a nation “under God” or even that we must always respect a “higher authority” in law. Completely Corrected Version, Volume III of VII, The 3rd Day of Non-Jury Bench Trial at 34, Glassroth v. Moore, 229 F. Supp. 2d 1290 (M.D. Ala. 2002) (No. 01-CV-1268).

3. 492 U.S. 573 (1989). See also Douglas Laycock, “Theories of Interpretation: Free Exercise Clause and Establishment Clause,” in Religion and American Law: An Encyclopedia 516, 522-23 (Paul Finkelman ed., Garland Publishing Co. 2000) [hereinafter Religion and American Law].

4. Lutherans are, of course, Protestants; however, for purposes of this article, will be treated as a separate faith.

5. Consider these different translations of Exodus 20:2-3.

The King James Version has translated these verses as, “I am the LORD thy God, which have brought thee out of the land of Egypt, out of the house of bondage. Thou shalt have no other gods before me.” The Bible: Authorized King James Version with Apocrypha 89 (Oxford University Press 1998) (1997) [hereinafter King James Version].

The Jehovah’s Witness version of The Bible has the following translation: “I am Jehovah your God, who have brought you out of the land of Egypt, out of the house of slaves. You must not have any other gods against my face.” New World Translation of the Hebrew Scriptures 258-59 (Watch Tower Bible & Tract Society of Pennsylvania 1953) [hereinafter New World Translation].

The Living Bible states, “I am Jehovah your God who liberated you from your slavery in Egypt. You may worship no other god than me.” The Living Bible: Paraphrased, A Thought-for-Thought Translation 47 (Tyndale House Publishers, Inc. 1971) [hereinafter The Living Bible].

The Revised Standard Version, a Protestant Bible, states, “I am Jehovah thy God, who brought thee out of the land of Egypt, out of the house of bondage. Thou shalt have no other gods before me.” The Holy Bible: Revised Standard Version 92 (Herbert G. May and Bruce M. Metzger eds., Oxford University Press 1962) (1946) [hereinafter Revised Standard Version].

And in the International Children’s Bible, the translation is, “I am the Lord your God. I brought you out of the land of Egypt where you were slaves. You must not have any other gods except me.” International Children’s Bible, available at http://www.therain.org/studies/tenicb.html (last visited Jan. 21, 2005).

6. Even the numbering of the verses is subject to religious and theological dispute. Jews consider the Ten Commandments to come from verses 2-14, while Christian Bibles number the very same verses as 2-17. . In the Jewish numbering system, verse 13 reads as follows: “You shall not murder./ You shall not commit adultery./ You shall not steal./ You shall not bear false witness against your neighbor.” The Torah: A Modern Commentary 554 (W. Gunther Plaut ed., Union of American Hebrew Congregations 1981) (1962) [hereinafter The Torah]. Christian translations separate these four statements into four separate verses, thus increasing the total number of verses by three, from fourteen to seventeen. Thus, a reference to any particular verse of the Ten Commandments can be confusing. For example, a Protestant or Catholic might refer to verse 14 - the adultery prohibition - but a Jew would assume this is a reference to the prohibition on coveting.

7. The Greek Orthodox Church of the United States and the Orthodox Church in America (OCA) use a numbering system that is nearly identical to that of traditional Protestant numbering, except that Orthodox Catholics include Exodus 20:2 (“I am the Lord thy God, which have brought thee out of the land of Egypt, out of the house of bondage.”) as part of their first Commandment. See Rev. George Mastrantonis, The Ten Commandments, at http://www.goarch.org/en/ourfaith/articles/article7115.asp (last visited Jan. 18, 2005); see also Orthodox Church in America, The Ten Commandments, available at http://www.oca.org/pages/orth_chri/orthodox-faith/bible-and-church-history/The-Ten-Commandments.html (last visited Jan. 19, 2005).

8. Exodus 20. This is the translation found in The Torah, supra note 6 at 539. The King James Version, which is used for the Texas, Kentucky, and Haskell displays, uses this language: “I am the LORD thy God, which have brought thee out of the land of Egypt, out of the house of bondage.” See King James Version, supra note 5, at 89.

9. The Torah, supra note 6, at 539

10. Id.

11. King James Version, supra note 5, at 89-90.

12. See The New American Bible: Translated from the Original Languages . . . by Members of the Catholic Biblical Association of America 55 (The Catholic Press 1970) (1953) [hereinafter New American Bible].

13. See The Torah, supra note 6, at 539.

14. King James Version, supra note 5, at 90.

15. Id.

16. The New American Bible, supra note 12, at 55.

17. King James Version, supra note 5, at 90.

18. Revised Standard Version, supra note 5, at 93.

19. The New American Bible, supra note 62, at 55; see also the Jerusalem Bible 102 (Doubleday & Co., Inc. 1966).

20. The Torah, supra note 6, at 554; Tanakh: A New Translation of The Holy Scriptures According to the Traditional Hebrew Text 116 (The Jewish Publication Society 1985) [hereinafter Tanakh]. See also Adele Berlin and Marc Zvi Brettler, eds., The Jewish Study Bible (Oxford University Press, 2004)150.

21 Holy Bible with Apocrypha: New Revised Standard Version 65 (American Bible Society 1989) [hereinafter New Revised Standard Version].

22. Supra note 5, at 48.

23. The Torah, supra note 6, at 557.

24. The Torah, supra note 6, at 540; see also Tanakh, supra note 20, at 115.

25. The Living Bible, supra note 5, at 47.

26. New World Translation, supra note 5, at 259.

27. International Children’s Bible, supra note 5.

28. The Jerusalem Bible, supra note 19, at 81.

29. The Holy Bible: A Translation from the Latin Vulgate in the Light of the Hebrew and Greek Originals 66 (Sheed & Ward 1956) (1944). This text, the official English Catholic Bible, has the Imprimatur of Bernardus Cardinal Griffin, Archbishop of Westminster.

30. The Pentateuch is the name given to the first five books of the Old Testament. See The Torah, supra note 6, at xvii.

31. Jewish Study Bible, supra note 20 at 148.

32. Nancy J. Duff, Should the Ten Commandments be Posted in the Public Realm? Why the Bible and Constitution Say, “No,” in The Ten Commandments: The Reciprocity of Faithfulness 166 (ed. William P. Brown ed., Westminster John Knox Press, 2004).

33. Id.

34. See The Torah, supra note 6, at 539-41.

35. See King James Version, supra note 5, at 89.

36. Completely Corrected Version, Volume III Of VII, The 3rd Day Of Non-Jury Bench Trial at 34, 127, Glassroth v. Moore, 229 F. Supp. 2d 1290 (M.D. Ala. 2002) (No. 01-CV-1268).

37. The Declaration of Independence, pmbl. (U.S. 1776)

38. Id.

39. Id.

40. U.S. Const., preamble, and Art VI, cl. 3,. art. II, § 1, cl. 8 and art. IV, cl. 3.

41. Thomas J. Curry, The First Freedoms: Church and State in America to the Passage of the First Amendment 135 (1986).

42. See Max Farrand, The Records of the Federal Convention of 1787 (Yale University Press, 1966).

43. The Federalist Papers (F.H. Scott ed., 2002, citing Federalist 43, at 246 (Madison); Federalist 10, at 55 (Madison); Federalist 7, at 13 (Hamilton); Federalist 31 at 165 (Hamilton) and Federalist 19, at 108 (Madison and Hamilton). Word search of The Federalist Papers, done on the Thomas Databases, of the Library of Congress, at http://www.thomas.loc.gov.

44. U.S. Const. pmbl.

45. The Declaration of Independence, ¶¶ 1-2 (U.S. 1776).

46. 366 U.S. 420 (1961).

47. In Lawrence v. Texas, 39 U.S 558 (2003) The court noted: “Liberty protects the person from unwarranted government intrusions into a dwelling or other private places. In our tradition the State is not omnipresent in the home. And there are other spheres of our lives and existence, outside the home, where the State should not be a dominant presence. Freedom extends beyond spatial bounds. Liberty presumes an autonomy of self that includes freedom of thought, belief, expression, and certain intimate conduct.” Id. at 562. In his dissent Justice Scalia makes the point that in overturning Bowers v. Hardwick, as the court did in Lawrence, the court undermined authority for any laws “against bigamy, same-sex marriage, adult incest, prostitution, masturbation, adultery, fornication, bestiality, and obscenity.” Lawrence at 590 (Scalia, J. dissenting).

About the Author

Paul Finkelman is the Chapman Distinguished Professor at the TU College of Law. He previously held the John F. Seiberling Chair in Constitutional Law at the University of Akron and taught at a number of other law schools and in history departments. He received his B.A. in American studies from Syracuse University, and his M.A. and Ph.D. in U.S. history from Chicago. He was a fellow in law and humanities at Harvard Law School (1982-83).