The Big Nine take on the Big Ten

The Supreme Court has agreed to take on a couple of “state display of the Ten Commandments” cases. Well, that’ll guarantee some discussion topics in the blogosphere once the election is over.

Officials in two Kentucky counties — McCreary and Pulaski — hung framed copies of the Ten Commandments in their courthouses and added other documents, such as the Magna Carta and the Declaration of Independence, after the American Civil Liberties Union challenged the display was by. The ACLU sued and won. County officials are appealing the decision.

David A. Friedman, general counsel for the Kentucky ACLU, said people of different faiths follow different versions of the document. “Especially in a courthouse, people should not be made to feel like outsiders in their own community because they may not share the prevailing religious view,” he said.

In the Texas case, a homeless man, Thomas Van Orden, lost his lawsuit to have a 6-foot granite monument removed from the state Capitol grounds. The Fraternal Order of Eagles donated the exhibit to the state in 1961, and it was installed about 75 feet from the Capitol in Austin. The group gave scores of similar monuments to American towns during the 1950s and ’60s, and those have been the subjects of multiple court fights.

Since American law is not based on the Ten Commandments (indeed, only two or three of them apply to our civil law today, depending on how you count them), the “history” argument for their display has always seemed very weak to me — unless you are really going to put out a number of similar precursors, such as excerpts from the Code of Hammurabi, and the Magna Carta, and some competing (or parallel) religious laws.

If it’s not historic, then it’s a proclamation of a specific religious faith. As Justice Stevens noted in a similar 2001 case, the words “I am the Lord thy God,” in the first line of the Indiana monument’s inscription are “rather hard to square with the proposition that the monument expresses no particular religious preference.”

That makes it improper for a seat of government, especially in this day and age, when the assumption that everyone believes in and feels personally bound by the 10C is a dubious one.

I’d be tempted, by the way, while prohibiting the placement of the 10C on governmental property except in very controlled cases, to allow a rolling “grandfathering” clause for this and similar types of suits. If the PDR (Public Display of Religion) has been around for, say, 50 years or so, it should be immune to court challenge of this sort, instead becoming a public landmark of sufficient secular value to warrent keeping. That would remove a lot of the “But that’s always been here” traditionalist objections, while putting a stop to re-establishment of potentially offensive monuments. (If the public as a whole objected enough to such a momument, of course, their local representatives could always vote to get rid of it; I’m talking here about court challenges only.)

If people would like to put statues of the Ten Commandments in their front yard, or as bumper stickers on their cars, or on any private property, or do the same with any other religious symbol and displays, that is their prerogative, and I would object just as strongly to anyone trying block that. But putting the 10C at a seat of the civil government sends a message that seems wholly incompatible with the the constitutional provision against establishment of a religion. And for those who don’t see it, consider if a majority-Muslim community were to put a monument that said, “There is no God but Allah, and Mohammed is his prophet,” in front of their city hall. Would you feel … well, a bit intimidated or unwelcome if you weren’t Muslim?

The biggest regret I have about the Supremes taking this on (well, biggest regret thus far) is that it’s given new publicity to former Alabama Chief Justice Roy Moore, whose grinning face was plastered on CNN during the lunch hour. If that’s not enough to put one off their feed, I don’t know what is …