Things To Act
Wednesday, February 04, 2004
As promised, an explanation of my confusion over the 10 Commandments posting issue.
Establishment Clause--the government can't endorse any particular religion. This seems pretty straightforward. So what justification is there for a governmental endorsement of 10 commandments of a particular religion or set of religions? No good one that I can think of. The only close to credible argument I've heard is that 'our legal system is based on the 10 commandments as found in Exodus, so posting them serves as a reminder/celebration of that heritage.' Even if that was true once (and I have my doubts), the claim doesn't seem to bear up today. Let's look at the record:
1. No other Gods. A pretty blatant endorsement of not just religion, but monotheism. And the issue of whether or not two particular religions 'worship the same God' definitely seems to be something the government should stay out of.
2. No graven images. Again, no secular purpose, but a heck of a religious one. It's simply not the government's business (though the thought of the Consumer Products Safety Commission regulating idols does strike me as amusing, for some reason).
3. Not take the name of God in vain.
3.1. Blasphemy. You might be able to carve out a clever First Amendment exception argument revolving around community standards or respect or something, but it seems to have all of the same troubling provisions as 'hate speech' legislation or other PC codes of regulation. And it would still be an establishment of religion, unless we ban disrespectful speaking about any deity or set of beliefs, which blows a pretty big hole in the First Amendment. The way to deal with those who don't respect others' beliefs is to ignore them, not use the power of the state to persecute them.
3.2. Contracts. If you prefer the interpretation that 'taking' the name of the Lord is entering a covenant with him, as through baptism, you could tie in a relation to contract law--but there'd still be no need to bring religion into it (and I doubt the courts would want to enforce a purely religious contract, even between private parties--there'd have to be some sort of property dispute at stake to avoid excessive entanglement).
4. Sabbath. Picking just one is an establishment of everyone who thinks that day is The Sabbath, and a disestablishment of those who don't. So Sunday closing laws, without some major secular purpose, are pretty clearly unconstitutional. Discourage Sabbath commerce by declining to take part, not by forcing those who honor a different Sabbath to conform to your standards.
5. Honor Parents. Do children have legal obligations to their parents? Most of the laws in our system seem to work the other way, and the subjective definition of 'honor' seems to make government involvement pretty silly ($50 off your taxes if you call Mom on Mother's Day?). You could bring the 'care for the elderly' argument into it, in which case I leave as an exercise for the student whether the Social Security program is the nationwide observance of this commandment or its wholesale abandonment.
6. Don't Murder. Finally! A law with a secular purpose. And one our society supporter (except for the unborn, and possibly the elderly/disabled who must want to die anyway. And then there's the issue of the higher abortion rate for the potentially disabled. And so on...).
7. Don't Commit Adultery. We may have once enforced this one through law, but not anymore. No fault divorce, the general trend toward sexual permissiveness, etc. Lawrence v. Texas implies that any law regulating fornication is unconstitutional (under the current Court, anyway), and one could make a compelling case for adultery as well, unless we start taking the contract aspect of marriage seriously again. Which I'm not holding my breath over.
8. Don't Steal. Hey. It's another secular purpose. Now if we just had a good definition of 'steal' to work with... While I'm sure there are quibbles, I'll let this one go through. Our laws, by and large, discourage theft.
9. Don't Bear False Witness.
9.1. Perjury. The literal meaning of this commandment. Still illegal, if not enforced nearly enough. Point Decalogue.
9.2. Lying. The conventional meaning of this commandment. Can be illegal in some circumstances, and covered by free speech in others. Tie.
10. Coveting. As long as it's not acted upon, fully protected by the First Amendment's right to freedom of expression/belief.
So the tally is 3-7, with areas of quibbling even within the three that relate to our legal system today. And for six of the seven, attempting to enforce with the police powers of the state is pretty clearly either violating the Constitution or outside the scope of appropriate government action (I would welcome a more serious legal approach to marriage/divorce/adultery, but doubt the culture will permit it anytime soon).
This leads me to the conclusion that, regardless of history, our legal system pretty clearly is not presently founded on the Ten Commandments (and probably shouldn't be, outside of a theocracy established after the Second Coming). Hence, all attempts to get the government to endorse the Ten Commandments look to me like blatant attempts to use the power of the state to either browbeat one's religious opponents or to feel good about oneself (with a corresponding lack of good feeling by those of different beliefs).
I'm somewhat sympathetic to arguments for displays celebrating heritage in nonjudicial settings (such as public parks), though not very without some pretty clear standards to keep things fair (such as allowing displays from multiple traditions). But if we want to celebrate our legal heritage, why not use the Bill of Rights, or some other set of foundational principles which all Americans agree upon?
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