Topic: Did the Supreme Court blow the 10 Commandments decision? (Read 3418 times)

Copernicus · « **on:** June 30, 2005, 08:57:33 PM »

I am curious as to how people come down on the Supreme Court decision that the 10 Commandments cannot be displayed in a Tennessee courthouse, but they can be displayed on the lawn of the Texas statehouse.

cimics · « **Reply #1 on:** June 30, 2005, 09:25:23 PM »

Color me confused about what the SC is doing. Having seen the Texas 10 commandments monument, it doesn't seem worth the ruckus, but I'm not sure what is so different about the Tennessee monument -- but I haven't seen that one.

Copernicus · « **Reply #2 on:** June 30, 2005, 09:55:48 PM »

Quote from: cimics

Color me confused about what the SC is doing. Having seen the Texas 10 commandments monument, it doesn't seem worth the ruckus, but I'm not sure what is so different about the Tennessee monument -- but I haven't seen that one.

Here is a picture of it:

Are you a Lutheran? I have read that the version of the Ten Commandments that the original donors chose to have enshrined was the Lutheran version. Presumably, that should make no difference, because Justice Breyer has opined that it has "historical" significance in terms of Texas law and/or government. I doubt that most Texans would agree with that version (if they were aware of it, which they probably are not), but one must suppose that the Lutherans played a significant role in the history of Texas. :)

cimics · « **Reply #3 on:** June 30, 2005, 10:42:40 PM »

Oh BTW, let's get this right. The other state is Kentucky, not Tennessee.

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Are you a Lutheran?

No, but my contact with Lutherans suggest that they are probably not too far off from my perspective. My denominational background is kind of varied, with Catholic, Church of Christ, Baptist, and Assemblies of God being denominations I have attended (mostly as a result of my mom). I currently attend Baptist (of the Southern variety) but I do not agree with all their doctrine.

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I have read that the version of the Ten Commandments that the original donors chose to have enshrined was the Lutheran version.

I'm not sure what you mean by a "Lutheran" version. SJ would be more qualified to speak on that. It may be though, that you're just referring to a KJV version historically endorsed by Lutherans?

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Presumably, that should make no difference, because Justice Breyer has opined that it has "historical" significance in terms of Texas law and/or government.

Breyer is the swing vote, and I am not sure his position makes much sense.

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I doubt that most Texans would agree with that version (if they were aware of it, which they probably are not), but one must suppose that the Lutherans played a significant role in the history of Texas.

I think most Texans would agree that the Ten Commandments was influential with regard to our law, but from an American rather than uniquely Texan standpoint.

How big is this Kentucky monument (more than one?)? That might make a difference. The Texas monument is fairly small and not centrally located. You can pass it on the way to the Supreme Court building, though.

I don't think I buy the argument that the avowed intent of the monument makers is somehow controlling over whether one is constitutional and the other is not. Intent doesn't make a monument any more or less religious looking.

Copernicus · « **Reply #4 on:** July 01, 2005, 12:56:57 PM »

Quote from: cimics

Oh BTW, let's get this right. The other state is Kentucky, not Tennessee.

Thanks for the correction.

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I'm not sure what you mean by a "Lutheran" version. SJ would be more qualified to speak on that. It may be though, that you're just referring to a KJV version historically endorsed by Lutherans?

I'm not exactly sure what is meant by "Lutheran version". I know that there are more substantial differences between the Protestant, Catholic, and Jewish versions.

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Breyer is the swing vote, and I am not sure his position makes much sense.

I agree. The other four votes tend to take the position that states can deprive their citizens of some of the rights mentioned in the Bill of Rights, since the Constitution really restricts the federal government from taking away those rights. I think that Sandra Day O'Connor's removal won't affect the Texas decision, but Bush's next appointment will likely bring down the Kentucky decision. I expect Bush to appoint someone who will overturn that decision as well as some of the others that the court has been narrowly divided on--most especially Roe v Wade.

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I think most Texans would agree that the Ten Commandments was influential with regard to our law, but from an American rather than uniquely Texan standpoint.

I agree that most Texans would side with most Americans on that opinion. However, I do think that the reasoning in support of such an opinion is extremely tortured. After all, most Americans have a definite bias in favor of more religious influence in government.

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How big is this Kentucky monument (more than one?)? That might make a difference. The Texas monument is fairly small and not centrally located. You can pass it on the way to the Supreme Court building, though.

I have read that the Texas monument is six feet tall, but I suppose that that is rather small by Texas standards. :D

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I don't think I buy the argument that the avowed intent of the monument makers is somehow controlling over whether one is constitutional and the other is not. Intent doesn't make a monument any more or less religious looking.

What criteria would establish whether or not a given monument has a religious or secular purpose? Breyer seemed to talk around the edges of the subject, referring to vague criteria such as the age of a symbol and the number of complaints lodged against it. I think that the criteria should be not only the stated intent of the monument makers, but the perception of the public. If most of the public sees it as a religious symbol, and they want it to stand on public property as such, then that would be a violation of the Establishment Clause under the current rulings. Breyer seemed to be a bit fuzzy about its current status, so he went with his intuition that it did not represent a religious symbol. Myself, I don't see how anyone could honestly come to that conclusion, since, as Stevens wrote, the 10 Commandments played no historical role at all in Texas government (let alone federal government).

FUSSCCJ · « **Reply #5 on:** July 01, 2005, 01:15:27 PM »

Come on now, is it a law? Does it establish a religion/prevent free exercise of religion? If you answered no to either of those questions the first amendment doesn't prohibit it. If you answered yes to both of those questions it does. Since last time I checked a monument isn't a law, I really don't understand the constitutional controversy.

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The other four votes tend to take the position that states can deprive their citizens of some of the rights mentioned in the Bill of Rights, since the Constitution really restricts the federal government from taking away those rights.

Are you trying to say that members of the Supreme Court haven't read the 14th amendment?

Copernicus · « **Reply #6 on:** July 01, 2005, 02:46:30 PM »

Quote from: FUSSCCJ

Come on now, is it a law? Does it establish a religion/prevent free exercise of religion? If you answered no to either of those questions the first amendment doesn't prohibit it. If you answered yes to both of those questions it does. Since last time I checked a monument isn't a law, I really don't understand the constitutional controversy.

Think again, FUSSCCJ. Monuments on state property are regulated by state law. Under the 14th Amendment, states cannot pass laws that abridge the rights and privileges of US citizens. It makes a mockery of the First Amendment to put religious symbols on publicly-owned land, because that would promote a particular religious doctrine. It would be similarly illegal to put a monument on public property that advocated lack of religious belief. State and local governments simply have no power to promote any religious beliefs.

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Are you trying to say that members of the Supreme Court haven't read the 14th amendment?

No, I'm saying that some members have a rather unique interpretation of what it says about states' rights. As members of the Supreme Court, they are entitled to their opinions, but they have the power to declare that black is white, in effect. In the words of one eminent constitutional scholar, Leonard Levy, the Supreme Court is effectively a "mini-constitutional convention". Conservatives have complained about this power in the past, and they use code language such as "strict constructionists" or "strict interpretation" to describe their own sometimes fanciful opinions about what the Constitution says. This is payback time for conservatives. They won't complain about judicial activism when it goes their way. In fact, they'll relish it.

We may someday find ourselves in a situation where the supreme law of the land no longer protects us from state establishments of religion, crackdowns on the press, and restrictions on free speech. The 14th amendment was ratified, in part, because there was some confusion about the powers of states in the past. It appeared to settle the matter once and for all. Some conservatives think that they have achieved an understanding of the 14th amendment that entitles states to recover what they see as lost rights to federal hegemony.

FUSSCCJ · « **Reply #7 on:** July 01, 2005, 07:22:57 PM »

Wait, you said, "because that would promote a particular religious doctrine" while the law says "respect an establishment of religion." Why do you consider those to be equal?

Also, if a monument is regulated by state law then the law can be unconstitutional, not the monument. The recent decisions show that this may not just be semantics, as the Court has looked at intent. Technically, the intent comes from the law and not the monument itself. If the law is constitutional you can't then go to the monument, say it doesn't match the law and therefore the federal government can come in and tear it down. In that case it would be an issue of enforcement, and the federal government has no place enforcing state laws by its own initiative.

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No, I'm saying that some members have a rather unique interpretation of what it says about states' rights. As members of the Supreme Court, they are entitled to their opinions, but they have the power to declare that black is white, in effect.

I think you probably dispute their reading of the rights granted to citizens and powers granted to the federal government rather than their application of the 14th amendment. I'd like to see a ruling where you think judicial activism is occuring by the more conservative members.

Anthony Horvath · « **Reply #8 on:** July 01, 2005, 08:21:29 PM »

I have a solidly Lutheran background.

The Lutheran version of the 10 Commandments combines-

"You shall not take the name of the Lord your God in vain"
and
"You shall not make for yoursel an idol."

And then it splits "You shall not covet your neighbor's house"

from

"You shall not covet your neighbor's wife, etc"

This is obviously absurd, and I have no idea what the history of this diversion is, although I've been meaning to look into it.

I use the traditional and patently obviously accurate version, not the 'Lutheran' version.

Copernicus · « **Reply #9 on:** July 01, 2005, 09:55:25 PM »

Quote from: FUSSCCJ

Wait, you said, "because that would promote a particular religious doctrine" while the law says "respect an establishment of religion." Why do you consider those to be equal?

I never said they were equal. However, the government can only perform acts that it is empowered by the Constitution to perform. It has no authority to donate public property for the purpose of promoting a religious doctrine. Do you actually believe that the government has the right to promote religious doctrines?

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Also, if a monument is regulated by state law then the law can be unconstitutional, not the monument. The recent decisions show that this may not just be semantics, as the Court has looked at intent. Technically, the intent comes from the law and not the monument itself. If the law is constitutional you can't then go to the monument, say it doesn't match the law and therefore the federal government can come in and tear it down. In that case it would be an issue of enforcement, and the federal government has no place enforcing state laws by its own initiative.

That is convoluted logic, and it flies in the face of the 14th amendment. State governments have no authority to abridge the rights of US citizens. Official promotion of religious doctrines abridges the rights of citizens who conscientiously oppose those doctrines. One of the main reasons for the Establishment Clause was to end the practice in several states of requiring citizens to pay taxes to support religious institutions. Putting religious monuments on public property, where they are maintained and cared for at public expense, violates the intent of the First Amendment to put an end to government meddling in the religious conscience of citizens.

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I think you probably dispute their reading of the rights granted to citizens and powers granted to the federal government rather than their application of the 14th amendment. I'd like to see a ruling where you think judicial activism is occuring by the more conservative members.

I dispute both, and I think that all rulings by the Supreme Court, liberal and conservative, represent judicial activism. Conservatives just use double-talk and obfuscation to deny their activism.

Coach · « **Reply #10 on:** July 01, 2005, 10:59:05 PM »

what I don't get is they rule not to have in the court houses, but then ruled they can be allowed in other state government buildings... does that make any sense?

Copernicus · « **Reply #11 on:** July 01, 2005, 11:36:37 PM »

Quote from: Coach

what I don't get is they rule not to have in the court houses, but then ruled they can be allowed in other state government buildings... does that make any sense?

I think that the inconsistency is largley in the mind of Breyer and not the other justices. Four of them want to break down the wall of separation between church and state, and four of them want to strengthen it. Breyer wants to claim that the same religious icon can be religious in one setting but not the next. Unfortunately, not everyone shares his opinion of where to draw the line, so this matter will go back to the court. I expect that Bush will appoint justices who agree with his desire to tear down the wall of separation.

Anthony Horvath · « **Reply #12 on:** July 02, 2005, 11:55:46 AM »

<---looks around, decides Fussy's doing a good job representing his position, and ducks out.

FUSSCCJ · « **Reply #13 on:** July 02, 2005, 04:26:34 PM »

Quote from: Copernicus

I never said they were equal. However, the government can only perform acts that it is empowered by the Constitution to perform. It has no authority to donate public property for the purpose of promoting a religious doctrine. Do you actually believe that the government has the right to promote religious doctrines?

Not an issue of rights, but of powers (if anyone was keeping track).

No, the federal government does not have the power to promote religious doctrine as religious doctrine, however it can be codified into law and promoted as public morality etc. (i.e. 'Remember the sabbath day, to keep it holy' is one of the 10 commandments yet is codified in our constitution by not including it in days the President has to consider bills passed by Congress and having 'thou shalt not steal' as part of religious doctrine does not invalidate laws against stealing). Also, if the government were teaching religious doctrine for religious purposes that would be outside its power (it could be used in learning to read, to learn about religion, or for historical purposes). In this case, however, I don't think it's an issue.

State governments had the power to promote religious doctrine until the adoption of the 14th amendment. They still have the power, as does the federal government, to promote the advancement of history (see Art. I, viii, 8). That is what these monuments do. The fact that they are also religious in nature should speak to their defense, as the Supreme Court has ruled that, "no purpose of action against religion can be imputed to any legislation, state or national, because this is a religious people" (Holy Trinity Church v. US). In the same case they noted numerous historical documents that we religious in nature, including the constitutions of every state (there were 44 at the time). Were the government to post religious material that had little or no historical value to the United States it would be much more questionable and most likely prohibited by the establishment clause (i.e. a sermon).

Quote from: Copernicus

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I think you probably dispute their reading of the rights granted to citizens and powers granted to the federal government rather than their application of the 14th amendment. I'd like to see a ruling where you think judicial activism is occuring by the more conservative members.

I dispute both, and I think that all rulings by the Supreme Court, liberal and conservative, represent judicial activism. Conservatives just use double-talk and obfuscation to deny their activism.

Again, could you point to an example or examples?

Copernicus · « **Reply #14 on:** July 04, 2005, 01:43:06 PM »

Quote from: FUSSCCJ

Not an issue of rights, but of powers (if anyone was keeping track).

According to the doctrine of Natural Law, the purpose of the Constitution was to cede rights to the government (if we are going to get pedantic about it). The distinction you are trying to make isn't really significant.

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No, the federal government does not have the power to promote religious doctrine as religious doctrine, however it can be codified into law and promoted as public morality etc...

Not in theory. In practice, Christians are not very sensitive to the requirements of secular government. That's why the Supreme Court struggles with concepts like "ceremonial deism" and whether religious icons can be made to have a secular function when you squint at them funny.

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(i.e. 'Remember the sabbath day, to keep it holy' is one of the 10 commandments yet is codified in our constitution by not including it in days the President has to consider bills passed by Congress and having 'thou shalt not steal' as part of religious doctrine does not invalidate laws against stealing)...

The ban on stealing exists in all societies, including those that pay no attention to the 10 Commandments. As for the sabbath, we have had a steady erosion of so-called "blue laws" across the US precisely because sabbath laws have a blatantly religious purpose--to require non-Christians to observe a religious stricture.

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Also, if the government were teaching religious doctrine for religious purposes that would be outside its power (it could be used in learning to read, to learn about religion, or for historical purposes). In this case, however, I don't think it's an issue.

Many Christians seem blind to the attempts of government to impose religious opinions on its citizens. You would need to live in a country that was not Christian in order to get a perspective of what it is like here for non-Christians. So some of us think that it's enough of an issue to pursue it in the courts.

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State governments had the power to promote religious doctrine until the adoption of the 14th amendment. They still have the power, as does the federal government, to promote the advancement of history (see Art. I, viii, 8). That is what these monuments do. The fact that they are also religious in nature should speak to their defense, as the Supreme Court has ruled that, "no purpose of action against religion can be imputed to any legislation, state or national, because this is a religious people" (Holy Trinity Church v. US). In the same case they noted numerous historical documents that we religious in nature, including the constitutions of every state (there were 44 at the time). Were the government to post religious material that had little or no historical value to the United States it would be much more questionable and most likely prohibited by the establishment clause (i.e. a sermon).

Actually, state governments did not have that power before the 14th amendment. The amendment was adopted because states had usurped that power. The same idea existed with the Bill of Rights. The federal government did not have the power to limit freedom of speech, religious conscience, etc., but Madison argued that the Bill of Rights would further prevent the government from usurping those rights. I fear that his critics have been vindicated. Most people now see the Constitution as a government instrument that confers and enumerates the rights of citizens.

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I dispute both, and I think that all rulings by the Supreme Court, liberal and conservative, represent judicial activism. Conservatives just use double-talk and obfuscation to deny their activism.

Again, could you point to an example or examples?

Did I not say ALL rulings? That's what makes the judicial branch a check on the other branches of government.

cimics · « **Reply #15 on:** July 05, 2005, 10:59:57 AM »

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I agree. The other four votes tend to take the position that states can deprive their citizens of some of the rights mentioned in the Bill of Rights, since the Constitution really restricts the federal government from taking away those rights.

I think it is more complicated than that. Only three of those four are state

FUSSCCJ · « **Reply #16 on:** July 05, 2005, 05:00:21 PM »

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I dispute both, and I think that all rulings by the Supreme Court, liberal and conservative, represent judicial activism. Conservatives just use double-talk and obfuscation to deny their activism.

Again, could you point to an example or examples?

Did I not say ALL rulings? That's what makes the judicial branch a check on the other branches of government.

I think then we have quite different views of "activism" and you are misconstruing what (in general) conservatives call "judicial activism."

Judicial Activism (n) - When the judicial branch of government goes beyond its assigned role of interpreting law and instead or in addition makes law.

Roe v. Wade is considered by some to be an act of judicial activism because the Supreme Court recognized the limited right to an abortion even though neither that right nor the right to privacy are explicitly stated in the Constitution.

How do you see things differently from my definition?

Hiersekorn · « **Reply #17 on:** July 06, 2005, 12:19:47 AM »

Quote from: Copernicus

Actually, state governments did not have that power before the 14th amendment. The amendment was adopted because states had usurped that power. The same idea existed with the Bill of Rights. The federal government did not have the power to limit freedom of speech, religious conscience, etc., but Madison argued that the Bill of Rights would further prevent the government from usurping those rights. I fear that his critics have been vindicated. Most people now see the Constitution as a government instrument that confers and enumerates the rights of citizens.

Sorry to make my first post to this board one where I'm disagreeing....

Still, this is flat wrong, and it misunderstands the purpose and effect of the 14th Amendment. Prior to the 14th Amendment, states could -- and often did -- pass legislation "respecting an establishment of religion." Pennsylvania was the Quaker State, meaning the Quaker faith was the official state religion. Utah continued to be officially Mormon for several years after admission to the Union. I'm a bit foggy on the exact dates that each state tossed its official "endorsed" religion, but I believe that every state but Rhode Island had an official religion at the time of the Constitution.

That's because the states were each governed by their separate state constitutions. Even after the 14th Amendment, the states continued to have the right to blatantly violate rights protected by the federal Bill of Rights, so long as they didn't violate their own state constitutions.

It wasn't until more than 40 years after the 14th Amendment's passage that the Supreme Court developed the "incorporation doctrine" that selectively brought the federal Bill of Rights to bear on the states. Still, even then, the federal rights were not automatically applicable to the states. Each right had to be individualy incorporated to the states by the Court, and they were not applicable until the Court said otherwise. For example, the 3rd Amendment has never been incorporated to the states, meaning there is no recognized prohibition of states quartering troops in people's homes.

That said, I would agree with the larger point that people have gotten their heads flipped backwards regarding the enumerated powers doctrine.

Copernicus · « **Reply #18 on:** July 06, 2005, 05:55:36 PM »

Quote from: FUSSCCJ

I think then we have quite different views of "activism" and you are misconstruing what (in general) conservatives call "judicial activism."

Judicial Activism (n) - When the judicial branch of government goes beyond its assigned role of interpreting law and instead or in addition makes law.

As far as I can tell, there is zero difference of interpretation of the rubric "judicial activism". I think that the role of the judicial branch evolved far beyond Madison's vision of it, but I think that he ultimately came to be comfortable with that. The problem is that it is VERY difficult to determine original intent, since drafters and ratifiers often had differences of opinion on how to interpret their own wording. Legal language is often intentionally ambiguous, and it really is up to the courts to sort out the ambiguities. Where we differ is in the content of rulings that we consider judicial activism. In general, those that impose conservative interpretations, especially with regard to religion, are seen by you as the only reasonable interpretation of the compromise language that was hammered out between liberal and conservative politicians. You see socalled "liberal" intepretations as outside the scope of possible meaning or significance that such laws can have.

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Roe v. Wade is considered by some to be an act of judicial activism because the Supreme Court recognized the limited right to an abortion even though neither that right nor the right to privacy are explicitly stated in the Constitution.

So what? The government does not have the authority to suppress rights that are not explicitly granted in the Constitution. Is that not what the ninth amendment says?

In any case, first and second trimester abortions--before the "quickening" of the pregnancy--were quite acceptable in the US and Europe before the 20th century. It wasn't even a concern of the Roman Catholic Church until relatively recently in their history. It was only in the 20th century that the practice has been seriously curtailed by government. And that was almost entirely in response to a growing religious sentiment that such abortions, which violates the spirit of the 1st amendment. It is certainly a private right of women to refuse to terminate pregnancies. Nobody disputes that. Anti-abortion laws are designed to deny the right to terminate first and second trimester pregnancies to those who disagree with a conscientious choice based purely on religious grounds. Roe v Wade made the point that the government could only take a legal interest in the third trimester, when the fetus has normally reached a stage of viability outside the womb. Historically, that has been the way society has viewed abortion.

Copernicus · « **Reply #19 on:** July 06, 2005, 06:13:18 PM »

Quote from: Hiersekorn

Sorry to make my first post to this board one where I'm disagreeing....

Still, this is flat wrong, and it misunderstands the purpose and effect of the 14th Amendment. Prior to the 14th Amendment, states could -- and often did -- pass legislation "respecting an establishment of religion." Pennsylvania was the Quaker State, meaning the Quaker faith was the official state religion. Utah continued to be officially Mormon for several years after admission to the Union. I'm a bit foggy on the exact dates that each state tossed its official "endorsed" religion, but I believe that every state but Rhode Island had an official religion at the time of the Constitution.

Hierskorn, I don't mind the disagreement. One source that I based my comments on was Leonard Levy's The Establishment Clause: Religion and the First Amendment. As I recall it, 7 of the original 13 states had official establishments of religion under the Articles of Confederation, but only Massachusetts had an actual church establishment--the Congregationalists. I don't recall the specifics of Pennsylvania, but I don't think that it had a specific church establishment in constitutional times. As Levy pointed out, it took some time for the official establishments, most of which were general (i.e. allowing citizens to earmark religious taxes) to disappear. The fact that states took certain actions did not make those actions necessarily consistent with the Constitution. Such laws needed to be tested and retested in the courts over a period of years. In general, the Establishment Clause seemed intended to strike down general establishments of religion, not just officially recognized state churches. European governments, but not American states, tended to have specific church establishments.

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That's because the states were each governed by their separate state constitutions. Even after the 14th Amendment, the states continued to have the right to blatantly violate rights protected by the federal Bill of Rights, so long as they didn't violate their own state constitutions.

Well, we do disagree on this. At best, one can only say that there were disagreements, and the courts were not always consistent. However, constitutional law is not quite the same as civil law, according to Levy. The Supreme Court is, in practice, a "mini-Constitutional Convention", although people don't generally want to admit that. Hence the current vehement struggle over Bush's opportunity to appoint justices that will reinterpret the law to favor conservative prejudices.

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It wasn't until more than 40 years after the 14th Amendment's passage that the Supreme Court developed the "incorporation doctrine" that selectively brought the federal Bill of Rights to bear on the states. Still, even then, the federal rights were not automatically applicable to the states. Each right had to be individualy incorporated to the states by the Court, and they were not applicable until the Court said otherwise. For example, the 3rd Amendment has never been incorporated to the states, meaning there is no recognized prohibition of states quartering troops in people's homes.

Oh, I think that opinions vary on this one. I think that the "incorporation doctrine" is exactly what many of the ratifiers had in mind when the 14th was debated and ratified. The language is not that ambiguous. I also think that it was what the ratifiers of the original Bill of Rights had in mind, as well. But it is difficult to capture exactly what people had in mind or intended when they finally settled on and ratified legal language. Levy does a masterful job of explaining that point in his essays on original intent.

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That said, I would agree with the larger point that people have gotten their heads flipped backwards regarding the enumerated powers doctrine.

I'm glad that we at least agree on this point.

Author Topic: Did the Supreme Court blow the 10 Commandments decision? (Read 3418 times)