Critics See Fatal Legal Flaws in Vote on Commandments

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When the House overwhelmingly approved a proposal authorizing the states to allow the posting of the Ten Commandments in public schools, it surely was aware that the U.S. Supreme Court had struck down a Kentucky law that required such displays.

In fact, Rep. Robert C. Scott, a Virginia Democrat who opposed the measure, which came as an amendment to a juvenile-crime bill, reminded his colleagues of the high court's 1980 ruling in Stone v. Graham.

"This singling out of one religion is contrary to the American ideal of religious tolerance and is blatantly unconstitutional," Rep. Scott said.

Perhaps House members weren't paying close attention, since floor debate on the amendment took place after midnight on June 17. But several observers offered other explanations for the House's 248-180 vote in favor of a Ten Commandments measure that many legal experts view as being of questionable constitutionality.

First, in light of the shootings at Colorado's Columbine High School in April, Congress has been under intense pressure to take action on gun-control and juvenile-justice measures. The Ten Commandments vote came the same day the House rejected a package of gun-control measures.

Second, some lawmakers who may hold doubts about the measure's constitutionality still might have voted for it for symbolic reasons, figuring it would not survive in the final juvenile-crime bill. A House and Senate conference committee is expected to meet later this month to hammer out differences between the two chambers' juvenile-crime bills. The Senate version contains no such provision.

"It's so easy for people to rush to these symbolic gestures," said Charles C. Haynes, a senior scholar at the Freedom Forum's First Amendment Center at Vanderbilt University.

Mr. Haynes, who writes frequently about religion in the public schools, said he found the House vote on the Ten Commandments "appalling."

"Many people of faith don't want their scripture trivialized by the government," he said. "The government can promote morality in the schools, but it should do it through character education programs."

Steven T. McFarland, the director of the Christian Legal Society's Center for Law and Religious Freedom, agreed.

"The Ten Commandments do address character," he said. "I just don't think Caesar has the responsibility or authority to promote them. The church does."

But Rep. Robert B. Aderholt, the Alabama Republican who sponsored the Ten Commandments Defense Act amendment, argued that the Ten Commandments "represent the very cornerstone of Western civilization and the basis of our legal system here in America."

Citing the tragedy at Columbine High during floor debate, Rep. Aderholt told his colleagues that posting the Ten Commandments "is one step that states can take to promote morality and work toward an end of children killing children."

The congressman has stressed that his measure does not require the posting of the Ten Commandments, but authorizes the states to permit their display in public areas such as schools, courthouses, and government squares.

'A Sacred Text'

Janet Parshall, the chief spokeswoman for the conservative Family Research Council in Washington, said a Ten Commandments display in a classroom could be considered a constitutional form of teaching about religion.

"We teach in a variety of ways," Ms. Parshall said. "Wouldn't [a classroom display] start some delicious conversation about what those commandments mean?"

Whether Rep. Aderholt's amendment would pass constitutional muster if it gains final passage remains an open question, given the Supreme Court's 1980 ruling on the Kentucky law.

In Stone, the high court struck down a Kentucky statute that required the posting of the Ten Commandments on the wall of each public school classroom. The law called for the displays to be financed with private contributions.

In a 5-4 ruling, the court said that posting the Ten Commandments on public school walls was a clear government establishment of religion prohibited by the First Amendment. "The pre-eminent purpose for posting the Ten Commandments on schoolroom walls is plainly religious in nature," said the majority in an unsigned opinion. The Commandments "are undeniably a sacred text in the Jewish and Christian faiths."

And while most of the Commandments address "arguably secular matters," such as honoring one's parents and proscribing killing, adultery, and stealing, several concern "the religious duties of believers," such as "worshipping the Lord God alone" and "avoiding idolatry," the majority said.

Among the dissenters, two said only that they would give the case full consideration, and one said the Kentucky courts appeared to have correctly upheld the law.

Then-Associate Justice William H. Rehnquist wrote a vigorous dissent for himself, arguing that "the Ten Commandments have had a significant impact on the development of secular legal codes of the Western world."

"The establishment clause does not require that the public sector be insulated from all things which may have a religious significance or origin," added Justice Rehnquist, who is now the chief justice.

Regardless of its legislative fate, the Ten Commandments measure has provoked debate. For example, which version would be posted in schools? Jews and different Christian denominations group and number the Commandments differently. When the Kentucky law was in place, clergy members there could not even agree on a single version appropriate for classroom walls.

Building Character

If promoting morality among today's school children is the goal, just how relevant are commandments concerning making graven images of the Lord, or keeping the sabbath holy, some observers have wondered.

In reaction to the House vote, President Clinton said the long-term objective appears to be character education. "The idea that the schools ought to build the character of children is a very good idea," he said. "But it ought to be done in a way that respects the wide diversity of our student body, and that doesn't lead to a long, drawn-out legal challenge."

Vol. 18, Issue 42, Page 24

Published in Print: July 14, 1999, as Critics See Fatal Legal Flaws in Vote on Commandments
Related Stories
Web Resources
  • Here is the House vote tally on the Ten Commandments amendment sponsored by Rep. Robert B. Aderholt, R-Ala.
  • Read a legal review and analysis of the Religious Freedom Amendment, a 1998 proposal to change the Constitution to permit prayer in public schools, from Rep. Ernest J. Istook Jr., R-Okla. The amendment was defeated in the House of Representatives June 1998 by 62 votes.
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