debate-points, usa, endorsement, constitutionalityThe Establishment Clause of the First Amendment to the Constitution has the following verbiage:
Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof.
However, this mandate is not abundantly clear enough, on its face, to have religious artifacts removed from a court house – especially if they’ve already been funded. Even if it convinces a judge or jury it isn’t convincing to many Christians. I often hear a defense of displaying the Ten Commandments in a Court House on the grounds that the mere presence isn’t an endorsement. This often starts by claiming that those that want The Ten Commandments removed are construing “presence” for “endorsement”. They usually end up concluding that if you make the same construal in other areas; i.e. the US “endorses” Dell, the US “endorses” BIC, and the US “endorses” Ford Motor Co.
I’ve got a defense with an analogy that I just used on a podcast and it worked rather well. I’ll post it after I field some input. How would you counter this in a debate? Let the fun begin.
With regard to Dell and Bic - computers and pens serve an obvious purpose in a court room, and it would simply be absurd to think they are there as part of a government endorsement. But what purpose is served by having the Ten Commandments in a court room? The advocates say the purpose is not “endorsement”, in that case, what is the purpose? Courthouse decor?
But rather than just attacking whatever new scheme the religious have come up with the try to get around the First Amendment, we should also attack the idea behind it: that the Ten Commandments are the basis of our legal system. That is simply not true. The religious argue that “don’t steal”, “don’t lie”, “don’t murder” are our fundamental legal principles. Not even close. The fundamental principle of our entire legal system is that the law is applied to everyone equally, whether they’re homeless or the President. Generally we just say “rule of law” for short. Westerners these days tend to just take this for granted, forgetting that the rule of law has rarely applied throughout human history. That so many people now live under the rule of law is a very great achievement, the result of a tremendous struggle that still goes on today.
I’ve never seen anything in the Bible that gives the slightest ghost of a hint about the principle of the rule of law. I mean, King David (who was endorsed by God, of course) didn’t make the law, he was the law, and the same goes for all the other Biblical rulers. The allegedly wise Jesus of Nazareth just ducked the issue completely with that pablum about “rendering unto Caesar”.
I really find it funny that Christians expect everyone to be impressed because they figured out that prohibiting the murder of our neighbors is a good idea. This is a principle so obvious that every culture figured it out before it had learned to write, even without the benefit of God’s revelation.
Like art vs. pornography, the ten commandments have a 'I know it when I see it' approach to evaluating its appropriateness in public (where on the one hand it might be appropriate, on the other inappropriate). A corollary is the presence of nativity scenes in public squares.
Typically, the balance seems to be determined by context:
A hefty dose of discretion is typically alotted the judiciary on this matter. No hard, fast rules seem to apply. However, the problem isn't that the judiciary hasn't settled laws and guidelines on taste, or the extent to which free speech is protected. The problem is that many people do not themselves see how the 10 Commandments could be construed as offensive, or how baby Jesus in a manger could feel like your neighbors are running around with a Confederate Flag, or perhaps how opening a secular ceremony with a prayer or moment of silence is not just something people should need to go through their day ignoring.
Civil discourse in America is predicated on both sides vehemently and openly defending their positions. However, most people have an understanding of where the other group is coming from (even if they only grasp it as some kind of caricature). Nonetheless, I will return to the example of the Confederate flag: many people just don't understand why it's offensive, they just have too much identity wrapped up in it. Consequently they cannot understand why a court would rule it needs to be taken down, much less why they should reflect on their sentimentality regarding its display and cannot therefore participate in civil discourse.
Bic pens and Dell computers are not ideas, they are merely tools. One does not post the Decalogue – or any other document – on the wall of one’s courthouse except to communicate some idea.
The debate in each case that it is posted will be of what idea is being communicated.
Posting the Decalogue alongside other historic legal dictates – the Code of Hammurabi, the Magna Carta, etc. – would probably be accepted as a component of a display that’s communicating the history of law.
Posting the Decalogue in isolation is difficult to interpret in any way other than “these laws are important to the Court”. And since one of those laws is “thou shalt not have any other gods before me”, the implication is one of prejudice against those who don’t believe in the Judeo-Christian God – which is the very problem the Amendment in question sought to solve.
While acting for the government, as a Judge does, one cannot give favor to any particular religious belief; to do so constitutes “endorsement”, according to the stack of court precedent on the matter.
Ask those people who object to the removal of the Ten Commandments if there should also be the Seven Pillars of Islam alongside it? Or other ‘legal’ texts from other religions. See how quickly they object to that.
Without equal representation of the religions, the presence of the Ten Commandments is an implicit endorsement of one religion over the others.
The usually end up concluding that that if you make the same conflation in other areas, the US “endorses” Dell, the US “endorses” BIC, and the US “endorses” Ford Motor Co.
In a way they do, if you think about what “endorsement” implies. If they didn’t endorse said companies they would either prohibit them or at least make their lives harder. And on the face of it there’s not to: Dell, BIC and Ford are (more or less) respectable companies that pay taxes and create jobs. But what about a more controversial company? Like Lockheed Martin. In case somebody doesn’t know, they produce the weapons that kill millions of people, and the fact that they exist in the US is an endorsement that not all people are OK with.
Not controversial enough? Well, what about Smith’s Finest Heroin Co? What, that company doesn’t exist? Gee. I wonder why. But, you might argue, what about the adult film industry or casinos? Certainly no sane government would endorse that. Perhaps not publicly, granted. But that, too, does generate jobs and tax revenues, even if that sounds cynical. And furthermore, there are large legislative hurdles for such companies that border on chicanery (at least here in Germany; I can’t speak for the US).
My point is, the counter-argument that “presence isn’t endorsement” is simply wrong so there’s no need even to contest the false analogy.
While, yes, the US Constitution does not explicitly state that Government property should not be allowed to display Religious artifacts, I think the context in this case is important. The Ten Commandments are law, they are Biblical law, and placing Religious laws in our Court Houses is a bad idea. In this context, they are not merely artifacts but endorsement of divine law from a particular Religion.
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