I appreciate Mark's thoughtful post -- both for its substance and its tone.
I think his post raises two issues -- 1. What is the social meaning of the display of the Ten Commandments? and 2. Is this a social meaning that the state is permitted to promote or endorse?
As to the first, I recognize that displays may vary considerably in their content and, accordingly, in their social meaning. So I am going to limit my comment to a Ten Commandments display standing alone. I think the social meaning of such a display is to affirm specific religious truths reflected to varying degrees in Jewish, Protestant, and Catholic religious traditions about the existence and nature of G-d and man's relationship to G-d. More specifically, the display affirms that G-d exists and is to be revered and obeyed within the parameters of these religious traditions.
I do not believe that it is constitutionally permissible for government to promote, endorse, or memorialize this message.
If I was trying to communicate the more inclusive message that Mark suggests, I would choose a more inclusive and less denominationally specific vehicle to do so. There are many religious beliefs that resonate across a broad range of faiths. A state display that chooses the language of a particular religious tradition to communicate such an ideal is subject, in my judgement, to charges of denominational favoritism and that it is communicating multiple messages -- at least one of which is constitutionally impermissible.
Of course, I may be wrong about the social meaning of a stand alone Ten Commandments display. And there may be more complex displays that clearly communicate the message that, as Mark puts it, " the Divine, provides the grounding for the right of people to be free and to be protected by the law."
If government may endorse or promote that message, not as statement of what the founders of our country believed, but as an affirmation of religious truth for today and for all time, then the question is -- how do we justify the state declaring this religious truth. From the reports I read about Justice Scalia's comments during oral argument (and to be fair, those reports may not be accurate), the only reason suggested for permitting the state to declare this religious message is that a substantial majority of the American people accept it as religious truth. I find that kind of a commitment to majoritarianism on matters relating to religion to be shocking -- and it is a justification that has no limit or stopping place. Other justifications that have a limiting principle may be less disturbing -- even if I am not persuaded by them.
On a more personal note, these cases have forced me to think more deeply about the Ten Commandments than I have done in some time. On reflection, I think the meaning I assign to the Ten Commandments can not be isolated from the distinctly Jewish narrative of which it is a part. (I realize that people of other faiths assign a different meaning to the Ten Commandments, and that my beliefs may not even be shared by most Jews.) A central theme of that extended narrative from biblical times to the present day, for me, relates to the treatment of people who are "strangers in a strange land." Ultimately, I think state displays of the Ten Commandments are insufficiently responsive to the lessons to be learned from that narrative. Accordingly, as a matter of policy as well as constitutional law, I do not support such displays.
(Eugene, I realize the last paragraph of my post may exceed the subject matter parameters of the list. If you think that is the case, please post everything but the last paragraph and I will send it to Mark off-list.)
Alan Brownstein UC Davis
At 04:23 PM 3/2/2005 -0800, you wrote:
I think Justice Scalia's point probably is that the social meaning of the display of the Ten Commandments, like the reference to "under God" in the Pledge of Allegiance, is simply a recognition of the principles of the Declaration of Independence: that which is beyond us, the Divine, provides the grounding for the right of people to be free and to be protected by the law.
He may be wrong as to the social meaning in each case, though I don't think so. And one may disagree with his view that the Divine provides the grounding for freedom and for legal protection (such as protection from being murdered or being the victim of theft or perjury). But I hope that this understanding of the point makes it less offensive or shocking to Alan, for whom I have the greatest respect. If it does not, then I will need to listen more carefully to the concerns of Alan and others, and I might need to consider modifying my views on these topics. It is my hope that the principles of the Declaration are not out of bounds even today.
Mark S. Scarberry Pepperdine University School of Law
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