Thou Shalt Not Mess With Texas
By Greg Abbott
Wall Street Journal, Page A-16
Wednesday, March 2, 2005
President Truman once told us, "The
fundamental basis of this nation's laws was given to Moses on the Mount." We
might say it differently now, but the point would be the same: The Ten
Commandments are a religious text, yes, but they are also a foundational
document in the development of our legal codes. As such, they deserve to be
recognized alongside the other documents, people, and events that tell America's
story. So today, I am arguing before the Supreme Court that a Ten Commands
monument on the Texas Capitol grounds in Austin is a constitutional
acknowledgement of religion, a commemoration of one influence, among many, on
who we are as a people.
Our nation has a rich tradition of recognizing the elements of its history and heritage in its documents, its rhetoric and its architecture. Whatever one's individual religious beliefs, none can seriously deny that religion is a key part of our national identity. In Lynch v. Donnely, in 1984, the Court itself recognized an "unbroken history of official acknowledgment by all three branches of government of the role of religion in American life from at least 1789."
Detractors claim displaying the Ten Commandments crosses the line from the acknowledgment of religion into establishment, violating the First Amendment. Thomas Van Orden, a former lawyer, is making that claim about the Texas monument. He is wrong.
The Fraternal Order of Eagles, a social justice organization, donated the six-foot red granite monument to the State of Texas in 1961 as part of a campaign to combat juvenile deliquency. The organization says it launched that initiative "to acknowledge the Ten Commandments' historical impact on the development of Western legal tradition and, through reminding the public of this historical fact, inspiring the youth to live law-abiding and productive lives." In this spirit, the legislature accepted the monument and placed it on the Capitol grounds among what has grown to a collection of 17 monuments that celebrate people, events and ideals important to the culture of Texas. It was positioned behind the Capitol, halfway between the Legislature and the state Supreme Court building, to signify the secular impact of the Ten Commandments on the state's legal institutions.
And there it sat, in the hometown of late American Atheists founder Madalyn Murray O'Hair, for some 40 years, without generating any controversy or litigation. Why so little fuss? Because the reasonable observer is not likely to mistake these commands for official statements of Texas policy, any more than he or she would deem the artistic portrayal of the Last Supper in the National Gallery of Art as an official command to partake in Holy Communion.
The First Amendment was never intended to bar all religious expression from the public square. "Such hostility toward religion is not only not required; it is proscribed," the court of appeals noted in its decision upholding the constitutionality of the Texas monument. The Supreme Court has never embraced such a radical view of the Constitution, either. It has repeatedly upheld government displays that contain religious elements, so long as the entire display - in context - does not constitute an official endorsement of religion. Every federal judge to have considered the matter has agreed the Texas monument satisfies that "endorsement" test.
Federal courts are divided on the constitutionality of Ten Commandments displays. Lower courts have generally been unfriendly to displays, like the one in Alabama, whose placement centers primarily on the religious nature of the Decalogue. The Texas monument is different, however, because it was placed on the Capitol grounds for secular reasons.
While a holy text to many, the Ten Commandment have also had a profound impact on many nonreligious aspects of our culture and history. The Supreme Court certainly recognizes their importance. Chief Justice William Rehnquist noted the Ten Commandments "have made a substantial contribution to our secular legal codes." And carvings of Moses and the Decalogue appear throughout the Court building, including some 43 times in the very chambers where we are arguing this case.
Between the extremes of government endorsement of, and hostility against, religion, there lies a broad zone in which government may acknowledge the important role religion has played in our laws and history. Ten Commandments displays like the Texas monument fall well within that zone, and I hope the Supreme Court will make that clear when it rules.
Mr. Abbott is Attorney General of Texas.
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