Chapter 10 – Christian Right Legal Centers Turn Their Back
To the Ten Commandments

Nov. 2, 2008 (Draft)

In their efforts to zealously represent their clients (or their own organizations), Christian Right legal centers have turned their backs to the very commandments they want other Americans to obey. Most notably, I am referring to the American Center For Law and Justice ("ACLJ") (and others to be named as this draft is completed).

Sham Secular Purposes

The Lemon Test, used to evaluate claims of Establishment Clause violations, is a very effective legal test -- when applied correctly. Unfortunately, because the test is so clear and well known within the legal community, Christian Right legal centers know that they must concoct sham secular purposes or revise history in order to get around the Establishment Clause prohibition against "an establishment of religion."

Take for example, ACLJ's claim that "the Ten Commandments . . . is an integral part of the legal heritage of Western civilization." [1] Such importance is wishful thinking on ACLJ's part, but not grounded in fact with respect to the American experience post Revolutionary War. In deed, the post-Colonial Period is one of disestablishment. Moreover, the Ten Commands (or "Decalog") played absolutely no role in the formation of our constitutional regime. The Constitution of the United States is entirely secular -- Article 6 of the Constitution emphatically prohibits any religious test for public office.

ACLJ claims that the Fraternal Order of Eagles is "not a religious group at all," [2] citing State of Colorado v. Freedom From Religion Foundation. [3] However, as explained in Chapter 3, this is totally false. The Eagles is a religious organization. It (1) has a religious test for membership, (2) the Ten Commandments is a religious set of rules and, therefore, their promotion by the Eagles is a religious act, (3) published 250,000 copies of On Eagles Wings [4] and distributed them to Boy Scouts to promote religion, (4) opposed Michael Newdow's challenge to "under God" in the Pledge of Allegiance [5], (5) aeries have or did have chaplains to lead religious rituals and (6) has an active God, Flag and Country program. [6] Let's be honest ACLJ (and its chief counsel Jay Sekulow), the Eagles is a religious organizations.

ACLJ also states that "there is no such thing as a 'Protestant version' or a 'Catholic version' of the Decalogue." Here, ACLJ is simply ignoring the literature on the Ten Commandments which says that there are three major versions of the Ten Commandments -- Jewish, Catholic/Lutheran and Protestant.[8] While Lutherans are Protestants, the parsing is intentionally deceptive.

ACLJ is hiding behind the skirt of the courts when it says that "In God We Trust" does not convey government approval of "particular" 9 religious beliefs. [10] Belief in God is the quintessential religious act. And the government telling its citizens to trust in God 11 conveys as clear a message of endorsement as there can possibly be.

I find ACLJ's version of American history amusing for a number of reasons. First, it picks on several of the secular commandments, which by the way have origins predating the Ten Commandments. Second, some of the secular commandments are not part of our law. Third, and perhaps most important, none of the religious commandments are part of our law.

While ACLJ says that "On at least seven occasions, members of this Court have noted the foundational role of the Ten Commandments in the development of our legal system," [12] if the ACLJ were honest it would let the Court know how misinformed the Court is with respect to the role of the Ten Commandments in American jurisprudence and our Constitution.

It doesn't make any difference how many times the judicial branch has made a connection between the Ten Commandments and our legal system. [13] That judges routinely violate the Establishment Clause simply raises the question of how "American" they are when it comes to enforcement of our first principles.

ACLJ loses all credibility when it states "Even the oft-repeated truism that the first three or four of the Commandments are 'exclusively religious' turns out not to be true." [14] As a non-theist, observance of a sabbath has no secular application whatsoever. Ditto with "using the Lord's name in vain." And appending an oath with "so help me God" is the ultimate blasphemy to the non-believer.

Last, I would like to address ACLJ's misleading comment about the depiction of Ten Commandments in the Supreme Court's own courtroom. [15] While ACLJ cleverly uses the word "depiction", the inference is that the Ten Commandments are displayed in the Supreme Court's courtroom. They are not. Just the opposite is true and Sekulow is most likely aware of it. Specifically, the Hebrew engraved on the tablet Moses is holding translates into English as "Thou shall commit murder. Thou shall commit adultery. Steal." [16] I can only imagine that if the Religious Right really knew what is on the Supreme Court's south wall frieze that they would be screaming for the removal of Moses' tablet.

Endnotes:

1. Brief of amicus curiae ACLJ in support of Respondents, at 2.
2. Id., footnote 1 at 2.
3. State of Colorado v. Freedom From Religion Foundation, 898 P.2d1013, 1016-1018 (Colo. 1995).
4. See Appendix 7 - F.O.E. Comic Book "On Eagles Wings."
5. [5]
6. [6]
7. Amicus brief, footnote 1, at 2.
8. [8] See . . . Similarly, Sekulow quibles over Orthodox Churches following the "Protestant version" even though they do not consider themselves Protestants. Footnote 1 at 2-3.
9. [9]
10. [10] This must be Sekulow's Bill Clinton moment.
11. [11] When there is no credible evidence in the existence of a god or gods.
12. [12] Brief at 10
13. [13] Brief at 12
14. [14] Brief at 17
15. [15] Brief at 20
16. [16] See Chapter 7 - Moses and the Supreme Court’s South Wall Frieze
17. [17] I must give my summer 2008 legal intern, George Younger, credit for this statement as he was the principal author of the amicus brief of which I was counsel of record for the American Humanist Association, Society for Humanistic Judaism and Unitarian Universalist Association in American Atheists, Inc. v. Duncan (10th Cir., pending) in support of appellants, seeking reversal.