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South Carolina’s proposed legislation, House Bill H.3217, which requires the 10 Commandments to be displayed in public school classrooms has been cited by opponents as a violation of the 1st Amendment’s Establishment Clause. If passed, it’s likely to face a legal challenge similar to the 2011 lawsuit filed by a group of atheists demanding removal of a steel cross from the grounds of the World Trade Center’s September 11th Memorial and Museum. That lawsuit cited the cross, two steel beams found in the Trade Center rubble, as a violation of the First Amendment’s Establishment Clause. The background of the atheists’ lawsuit provides some insight into the litigation that would surely follow if H.3217 became law.
The Establishment Clause states simply, “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof”. Yet either by virtue of case law, scholarly opinion, or misinterpretation, the Establishment Clause has been used as the basis for lawsuits against any government entity (city, county or state) making a law that indicates a preference for religion, favors one religion over another, favors religion over non-religion or favors non-religion over religion.
In its complaint, the group American Atheists maintained that display of the cross at the museum was unconstitutional because it is a symbol of a religion. If that argument is taken to its logical conclusion, any government regulation mandating the removal of a religious symbol is also unconstitutional as it could be argued that requiring no display of a religious symbol is an indication that the government favors atheism (no religion). The atheist lawsuit never addressed that the Establishment Clause speaks directly to the role of Congress, yet Congress had absolutely nothing to do with the display or non-display of the cross.
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Considering that the Establishment Clause has been interpreted as making any government regulation that favors religion unconstitutional, mandating the removal of a religious symbol would be equally unconstitutional as it indicates favoring atheism. Had the atheist group been successful in its suit, non-atheist groups could have rightfully filed their own lawsuits, claiming that mandated removal of the cross indicated that the government favored atheism (non-religion) over religion.
The concept of interpreting the mandated removal of a religious symbol as an indication that the government sanctions atheism is certainly convoluted and seems like a stretch. However, in our litigious society, you can bet there would be at least two lawsuits warming up on the sidelines. In the case of H.3217, one for the removal of the Commandments, the other the retain them. One argument would be that the 10 Commandments are a religious symbol, the other is that they are not.
As a point of applicable case law, the courts ruled that the cross was a historical symbol, not a religious one and was therefore not in violation of the Establishment Clause [American Atheists, Inc. v. Port Authority of N.Y. & N.J.].
Most objections to H.3217 are based on the view that mandating the public school display of the 10 Commandments is an indication that the South Carolina government favors Christianity. I’m no religious scholar, but my understanding is that as described in the Book of Exodus, God gave the Commandments to Moses and as far as I know, Moses wasn’t a Christian. The 10 Commandments are an integral part of Judaism and virtually all Christian religions, consequently, a government order to display them publicly would be a sanction of Judeo-Christian religious tenets.
H.3217 could also be interpreted as a sanction of Islam as the Quran’s lists eight commandments are virtually identical to those in both the New and Old Testaments. Hindu and Buddhist religions also have list of precepts that closely mirror those of the 10 Commandments.
That could serve as the basis for a strong argument that the 10 Commandments are not a symbol of any individual religion but are societal guidelines that are universal and shared by virtually all religions, including atheism. However, regardless of the argument, the only sure outcome is that the state would spend unreasonable amounts of taxpayer money defending lawsuits and appeals followed by more lawsuits and appeals. It can be reasonably argued both that the 10 Commandments are a symbol of Christianity and that they are secular societal guidelines.
The legislature would be far wiser to scrap H.3217 and pass a resolution citing the 10 Commandments as guidelines for social behavior.
Related Post: H.3217: Should The Ten Commandments Be Required To Be Posted In Classrooms?