Commandments Can't Stay in Park

FROM THE ARCHIVES (Columns)

Commandments Can’t Stay in Park

Jeremy Patrick (jhaeman@hotmail.com) and Tim Butz

The Omaha World-Herald, 2001

"When we lose the right to be different, we lose the privilege to be free."
--Charles Evans Hughes, Republican president candidate (1916) and U.S. Supreme Court Chief Justice (1930-1941)

The World-Herald has written at least three editorials on ACLU Nebraska’s efforts to have a Ten Commandments monument moved from a city-owned park. The editors have taken a position that ACLU Nebraska is wrong and have encouraged the City of Plattsmouth to keep the monument in place. Most recently, Attorney General Don Stenberg has sought to intervene in the case, claiming that any adverse decision in this case could jeopardize the art and architecture of the State Capitol.

The issue is a controversial one and has understandably led to some heated rhetoric by advocates of each side. Frequently, the debate deviates from the primary issue at stake: Does the Plattsmouth Ten Commandments monument violate the First Amendment’s Establishment Clause? An explanation of why ACLU Nebraska brought this lawsuit may help place the controversy in a better framework.

The Supreme Court has found that a government action violates the constitutional guarantee of separation of church and state when the action either constitutes an endorsement of religion or creates an excessive entanglement with religion. In December of last year, the 7th Circuit Court of Appeals agreed with the Indiana Civil Liberties Union that a monument of the Ten Commandments displayed by the city of Elkhart, Ind., was unconstitutional, and the Supreme Court refused to disturb that finding. We expect a similar outcome in this case.

ACLU Nebraska did not seek to have the matter settled by a judge. We attempted to resole this matter without the use of the courts ans asked the Plattsmouth City Council to move the monument to private land. The council decided to keep the monument in place, and the current lawsuit has resulted.

ACLU Nebraska expects to prevail because the Ten Commandments is a religious monument; it is not limited to the sorts of secular moral exhortations we are all familiar with ("Thou shalt not kill," "Thou shalt not steal," etc.). The monument explicitly informs citizens that "I AM the LORD thy God," "Thou shalt have no other gods before me, "Thou shalt not take the Name of the Lord thy God in vain" and more. Additionally, this particular monument depicts two small Stars of David, Hebrew Script, and chi and rho, the Greek letters for "Christ."

Some have tried to defend the city’s actions by arguing that Plattsmouth is merely attempting to set forth a common code of conduct for its citizens. If that were true, ACLU Nebraska would have no objection to the city placing large billboards in the park with the words "do not kill" and "do not steal." However, we can imagine no legitimate government purpose in including commands that citizens refrain from blaspheming God or to observe "the Sabbath day and keep it holy."

Additionally, Plattsmouth can merely return this monument to the Eagles Club or some other private entity for public display. It is important to note that neither ACLU Nebraska nor the complainant in this case objects to the public display of the monument as long as it is on privately owned land.

Others argue that by virtue of its historic association with America, the Ten Commandments are somehow exempt from meeting the requirements of the Establishment Clause. However, unconstitutional acts do not somehow become constitutional merely because they have been allowed to exist for 35 years (or even 200 years).

As one court noted, if the Constitution prohibited only that conduct that was prohibited at its creation, "African-Americans would still be subjected to Jim Crow laws, segregated schools and miscegenation statutes; women would not be entitled to the protection of the Equal Protection Clause (and) seditious libel could still be a crime."

ACLU Nebraska is fighting for the principle that the government does not have the right to issue religious edicts in this manner. Allowing the City of Plattsmouth to maintain such a monument on government property constitutes an endorsement of Judeo-Christian religion and, as Justice O’Connor stated in Lynch v. Donnelly, "sends a message to nonadherents that they are outsiders, not full members of the political community, and an accompanying message to adherents that they are insiders, favored members of the political community."

As for Attorney General Stenberg’s contention that the Plattsmouth case puts the art and architecture of the State Capitol in jeopardy, the record should be clear that this is Stenberg’s own view and not the position of ACLU Nebraska. The Supreme Court has said that context is important in deciding if a display is unconstitutional. Unlike Plattsmouth, where the monument stands alone in the park, the Judeo-Christian artwork in the Capitol is placed alongside a wide variety of historical and cultural displays. Thus, no reasonable person could consider the Capitol an endorsement of a particular religion or religion in general. Comparing the Plattsmouth monument to the Capitol artwork is like comparing apples and oranges.

Currently, 11.4 percent of Americans (more than 30 million people) consider themselves non-religious, and an even larger number of Americans are not Christian or Jewish. When Plattsmouth displays a religious monument like the Ten Commandments, it sends the message to atheists, Buddhists, Hindus, agnostics, Wiccans, and others that they are not "not full members of the political community" and therefore not welcome in the town.

ACLU Nebraska contains members who have a wide variety of religious beliefs; many are Christians and believe strongly in the virtues of the Ten Commandments. What brings us all together, however, is a staunch belief that government should not use its power to endorse religion. And if a monument to the Ten Commandments, complete with Jewish and Christian symbols and phrases such as "I AM the LORD thy God," does not constitute a government endorsement of religion, we have difficulty thinking what does.

(c) Jeremy Patrick & Tim Butz, 2001