According to the court, it isn’t possible to strip the Ten Commandments of their religious significance and treat them as a document of secular ethics. The Ten Commandments do contain secular topics like duty to one’s parents, but they also include religious topics like worshipping God.
The court also noted that the monument started out with the statement “I am the Lord thy God” in large lettering at the top. The religious element is further enhanced by the Stars of David and the distinctively Christian Chi Rho symbol.
The fact that the monument was undeniably religious is not enough, however, to judge it unconstitutional. Instead, it must be judged in the context in which it is presented. If the context is clearly secular in nature and intent, then the monument might be permissible — but no such context existed for this monument. On the contrary, the record showed that the City was involved in emphasizing the religious purpose of the display.
- “In accepting the monument, the City... aimed to provide a code of conduct for the citizens of Elkhart to follow. The code chosen, however, was a religious code that focuses not only on subjects that are the legitimate concern of civil authorities, but also subjects that are beyond the ken of any government and that address directly the relationship of the individual human being and God. That the purpose was to endorse, through governmental sponsorship, a code of religious values is further established by the program of speakers at the dedication of the monument: a Protestant minister, a Catholic priest, and a Jewish rabbi.”
- “Indeed, this monument impermissibly suggests that, in this community, there are “ins” and “outs.” The monument contains the Stars of David and the symbol of Christ, representing respectively Judaism and Christianity, two of the religions no doubt particularly represented in the Elkhart community, but by no means the total of all those who depend on the City of Elkhart as their local government.”
The City of Elkhart argued that the monument existed to acknowledge the “cultural and historical significance” of the Ten Commandments, even passing a resolution to that effect in 1998 as a response to the threatened lawsuit to have the monument removed. The District Court accepted this position, but the Appeals Court did not.
Judge Manion dissented from the 7th Circuit Court’s decision, asserting that it is wrong to believe that the Constitution requires a separation of church and state. Manion further argued that the display of the Ten Commandments, even with the religious symbols, does not amount to an endorsement of religion or any religious beliefs.
The decision was appealed to the Supreme Court, becoming Elkhart v. Books, but the Supreme Court refused to hear the case and let the decision stand. In an unusual move, Chief Justice Rehnquist, joined by Associate Justices Scalia and Thomas, released a public dissent from the refusal to hear the appeal. The three agreed with Manion’s dissent, arguing that the religious symbols and the history of the monument did not amount to an endorsement of religion.
The 7th Circuit Court of Appeals agreed with the plaintiffs that the Ten Commandments monument was a violation of the Constitution. The monument, one of many erected across the country with funding from the Fraternal Order of Eagles, had to be removed because the Supreme Court refused to accept an appeal.
This decision reinforced the idea that there is a fundamentally religious nature to the Ten Commandments which cannot be readily overcome by protestations of secular purposes. Governments that want to post the Ten Commandments have a difficult argument to make — it’s possible for a display to be permissible, but courts will look closely at the arguments used.
The comments made by Justices Rehnquist, Scalia, and Thomas are also important. Four votes are needed for a case to be accepted by the Supreme Court and evidently there were only these three — and it seems clear that these three would have voted with the City of Elkhart, finding such monuments to be constitutional. A shift of just one vote on the Supreme Court would mean that the next such case which comes up may be heard and may go in the other direction.
