Ten Questions: The Commandents in Federal Court

Ronald D. Coleman*

Why not the Ten Commandments in the courtroom? Because it is heresy.

Readers of this publication do not need rehearsal of the basic argument why there is a certain propriety and appropriateness to the placement of a representation of the Decalogue in a court of justice. Fundamentally, after all, is not our system of justice is based on a moral order whose roots trace to Sinai-to the moment when Israel as a whole was told (and the world, the Sages teach, heard as well) that there is a right and wrong; that right and wrong depend neither on the strength of the sword nor on communal consensus, but on Revelation; and that while man may use his Godly gift of intellect to discern order, including legal order, in the world, it is only God's Law that is the source of order and law?

So is the philosophy of Sinai indeed the basis of our justice system? I suggest that it is not, except in an historical and perhaps ancillary sense, and that for this reason the Ten Commandments do not belong on the courtroom wall.

It is true that the Republic was founded by men who had a keen recognition that Providence governed the affairs of men; this is obvious from the Declaration of Independence. And it is true that some, or many, of the Founding Fathers them were churched. But the reader of this publication need not be told that the novus ordo seclorum was based not on a divine right, as George's claim to throne was, but on a natural right that owed more to the Enlightenment than to the Revelation. Natural law has many charms, and a new appreciation for it would be a breath of fresh air in public discourse. But it is not the same as God's law.

Many of us, taking the lead from the likes of Justice Antonin Scalia, argue that sincere appreciation of God's law has as much a place, and maybe even more, than the pedestrian and faithless "moral" doodling that informs policy today. This is true, and it is toward the goal of returning that simple truth to American law that religious people, including many members of this Practice Group and including myself, strive. But that argument must be that we are allowed, even encouraged, to search our consciences, and that the consciences of those who have faith in and, better, obedience to a religious tradition from Sinai are no worse than those whose faith lies in the doctrines of Marx, Freud and Roosevelt-and more, that the mere fact that a moral initiative, reduced to law, has a genesis in religion does not make that legislation unconstitutional.

The argument cannot be, however, that that religious tradition itself has a place as authority in our jurisprudence-and that is what the tablets-over-the-bench argument is about. It is not heresy to say this; it is, in fact, heresy to say otherwise.

The reason the Ten Commandments do not belong in court is because the American constitutional justice system is not the system of Sinai. It is true that the Jewish tradition teaches that the nations of the world have an obligation to establish courts of justice, and in that sense our courts are indeed Divinely chartered. But our system dispenses a pale imitation of the justice mandated by the Bible, and the aspects it imitates are, ironically, a mockery of what God's justice is about. No exposition of why that is so-what the difference is between "You will not steal" and the United States Criminal Code-is necessary to readers of these pages.

Furthermore, the jurisdiction of the Federal courts has little in common with the jurisdiction of the Law. Do even the inherent equitable powers of the Federal judiciary, which boldly holds itself worthy of assessing taxes, overturning plebescites and protecting the right to exterminate any unborn life, extend to as small a topic as honoring one's father and mother? Observing the Sabbath day and keeping it holy? Having no other Gods before Him? Does any member of the Religious Liberties Practice Group think it does, or should?

Indeed, the Divine Law is not the same to people of faith, not even in many of its fundaments. Different religions in the American pantheon, all "established," all ancient, break down the commandments differently. Indeed, Judaism and Christianity even state the Golden Rule differently: Jesus said, "Do unto others what you would have them do unto you"; the sage Hillel, teacher of those who taught Jesus, said (in a more libertarian vein), "That which is offensive to your neighbor, do not do unto him." Simiarly, one of the Ten Commandments is to observe and keep the Sabbath. Only a small minority of Jews observes the Sabbath in the way described in the Torah. What Christian would agree that someone gathering sticks on the Sabbath, albeit deliberately and with malice, is liable for execution? (And what day is the Sabbath, anyway?)

And beyond the basics? At Sinai Israel was enjoined by hundreds of commandments beyond the famous ten. Based on Divine decree Israel undertook not only not to kill and steal but, for example-based on the same authority and on injunctions just as strict-never to wear a garment of wool mixed with linen, never to eat the flesh of the swine, and enough other commandments that libraries and millenia have been filled by the people Israel's quest to fulfill God's will expressed at Sinai.

The putative merging of traditional Jewish and Christian sensibilities into the "Judeo-Christian ethic" is a commonplace of ecumenicism, and for the most part it is a useful abstraction, especially when placed in relief against mores that are antithetical to that "ethic." But can it seriously be said that the American justice system is based on some universally understood ethic of Sinai? Indeed, when I mentioned my intention to write this essay to a colleague on the Executive Board of this Group, I broached the disparity in religious understanding of what the Decalogue means and its inapplicability to our system of justice. "Of course," he said, "after all, what do you do with the whole left side of the tablets?" I was confused. We Jews are taught that, in one sense, the first five commandments (we actually call them dibroth, better translated as "utterances") of the Decalogue deal with the relationship between God and man, and the second five with the relationship between man and man. But he seemed to have it backwards-until I realized he was thinking of the commandments that read left to right. Mine read right to left.

We cannot invoke the Ten Commandments in a time and place when we do not, cannot, really mean it-either because the "meaning" is unintelligible or because that authority is simply not implicated in the enterprise. When I walk into federal court on behalf of a client I remove my head covering, though in personal life I wear it night and day. But I do it because I know that I am in a court of mere temporal authority, empowered by government that is exalted by its democratic source-yet by only a tenuous connection to Divine justice. Given this realization, I do not expect to see that justice invoked over the head of the tribunal merely for effect.

This is the heresy, then. The Law is not a prop. To use it as one is heretical both in Constitutional sensibility and, more importantly, in its failure to keep from profane use that which is truly holy.


2001 The Federalist Society