Speakers debate legality of Ten Commandments monument
Experts discussed the constitutionality of a Haskell County Courthouse monument of the Ten Commandments on Friday at the College of Law.
Two speakers and five panelists weighed in on the controversy at a symposium presented by the College of Law and the Oklahoma Law Review entitled, “Signs of the Times: The First Amendment and Religious Symbolism.”
The monument was erected in 2004 when a Baptist minister approached the county commission members about setting up the monument, which he said is motivated by God.
When county resident James Green filed suit against the monument, Federal District Judge Ronald White ruled in favor of the county’s right to display the Commandments. Later, in 2009, a three-judge panel in the 10th Circuit Court of Appeals reversed the ruling and ordered that they be removed.
Peter Irons, a speaker at the symposium, is a retired professor of political science at the University of California in San Diego who taught constitutional law until his retirement in 2004. He has a soon-to-be published law review article “Curing a Monumental Error: The Presumptive Unconstitutionality of the Ten Commandments Display.”
At the Symposium, Irons drew a line in the sand when it came to state and federal displays of the Ten Commandments.
“I’ll argue that every display [of the Ten Commandments] is an endorsement [of religion],” Irons said.
He said the Commandments are undoubtedly Christian and Jewish in nature, and that whenever they are posted on state property it is a violation of separation of church and state.
“You can put a pig in a pen or you can put a pig in a parlor but it’s still the same pig,” Irons said.
Irons does make exception though for legitimate art.
“I’m not going to go into a public museum and rip out every painting that’s religious in nature,” Irons said.
Thomas Berg, another speaker at the symposium, is an associate dean for academic affairs and professor at the University of St. Thomas School of Law. He has authored nearly 30 briefs in cases involving religious liberty and other constitutional issues.
Berg said the Declaration of Independence shows that many founding fathers thought citizens’ rights are tied into the existence of a creator.
“The premise of the Declaration of Independence is that societies have more rights with a creator,” Berg said.
He also argued that separation of church and state exists primarily to protect churches from the government’s control.
Berg said some historians have written about the separation of church and state as being a voluntary tradition. This meant the role of the state is to neither suppress nor promote worship.
Berg did not say he thought the Haskell County display should be allowed. He also did not say it should be removed.
“[Those arguing against displays of the Commandments] don’t really explain why we should be so concerned,” Berg said. “What is wrong with a display that doesn’t force anyone to participate in a religious ceremony and that doesn’t force anyone to look at it?”
Alex Wilson, first-year law student, attended the symposium. He said he thinks the younger generation takes a tougher stance on separating church and state.
“We grew up learning about the separation of church and state so we have that idea ingrained in us a little bit more than older generations,” he said.
Wilson agreed that all displays of the Ten Commandments on public property were unconstitutional. And what about the people who fight to have them displayed?
“It’s almost just creating drama where it doesn’t need to be,” Wilson said.
Following Irons’ and Berg’s speeches, the courtroom took a short break and then reconvened for a panel discussion.
Much of the discussion focused on a precedent known as the endorsement test.
The endorsement test came about in the 1980s when former U.S. Supreme Court Justice Sandra Day O’Connor focused on the government’s role in endorsing or disproving religions. In her concurring opinion statement in the 1983 Lynch v. Donnelly decision, she wrote that endorsements of religious displays “sends a message to non-adherents 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.”
Many of the panelists called this test subjective.
“If you don’t feel alienated by what your government has done than you’re not paying attention,” said Carl Esbeck, panelist and professor at the University of Missouri-Columbia School of Law.
A majority of the panel members and speakers felt the endorsement test would eventually fade out of use.
“If you limit yourself to the endorsement test, you’re whacking off all of these cases that are rightfully decided,” Esbeck said.
The symposium was the first of its size at OU since at least the early 1990s, said Michael Brooks, editor in chief of the Oklahoma Law Review.
“A tremendous amount of work went into this symposium,” Brooks said. “We couldn’t have done it without the help of students, faculty and staff.”
He said the symposium helped generate articles for a future issue of the Oklahoma Law Review, which will be dedicated to the event.