Firm Foundation

A decision in a Ten Commandments case handed down last week offers perfect illustration of a common fallacy committed by courts and citizens concerning religion in the public square.

In ACLU of Tennessee v. Rutherford County (2006) (opinion not publicly available online), federal district judge Robert Echols denied the ACLU of Tennessee’s request to permanently prohibit the Rutherford County Commission from posting the Ten Commandments in any form in the county courthouse; instead, Judge Echols ruled that a trial should be held on the issue of whether the Ten Commandments display is acceptable. In 2004, the judge had ordered the county to take down its Ten Commandments display pending the outcome of one of the Ten Commandments cases to be decided by the United States Supreme Court, McCreary County, Ky. v. ACLU of Kentucky. Since the Supreme Court decided against the McCreary County display, the ACLU of Tennessee argued that no trial is necessary in this case because Rutherford County’s display is nearly identical to the display in McCreary County. Judge Echols disagreed and will give Rutherford County another chance to demonstrate that the display is constitutional.

While it is good that Judge Echols denied the permanent injunction, in making this decision he stated that the “Rutherford County Defendants must show that they have purged themselves of their original sectarian purpose relating to the posting of the Ten Commandments.” This amounts to saying that the Rutherford County Commission must jump up and down screaming that it in no sense has a religious motivation for posting the Ten Commandments. Such a stipulation is, of course, absurd considering that the Ten Commandments are an inherently religious text. The judge is equating something being “religious” with an “establishment of religion.”

This is a prevalent error both inside and outside legal circles. Today people often think that government cannot be involved in anything that is “religious” because of the First Amendment. However, only “establishment[s] of religion” are explicitly prohibited by the First Amendment, not all things which are “religious” in nature. The Ten Commandments are obviously religious because they are laws written by the finger of God which are recorded in the Bible. But posting the Ten Commandments does not “establish” any particular religion as the official religion of the government. In other words, Rutherford County, Tennessee is not instituting Biblical law as the law of the county by posting the Ten Commandments; it is simply recognizing that that there are laws higher than those instituted by government which it would be advisable for people to remember and observe.

The same is true of prayer. By its nature, prayer is a “religious” act because it involves communication of a spiritual nature. If the Rutherford County Commission chose to open its meetings with prayer to God—even in the name of Jesus—it would not be enforcing Christianity as the official religion of Rutherford County. The commissioners would not be forcing anyone to pray in that manner nor would they be penalizing anyone in the county who chooses to pray in a different way or not at all. It would simply be a religious expression by the commissioners who desire guidance in doing their job.

The Commission cannot declare Christianity to be the official religion of Rutherford County and it cannot use taxpayer money to help fund a certain denomination in the county because these would be acts instituting an “establishment of religion.” But in enshrining this requirement in the First Amendment, the Founders never intended to “purge” government of anything that is religious in nature. The whole history of the country—from the prayers uttered in the First Congress to the oaths taken by public officials ending with “So Help Me God,” to motto “In God We Trust that is inscribed on our currency—demonstrates that the public sector is laced together with religious elements.

Thus, the Rutherford County Commission should not have to “purge” itself of any religious purpose in order to be able to post the Ten Commandments because the Constitution contains no such requirement. Yet, as long as Supreme Court precedent remains as it is and lower courts continue to follow it, this improper conflation of anything “religious” with “religion” will persist.