Today, the Union of Orthodox Jewish Congregations of America – the nation’s largest Orthodox Jewish umbrella organization – through its Institute for Public Affairs, joined with other national Orthodox Jewish organizations in filing a “friend of the court” brief with the United States Supreme Court urging the court to uphold the public display of the text of what is popularly known as “the Ten Commandments.” The brief, filed in the case of Van Orden v. Perry under the aegis of the National Jewish Coalition on Law & Public Affairs, was principally authored by Washington attorney and Institute board member Nathan Lewin.
In the Van Orden case, the high court is reviewing a ruling by the federal Court of Appeals for the 5th Circuit upholding the constitutionality of a stone monument on the grounds of the Texas state capital on which the text of the Decalogue. The Supreme Court also has before it this year a companion case, ACLU v. McCreary County, in which a Ten Commandments display in a Kentucky courthouse was deemed an unconstitutional establishment of religion by the federal Court of Appeals for the 6th Circuit. The brief filed today makes the following arguments to the high court: First, that although the Ten Commandments certainly possess religious significance, they have also, “over time, acquired secular meaning as well.” The brief notes that the Court has previously recognized this with regard to another Jewish religious symbol – the menorah – in a 1989 ruling upholding their public display during the winter season. Thus, just as a menorah – a religious symbol with secular meaning as well – may be displayed so too the Ten Commandments – which convey not only a religious message but secular ones as well with regard to the history of law and society. Second, while some display opponents contend that due to the fact that different denominations have different translations and numerations of the Decalogue and, thus, choosing one version over another expresses an unconstitutional preference for one faith over another, the Orthodox brief rejects this contention. “The minutiae of the particular text is irrelevant; the [secondary] secular theme of the display is the message that the Ten Commandments have been a historical foundation for a society based on the rule of law.” This message obtains irrespective of which version of the Commandments is utilized. The brief does, however, note that if there were evidence – absent in the cases before the Court – of government officials deliberately choosing one particular version over another with intention of endorsing that denomination, that may well “constitute the impermissible endorsement” of religion. Third, the brief notes that, as highlighted by the 5th Circuit court’s ruling, the context in which a Ten Commandments display appears is critical to their constitutionality. In both Texas and Kentucky, the Ten Commandments appear alongside other historic icons of law. This is much the same as they appear in a frieze in the chamber of the U.S. Supreme Court as well. The brief rejects those who would “require public officials to actively undertake special steps to secularize” the display.
In connection with the filing, Nathan Diament, the Union’s director of public policy, stated: “As representatives of the faith to whom the Ten Commandments were initially given on Sinai, we have a deep appreciation for the role these principles have played in the development of a just and moral society. To eliminate their display from the public square on the basis of their religious source is but the latest misguided attempt to oust religion from its critical role in American life.”