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In BLACK & WHITE Michael Hess BBSNews 2005 |
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BBSNews - 2005-03-02 -- The Supreme Court of the United States today heard arguments in two cases involving the display of the Ten Commandments in government thus public buildings or grounds. It's almost always folly to speculate upon a prospective decision from the Supremes but these two cases appear to both completely run afoul of the Lemon Test, a method established in Lemon v. Kurtzman 1971. This test consists of three prongs:
- A government's action must have a legitimate secular purpose.
- A government's action must not have the primary effect of either advancing or inhibiting religion.
- And a government's action cannot result in "excessive entanglement" of the government and religion.
The recurring Ten Commandment cases often use the argument that the Ten Commandments is the basis for US law, irrespective of the fact that the commandments are also well known as religious law for Christians and Jews. This makes Ten Commandment cases hard to even clear the first hurdle. The Ten Commandments are undeniably a specific religious symbol. There's not even agreement about the wording or order of appearance of the Ten Commandments.
The second prong is tickled certainly by the Kentucky case and by extension to the others. The Kentucky displays were expressly modified, three times, to try and get around the Constitutional proscription against respecting or establishing religion. One need only listen to right-wing talk radio or visit a few conservative Web sites to quickly discern the intent of religious conservatives. The vast majority of them wish to insinuate evangelistic Christianity into government and public schools. Making displays of the Ten Commandments a religious cause celeb works against the second prong of the Lemon Test. And it would be hard to find a government in the US that is trying to erect monuments to Buddha or Mohammed. Thus mocking both portions of the second prong, advancing Christianity and inhibiting other religions or the non-religious.
The third prong skewers the whole issue of whether the Ten Commandment displays are or are not an overt adherence to a certain religion. The Judge Roy Moore case demonstrated this truth in a spectacular way. More than one government offered to take Judge Moore's "rock" and display it's rendering of the Ten Commandments. The Supremes could step in and offer clarification that government has enough to do, what with roads, emergency services, zoning and safety regulation etc to just step away from religious controversy and leave religion to churches.
The fact that governments are wasting official time on this issue is proof enough of "excessive entanglement" on its face.
A New Lemon Test
It's been said that the Lemon Test itself may be up for review and possible change. A perfect judicial activist solution and a new test could be easily applied by the Supremes. The Ten Commandments can stay in government buildings provided that the upwards of 400,000 churches in the United States put up a copy of the Bill of Rights behind the pulpit for all worshippers to either notice or turn away from. Who could possibly object to the Bill of Rights as an adjunct to the Ten Commandments? They both consist of Ten parts, and for the Bill of Rights there's no dispute over a version or the ordering between Protestants, Catholics and Jews.
After all, in the United States, religion derives it's protection from the Bill of Rights. For those churches who refuse to comply, an easy to apply remedy would be for them to lose their tax exemption.
Call it the Ten for Ten test. Controversy solved.