A movable Decalogue

October 17, 2004

IN ALLEGANY County, the need for an 11th commandment is clear: Thou shalt have more faith in legal precedent. At the very least, such a law would spare the aching backs of county laborers who, after moving a 1,600-pound granite marker off the courthouse lawn Monday, were ordered to put it back again two days later. The county commissioners voted Wednesday -- after a public outcry -- that maybe they'd been hasty when they decided to move a Ten Commandments monument.

They were wrong.

But let's say this for the folks in Cumberland, their confusion over the issue is understandable. People have been hotly debating public display of the Commandments -- and lower-court judges have made rulings affecting it -- for decades. The central question is this: Does a display of the Ten Commandments on government-owned property violate the First Amendment prohibition on government's "establishment" of a religion?

This has never been a debate about whether the Ten Commandments are good or bad or about anyone's right to worship. But it seems pretty reasonable to recognize that the Constitution places a limit on government endorsing a particular religion -- even when the doctrine at issue is laudable and widely endorsed. Most Americans expect some separation of church and state. So the hard part is in the details. Where does one draw the line?

Cumberland's 5-foot-tall, 47-year-old monument is typical of the monuments that have spurred this debate. Ironically, its move Monday was meant to be pre-emptive -- to stave off the lawsuits pursued by the American Civil Liberties Union and others against similar markers elsewhere. The commissioners hadn't expected the Supreme Court to announce one day later that it would take up the issue early next year.

The justices will have to consider how the Ten Commandments are displayed in Texas (on the state Capitol grounds) and in Kentucky (in two county courthouses). The high court ruled 24 years ago that it was not appropriate to post the Commandments in a public classroom. Over time, state judges have generally found that the Commandments must be displayed in a secular context to pass constitutional muster. It's fine, for instance, to be part of the Supreme Court building's frieze of lawgivers, but not as a stand-alone monument to our Judeo-Christian heritage.

On this standard, the Cumberland monument clearly fails. Might the Supreme Court reverse more than two decades of precedent? Of course. But the more prudent path for the commissioners would have been to wait and see. Chances are, when the legal dust settles, it'll be time to move the granite in Cumberland again.

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