NLJ Online May 2001

Ten Commandments Controversy Gains Momentum in Kentucky
by Mathew D. Staver

The controversy regarding the posting of the Ten Commandments began in Kentucky when the United States Supreme Court in the 1980 case of Stone v. Graham ruled that the Ten Commandments posted on a classroom bulletin board were unconstitutional. The court ruled that students may be induced to venerate and possibly even obey the dictates of the Ten Commandments, and in the majority opinion, that would be unconstitutional.

Since 1980, many things have changed. The Supreme Court has backed away some of its "separation of church and state" arguments that developed in the 1960's. Chief Justice Rehnquist has stated that the often misused "separation of church and state" phrase is an inaccurate representation of American history and should be utterly and frankly abandoned. Additionally, since 1980, conservative Christians have entered the judicial arena from which they were noticeably absent in the 1960's and 70's. Groups like Liberty Counsel have made great strides in restoring and regaining some of the liberties that we lost through judicial activism.

Three cases that involve a historical display which contains the Ten Commandments have now arisen again in the state of Kentucky. These cases are poised to go to the United States Supreme Court and may ultimately erase the United States Supreme Court decision rendered in 1980.

Liberty Counsel represents Pulaski County Judge Darrell Beshears, McCreary County Judge Jimmie Green and the Harlan County School Board in a suit brought by the Kentucky chapter of the American Civil Liberties Union seeking to remove three separate historical displays that contain the Ten Commandments. Judges Beshears and Green have the historical displays posted in their courthouses and the Harlan County School Board has the historical display posted in the district schools.

The historical display contains nine documents which include the Mayflower Compact, Declaration of Independence, Ten Commandments, Magna Charta, Star Spangled Banner, National Motto of the United States of America, Preamble to the Kentucky Constitution, the Bill of Rights to the United States Constitution, and a picture of Lady Justice along with an explanation of each document.

The ACLU wants the court to remove these historical displays and has asked that these judges be held in contempt of court for displaying the Ten Commandments.

The Kentucky Ten Commandments case has received a shot in the arm by a recent federal court ruling from the Sixth Circuit Court of Appeals. The Sixth U.S. Circuit Court of Appeals governs several states including Ohio and Kentucky. The federal court of appeals ruled in a 9-4 decision that the Ohio state motto, "With God All Things Are Possible", is constitutional. The federal court ruled that the question of public acknowledgment of religion is an easy question to answer when viewed against the historical background of the First Amendment. The court ruled that the original intent of the First Amendment was to prohibit a national establishment of religion; it was not meant to prohibit public acknowledgments of religion. The court noted that the Ohio state motto, which comes from Jesus in the book of Matthew, is similar to the National Motto. The state motto does not coerce belief and does not force anyone to support a particular denomination.

The Kentucky case will ultimately proceed through the appeals channel up through the same federal appeals court that decided the Ohio state motto. From there, the case will go to the United States Supreme Court.

In addition to the significant development at the federal appeals court level, the Kentucky cases present unique circumstances. Liberty Counsel requested two national experts to submit affidavits in response to the ACLU suit. The ACLU filed a brief stating that the Ten Commandments had nothing to do with the development of American law. David Barton prepared an affidavit for the case that contains an extensive review of American history regarding the Ten Commandments and how they have influenced American law. His 36-page affidavit containing 166 footnotes is chock full of information which details how each one of the Ten Commandments has at one time or another been adopted as law in this country. Mr. Barton's affidavit documents Noah Webster as stating: "The duties of men are summarily comprised in the Ten Commandments, consisting of two tablets; one comprehending the duties which we owe immediately to God – the other, the duties we owe to our fellow men." Mr. Barton's affidavit painstakingly shows how each one of the Ten Commandments has influenced the development of American law.

Justice Joseph Story, appointed to the Supreme Court by President James Madison, once declared, "One of the beautiful boasts of our municipal jurisprudence is that Christianity is a part of the Common Law. ...There never has been a period in which the Common Law did not recognize Christianity as laying at its foundations."

The first proposed seal of the United States, drafted by Thomas Jefferson and Benjamin Franklin, contained imagery from the Exodus. Former United States Chief Justice Warren Burger stated, "The very chamber in which oral arguments on [the Ten Commandments case] were heard is decorated with a notable and permanent – not seasonal – symbol of religion: Moses with the Ten Commandments." He is referring to the prominent display of Moses with the Ten Commandments in the United States Supreme Court.

In the 1965 case of Griswold v. Connecticut, Supreme Court Justices Black and Stewart cited the Ten Commandments from Exodus 20 for support of various criminal laws. In the 1961 case of McGowan v. Maryland, Supreme Court Justices Frankfurter and Harlan stated the following: "Innumerable civil regulations enforce conduct which harmonizes with religious canons. State prohibitions of murder, theft and adultery reinforce commands of the decalogue." Even Justice Stephens, in the 1989 case of County of Allegheny v. American Civil Liberties Union, commented regarding the placement of the Ten Commandments in the context of other historical figures by stating the following: "It would be absurd to exclude such a fitting message from a courtroom, as it would to exclude religious paintings by Italian Renaissance masters from a public museum. ...The history of man is inseparable from the history of religion."

In addition to extensive research by David Barton, we have also filed a 119-page single spaced affidavit by Bill Federer containing almost 500 footnotes. These documents by Mr. Barton and Mr. Federer contain undeniable evidence that the development of American law is inseparable from the Ten Commandments. It is ludicrous and downright unconstitutional to exclude displays of the Ten Commandments. The founding fathers never envisioned that the Ten Commandments, which have formed and shaped American law, would somehow be considered unconstitutional by the very amendment which they drafted to protect religious freedom. The Ohio federal court of appeals finally got it right – there is a huge difference between a national establishment of religion and public acknowledgments of religion. While the First Amendment was intended to prohibit the former, it was never intended to prohibit the latter.