Beyond Jews and Christians

Sepia Mutiny, by way of Blog De Novo, points us to the only Amicus Curae filed by non-Judeo-Christians in the upcoming 10 commandments case. Like the ACLU brief, it is an utter smackdown. This one is better though, because it presents an argument that not only is irrefutable, but really doesn't cut against the common wisdom. The ACLU brief argued that the 10 commandments aren't really a major part of our historical legal tradition, which may be true but certainly isn't going to be accepted by the population at large. The Hindu American Foundation brief, however (which was filed jointly on behalf of Hindus, Buddhists, and Jains), merely asserts that a document with roots in Judaism and Christianity cannot be said to be neutral to Hindus, Buddhists, Jains, or other religions outside the tradition. Many of the specific injunctions and prohibitions mentioned in the decalogue are antithetical to the core spiritual beliefs of these religions.

Powerline says that "a moment of serious reflection should make it clear that putting up a statue representing the Ten Commandments does not amount to making a 'law respecting an establishment of religion,' which is what the First Amendment prohibits." But as this amici makes clear (and in my opinion, as that "moment of serious reflection" should too), posting a six foot by three foot 10 commandments statue right in front of the Texas Capital building clearly is "respecting an establishment of religion." There simply is no principled way to conclude otherwise. I don't even have to go into any extra-textual analysis to come to that conclusion, the rhetoric in the amendment is clear here.

According to the Oxford Essential Dictionary, we get the following definitions: "Respect," as in "with respect to" (the way it is used in the amendment), "regarding." "An" is an indefinite article, as opposed to "the" which is definite and implies singularity. "Establish" is "1. set up on a permanent basis, 2. achieve permanent acceptance for (a custom, belief, etc.) 3. validate; place beyond dispute." "An" implies that there are many ways to establish religion, it isn't just laws that say "everybody has to worship Jesus." "Respecting" means that we interpret the clause broadly, laws that are "related" to the establishment of religion are prohibited as well (I think that can be interpreted to mean laws that a reasonable person might conceive of as promoting religion). And finally, "establish" is to "validate or place beyond dispute," which is exactly what law does. In a Democratic society, law represents what is right or proper in society. Even when there are no punitive sanctions attached, when the law says one "should" act this way or affirms that a given life-path is the governmentally sanctioned one, that carries significant moral weight.

A "moment of reflection" would clearly place the 10 commandments on the wrong side of the establishment line. They clearly are at least "related" to the promotion of religion, and a fair amount of them serve solely to affirm a particular type of religious dogma. The only way to uphold their placement in our governmental centers is to entirely ignore the text of the 1st amendment, replacing the language of the document with majoritarian norms. Needless to say, this is precisely the type of judicial activism Powerline claims to abhor. But apparently the text of the constitution is only worth looking at when it affirms values Powerline agrees with.