DECALOGUE DIVISIVENESS.

When Government Officials Tabulate The Ten Commandments, They Count Some Religions Out

Judge Roy Moore, of Etowah County, Ala., is determined to keep the Ten Commandments hanging on his courtroom wall, and a lot of people are on his side. When the controversy over the judge's religious display erupted in 1997, backing for the Ten Commandments came from every quarter.

Thousands of Alabamans rallied behind Moore, and statements of editorial encouragement appeared from Massachusetts to California. When I began researching this issue, I located at least two "Support Judge Moore" webpages, and there are probably many others that my modest Interact skills failed to discover.

As you may remember, Alabama's then-governor Fob James supported Moore to the hilt, even threatening to call out the National Guard if that's what it took to prevent the judge's carved wooden plaque from being removed. Said Gov. James, "[T]he only way those Ten Commandments ... will be stripped from that court is with the force of arms."

Decalogue plaques have lately been mounted in public buildings in North Carolina, South Carolina and Texas, with others promised or promoted in Michigan, Wisconsin and elsewhere. Not to be outdone in their support for the Judeo-Christian tradition, members of the U.S. House of Representatives overwhelmingly passed a resolution endorsing the display of the Ten Commandments in every public schoolroom and courtroom in the nation.

Alabama voters retired Gov. James from office last yea and the legal battle over Moore's display reached a judicial impasse. The Alabama Supreme Court neatly sidestepped the issue, dismissing (for lack of standing) a lawsuit between Moore and the American Civil Liberties Union. Still, it seems certain that the issue will reemerge, as Religious Right groups have made Judge Moore a national symbol in their campaign to reemphasize religion in public life (and in public buildings).

Yet all of-this enthusiasm begs one extremely important, though previously unnoticed, constitutional question: Which Ten Commandments?

You see, even though the House resolution universalized the Ten Commandments as "fundamental principles that are the cornerstones of a fair and just society," the fact is that there are at least three distinct iterations of the Ten Commandments. And the one you use depends very much on how and where you choose to worship.

To be sure, Catholics, Protestants and Jews all accept the same text of Exodus 20:1-17, where the Commandments first appear in the Bible. But that chapter actually contains 17 separate verses, so boiling them down to ten distinct, plaque-sized commandments requires some considerable abbreviation and interpretation. Consequently, the choice of a specific text or organization inevitably denotes a preference for one tradition over others, creating significant religious, political and constitutional issues.

In Judaism, the First Commandment is traditionally, I am the Lord your God, who brought you out of the land of Egypt, out of the house of slavery. Unlike Jews, Christians generally regard this statement as a prologue, and not part of the Commandments proper, and it is therefore entirely missing from most Christian formats. Because of that elision, the Jewish Second Commandment (You shall have no other gods before me) has more or less become the Christian First, with the necessary numerical adjustments continuing down the line.

The Christian versions themselves diverge almost immediately. In many Protestant renditions, including the one I found on a Judge Moore webpage, the Second Commandment is You shall not make for yourself a carved image ... you shall not bow down to them nor serve them. This prohibition against "graven images," is also included in the Jewish Second Commandment, but it is not found at all in standard Catholic abbreviations of the Decalogue. (Instead, they split the erstwhile Tenth Commandment in two).

And here is where the trouble lies. I am no church historian, so I do not know why the Catholic arrangement omits "graven images" from the shortened, one-page versions of the Ten Commandments. A quick trip to the library, however, turned up one nastily intolerant polemicist who claims it is because of Catholics' "worship and adoration of saints."

Continuing his overt anti-Catholic animus, the writer charges "Catholics not only make `graven images' in direct prohibition and violation of the Second Commandment, but they also worship these images in defiance of an angry and vengeful God." Nor is this merely an historical confrontation. Contemporary websites repeat and embellish upon the anti-Catholic theme.

Thus the different rendering of the Ten Commandments is used as ammunition in a classic religious assault. In the case I just quoted it becomes an occasion for virulent Catholic bashing, concluding with the accusation that the Catholic Church intentionally publishes "a mutilated set of Commandments."

I don't want to attribute anti-Catholic bigotry (or any other sort) to the supporters of Judge Moore. But the above example manifestly demonstrates how interpretational differences can be employed to fan the fires of religious conflict. To the faithful, text matters. Which leads us directly to the First Amendment.

The Framers of our Constitution were deeply concerned about the perils of religious conflict. They wisely recognized that entanglement of religion and government could only lead to heightened strife, should the followers of different faiths contend with each other for official government endorsement.

The Framers agreed, therefore, that there should be "no law respecting an establishment of religion." Their goal was not to suppress religion, but rather to free it from the temptations of secular power. Since there can be no law respecting an establishment of religion, no group can attempt to dominate another, and no sect need fear official domination. There cannot, and should not, be any official catechism, enshrining the tenets (or Commandments) of one faith community to the derogation of another.

The Framers' solution was both judicious and prescient. Even as simple an act as displaying the Ten Commandments on a courtroom wall turns out to be freighted with contentious theological significance, and therefore with the potential lot exclusion, insult and distress.

Centuries-old differences between Catholics and Protestants can be played out in the passages of their respective Ten Commandments. We have the First Amendment precisely to prevent such purely doctrinal disagreements from spilling over into political disputes.

There is a level of civic, nonsectarian benediction that can coexist peacefully, if not quite rigorously, with the Establishment Clause. And some may have wondered whether the Ten Commandment displays ought to be tolerated by First Amendment purists, much as we have been able to live with the prayerful invocations that begin each session of Congress and the monetary motto, "In God We Trust" not to mention the Supreme Court's own call to order, "God Save This Honorable Court."

But, as it turns out, the Ten Commandments dc) not fit easily into this category. Indeed, it takes naivete -- one is tempted to say ignorance, but that would be too strong -- to believe that a single rendition of the Ten Commandments could be considered universal and nonsectarian.

True, any disputes over the text of the Decalogue have been submerged, barely noticed by most Americans at least during this century. But that may well be because there has never been an issue of official endorsement. The Jewish Decalogue is displayed in synagogues and the various Catholic and Protestant renditions are mounted in their respective churches. Religion is religion and the government stays out of it.

In other words, the First Amendment works. And that is why Judge Moore should have to take down his plaque.

Steven Lubet is professor of law at Northwestern University.