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January 31, 2005
Union of Orthodox Jewish
Congregations Joins in Filing Supreme
Court Brief in Support
of Ten Commandments Displays
Today, the Union of Orthodox Jewish Congregations of America – the
nation’s largest Orthodox Jewish umbrella organization – through
its Institute for Public Affairs, joined with other national
Orthodox Jewish organizations in filing a “friend of the court”
brief with the United States Supreme Court urging the court to
uphold the public display of the text of what is popularly known
as “the Ten Commandments.” The brief, filed in the case of Van
Orden v. Perry under the aegis of the National Jewish
Coalition on Law & Public Affairs, was principally authored by
Washington attorney and Institute board member Nathan Lewin.
In the Van Orden case, the high court is reviewing a ruling
by the federal Court of Appeals for the 5th Circuit upholding the
constitutionality of a stone monument on the grounds of the Texas
state capital on which the text of the Decalogue. The Supreme
Court also has before it this year a companion case, ACLU v.
McCreary County, in which a Ten Commandments display in a
Kentucky courthouse was deemed an unconstitutional establishment
of religion by the federal Court of Appeals for the 6th Circuit.
The brief filed today makes the following arguments to the high
court: First, that although the Ten Commandments certainly possess
religious significance, they have also, “over time, acquired
secular meaning as well.” The brief notes that the Court has
previously recognized this with regard to another Jewish religious
symbol – the menorah – in a 1989 ruling upholding their public
display during the winter season. Thus, just as a menorah – a
religious symbol with secular meaning as well – may be displayed
so too the Ten Commandments – which convey not only a religious
message but secular ones as well with regard to the history of law
and society. Second, while some display opponents contend that due
to the fact that different denominations have different
translations and numerations of the Decalogue and, thus, choosing
one version over another expresses an unconstitutional preference
for one faith over another, the Orthodox brief rejects this
contention. “The minutiae of the particular text is irrelevant;
the [secondary] secular theme of the display is the message that
the Ten Commandments have been a historical foundation for a
society based on the rule of law.” This message obtains
irrespective of which version of the Commandments is utilized. The
brief does, however, note that if there were evidence – absent in
the cases before the Court - of government officials deliberately
choosing one particular version over another with intention of
endorsing that denomination, that may well “constitute the
impermissible endorsement” of religion. Third, the brief notes
that, as highlighted by the 5th Circuit court’s ruling, the
context in which a Ten Commandments display appears is critical to
their constitutionality. In both Texas and Kentucky, the Ten
Commandments appear alongside other historic icons of law. This is
much the same as they appear in a frieze in the chamber of the
U.S. Supreme Court as well. The brief rejects those who would
“require public officials to actively undertake special steps to
secularize” the display.
In connection with the filing, Nathan Diament, the Union’s
director of public policy, stated: “As representatives of the
faith to whom the Ten Commandments were initially given on Sinai,
we have a deep appreciation for the role these principles have
played in the development of a just and moral society. To
eliminate their display from the public square on the basis of
their religious source is but the latest misguided attempt to oust
religion from its critical role in American life”
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