So you wish to always favor "no establishment of religion", as opposed to "free expression thereof", even when no religion is being established and almost everyone is cool with it. Got it.
Restricting government buildings from displaying religious symbols in no way violates the free expression portion of the first amendment. Anyone within that region is still 100% free to express their religion.
Free expression of religion relates to the individual being allowed to express their religion. It doesn't mean that the government should give them the location upon which to do it. They are
not entitled to use public resources to express their religion.
That's a simple fact. Just because someone has a right to something in no way means that the governemnt should provide it for them. Preventing government buildings from having the 10 commandments is in no way, shape, or form a violation of
anyone's religious freedom. nobody is impeded form expressing their religion simply because they are not able to put their symbols in front of a courthouse. Nobody.
That's just a simple fact. Every person in the community is still rightfully allowed to display their symbols on their own property, in their homes, in their places of worship, on privately owned billboards overlooking the highway, etc.
A right to free expression does not include the government being required to provide the
means to free expression.
That being said, I would also point out that having a display of the ten commandments on public property is not, automatically, a violation of the concept of "no establishment of religion".
As was pointed out, the SCOTUS has visual representation of the 10 commandments. Here is an example of what can be found there:
Of course, these are not verbatim representations, but instead are "tablets" marked with Roman numerals. They are honoring the concept of codified laws.
This is vastly different from a verbatim representation of the 10 commandments.
One of the reasons for this is the difference between verbatim portrayals of the 10 commandments between the various faiths that follow them. Catholics have a different set of 10 commandments than the protestants do. Both of these Christian versions differ from the Jewish and Islamic variations.
Depending on which verbatim version is used, there
is the potential for "establishing a religion". It would depend on the rationale for the choice to display the commandments and the rationale for the version used.
Typically in the US, the verbatim version that shows up at the courthouses is the protestant version. Typically the King James variation, to be exact. This variation of the bible is actually rejected by Roman Catholics (as the Roman Catholic versions of the bible are typically rejected by Protestants).
This is where it gets sketchy, IMO. If the representation were generic, like they are in the SCOTUS, there is no real issue. There's no way to argue that it acts towards establishing a religion, because there is nothing in it that could be viewed as exclusionary towards different faiths (as well as sects of various faiths) that also follow the 10 commandments.
The generic representation works to honor the codification of laws without running any risk of bordering "establishment".
Thus, I will argue that any verbatim representation of the 10 commandments is present for some other motive than honoring a historical codification of laws. Typically, the motive for choosing a specific faith's variation of the 10 commandments is to promote that faith's morality.
A Catholic is not going to use the KJV's version of the 10 commandments in a display on their lawn anymore than a Baptist would use the version found in the Quran.
If the are going to display any version, it will be their
own version. This is because they don't want to promote some other religion, they want to promote their
own religion.
So, IMO, its clear that verbatim representations are always acting to "establish" some specific faith (or sect of a faith, unless of course, all verbatim variations are displayed on equal footing) to at least some degree.
This is hard to argue against because the choice to display a verbatim representation is going further than necessary in order to honor the codification of laws, and the choice of which variation is used is always decided by the religious beliefs of the person(s) making the choice. If one felt a verbatim version had to be used to truly honor the codification of laws, then the verbatim version that would be used would
always be the Judaic variation and it would be in Hebrew instead of English for historical accuracy. The fact that the version used always ends up being an English one means the choice to go verbatim has
nothing to do with historical accuracy or historical reasons at all.
So the discussion then moves on to the wording of the First. Specifically the limitation on passing any laws with regard to the establishment of religion being directed at congress alone. This makes sense because back then, the only Branch of the governemnt which could pass federal laws about anything was Congress. That's not the case anymore. The Judicial branch and the Executive branch have both taken on more legislative power than what was originally intended.
The fact that congress was mentioned, at that time, was essentially placing a limitation upon the federal government (which is what the Bill of Rights was intended to do). At the time, the other two branches wouldn't need to be mentioned specifically because they did not have the authority to legislate. They've taken on the authority since then, though. SO in keeping with the original intent to limit the federal governemnt, I think it should extend to all branches of the federal government that have the ability to legislate to any degree (Which is all three now)
Thus, I would argue that restricting
verbatim representations of the 10 commandments from being displayed on
federal property is a justified restriction. Generic representations like those at SCOTUS should not be restricted. Also, if the Judaic verbatim variation was used and it was written in Hebrew, I would say it shouldn't be restricted because a legit argument could be made about using them for historical context regarding the codification of laws that would also be free from any risk of "establishment".
When it comes to State and local government property, however, I
don't feel that
any restrictions are justified for a few different reasons:
1. The state and local governments aren't actually restricted by the first, IMO.
2. Even assuming that incorporation is valid, borderline "establishment" such as this would not affect anyone but the local community represented by that state or local government. This is different from a federal courthouse, for example, because even though a federal courthouse may service that community, it is there representing the entire country, not that community alone. As such, local preferences are not a factor in determining any type of displays present on the federal property.
3. The only time the actions of a state or local government is my business is if it is my own state or local government.
So to sum up:
If the building is federally owned, I think that only generic representations of the 10 commandments should be displayed (with the exception of verbatim Judaic Hebrew versions) if there is a legitimate reason for their display. Typically this limits it to courthouses as a way to honor a historical codification of laws.
If the building is owned by state or local government, I don't care unless it is my own state or locality. If it was my own locality, I would generally would oppose verbatim representations but not enough to really do anything more than write a letter about it. I don't really care enough to organize a protest or anything. Chances are I'd just write an e-mail about it, too, because I don't even know if I care enough to go out and buy a stamp to send a real letter.
