How do the interpreters of the law handle the Law these days? A recent case before the Supreme Court regarding free speech concerned a group named Summum, which wanted to post its Seven Aphorisms” alongside a Ten Commandments monument in a public park in Pleasant Grove, Utah.

Summum Bonum Amen Ra, born Claude Nowell, said he was visited by extraterrestrial beings, inspiring him to found the Church of Summum in 1975. The church, whose rites include sacramental nectar, pyramids and mummies, believes that Moses intended to deliver the Seven Aphorisms to the Hebrew people, but gave them the Ten Commandments instead! A sampling of the Seven Aphorisms reveals this “gem”: “Nothing rests; everything moves; everything vibrates.”

Summum’s attorneys reasoned that its Seven Aphorisms are comparable and complementary to the Ten Commandments, so the city should display them in the park. Jay Sekulow, Chief Counsel for the American Center for Law and Justice, representing the city of Pleasant Grove, responded that a city’s decision regarding what objects to install permanently is government speech. Therefore, he argued, private parties do not have a First Amendment right to display their message without city approval.

The Berman Connection

A few years earlier, Sekulow filed a brief in a similar case, Van Orden v. Perry (2004), in which the Supreme Court considered a nearly identical Ten Commandments monument displayed on the grounds of the Texas State Capitol. Sekulow cowrote the brief with the late Harold J. Berman, a law professor at Emory University. Scholars consider Berman the father of the field of law and religion. Berman argued in the brief that the Ten Commandments are an integral part of Western civilization’s legal heritage. Therefore, he stated, their display by the government is not an endorsement of religion, as they convey primarily a secular message. The Court agreed, ruling that the monument did not violate the establishment clause of the First Amendment.

A Family Squabble

In the case of Summum and the Ten Commandments, you might presume that this would be one of those rare occasions when all Jews could line up on the same side of an issue. But you would be wrong.

The American Jewish Congress (AJC) filed a brief in support of Summum. The Jewish Social Policy Action Network, the Jewish Council for Public Affairs, and the Jewish Alliance for Law and Social Action wrote a brief in support of Pleasant Grove. They argued that the lower court’s ruling in favor of Summum “implies, for example, that if a city displays a Holocaust memorial in a park, it can be compelled to allow a display glorifying the Nazis.”1 And the American Jewish Committee joined in a brief in support of neither party! All of which goes to prove a Jewish (not a Summum) aphorism: “If you have two Jews, you will have three opinions.”

And what if one of the Jews involved believes in Jesus? Sekulow does, and he presented the oral argument on behalf of Pleasant Grove before the Supreme Court. He has argued several landmark cases before the high court. Chief Justice John Roberts and Justice Ruth Bader Ginsburg asked Sekulow why the display of the Ten Commandments in the public park is not a government endorsement of religion. Sekulow noted that the Supreme Court building displays a frieze of Moses holding the Ten Commandments with the words written in Hebrew.

“That’s not an endorsement of the religion or of the commandments,” he told the justices. “It’s representative of the history.” 2

Attorney Pamela Harris, representing Summum, argued that the park is a public forum, so everyone should be allowed to have a display. Chief Justice Roberts used Sekulow’s line of reasoning in response: “How far do you push that?” he asked Harris. “I mean, you have a Statue of Liberty; do we have to have a statue of despotism? Or do we have to put any president who wants to be on Mount Rushmore?”3

Sekulow’s argument won out. In February, the Supreme Court unanimously ruled that the city of Pleasant Grove has the right to reject the Summum display and retain the display of the Ten Commandments.

Changing Times

Early twentieth century Americans commonly acknowledged that the legal system was rooted in Judaic and Christian religious and ethical beliefs. Berman noted with regret that the law has become more fragmented and subjective, geared more to expediency rather than morality. He observed that natural law theory, which predominated in the West before the sixteenth century, “identifies law primarily with a morality higher than the state, a morality arising from human nature itself, and especially from our inborn reason and conscience.” 4 Sir Edward Coke, one of the most eminent jurists in the history of English law, wrote in 1610 that the Law of Nature or Moral Law was “written with the finger of God in the heart of man . . . before that Law was written by Moses, who was the first Reporter or Writer of Law in the world.”5

Unchanging Commandments

Are the Ten Commandments an expression of a universal inborn knowledge of right and wrong? Berman writes: In all religions there are norms concerning respect for parents as well as prohibitions of some types of homicide, some types of stealing, some types of sexual offenses, some types of perjury, and some types of fraud. Thus, it can be said that the last six of the Ten Commandments have counterparts in all known cultures. 6

Berman says that although we often speak of what law requires of religion, we seldom think about what religion requires of law. He states that the Ten Commandments make “implicit assertions that all human law is founded ultimately on divine law and that the ultimate purpose of human law is to create conditions in which love of God and love of neighbor may flourish.”7

If that is true, then we ignore them at our own peril— whether or not they are displayed in your local park.

Endnotes

  1. “Brief Amici Curiae of The Jewish Social Policy Action Network, The Jewish Council for Public Affairs and The Jewish Alliance for Law and Social Action in Support of Petitioners,” Pleasant Grove City v. Summum (No. 07-665).
  2. U.S. Supreme Court, Pleasant Grove City v. Summum (No. 07- 665), Oral Argument, November 12, 2008.
  3. Ibid.
  4. Harold J. Berman, “Religious Foundations of Law in the West: An Historical Perspective,” Journal of Law and Religion, Vol. 1, No. 1 (Summer, 1983), p. 42.
  5. Sir Edward Coke, The Selected Writings and Speeches of Sir Edward Coke, ed. Steve Sheppard (Indianapolis: Liberty Fund, 2003), Vol. 1.
  6. Harold J. Berman, “Law and Logos,” DePaul Law Review, Volume 44:143 1994.
  7. Ibid.