Apparently there is a Ten Commandments case coming to the Supreme Court this term. It doesn't appear to be an Establishment Clause case, but a Free Speech case. It's called Pleasant Grove City v. Summum. The facts behind the case:
Founded in Salt Lake City in 1975, the Summum faith believes Moses originally descended from Mount Sinai not with the Ten Commandments, but with a set of seven principles - or aphorisms - that he revealed to only a select few. Over the last decade, leaders of the faith have sought to erect monuments of the aphorisms in numerous Utah towns alongside displays of the Ten Commandments donated by private organizations.
Pleasant Grove denied the Summum’s request, citing a city requirement that permanent displays in the park either be directly related to city history or be donated by a group with longstanding community ties. (The Ten Commandments monument was donated by the Fraternal Order of Eagles.)
In the suit, the Summum contended the city violated its free speech rights by excluding its monument while allowing the Ten Commandments monument to be displayed in the park. After the district court denied the Summum’s request for a preliminary injunction, the 10th Circuit reversed with instructions to grant a preliminary injunction allowing the Summum to erect its monument in Pioneer Park.
The panel reached its decision after concluding the case implicated private speech in a public forum, not government speech. With regard to the type of forum implicated, the panel held that “the nature of the forum in this case is public” because a “city park” is “a traditional public forum.” Therefore, the panel reasoned, “the city’s restrictions on speech are subject to strict scrutiny” - a standard of review that the city’s denial of the Summum’s request would likely fail.
On free speech grounds, it seems, the conservatives have an easy and common sense rationale for denying the right of public display of the "seven aphorisms." From the 10th Circuit's decision:
In Graff v. City of Chicago, 9 F.3d 1309, 1314 (7th Cir. 1993), the
Seventh Circuit held that “[t]here is no private constitutional right to erect a structure on public property. If there were, our traditional public forums, such as our public parks, would be cluttered with all manner of structures.” (quotation and citation omitted).
In other words, official speech on government property ultimately belongs to (surprise surprise) the government.
Yet, the Establishment Clause -- apparently not an issue in this case -- is not about speech but religious rights, our unalienable rights to liberty and equality of conscience. And whereas the Free Exercise Clause invariably vindicates liberty rights, the EC often vindicates equality rights. In short, our constitutional system grants the Summum faith the same rights, no greater or lesser, that it does to traditional Judeo-Christian faiths.
One strong reason why I think America's Founders were so concerned with grating equal rights to unorthodox, heretical faiths is that many of the key Founders were unorthodox heretics. They all came together in their belief that America was governed by a wise, inscrutable Providence. But on issues as basic as even the Ten Commandments, America, in principle, was founded to be as much about doubting that we had the right version of the Ten Commandments, as it was to be about living by the traditional version of the Decalogue.
That's one reason why I believe on these public display of the Ten Commandments issue, whatever the technical proper constitutional result, the historical answer -- what America, in principle, was founded to be all about -- is display those heterodox, freethinking, non-traditional sentiments right next to the Ten Commandments. And display them proudly. And so I would display John Adams' alternate Ten Commandments right next to the traditional ones.
John Adams writing to Thomas Jefferson, Nov. 15, 1813 doubts we have the right version of the Ten Commandments, indeed explicitly doubts the accuracy of the Bible's text, and proposes an alternate version which might be the "authentic" Decalogue:
Among all your researches in Hebrew history and controversy, have you ever met a book the design of which is to prove that the ten commandments, as we have them in our Catechisms and hung up in our churches, were not the ten commandments written by the finger of God upon tables delivered to Moses on Mount Sinai, and broken by him in a passion with Aaron for his golden calf, nor those afterwards engraved by him on tables of stone; but a very different set of commandments?
1. Thou shalt not adore any other God. Therefore take heed not to enter into covenant with the inhabitants of the country; neither take for your sons their daughters in marriage. They would allure thee to the worship of false gods. Much less shall you in any place erect images.
2. The feast of unleavened bread shalt thou keep. Seven days shalt thou eat unleavened bread, at the time of the month Abib; to remember that about that time, I delivered thee from Egypt.
3. Every first born of the mother is mine; the male of thine herd, be it stock or flock. But you shall replace the first born of an ass with a sheep. The first born of your sons shall you redeem. No man shall appear before me with empty hands.
4. Six days shalt thou labor. The seventh day thou shalt rest from ploughing and gathering.
5. The feast of weeks shalt thou keep with the firstlings of the wheat harvest ; and the feast of harvesting at the end of the year.
6. Thrice in every year all male persons shall appear before the Lord. Nobody shall invade your country, as long as you obey this command.
7. Thou shalt not sacrifice the blood of a sacrifice of mine, upon leavened bread.
8. The sacrifice of the Passover shall not remain till the next day.
9. The firstlings of the produce of your land, thou shalt bring to the house of the Lord.
10. Thou shalt not boil the kid, while it is yet sucking.
And the Lord spake to Moses: Write those words, as after these words I made with you and with Israel a covenant.
When and where originated our ten commandments? The tables and the ark were lost. Authentic copies in few, if any hands; the ten Precepts could not be observed, and were little remembered. If the book of Deuteronomy was compiled, during or after the Babylonian captivity, from traditions, the error or amendment might come in those.
So, in debating public display of Ten Commandments & American Founding, ask those on the pro-display issue what the 10th Commandment is. And reply, no it's "Thou shalt not boil the kid, while it is yet sucking." So sayeth John Adams. But in any event, I would support public display of these Ten Commandments, replete with Adams' quotations doubting we have the right version of the Ten Commandments as written in the Bible.
As a matter of constitutional technicality the Summum folks may be in the wrong (or not). But what they are trying to do is as American as apple pie.