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Rewriting the Constitution, Starting with the "Absolutely Senseless" Establishment Clause

Nicholas Johnson
May 22, 2002

This story begins in Frederick, Maryland, with an observant and knowledgeable high school senior: Blake Trettien. He noticed that a monument with the Ten Commandments was located on public park property and knew enough to know that this violated the Establishment of Religion Clause of the First Amendment of the United States Constitution. So he  wrote Frederick County Commissioner Richard B. Weldon a very impressive analysis for a high school student regarding his concerns on March 22, 2002.

The local paper, The Frederick News-Post, editorialized that it was "absolutely senseless" to apply the Establishment Clause in this way.

Nicholas Johnson responded with a Letter to the Editor, and was informed that it would not be published because only local letters are used (notwithstanding the fact that the paper often runs letters from elsewhere).
 
 

Blake Trettien's Letter to Commissioner Richard B. Weldon

March 22, 2002

Commissioner Richard B. Weldon, Jr.
Winchester Hall
12 East Church Street
Frederick, Maryland 21701

RE: PLACEMENT OF TEN COMMANDMENTS DISPLAY ON GOVERNMENT PROPERTY

Dear Commissioner Weldon:

I am writing to express my concern about the placement of a monument inscribed with the Ten Commandments in the Memorial Park on the corner of 2nd and Benz Streets across from the Recreation Department building. The display is located on the east edge of the park near the sidewalk, facing out of the park toward Benz Street.

In researching this display, I found a recent case in the 7th Circuit US Court of Appeals, Books v. City of Elkhart, that included a description of the history of these monuments:

In the 1940s, a juvenile court judge in Minnesota, E. J. Ruegemer, inaugurated the Youth Guidance Program. Disheartened by the growing number of youths in trouble, he sought to provide them with a common code of conduct. He believed that the Ten Commandments might provide the necessary guidance. Judge Ruegemer originally planned to post paper copies of the Ten Commandments in juvenile courts, first in Minnesota and then across the country. To help fund his idea, he contacted the Fraternal Order of Eagles ("FOE"), a service organization dedicated to promoting liberty, truth, and justice. At first, FOE rejected Judge Ruegemer's idea because it feared that the program might seem coercive or sectarian. In response to these concerns, representatives of Judaism, Protestantism, and Catholicism developed what the individuals involved believed to be a nonsectarian version of the Ten Commandments because it could not be identified with any one religious group. After reviewing this version, FOE agreed to support Judge Ruegemer's program. Around this same time, motion picture producer Cecil B. DeMille contacted Judge Ruegemer about the program. DeMille, who was working to produce the movie "The Ten Commandments," suggested that, rather than posting mere paper copies of the Ten Commandments, the program distribute bronze plaques. Judge Ruegemer replied that granite might be a more suitable material because the original Ten Commandments were written on granite.
DeMille agreed with Judge Ruegemer's suggestion, and the judge thereafter worked with two Minnesota granite companies to produce granite monuments inscribed with the Ten Commandments. Local chapters of FOE financed these granite monuments and then, throughout the 1950s, donated them to their local communities.
(Books v. City of Elkhart)
Apparently the local Frederick chapter of the FOE donated this monument to the City of Frederick and Frederick County on June 29, 1958. The acceptance and display of this monument, however, amounts to the government endorsement of religion, and violates the Establishment Clause of the First Amendment. This is determined by the Lemon Test set out by the Supreme Court in Lemon v. Kurtzman. The Lemon Test consists of three prongs: first, whether there is a secular purpose for a government action; second, whether the primary result of the action is to advance religion; and third, whether the action promotes excessive entanglement of government with religion.
The courts have maintained that the display of such Ten Commandments monuments violates the first two prongs of the Lemon Test. There can be no secular purpose for a display that begins at the top in bold letters: "I AM the LORD thy God." Continuing down the monument, the first four listings cannot be construed to have any secular purpose whatsoever:
Thou shalt have no other gods before me.
Thou shalt not make to thyself any graven images.
Thou shalt not take the Name of the Lord thy God in vain.
Remember the Sabbath day, to keep it holy.
The Stars of David and the Chi Rho symbol found at the bottom of the monument, as well as the format of the monument as two tablets, also give this monument an obviously religious nature.

Beyond the obviously religious as opposed to secular nature of the display, the primary effect of the display is to advance religion. The placement of this monument in a park that is filled with patriotic displays has the effect of linking Judaism and Christianity with the government in a positive way. This display cannot be said to have any relationship to the war memorials surrounding it; the irony of putting a monument proclaiming "Thou shalt not kill," in a park dedicated to war proves this. The monument is designed to, and has the effect of, advance religion.

I do not believe that this display violates the third prong of the Lemon Test by excessively entangling the church and state, but the violation of the first two prongs is more than enough to declare the display unconstitutional.

The United States Constitution and the courts that interpret it have consistently held that these displays are unconstitutional. Most recently, the US 7th District Court of Appeals ruled in two cases (Books v. City of Elkhart and O’Bannon v. Indiana Civil Liberties Union et al.) that displays of the Ten Commandments on public lands in this manner is unconstitutional. In the Books case, the monument was identical to the one displayed in the Frederick memorial park. The US Supreme Court refused to hear both cases, allowing the Court of Appeals ruling to stand. For more information on the constitutional issues involved with displaying the 10 Commandments, please consult the American Civil Liberties Union (www.aclu.org) or Americans United for the Separation of Church and State (www.au.org). The ACLU is a group that promotes and protects the civil liberties of all citizens, and Americans United is a religious liberties watchdog group that represents 60,000 people and religious groups.

The issue of the display of the Ten Commandments is not that religious expression is offensive in and of itself, but that the government sponsorship of this expression creates the appearance of two groups existing in the eyes of the government: those who follow the beliefs expressed and those who do not. The government’s endorsement of one belief over another creates an environment that is hostile to those who do not hold the same beliefs. This is offensive; governments simply should not display religious symbols in a way that divides us.

I realize that this is a very sensitive issue for many people, however, I believe that it is an important one that goes to the very foundations of our governmental system and the liberties that the Constitution stands for and would ask for a prompt response in this matter.

My mailing address is: [omitted] I may also be reached by phone at: [omitted].

Thank you for your consideration of this matter.

Sincerely,
Blake Trettien


 
 
The Frederick News-Post's Editorial

Absolutely senseless

The Ten Commandments monument in downtown Frederick's Memorial Park has been sitting there for many years. To our knowledge, in all those years it hasn't been a threat or source of irritation to anyone — Christian, Jew, Muslim or atheist. It isn't forcing itself on anyone. It simply sits there for anyone who is interested to read. Those who aren't interested may just pass it by.

A recent letter of inquiry from an Urbana High School student questioning the monument's constitutional appropriateness may have now put that monument in jeopardy. The mayor, city attorneys and at least one alderman have suggested they think the monument might indeed violate the First Amendment of the Constitution of the United States, which prohibits state-established religion. The 7th U.S. Circuit Court of Appeals recently ruled that displaying the Ten Commandments on government property did constitute a violation of the First Amendment. 

The religious persecution that this nation's first citizens suffered in Europe was not lost on our founding fathers. That history and their own wisdom told them that state-established religion was a dangerous thing. They were right, of course, and that's why they decided to include protections against it in the First Amendment.

What all that has to do with the Ten Commandments monument in Memorial Park is the puzzling part. That monument is not a manifestation of state-established religion. Anyone who argues otherwise is being deliberately perverse, provocative and desperately needs to look for a real wrong to right in the world instead of targeting this traditional, inoffensive monument.

 It doesn't take a constitutional scholar to see what the First Amendment was really created to protect us against, which is having a  state-sponsored religion forced on us, or not allowing us to worship the religion of our choice. Both those protections are critical, but, once again, what do they have to do with the Ten Commandments monument in Memorial Park?

Do we really want government at any level, including the local level, that is totally devoid of any reference to a higher power or any sense of spirituality? These are characteristics of the kinds of governments that Hitler and Stalin created. The very coins we all use on a daily basis reference a higher power, and are testimony that we can retain our national historical spirituality in our public institutions without threatening anyone's religious beliefs or freedom. 

If this uncalled-for focus on the monument in Memorial Park ultimately results in its removal, what real purpose would that serve? Who would be the better off for that? Who would be more secure? 

We suspect that the vast number of soldiers memorialized in that park believed in the Ten Commandments. And removing the monument would create an enormous amount of unnecessary resentment and hurt in this community — with absolutely nothing to gain by anyone. This is an idea that should be discarded for what it is — totally uncalled for and absolutely senseless. 
Nicholas Johnson's Letter to the Editor
(regarding the paper's editorial, in the column to the left)

"Absolutely Senseless." I couldn't agree more. Especially if the government is willing to promote religions like Christianity and Judaism. After all, it worked for the Talaban in Afghanistan until they went to extremes. Many countries have a state-sponsored religion. Besides, more religion means more world peace. 

What's the Constitution anyway? Just the ideas of a bunch of dead white males most of whose names few people even know today. The paper it's written on is more than 200 years old and would disintegrate if it weren't preserved under special conditions. All at taxpayers' expense I might add. 

Consider the Fourth Amendment. It keeps the police from coming into our houses and conducting "unreasonable searches and seizures." Sounds nice, but crime fighting would be much more efficient if the police didn't have to deal with the red tape called "search warrants." 

The Fifth Amendment says a citizen can't be "compelled to be a witness against himself." What kind of nonsense is that? Torture is used around the world and has proven to be very effective in producing confessions. 

Or take the Seventh Amendment's guarantee of a trial by jury. Now there's a useless expense! Why not just trust our fate to judges? It would speed trials, save money, and there would be no more jury duty! 

There's another part of the First Amendment that could be improved. If 
Americans are ever going to become unified on the important challenges we face today, what could make more sense than requiring newspapers to get White House approval before publishing editorials? Papers would still have First Amendment "free press" rights; they'd just have to get approval first. 

Kudos to the News-Post for encouraging a little "thinking outside the box" in which we're held by our Constitution. Such creativity can make a big difference. 

Nicholas Johnson 
Iowa City, Iowa
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 

 

The Frederick News-Post's Response to Johnson's Letter:

Delivered-To: njohnson@inav.net
Date: Tue, 21 May 2002 10:07:13 -0400
Subject: Re: Letter to the Editor
From: Letters <letters@fredericknewspost.com>
To: <njohnson@inav.net>

Thanks for writing, but we're using local writers' letters to cover this subject.

Lee Permenter
editorial page editor

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