Which Version of the Commandments?
Bill Long 7/23/05
One of the issues frequently overlooked in the battle over the constitutionality of a display of the 10 Commandments on public property is the issue of whose version of the Commandments is in view. A recent law review article in the Fordham Law Review (73 FLR 1477 (2005)) by Paul Finkelman of the University of Tulsa Law School finally deals with this issue. He concludes that the display in view in the Van Orden case, contributed to Texas in 1961 by the Fraternal Order of Eagles, is really (surprise, surprise) a Protestant version of the Decalogue and that by allowing this version to be displayed, the State is not just endorsing religion but a specific brand of Christianity. This mini-essay will review the way that different faith traditions number the 10 Commandments. Prof. Finkelman also goes into the issue of different translations of the Hebrew text of Exodus 20, but I think this point is too subtle for most audiences and will carry little legal weight in the future.
A Word of Background
Finkelman's article came out in 2005 but before the Van Orden and McCreary County cases were handed down. What seemed to get him started on the issue was a denial of certiorari (i.e., refusal to hear the case) by the US Supreme Court in 2001 in the City of Elkhart, Ind. v. Books. The display at issue in Elkart was almost identical to the Van Orden display, having been donated to the City by the Fraternal Order of Eagles in 1958. The Court in 2001 refused to hear the case, but three Justices (Rehnquist, Scalia, Thomas) dissented from the denial of certiorari, laying out reasons for believing that the display was constitutional. Rehnquist's reasoning in the dissent became the basis for the Court's plurality opinion in Van Orden, handed down less than a month ago.
Versions of the Commandments
One of the burdens of Finkelman's article is to show that there are at least three versions for numbering the Exodus Commandments in Judaism and Christianity. Let's start with one significant problem. Exodus 20:2-6 reads, in the New Revised Standard Version (NRSV):
2 "I am the LORD your God, who brought you out of the land of Egypt, out of the house of slavery; 3 you shall have no other gods before me. 4 You shall not make for yourself an idol, whether in the form of anything that is in heaven above, or that is on the earth beneath, or that is in the water under the earth. 5 You shall not bow down to them or worship them; for I the LORD your God am a jealous God, punishing children for the iniquity of parents, to the third and the fourth generation of those who reject me, 6 but showing steadfast love to the thousandth generation of those who love me and keep my commandments."
Question. How many commandments are here? And which verses capture which commandments? According to the Jewish tradition, v. 2 is the 1st Commandment. It tells about Yahweh's historic act of deliverance of the people and sets the tone for the rest of the Decalogue. However, many Protestants do not accept v. 2 as the First Commandment--it is only the "Prologue." The first Commandment for most Protestants is in v. 3--"You shall have not other gods before me." For Jews, vv.3-6 form the second commandment, while for most Protestants vv.4-6 is the second commandment. However, Lutherans (a Protestant denomination) and Catholics would see vv.2-6 in its entirety at the 1st commandment. Thus, as Finkelman points out, you have three different versions of what the 1st and 2nd Commandments entail.
Let me Count the Ways--er, the Commandments
Now after you get to through the 2nd Commandment for Jews and the majority of Protestants, Commands 3-10 are identical for them, despite the fact that Jews render the 7th Commandment "You shall not murder," instead of the usual Protestant rendering of it: "You shall not kill." The NRSV, one of the more recent ecumenical Protestant translations renders Ex. 20:13 as "You shall not murder, though it has a footnote after "murder" which says "kill." Jews also number their verses differently from the majority of Protestants, thus ending their Decalogue at Ex. 20:14, but this isn't a matter of content but simply of translation preference.
But like a runner that gets a slow start in a race, Lutherans and Catholics are one Commandment behind the others, even after only two Commandments. Therefore, they still have nine Commandments to find while most Protestants and the Jews have only eight. How do they do this? Cleverly. Their Commandments 2-8 are identical to the majority Protestant and Jewish Commandments 3-9, but the Lutherans and Catholics divide up the 10th Commandment into two. Here is the complete text of Ex 20:17 (in the Christian version, of course):
17 "You shall not covet your neighbor’s house; you shall not covet your neighbor’s wife, or male or female slave, or ox, or donkey, or anything that belongs to your neighbor."
This is the 10th Commandment for the Jews and most Protestants, but for Catholics and Lutherans it is the 9th and the 10th Commandments. Their 9th Commandment is "You shall not covet your neighbor's house" and their 10th Commandment begins with "you shall not covet your neighbor's wife" and continues until the end of the verse. Because the Hebrew text actually can be read to have as many as 13 commandment-like statements, the text allows for this division.
Conclusion--Where Does This Leave Us?
According to Finkelman, the text displayed by the State of Texas is the "Lutheran" version. It divides the "other Protestant" 10th Commandment into the 9th and 10th Commandments. Some might say to all this, "Big deal. No matter how you slice it, you still get 10 and you better do what they say!" But the burden of this essay has been to show that even the adoption of a particular version of the Commandments affirms a specific tradition's (i.e., Lutheran's) version of them. So, not only is the State of Texas adopting a religious monument in its public space, but it is adopting a certain Protestant group's understanding of the Commandments along with it.
Let me illustrate a slightly different issue that will make this clearer, by reference to the Lord's Prayer. Most Protestants reciting this prayer say, "Forgive us our trespasses, as we forgive those who trespass against us." Some Protestants, however, and Roman Catholics pray, "Forgive us our debts, as we forgive our debtors." If a governmental until were to post a version of this prayer (which they would certainly not in 2005), the mere selection of the version would be a favoring of a certain sectarian understanding within the larger Christian world. It would be, then, a double violation of the Establishment Clause.
That is Finkelman's argument--that the monolith is not only unconstitutional because it endorses religion, but that the version of the 10 Commandments it discloses endorses a particular brand of Christianity. The Supreme Court (5-4) disagreed with him, but I venture to say that the issue is not settled, not by a long shot.
Copyright © 2004-2008 William R. Long