Losing by Winning


Justice Scalia, a devout Catholic, is making an important point. America must continue to recognize the religious source of the Ten Commandments as well as their contribution to our secular democracy.

Antonin Scalia

In the next few weeks the Supreme Court will rule on two important cases regarding whether the Ten Commandments can be displayed on public property. The argument in the two cases, recently heard by the Supreme Court, was revealing because it shows how perverted America's First Amendment jurisprudence has become.

The first case involves a 22 acre park in the Texas Capitol, where a monument displaying the Ten Commandments sits among 16 other displays. The second case involves two Kentucky courthouses which display the Ten Commandments along with nine other non-religious documents-all of them showing the historical origins of American law.

Speaking with his customary candor, Justice Antonin Scalia said during the oral argument that he couldn't see what was unconstitutional about either the Texas or the Kentucky displays of the Ten Commandments. They were, he said, "a symbol of the fact that government derives its authority from God." Scalia of course was relying on the clear statement in the Declaration of Independence that the source of our "inalienable rights" is none other than "our Creator."

The most revealing exchange in the argument came when Greg Abbott, the Texas attorney general, described the Ten Commandments as a "recognized symbol of law" and defended the Old Testament display as having the secular goal of "recognizing historical influences" on the American legal system.

Justice Scalia burst in to say, "You're watering it down to say the only message is a secular message. I can't agree with you. Our laws come from God. If you don't believe it (the Ten Commandments display) sends that message, you're kidding yourself." Scalia ended his comments by warning Abbott, "I would consider it a Pyrrhic victory for you to win on the grounds you're arguing."

Scalia's warning raises an interesting question. Why were the defenders of the Ten Commandments forced into a bizarre attempt to deny the religious significance of a document that, in Jewish and Christian belief, was handed down to Moses by God Himself? The reason is that there is line of recent Supreme Court precedents insisting that displays on public property may only pass constitutional muster if they have a primarily secular purpose.

Was this what the American founders intended when they approved the Bill of Rights forbidding an "establishment of religion" but also guaranteeing "the free exercise thereof"?

Not at all.

In reality the founders wanted to avoid importing to America the religious conflicts that had virtually destroyed Europe. They wanted to keep the national government from endorsing a particular religion. They did not, however, oppose state governments from establishing a state religion, as indeed several did. Nor did the founders have any problem with public acknowledgments of God as the source of equality and rights.

In the past half-century, however, the Supreme Court has been in the grip of a radical secularism intent on abolishing all traces of religion from the public square. This secular agenda invokes Jefferson's "wall of separation" between church and state even though Jefferson never understood this distinction in the way that today's activistic secularists do.

The only hope of stopping the effort to completely eradicate religion from the public sphere is the "swing votes" of Justice Sandra Day O'Connor and Justice Anthony Kennedy. These two justices seem to take the unusual position that religious displays on public property are acceptable as long as they are not really religious.

Thus O'Connor speculated that maybe the Ten Commandments display in Texas, which has been around since 1861, is ancient enough so that it may be viewed as historical rather than religious. Apparently in O'Connor's view, religious texts lose their authority and significance if they are really old.

At another point in the proceedings, O'Connor wondered whether the Ten Commandments may be permissible given the fact that the Supreme Court begins each session with a prayer. The problem with this line of speculation, often invoked to justify the Ten Commandments, is that it can equally be used to argue, "Good point. Once we outlaw the Ten Commandments we should next consider getting rid of prayers that begin each Supreme Court session."

Given the triumph of radical secularist jurisprudence, the advocates for Jewish and Christian displays like the Ten Commandments are forced to make the implausible case that God's commandments aren't really religious.

It seems like a losing battle. Only when the Supreme Court is reconstituted to read the Constitution as it was intended by its framers can we hope that the nation will give due public acknowledgement to the source of its sovereignty and its laws, the Creator.


Dinesh D'Souza. "Losing by Winning." tothesource (March 9, 2005).

Tothesource is a forum for integrating thinking and action within a moral framework that takes into account our contemporary situation. We will report the insights of cultural experts to the specific issues we face believing these sources will embolden people to greater faith and action.


Dinesh D'Souza is the Robert and Karen Rishwain Fellow at the Hoover Institution at Stanford University. D'Souza has been called one of the "top young public-policy makers in the country" by Investorís Business Daily. His areas of research include the economy and society, civil rights and affirmative action, cultural issues and politics, and higher education. Dinesh D'Souza's latest book is The Enemy at Home: The Cultural Left and Its Responsibility for 9/11. He is also the author of: Letters to a Young Conservative, What's So Great about America, Illiberal Education: The Politics of Race and Sex on Campus; The End of Racism; Ronald Reagan: How an Ordinary Man Became an Extraordinary Leader; and, most recently, The Virtue of Prosperity: Finding Values in an Age of Techno-Affluence. Dinesh D'Souza is on the Advisory Board of the Catholic Education Resource Center. Visit his website here.

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