Does it matter whether a statue commemorating the Ten Commandments continues to have a place in a public park across the street from the state Legislature?

One of the rationales offered for allowing the monument in Wesley Bolin Plaza to stay is the belief that the Ten Commandments are the basis of our legal system and are therefore somehow not religious.

This is contrary to our history. Our system of government, embodied in the Constitution and Declaration of Independence, is a product of centuries of political thought. Freedom, including religious freedom, is the cornerstone of these documents.

Early political thinkers determined that effective and moral government must be guided by law (Plato), yet the law needs to be both structured and flexible (Aristotle). Our own system of government derives more directly from John Locke, a British philosopher who believed individuals are endowed with knowledge of the law of nature, which concerns the individual's rights to life, liberty and pursuit of happiness.

The Declaration of Independence echoes Locke's ideas that "all men are created equal, that they are endowed by their Creator with certain unalienable rights, that among these are Life, Liberty, and the Pursuit of Happiness."
Locke believed that for everyone to partake in these unalienable rights, people entered into an "original compact" with government - that is the basis of political authority. He maintained that the establishment of a particular form of government is a secondary step founded on the trust of the rulers.

Locke insisted upon separation of powers, with the people retaining the ultimate right to rebel against a government that has unjustly infringed upon those rights. Again, our Declaration of Independence states: "That to secure these Rights, Governments are instituted among Men, deriving their just Powers from the Consent of the Governed, that whenever any Form of Government becomes destructive of these Ends, it is the Right of the People to alter or to abolish it."

But what are those inalienable rights? Religious freedom was critical to Locke's theories, and he had definite ideas about the necessity of separation of church and state. In "A Letter Concerning Toleration," Locke argued that the "unhappy agreement that we see between the church and state" causes religious intolerance that is harmful to both. In Locke's view, religious authorities should restrict their concerns to religious and moral matters and not try to control political life. Civil authorities should not meddle in religious or moral matters unless certain religious practices injure the rights of others or disturb the public peace.

The Establishment Clause in our Bill of Rights, found in the First Amendment, derives from this precept. It states: "Congress shall make no law respecting an establishment of religion." This limitation has been extended to the states by the 14th Amendment, which provides: "No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the law."

The first interpretation of the Establishment Clause came in 1947 in a case, Everson vs. Board of Education , challenging the validity of a New Jersey school district's policy of providing reimbursement to parents of students who used bus fare to attend both public and parochial schools. The Supreme Court upheld that this particular scheme did not violate the Establishment Clause, but held that the clause bound the states to a policy of strict separation of church and state, that the policy condemned neutral support of all religions as well as favoritism of any one of them, and that no tax dollars could be used to aid religious activities or institutions.

The Everson Court based its rationale on the writings of a fan of Locke's philosophy, Thomas Jefferson, about the necessity to separate religious matters from government: "Well aware that the Almighty God hath created the mind free; . . . that to compel a man to furnish contributions of money for the propagation of opinions which he disbelieves, is sinful and tyrannical." Jefferson went on to provide that "no man shall be compelled to frequent or support any religious worship, place or ministry whatsoever, nor shall be enforced, restrained, molested, or burthened in his body or goods, nor shall otherwise suffer, on account of his religious opinions or belief." Justice Hugo Black, writing for the majority in Everson , said that this meant that, at least, "[n]o tax in any amount, large or small, can be levied to support any religious activities or institutions, whatever they may be called, or whatever form they may adopt to teach or practice religion."

Religious freedom has flourished in the United States. We enjoy a degree of religious freedom unknown in most of the rest of the world, and we take full advantage of it: The United States is home to more than 1,500 religious bodies and 360,000 churches, synagogues and mosques.

This many religions and religious advocates create a near-constant push and pull between groups interested in advancing their own religion. Cases have involved religion in prisons, schools, employment and in zoning laws, as well as religious displays in public areas. In dealing with these myriad issues, the Supreme Court has developed a three-pronged test called the "Lemon Test" after the 1971 case Lemon vs. Kurtzman . Under that test, a statute must have a secular legislative purpose, neither advance nor inhibit religion as its principal or primary effect, and not foster an excessive government entanglement with religion.

So does religion ever have a place in government? My family, a couple of generations ago, came here from Ireland where gallons of blood have been spilled over the mix between religion and government. We have recently been involved in fighting in Afghanistan, where religious forces had a stranglehold on the government to such an extent that women were not allowed access to education and treasured antiquities were dynamited. Indeed, I am hard-pressed to find an example of church-state intermingling that has ultimately come to a good result.

So, to return to the original question, does it matter whether a statue commemorating the Ten Commandments continues to have a place in a public park across the street from the State Legislature? Many courts have determined that the Ten Commandments do not belong on state land, and although the U.S. Supreme Court has had several opportunities to review those decisions, it has not done so. In Arizona, the court will ultimately decide this issue, but it seems to me that honesty about our foundation as a society, in which religions of every kind are valued, demands that the monument be returned to the private sector.  
 
 
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