Episode No. 146--The Ten Yet Again

Once again, a state’s display of the Ten Commandments has become an issue that will most certainly be appealed all the way up to the U.S. Supreme Court, which narrowly decided the issue 44 years ago, but this time may be different. The Ten Commandments, are not commandments at all, but a preamble to the Covenant God made with Israel, which does contain commandments--613 commandments, not just 10.

Transcript

Episode No. 146: The ‘Ten’ Yet Again

Welcome to Keep the Faith, the podcast in which we explore contemporary issues through the prism of Jewish law and tradition.

We’re taking somewhat of a summer break from our biweekly schedule, releasing new episodes only when there’s something in the news that cries out for exploration.

The Ten Commandments, in a sense, is the poster child for such a something and so, that’s the topic for this episode.

On Wednesday Louisiana’s Republican Gov. Jeff Landry signed into law a bill that requires the Ten Commandments to be displayed in every one of the state’s public classrooms, from kindergarten to state-funded universities. The display has to be poster-sized, and the words of the Ten Commandments have to be printed in a QUOTE large, easily readable font. UNQUOTE By signing this law, Landry made Louisiana the first state to have such a requirement. The new law is part of the conservative agenda being pushed through the GOP-dominated Louisiana legislature.

Said Landry in signing the new law, QUOTE If you want to respect the rule of law, you've got to start from the original lawgiver, which was Moses. UNQUOTE 

The posters must be displayed in classrooms beginning in 2025.

In an effort to get around any constitutionality questions, the GOP-sponsored bill Landry signed has several clauses in it designed to give it somewhat of a secular cover. One clause, for example, forbids using state funds to implement the mandate. The posters must be paid for through donations only.

The posters also have to display a four-paragraph “context statement,” as the law calls it, that states that the Ten Commandments are QUOTE foundational documents of our state and national government. UNQUOTE

To support this “context statement,” the law also suggests displaying some other items alongside the 10, including the Mayflower Compact of 1620 (I’ll come back to that in a moment), the Declaration of Independence, and the Northwest Ordinance, the law that opened the way for admitting midwestern states into the Union. These displays are optional, not mandatory, and are clearly designed to provide secular cover for the mandatory display that of the Ten Commandments, which supposedly is a religious document. As to why I say supposedly, we’ll get to that.

Lousiana may have difficulty making that secular cover argument given the governor's choice of location for signing the new law: He traveled nearly 60 miles southwest of Baton Rouge, the state capital, to sign it at the Our Lady of Fatima Catholic School in Lafayette. That certainly seems to be a religious statement in itself.

Displaying the Mayflower Compact creates similar difficulties because it clearly has a religious bent to it: Consider this edited excerpt from the Compact:

 QUOTE In the name of God, Amen. We whose names are underwritten…, having undertaken—for the Glory of God, and advancement of the Christian Faith—…a Voyage to plant the first Colony in the Northern Parts of Virginia, do by these presents, solemnly and mutually, in the presence of God and one another, covenant and combine ourselves together into a civil Body Politick, for our better Ordering and Preservation and Furtherance of the Ends aforesaid. UNQUOTE 

I’m not sure how a document written QUOTE for the Glory of God, and advancement of the Christian Faith UNQUOTE can be called a secular document, but what do I know? After all, some of my dearest critics call me a leftist Progressive liberal know-nothing Democrat.

The Louisiana legislators needed to give the new law secular cover because it was almost certain that the U.S. Supreme Court would throw out such laws for being unconstitutional, as it had done in previous Ten Commandment cases.

Of particular relevancy is the 1980 case known as Stone v. Graham (449 U.S. 39), in which the Supreme Court struck down a Kentucky law that’s very similar to this one. That one required every public school in Kentucky to post a copy of the Ten Commandments on a wall in every classroom.

The Court said the law served a religious purpose and thus violated the First Amendment's Establishment Clause. Said the Court, QUOTE The Ten Commandments are undeniably a sacred text in the Jewish and Christian faiths, and no legislative recitation of a supposed secular purpose can blind us to that fact. UNQUOTE 

In striking down the Kentucky law, the Court applied what’s known as “the Lemon Test.” No, it didn’t say that the Kentucky law and the Ten Commandments were lemons. The Lemon Test is how the Supreme Court had been deciding such cases from 1971 until at least 2022. The Court created the test in its landmark decision in Lemon v. Kurtzman, a case that addressed the issue of state funding for religious schools and how far the government can go to benefit religion without violating the Establishment Clause. The Lemon Test has been used numerous times since then to rule on Establishment Clause cases, much to the chagrin of the Christian Right.

Stone v. Graham was the only Establishment Clause case to be decided by the Supreme Court for over the next 25 years. Then, in 2005, two cases came before it, and this time its decisions were not so clear. In one case that year, McCreary County v. American Civil Liberties Union, it ruled that displaying the Ten Commandments in two Kentucky county courthouses was unconstitutional. In the case known as Van Orden v. Perry, though, the Court allowed the Ten Commandments to be displayed on the grounds of the Texas capitol.

Interestingly, the court went out of its way to say that the decision in both of these cases had no impact on 1980’s Stone decision because classroom displays had to be treated differently.

That was then, and this is now, though, and all bets are off regarding how the current Court will decide the very certain challenges to the Louisiana law.

The Lemon Test probably will play no role in a decision this time around because the Roberts Court basically abandoned it in the 6-to-3 decision it handed down in a 2022 case, Kennedy v. Bremerton School District. In that case, it gave a high school football coach named Joseph Kennedy his job back after he had been fired for praying on the football field after games and for encouraging team members and other students to join him. The majority decision in that case said that the Lemon Test was being replaced by a consideration of QUOTE historical practices and understandings, UNQUOTE and that Kennedy’s prayers in no way reflected the school’s promoting religion in any way.

Interestingly, in a decision last week in Vidal v. Elster, a case that had nothing to do with religion—it was a trademark case—Associate Justice Amy Coney Barrett signaled that she was not as keen as her fellow conservatives to broadly consider QUOTE historical practices and understandings UNQUOTE in ruling on issues.

As she put it, she saw no reason QUOTE why hunting for historical forebears on a restriction-by-restriction basis is the right way to analyze the constitutional question. UNQUOTE

She also challenged how the other five Conservative justices characterized the use of QUOTE historical practices and understandings. UNQUOTE In the majority opinion written by Associate Justice Clarence Thomas that the other four signed on to, they said they were not creating a new test to replace the abandoned Lemon Test. Not so, said Barrett, because QUOTE a rule rendering tradition dispositive [meaning a rule that settles a disputed issue] is itself a judge-made test. And I do not see a good reason to resolve this case using that approach rather than by adopting a generally applicable principle. UNQUOTE

It will be interesting to see how she votes when the Louisiana law comes before the Court.

Enough about Louisiana or the Supreme Court, though. Let’s focus now on how the non-Jewish world has so distorted what the Ten Commandments represent—a distortion that’s at the very heart of every attempt to display this document in public spaces, schools and courtrooms included.

Let’s begin by posing this question: How many commandments are in the Ten Commandments?

It’s a trick question. By one count, there are as many as 13 commandments, and perhaps as few as eight or nine. By another count, though, and the one I consider to be the correct one, there’s not even a single commandment in the Ten Commandments.

That’s what everyone, we Jews included, call this document in English, but neither the Torah nor any rabbinic text from the talmudic era on calls it that. We know this document by two names that both mean the same thing. The Torah calls it the aseret ha-d’varim and subsequent texts call it the aseret ha-dibrot. Aseret means 10. D’varim and dibrot can be translated as statements, utterances, or declarations. So our name for this document can be translated as the ten statements, or the ten utterances, or the ten declarations, but definitely not the ten commandments. In Hebrew, the ten commandments would be the aseret ha-mitzvot (mitzvah means commandment), and there really are no mitzvot here, there really are no commandments.

More relevant for this discussion is this: These ten statements are not really religious statements at all, as that term is understood. They’re more oriented towards the secular, not the religious, as has been noted even by various federal courts. Only “the first four” would seem religious, but that’s only on the surface. These four are: not to believe in another god; not to make graven images; not to take God’s Name in vain; and to keep holy the Sabbath day.

Prohibiting the worship of other gods would surely be classified as a religious commandment, but then that statement would have to read, “I am the Lord your God. You shall accept that I am God and you shall worship Me and only Me.” That’s not something an atheist, for example, would accept. What the text does say is this: QUOTE You shall have no other gods before Me. UNQUOTE In other words, it’s not worded as a commandment to believe in God. In effect, what it’s saying is that whether we believe in God is our business, but under no circumstances are we to believe in any other god. That is something even an atheist can accept because he or she has no interest in believing in any god, our God or any of the no-gods that are out there.

With all due apologies to Maimonides, the Rambam, and everyone else who insists as he does that “You shall have no other gods before Me” is a commandment to believe in God, no such commandment is to be found here or anywhere else in the Torah. First, God and God’s existence are givens in the Torah, which is presumed to come from God, so there’s no need to codify belief. Theoretically, if you believe in the Torah, you automatically believe in the God who gave it. If you’re an Israelite but you don’t believe in God, you still have to follow God’s laws, however you think they came about. Clubs have rules members have to follow, even if they have no idea who made those rules. Countries have laws citizens must obey, even if they voted for the people who didn’t make those laws.

Second, QUOTE I am the Lord your God UNQUOTE is a flat-out statement, not a commandment. It’s not even written in the language of commandments.

This document people call The Ten Commandments is actually written in the form of an ancient contract known as a suzerain treaty. These treaties were treaties a ruler made with his or her people, and they had a specific formula that had to be followed. Before the terms of the contract are set out, the ruler making the contract has to identify him- or herself and then declare what gives him or her the right to impose the contract’s terms on the people.

Who is making this contract with Israel? “I am the Lord your God.”

What gives God the right to make this contract with Israel? “Who brought you out of the Land of Egypt, the House of Bondage.”

Only then do we get to the actual first statement: “You shall have no other gods before Me.”

Next comes the graven images statement. In its narrow sense, it would certainly seem to be religious in nature. In its broad sense, though, a graven image can mean anything we worship—like money, for example, or power. And in its broad sense this is also not a religious statement, but a secular one.

Not taking God’s Name in vain also sounds religious, but it actually has a very secular reason for being. Scammers in ancient times would invoke the name of a deity as a guarantee because the people being scammed would expect that the god whose name was invoked would instantly zap the user if he or she was lying.

Today, using God’s name that way is something akin to the Good Housekeeping Seal of Approval. “I swear to God this car never had a scratch on it.” What this statement is actually saying is, QUOTE Do not use God’s Name to trick someone into believing a lie. UNQUOTE That’s secular, not religious.

As for Shabbat, not working on a particular day because God said so is religious, but that’s not what this statement is all about. The Torah has real commandments to cover our having to observe Shabbat. This statement, on the other hand, is the Torah’s ultimate social justice statement. Regardless of whether we choose to work on Shabbat, it says, we have to allow everyone and everything else to have that day off. We may not compel anyone or anything to do work of any kind that day.

Thirty-five hundred years ago at Sinai, we and all humankind were told that no one has control over anyone else at least one day out of every seven. Rich or poor, master or slave, man or woman, parent or child, human or animal—even the environment—everyone has an equal right to the same day of rest each week as we’re entitled to.

Control is absolute. Deny control for one-seventh of the time coming every seventh day and we deny that control for all the time. This is not religious; this is the ultimate social justice commandment.

The remaining statements are clearly secular in nature.

There’s a reason why the Torah and rabbinic texts going all the way back to the Talmud refer to this document as The Ten Statements, The Ten Utterances, or the Ten Declarations—but never The Ten Commandments.

That’s because these QUOTE commandments UNQUOTE are not mitzvot in the ordinary sense, not even the so-called first four. Rather, they provide a sense of the mitzvot to come, a preamble, as it were, to the constitution of God’s “treasured nation,” meaning we, the Jewish people.

In that sense, this document is not unlike the Preamble to the U.S. Constitution: QUOTE We the people of the United States, in order to form a more perfect union, establish justice, ensure domestic tranquility, provide for the common defense, promote the general welfare, and secure the blessings of liberty to ourselves, and our posterity, do ordain and establish this Constitution for the United States of America. UNQUOTE 

There can be no question what the Constitution is about based on what leads into it. There’s no question what Israel’s QUOTE constitution UNQUOTE is about based on what leads into it.

That God intended to set forth a constitution for Israel is clear. God says as much when telling Moses what to say to Israel in advance of God’s QUOTE appearance UNQUOTE on Mount Sinai. QUOTE [If] you will obey My voice indeed, and keep My covenant, then you shall be My own treasure among all peoples; for all the earth is Mine. And you shall be to Me a kingdom of priests and a holy nation. UNQUOTE (Exodus 19:5-6.)

It's just as clear that the text of this constitution, soon to be referred to as QUOTE the Covenant, UNQUOTE appears immediately after God makes this once-ever appearance on Mount Sinai.

 QUOTE And all the people…said to Moses, Speak with us, and we will hear; but let not God speak with us, lest we die….And the people stood far away, and Moses drew near to the thick darkness where God was. And the Lord said to Moses, Thus shall you say to the people of Israel…. UNQUOTE (Exodus 20:15-19.)

From there through the next three chapters in Sefer Shemot, the Book of Exodus, God reveals the covenantal text to Moses, who brings it to the people as Chapter 24 begins. At that point, it’s the people’s turn to speak.

 QUOTE And Moses came and told the people all the words of the Lord, and all the judgments; and all the people answered with one voice, and said, ‘We will do all the words which the Lord has spoken.’ And Moses wrote all the words of the Lord, and…he took the Book of the Covenant [the Sefer Ha-b’rit], and read it in the hearing of the people; and they said, ‘All that the Lord has said will we do, and obey.’ UNQUOTE 

In other words, the covenant evolves as a continuous narrative from God, with no break intended between the Ten whatever you want to call them in Chapter 20, and the text of the next three chapters of the Torah.

That a break momentarily occurs is due solely to the timidity of Israel. For all we know, God may have divulged all of the Book of the Covenant [the Sefer Ha-b’rit] to them if they didn’t fear God’s voice.

Seen in this light, it’s understandable that the Torah doesn’t single out this text as QUOTE The Ten Commandments, UNQUOTE because it’s only the first part of a larger package. Indeed, that package is itself only part of an even larger package of commandments that follow the Book of the Covenant.

 QUOTE And the Lord said to Moses, Come up to Me into the mount, and be there; and I will give you tablets of stone, and the Torah, and commandments which I have written; that you may teach them….And Moses went into the midst of the cloud, and went up into the mount; and Moses was in the mount 40 days and 40 nights. UNQUOTE (Exodus 24:12-18.)

To be sure, there’s huge difference between the Preamble to the Constitution and the Preamble to the Covenant. The former was written by human beings. The One True God pronounced the latter in a unique moment of Revelation that never before occurred and that had never been repeated.

There’s no such difference, however, between the Preamble to the Covenant and the Covenant itself, just as there’s no such difference between the Covenant and the Torah which continues to be revealed after the pact is sealed. All are God’s words, and it doesn’t matter whether we heard them, or Moses did and repeated them to us.

To the Christian world, of course, QUOTE The Ten Commandments UNQUOTE is a big deal, precisely because God allegedly spoke these words and only these words to all the people. From early on, Christianity used this fact to undermine the authority of the Torah. (Never mind that the text makes clear that God didn’t even speak all of these words to the people, but was stopped almost as soon as God began.)

Judaism never knew of a document called The Ten Commandments until Christianity came along and called it that. We don’t have Ten Commandments. We have the Torah, or as we often refer to it by its contents, we have QUOTE the 613 commandments. UNQUOTE 

I’d like to see Louisiana put that up on schoolroom posters in big, bold letters. Even I would contribute to that.

This is Rabbi Shammai Engelmayer. I do hope you come back for my next podcast, whenever that drops, and I’d like to hear what you have to say about this or my other podcasts. Go to www.shammai.org—w-w-w-dot-s-h-a-m-m-a-i-dot-o-r-g—and email please.

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