One of the strangest arguments we've encountered in our conversations with accommodationists has to do with the several depictions of Moses and the 10 Commandments contained in the artistic embellishment of the Supreme Court building. Briefly, some accommodationists argue that these depictions prove that (1) no one believed in separation before 1935 (when the Supreme Court building was completed), and/or (2) that American law is based on the 10 Commandments. We beg to disagree. Not only are these depictions irrelevant to the separation debate, many of the claims made by accommodationists about these depictions are either misleading or inaccurate.
We begin by observing that this is not a mainstream accommodationist argument. We've never seen this argument made, for example, in books and articles by professional accommodationist scholars. Rather, we've encountered this argument only in debates with non-academic, religious, accommodationists. We note this because we want to emphasize that not all accommodationists think alike. In contrast to professional scholars, non-academic accommodationism tend to gravitate toward the more extreme forms of accommodationism, and often take positions that academic accommodationists wouldn't touch with a ten-foot pole. This argument happens to be one of them. Keep that in mind as we respond to this argument.
Our first response is to note that the primary factual premise of the argument is untrue: Moses and the 10 Commandments are not prominently featured in the Supreme Court building. Rather, most of the artistic embellishment in the building involves symbolic and allegorical representations of such legal themes as justice, authority, fairness and the like. Most of these representations involve human figures representing the civilizations of Greece and Rome (the building itself was designed to invoke the feeling of the classical Greek temple). If quantity is the measure of importance, the architecture of the Supreme Court favors the classical over the Mosaic tradition of law. Moreover, where Moses and the 10 Commandments are depicted, they are never given positions of exclusive prominence, as we would expect if the intention of the architecture was to establish a connection between the Bible and American law. Rather, the architecture depicts Moses as one of many important lawgivers, and the 10 Commandments as one of many important events in legal history (click here for a more detailed discussion of the subordinate placement of Moses and the 10 Commandments in the architectural fabric of the Supreme Court building).
A second premise of the argument is that, if belief in separation was widespread in 1935, depictions of Moses and the 10 Commandments would never have been allowed in the building. But this doesn't follow; the Supreme Court has never held that public buildings cannot contain depictions of the 10 Commandments. The Court's rulings proscribe only those depictions that are intended to convey government endorsement of the Commandments (Stone v. Graham, 1980). Additionally, the Court has allowed the inclusion of religious symbols in public displays so long as those symbols are part of a larger work that serves a secular purpose (Lynch v. Donnelly, 1991). No one thinks that the art of the Supreme Court building is intended as an endorsement of the 10 Commandments, and there is no question that the overall effect of this art is secular. Hence, the depictions of Moses and the 10 Commandments in the Court building would pass muster even under today's more stringent establishment clause jurisprudence.
Nor would separationists object to the notion that Judaism and Christianity have contributed to American law. Of course they have. America inherited it's common law from Britain, and British common law was certainly influenced by Christianity. It makes perfect sense, in other words, for the art of the Supreme Court building to contain depictions of Moses as an important and relevant lawgiver. But this is a far cry from proving that American law is founded on the 10 Commandments. On the contrary, while our common law comes from Britain, our fundamental statue law is the Constitution, and the Constitution fairly repudiates the first two Commandments (worship only the LORD, do not make graven images), and doesn't even mention the other eight. We can accept, in other words, that the art of the Supreme Court is intended to implicate the Bible as an important background for our law, without leaping to the wholly unwarranted conclusion that the 10 Commandments have some immediate relationship to the Constitution.
Finally, we note that the architecture of the Supreme Court building is irrelevant to the separation debate. The building was designed by architects and sculptors, not lawyers and legal scholars, and the Supreme Court building committee deferred to the architects in their choice of artistic embellishment. Accordingly, one can't read the architecture of the building as if it were intended as some sort of commentary on American law. Moreover, we know why the building was designed as it was; they artists involved in the project submitted detailed explanations of their art to the Supreme Court building committee, and these explanations say nothing about the 10 Commandments as a source of American law. Remarkably, when accommodationists interpret the art of the Supreme Court building, they simply ignore these explanations (click here for a look for our critique of one popular accommodationist commentary on the art of the Supreme Court).
In summary, this argument fails on both a factual and logical level.
If anything, the fact that artistic depictions of Moses and the 10 Commandments
appear in the Supreme Court building, and that separationists have never
challenged these depictions proves that separationism does not
have the pernicious effects claimed by accommodationists.