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The Ten Commandments Monument

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No religious symbol has generated more legal controversy when displayed on a public square than the Ten Commandments. And the particular design that stands as a silent sentinel on the southeast corner of the Licking County Courthouse Square is no exception. The fascinating historical background surrounding Licking County's Ten Commandments monument has both national and local roots, which weaves together the public service and commitment of a juvenile judge in Minnesota, the dedication to the moral upbringing and welfare of American youth of the Fraternal Order of Eagles, and the movie, The Ten Commandments, its producer, Cecil B. DeMille, and its production company, Paramount Studios.

Judge E. J. Ruegemer:

In 1946 Judge Ruegemer was serving as a juvenile judge in St. Cloud, Minnesota when a juvenile delinquent appeared before him for sentencing. The young man had struck and seriously injured another man while driving an automobile. After ordering a background check and learning that the youth suffered from both poor hearing and vision and came from a troubled home and given the recommendation to sentence the young man to a juvenile detention center, the judge opted instead to suspend the juvenile's sentence, provided that he learned and lived by the Ten Commandments and reported regularly to his probation officer. The judge felt that the ten laws given to Moses by God were the only laws the boy really needed in order to stay out of trouble.

However, the young man responded that he knew nothing about the Ten Commandments. And the judge then made arrangements for a pastor to teach him about them. From this experience the judge realized that American youth needed the moral guidance provided by the Ten Commandments. Because he was a member, the judge wrote an article in the Fraternal Order of Eagles magazine suggesting the idea of distributing replicas of the Ten Commandments in order to provide moral guidance to young people.

In 1991 Judge Ruegemer was inducted into the F.O.E.'s Grand Aerie Hall of Fame for being the inspiration for the F.O.E.'s national campaign that followed. He died in January of 2005 at the age of 102.

The Fraternal Order of Eagles Campaign:

In 1943 the F.O.E. established its Youth Guidance Commission. Beginning in 1948, as a result of Judge Ruegemer's article and urging and with him chairing the Youth Guidance Commission, the F.O.E. commenced a series of consultations with religious groups, law enforcement agencies, juvenile counselors, and artists. The F.O.E. retained the artists, Brown and Bigelow, to prepare a version of the Ten Commandments that would be suitable for framing. Because the F.O.E. is a secular organization, it was especially concerned that the design not be offensive to any religious group. Thus, the leaders of all Judeo-Christian faiths were consulted so that a collaborative design could be achieved that would offend no religious faith.

A common design was agreed upon and the program to post the Ten Commandments was initiated in the state of Minnesota. However, in 1953 the campaign was extended throughout the United States and resulted in thousands of framed copies of the Ten Commandments being distributed to churches, courts, and civic organizations. Copies were even donated to the Pope, President Truman, and other leaders of government and business. The campaign to distribute the printed version extended through 1958. That year, the F.O.E. printed and distributed 250,000 copies of the book, On Eagles Wings, to the Boy Scouts and other youth programs. The book contained the same design of the Ten Commandments that had been distributed in framed versions.

The Granite Monolith:

In 1955 Cecil B. DeMille became aware of the F.O.E.'s national campaign. DeMille so admired Judge Ruegemer's work that he contacted the judge to suggest that the F.O.E. consider enshrining the Ten Commandments in bronze so that the monuments could be erected in public squares. Judge Ruegemer responded that Moses had received the Ten Commandments from God engraved in granite and suggested that granite should be the material that was used. In 1956 DeMille received an award from the F.O.E. for his suggestion.

The collaboration between DeMille and Ruegemer led to a national campaign to erect granite monoliths throughout the United States. Various estimates place the total number erected at between 145 and 200. Two granite companies in Minnesota were used to produce the tablets, which were produced in four, five, and six foot heights.

DeMille was, by that time, producing the movie, The Ten Commandments. He and Paramount Studios lent their support, both financial and otherwise, to the Eagles' campaign to erect the granite tablets throughout the country.

Paramount Studios made arrangements with its affiliated movie theaters to have an Eagles' Night once per week during the time that The Ten Commandments was showing. Each theater would then donate a portion of the proceeds received for that night to the Eagles' campaign.

Paramount provided three of the actors in the movie to attend the public dedications of the tablets on some of the more prominent occasions. Charleton Heston, who played Moses, Yule Brynner, who played Rames II (Pharoah), and Martha Scott, who played Moses' mother, were made available for dedications. However, most of the dedications occurred in small towns where no celebrities appeared. But those dedications were festive occasions often accompanied by bands, parades, and speeches.

The first monument was erected in 1955 and the last in 1985. The first to be erected on a state capitol grounds was erected in Denver, Colorado, in 1956. One was also erected on the state capitol grounds in Austin, Texas. That monument became the focal point of the United States Supreme Court decision in Van Orden v. Perry rendered in 2005.

The Design of the Monument:

In the case of State of Colorado v. Freedom From Religion Foundation, Inc., the Colorado Supreme Court described the monument as follows:

"The Ten Commandments monument is made of stone and is three to four feet high and about two and one-half feet wide. It is sculpted in the form of two tablets. At the top of each tablet is a floral design that surrounds the representation of two other tablets. Inside these latter tablets are symbols which were identified at trial as Phoenician letters but which form no intelligible words in that or any known language. Between the two tablets on this monument is an eye within a triangle-an "all seeing eye" similar to that depicted on the one dollar bill. Expert testimony indicates that this Egyptian symbol is generally considered to be secular in nature, although some people view it as representing the eye of God. Immediately below this symbol is an American eagle which is grasping an American flag.

A unique version of the text of the Ten Commandments is immediately below the American flag. It reads as follows:

THE TEN COMMANDMENTS

I AM the LORD thy GOD

I. Thou shalt have no other gods before me.

II. Thou shall not take the name of the Lord thy God in Vain.

III. Remember the Sabbath day to keep it holy.

IV. Honor they father and thy mother that thy days may be long upon the land
which the Lord thy God giveth thee.

V. Thou shalt not kill.

VI. Thou shall not commit adultery.

VII. Thou shalt not steal.

VIII. Thou shall not bear false witness against thy neighbor.

IX. Thou shalt not covet thy neighbor's house.

X. Thou shalt not covet thy neighbor's wife, nor his manservant nor
his maid servant, nor his cattle, nor anything that is thy neighbor's.

Below this text there are two stars of David, symbols of the Jewish religion, located one in each corner. Between the two stars of David, in the center, are two Greek letters, Chi and Rho, one superimposed upon the other, which is a symbol for the first two letters in the name ‘Jesus Christ' developed by the early Christian church and still found in many Catholic churches. At the very bottom of the monument appears a scroll with these words:

PRESENTED
BY MEMBERS OF
FRATERNAL ORDER OF
EAGLES
OF COLORADO"

The design of Licking County's Ten Commandments monument is identical to that described by the Colorado Supreme Court, except for the inscription that appears at the bottom of the tablets, which identifies the specific chapter or aeries of the Eagles that donated the tablets, and the fact that the Licking County monument is six feet tall.

Legal Challenges To The Ten Commandments Monument:

In the early years of the Eagles' campaign, the American Civil Liberties Union objected to the erection of the monuments. However, after consulting with the leadership of the various religious groups, which harbored no objections to their placement in public squares, the ACLU withdrew its objections. In the mid-1990's it began once again to challenge these monuments. In many cases, small towns, facing the threat of federal litigation, simply removed the tablets. In some cases, courts found that the tablets violated the First Amendment's Establishment Clause by endorsing religion. In other cases, the local governments deeded the land on which the monuments were located back to the F.O.E. with mixed legal results. However, in most cases, the courts sided with the local governments or states, as the case may be, and found no violation of the Establishment Clause. Ultimately, the constitutionality of the placement of the monuments in public squares reached the United States Supreme Court in the case of Van Orden v. Perry.

Van Orden v. Perry:

The First Amendment of the United States Constitution provides:

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.

The Supreme Court has applied the First Amendment to the states through the Fourteenth Amendment.

In the Freedom From Religion Foundation case the Colorado Supreme Court, citing an affidavit submitted by Judge Ruegemer, stated "that the posting of the Ten Commandments was ‘not to be a religious instruction of any kind,' but rather was meant to ‘show these youngsters that there were such recognized codes of behavior to guide and help them.'" His affidavit helped convince that court that the F.O.E.'s national campaign had not been inspired by a religious motive, but rather by a desire to inspire moral guidance for American youth.

On June 27, 2005, the Supreme Court ruled in Van Orden that the placement of a Ten Commandments monument, which was donated by the F.O.E. and which was identical to Licking County's, on the state capitol grounds in Austin, Texas, was constitutional. The Court noted that religion had played a very long and important role in the history of the country and that the monument had deep historical significance since Moses was widely recognized as a lawgiver and his image adorned many public venues, including its own courtroom. It agreed with the brief filed by the F.O.E. that the First Amendment only required the state of Texas to remain neutral and not hostile toward religion and that the state was not required to remove the monument anymore than the federal government was required to remove the motto, "In God We Trust," from its coins and paper money.

Furthermore, the record documented the fact that the monument had stood on the state capitol grounds for fifty years without objection from anyone. And, because of its presence among numerous historical monuments that contained no religious message, what religious message the monument did convey was diluted by the presence of all of the other monuments and by those commandments that conveyed a moral and ethical message, rather than a religious one.

Importantly, the Court noted that there had been no active effort by the state of Texas to endorse religion. The monument was passive and no one was forced to look at it. Moreover, it was not used in the context of any governmental proceedings, nor was it placed at that location with the blessing of a religious leader of any faith. Thus, the Court rejected Van Orden's efforts to have the monument removed.

Unfortunately, Judge Ruegemer died six months before the Van Orden decision was rendered. Thus, he never knew that the object of his efforts would ultimately be declared constitutional by the Court.

McCreary County v. ACLU:

On the very same day the Court decided McCreary County with the opposite result. In McCreary County, framed versions of the Ten Commandments had been placed in the courthouses of two Kentucky counties. In the first county, the Ten Commandments were placed in a high traffic area of the courthouse by order of the county legislative body. In the second, the Ten Commandments were hung in a ceremony presided over by the judge-executive and a pastor.

In each county the Ten Commandments were hung by themselves. Initially, there were no secular displays in close proximity to dilute their religious message. Later, after litigation was filed by the ACLU, the counties did hang other secular and historical documents close to the Ten Commandments, but those documents all made reference to Christianity and had no overarching non-religious theme that would tend to dilute the religious message of the Ten Commandments. And the resolution that authorized the posting of the original version by itself was never withdrawn. Thus, the Court found that the counties had engaged in the endorsement of religion by posting the Ten Commandments and ordered them removed.

The two different outcomes in Van Orden and McCreary County make it abundantly clear that the historical significance of the display of a religious document or artifact together with the context in which those objects are displayed are key factors for the courts in determining the constitutionality of the displays.

Licking County's Ten Commandments Monument:

Unfortunately, much of the history surrounding the erection and dedication of Licking County's Ten Commandments monument may be lost to history. The monument was dedicated in July of 1957 as indicated at its base. However, the records of the Newark aeries, the local chapter of the F.O.E., were lost when its building on South Second Street in which its records were housed was destroyed by fire. A search of the issues of The Newark Advocate for that month yielded no article discussing the dedication of the monument. The Grand Aeries, the national headquarters of the F.O.E., in Grove City, Ohio, possesses only pictures of the monument. And, of the original committee members who were responsible for the erection and donation, only one remains alive, although he is very elderly and in failing health. The Licking County Historical Society has no record of the donation and dedication of the monument.

And yet, clues exist that the donation and dedication of the local monument were linked to the movie, The Ten Commandments. The July 4th edition of the theater section of The Newark Advocate contains an article entitled, "Charlton Heston Heads Cast For ‘Commandments.'" The article states the following:

"Cecil B. DeMille's, The Ten Commandments, the biggest production in motion picture history, opens on Thursday, July 18 in the Auditorium Theater. Charleton Heston in the role of Moses heads an enormous cast assembled by the famous producer-director from Hollywood, New York and London.

From the screen, stage, television and radio - blending the top talents of every theatrical field, including Yul Brynner, Anne Baxter, Edward G. Robinson, Yvonne DeCarlo and many others.

The picture presents the personal story of Moses, from his finding in the bulrushes by a princess of Egypt to his farewell to his followers on Mount Nebo. Key scenes from the spectacular drama were filmed in VistaVision and Technicolor in authentic Biblical surroundings, during a three months' shooting scheduled in Egypt and the Sinai Peninsula. Moses at the Burning bush on Mount Sinai, his leading of the Exodus of the Children of Israel from Egyptian bondage and his receiving of The Ten Commandments are among the climactic moments in the mighty production.

During the 10 years of advance preparation for the actual filming of The Ten Commandments, which required more than two years, DeMille and his research staff studied both the King James and the Douay versions of the Bible and all other available sources on the life and times of Moses, including the ancient Hebrew writings and the Koran.

Made partly in response to hundreds of letters through the years, from ministers, priests, rabbis, international dignitaries and the general public, The Ten Commandments is DeMille's 70th motion picture."

On a regular basis throughout the month of July of that year, articles appeared in the theater section that provided further detail about the movie. On the days that it was shown there were typically two showings. And, because of the level of attendance, the movie was shown for an additional two weeks beyond its original schedule.

Thus, given the timing of the showing of the movie and the timing of the dedication of Licking County's monument, there is a strong suggestion that DeMille and Paramount Studios may have played a supporting role in the donation and erection of the monument.

Epilogue:
The Cross v. The Establishment Clause
Buono v. Kempthorne

In the September 21,1995, edition of The Newark Advocate, an article appeared entitled, "Officials Vow To Battle Removal Of Monument." The article discussed the concerns of Newark City Councilmen and Licking County Commissioners about an investigation being conducted by the ACLU into whether Licking County's Ten Commandments monument violated the Establishment Clause. And both bodies expressed determination to vigorously defend any legal challenge to the monument that might be filed by the ACLU.

Councilwoman Sue Salina, who was then running for mayor of Newark, was quoted as saying that she supports the monument's location but said some people may not. She stated, "If there's a way to keep (it) there but not be on government property, that may be a solution." She then indicated that Vinton County had been asked to remove a cross from its courthouse that had been erected in 1954 and that a suggestion was made to sell the land on which the cross stood to a private citizen in order to separate the land from government ownership.

The issue of using land transfers to private individuals or non-governmental organizations in order to avoid a violation of the Establishment Clause came up in several cases involving the Ten Commandments monuments donated by the F.O.E. So long as the transfer was done in a way that the property where the Ten Commandments monument was located was fenced in and identified with signs indicating that the local governmental entity did not own the property and that it was owned privately, the courts have upheld the transfers.

The Buono case, which is presently before the Supreme Court, involves a cross that was donated and erected by the Veterans of Foreign Wars in 1934, in what is now the Mojave National Preserve, in order to commemorate the sacrifices of the veterans of World War I. The cross is located on property owned by the federal government. Congress enacted statutes in order to authorize the transfer of the land on which the cross is erected to a private individual who would maintain the cross in exchange for land which that person owns that is adjacent to the preserve in an effort to avoid a potential violation of the Establishment Clause. The ACLU sued to prevent the exchange claiming that the exchange would violate the Establishment Clause. Since the filing, the government has covered the cross so that it cannot be observed by persons visiting the preserve.

The situation in Buono is different from Van Orden in that there are no other non-religious monuments nearby to dilute the religious message of the cross. However, the cross has great historical significance, aside from its religious message, in that the VFW dedicated the cross to the sacrifices of the veterans of World War I. Thus, it will be interesting to see how the Court applies the previous land transfer cases involving the Ten Commandments and its holding in Van Orden in order to render a decision in Buono.

Return to the virtual tour

Sources:

1. http://www.religioustolerance.org/hoffman01.html as visited on March 4, 2009.

2. http://www.foe.com/about-us/ten-commandments.aspx as visited on March 4, 2009.

3. http://www.foe.com/about-us/achievements.aspx as visited on March 14, 2009.

4. http://www.isba.org/association/057f.html as visited on March 14, 2009.

5. http://www.publicartaroundtheworld.comm/Ten_Commandment_monument.html
as visited on March 4, 2009.

6. State of Colorado v. Freedom From Religion Foundation, Inc., 898 P.2d 1013 (1995).

7. Anderson v. Salt Lake City Corp., 475 F.2d 29 (10 Cir. 1973).

8. Suhre v. Haywood County, North Carolina, 55 F.Supp.2d 384 (W. D. N. Carolina 1999).

9. Books v. City of Elkart, 235 F.3d 292 (7th Cir. 2000).

10. Van Orden v. Perry, 545 U.S. 677, 125 S.Ct. 2854 (2005).

11. Brief of Fraternal Order of Eagles as Amicus Curiae, 2005 WL 263789 (U.S.).

12. McCreary County, Kentucky v. ACLU, 545 U.S. 844, 125 S.Ct. 2722 (2005).

13. The Newark Advocate, July 4, 1957 ed.

14. Buono v. Kempthorne, 502 F.3d 1069 (9th Cir. 2007).

15. Freedom From Religion Foundation, Inc. v. City of Marshfield, 203 F.3d 487 (7th Cir. 2000).

16. Mercier v. Fraternal Order of Eagles, 395 F.3d 693 (7th Cir. 2005).

17. Chambers v. City of Frederick, 373 F.Supp.2d 567 (D. Maryland, N.Div. 2005).

18. The Newark Advocate, September 21, 1995 ed.

 
Arnold E. Shaheen, Jr. Attorney At Law
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