By Robert Marus
The justices of the U.S. Supreme Court waded cautiously March 2 into one of the nation's most controversial issues: Whether, and how, governmental displays of the Ten Commandments can ever be constitutional.
Hearing oral arguments in two cases, the justices grappled with the complex and emotional issues surrounding proper interpretation of the First Amendment's Establishment Clause, which prohibits laws “respecting an establishment of religion.”
The cases stem from conflicting decisions in lower courts on Ten Commandments displays at the Texas Capitol building in Austin and in a pair of Kentucky courthouses.
“I think probably 90 percent of the American people believe in the Ten Commandments and that 85 percent of them probably couldn't tell you what the 10 are,” said Justice Antonin Scalia during arguments on the Texas case. “It's a symbol of the fact that government derives its authority from God.”
But Duke University law professor Erwin Chemerinsky, representing the Austin man suing to have a six-foot stone depiction of the commandments removed from the Texas Capitol grounds, said the Decalogue is much more than a symbol.
The Texas display “conveys a profound religious message. … It is the most powerful, devout religious message that this court has ever considered,” he said. “This is God dictating to God's followers the rules of behavior.”
Thomas Van Orden, a homeless man and former attorney, sued the state of Texas to have the monument removed from its spot between Texas' Capitol and Supreme Court buildings. The 5th U.S. Circuit Court of Appeals upheld the display, noting that it had secular purposes in teaching about the history of the development of the state's legal system and in honoring the fraternal organization that donated it to the state in 1961.
Texas Attorney General Greg Abbott, defending the monument on the state's behalf, said the Decalogue “is an historic, recognized symbol of law” and that the central theme of the various monuments on the Texas Capitol grounds-including war memorials and a tribute to pioneer women-“is to recognize historical influences.”
But Chemerinsky argued that the monument can't be viewed as simply a secular display about history, because it begins with the words, “I am the Lord thy God. Thou shalt have no other gods before Me.”
Previous Supreme Court decisions require that governmental references to religion have some secular purpose, such as the teaching of history, behind them or be so minimal or generic in their religious content as to be insignificant. But Scalia repeatedly said that arguing the Ten Commandments were not deeply religious in nature was unnecessary and disingenuous.
“If you want … to say that it only sends a secular message, I disagree with you,” he told Abbott at one point. Later, he added, “I really consider it something of a Pyrrhic victory if you win on the grounds of your argument.”
Scalia agreed that the message of the commandments is religious in nature but that the First Amendment's original intent allowed such displays if erected by elected officials. “It's a profound religious message, but it is a profound religious message believed by a profound majority of the American people,” he said. “The minority has to be tolerant of the majority view that government comes from God.”
In the second case, a divided panel of the 6th U.S. Circuit Court of Appeals found in late 2003 that much newer Ten Commandments displays in courthouses in two different Kentucky counties violate the First Amendment. The lower courts said the displays were not erected with a sufficiently secular purpose and that they appeared to endorse religion, even though they had later been modified to incorporate legal and historical documents other than the commandments.
Officials in the Kentucky's McCreary and Pulaski counties initially placed only framed copies of the Protestant King James version of the commandments in their courthouses. Local residents sued the counties, with the help of the American Civil Liberties Union of Kentucky, for violating the Constitution's Establishment Clause.
In response, the county commissions passed resolutions instructing officials to “post the Ten Commandments as the precedent legal code upon which the civil and criminal codes of the Commonwealth of Kentucky are founded.” They then modified the display, adding several other documents-beside and smaller than the framed Decalogue-that purported “to demonstrate America's Christian heritage.” They included an excerpt from the Declaration of Independence, a proclamation by late President Ronald Reagan declaring 1983 the “Year of the Bible,” and the Mayflower Compact.
A federal court also found the modified displays unconstitutional, and the counties-after getting new attorneys-again altered their displays to include several other documents of patriotic or historic legal nature, including lyrics to the Star-Spangled Banner and a picture. The third version of the displays also included an explanatory text that said, “The Ten Commandments provide the moral background of the Declaration of Independence and the foundation of our legal tradition.”
That display too was ruled unconstitutional. In the March 2 oral arguments, justices' questions on the case centered on whether the apparently non-secular purpose behind the original display still makes the third display unconstitutional.
“Do you have to consider the history of this display?” asked Justice Sandra Day O'Connor, a centrist often considered a “swing vote” on church-state issues.
“We would urge you not to consider the history,” said Acting Solicitor General Paul Clement, arguing for the Kentucky displays on behalf of President Bush's administration.
Florida attorney Matt Staver, arguing McCreary County's case, said the commandments contain “some statements about God-but very few.”
Justice Ruth Bader Ginsburg-one of two Jewish members of the court-countered, “Have you read the first four commandments?” eliciting laughter from the courtroom. “It's a powerful statement of the covenant that the Lord is making with his people.”
Nonetheless, Staver said, the current displays do not violate the Constitution. “Clearly, the public officials have substantially changed” them, he said. “They can't live under this taint forever.”
Court observers watched O'Connor and fellow moderate Justice Anthony Kennedy most closely-as they often do in church-state and other controversial cases-for clues to how they might rule on the issues. In the Texas case, Kennedy assailed the “obsessive concern with any mention of religion” represented by Van Orden's case, and said singling out a religious monument on the Texas Capitol grounds for removal could be seen as “hostility to religion.”
Chemerinsky replied, “Enforcing the Establishment Clause is not hostility to religion.”
For her part, O'Connor was uncharacteristically quiet during both argument sessions. The few questions she asked concerned the context of the displays and whether the displays' supporters were asking the justices to set aside or modify their long-used test for determining violations of the First Amendment's religion clauses. That test, taken from the court's 1971 Lemon vs. Kurtzman decision, requires government actions to have a secular purpose, to neither advance nor inhibit religion, and to avoid excessive entanglement with religion.
The Supreme Court often accepts cases to resolve conflicting decisions between different appeals courts. However, these cases mark the first time since 1980 that the high court has dealt with the issue of the Ten Commandments on government property. That year, the court found unconstitutional a Kentucky law requiring public schools to post the commandments on the walls of each classroom.
Since then, the lower federal courts have developed a hodge-podge of rules on allowing Ten Commandments displays in other public settings-with some displays found acceptable when they are included as a part of a larger exhibit on the development of Western law and some displays found unconstitutional.
The court has turned away other cases involving public displays of the Ten Commandments, including an Indiana case in 2001 and, in 2003, a highly publicized case involving former Alabama Chief Justice Roy Moore.
The Texas and Kentucky cases provide an opportunity for the justices to break new ground in legal definitions of what sort of religious displays can be allowed on government property.
One obvious reminder of the confusion over the Decalogue's role in American public life hung over the very room where it was being debated. The frieze high atop the south wall of the courtroom includes a depiction of Moses, carrying tablets emblazoned only with numerals, alongside several other historical lawgivers. Among them are Confucius, Mohammed, Napoleon Bonaparte, Caesar Augustus and former Chief Justice John Marshall.
Louisville attorney David Friedman, arguing the ACLU of Kentucky's case, contrasted what he considered the frieze's constitutionality with the McCreary County display. “It is not a neutral display of lawgivers like the frieze in this court-it asserts the primacy of the Ten Commandments,” he said. “That, in itself, is an endorsement of religion.”
Ginsburg, referencing a friend-of-the-court brief filed by the Baptist Joint Committee for Religious Liberty and other groups, wondered aloud if the justices might draw the line on such displays where that brief advocates-at considering all governmental displays that include the religious text of the Ten Commandments “presumptively” unconstitutional.
At a press conference on the Supreme Court's plaza following the arguments, BJC General Counsel Holly Hollman explained why the group advocated drawing that line. “The abundance of religion we have in this country is not because we have government-sponsored religious displays. It's because of religious freedom.”
Associated Baptist Press
Robert Marus is chief of ABP's Washington bureau.