Justices debate displays
WASHINGTON – Below a frieze of Moses holding the tablets of the Ten Commandments, the marshal having proclaimed his “God save this honorable court,” the Supreme Court justices pondered anew how to define the boundary between church and state.
It’s an issue this court and others have wrestled with many times over the years. This time justices heard arguments in two cases about whether Ten Commandments displays should be allowed on government property.
In their comments and questions from the bench Wednesday, justices were reluctant to adopt a blanket ban on such displays and struggled to formulate a constitutional rule that could render a new definition of religion’s role in public life.
“It’s so hard to draw that line,” fretted Justice Sandra Day O’Connor at one point during the lively two-hour debate. She is expected to be a key vote in the case, which was heard Wednesday as about 100 demonstrators shouted religious slogans outside.
Back-to-back arguments in cases from Texas and Kentucky were the court’s first consideration of the issue since 1980, when justices ruled the Ten Commandments could not be displayed in public schools.
Several expressed support for a 6-foot granite monument on the grounds of the Texas state Capitol but were less certain about framed copies of the commandments in two Kentucky courthouses.
“If an atheist walks by, he can avert his eyes,” Justice Anthony Kennedy said in a courtroom filled with spectators, many of whom could be seen glancing at the court’s frieze of Moses carrying the tablets.
Banning the Texas display might “show hostility to religion,” he said.
But Justices John Paul Stevens and Ruth Bader Ginsburg, while acknowledging the nation’s religious history, wondered where the line should be drawn. The court ruled in 1983 that legislative prayer is allowable, citing its historical significance, but in 1992 said prayer in public schools is not because students may feel pressure to participate.
What if every federal court had a Ten Commandments display over its bench and opened with a prayer, Ginsburg asked, brushing aside Justice Antonin Scalia’s retort that the justices already open their sessions with “God save this honorable court.”
“We would try and defend that,” said acting Solicitor General Paul Clement, who argued on behalf of the Bush administration in supporting the Ten Commandments displays.
Monuments carrying the Ten Commandments are common in town squares, courthouses and other government-owned land around the country. Lawyers challenging these displays argue that they violate the First Amendment ban on any law “respecting an establishment of religion.”
While the cases strictly involve Ten Commandments displays, a broad ruling could determine the allowable role of religion in a wide range of public contexts, from the use of religious music in a school concert to students’ recitation of “under God” in the Pledge of Allegiance. A decision is expected by late June.
The question has prompted dozens of heated legal battles, including one in Alabama by Roy Moore. He lost his job as Alabama chief justice a year ago after defying a federal order to remove a 5,300-pound Ten Commandments monument he had installed in the state courthouse.
At the Supreme Court, supporters of commandments displays gathered outside in the icy cold. Many shouted “Amen” and broke into refrains from “Amazing Grace.” Several knelt before the court steps.
Opponents of the displays, smaller in number, waved signs bearing such slogans as “Keep Government and Religion Separate” and “My God Does Not Need Government Help.” According to an AP-Ipsos poll, 76 percent of Americans support such displays, something that was not lost on some of the justices during arguments.
“It’s a profoundly religious message, but it’s a profoundly religious message believed in by a vast majority of the American people,” Scalia said.
In the Texas case, the Fraternal Order of Eagles donated the exhibit to the state in 1961, and it was installed about 75 feet from the Capitol in Austin. The group gave thousands of similar monuments to American towns during the 1950s and ‘60s, and those have been the subject of multiple court fights.
The suit was brought by Thomas Van Orden, a former lawyer who is now homeless. Van Orden, who enlisted the help of Duke law professor Erwin Chemerinsky in the appeal, said in an interview that he spent the morning at the University of Texas law library playing chess online. He did not comment on the case.
Two Kentucky counties, meanwhile, hung framed copies of the Ten Commandments in their courthouses and added other documents, such as the Magna Carta and the Declaration of Independence, after the American Civil Liberties Union challenged the display.
While one lower court found the Texas display to be predominantly nonreligious because it was one of 17 monuments in a 22-acre park, another struck down the Kentucky displays as lacking a “secular purpose.” Kentucky’s modification of the display was a “sham” for the religious intent behind it, the Cincinnati-based 6th U.S. Circuit Court of Appeals ruled.
Arguing against a strict wall between church and state, Solicitor General Clement said, “The Ten Commandments have an undeniable religious significance, but they also have a secular significance as a source of the law, a code of the law and a well-recognized historical symbol of the law.”
David Friedman, an attorney for the American Civil Liberties Union who is challenging the courthouse displays in Kentucky, countered: “An assertion that the Ten Commandments is THE source, THE foundation of our legal system … that is simply wrapping the Ten Commandments in the flag, and that’s endorsement.”
The Supreme Court’s frieze depicts Moses as well as 17 other figures including Hammurabi, Confucius, Napoleon and Chief Justice John Marshall.
When Stevens said the depiction is more neutral in part because it does not display the Ten Commandments’ text, Clement gently demurred. “I don’t know if a display of Moses might be sending more of a religious message.”
The cases are Van Orden v. Perry, 03-1500, and McCreary County v. ACLU, 03-1693.