Legal Times
Justices Wrestle With
Constitutionality of Commandments
Tony Mauro
Legal Times
03-02-2005
The Supreme Court on Wednesday appeared no closer than ever to drawing a bright
dividing line between church and state as it debated the constitutionality of
Ten Commandments displays on public property.
"It's so hard to draw that line," said Justice Sandra Day O'Connor early in two
hours of debate over a Ten Commandments monument on the grounds of the Texas
state capitol and wall displays in two Kentucky courthouses. The U.S. Court of
Appeals for the 5th Circuit upheld the Texas display, but the 6th Circuit found
that McCreary and Pulaski counties in Kentucky violated the establishment clause
of the First Amendment.
The argument also saw the Bush administration's top lawyer before the Court,
Acting Solicitor General Paul Clement, distance himself from the display that
cost former Alabama Supreme Court Chief Justice Roy Moore his job. In 2003,
Moore refused to obey a federal court order to remove a Ten Commandments
monument he had installed in the Supreme Court's rotunda.
Asked by Justice Ruth Bader Ginsburg about such a display, Clement said that the
Alabama monument "probably does cross the constitutional line" because it turned
a public space into something akin to a "religious sanctuary."
As often happens in church-state cases, much of the questioning from the
justices Wednesday was case-specific, focusing on the context, setting, and
history of the displays. The arguments suggested the possibility that the Court
will rule differently in the two cases, Van Orden v. Perry and
McCreary County v. American Civil Liberties Union of Kentucky, with O'Connor
possibly holding the swing vote.
Throughout the morning, lawyers on both sides of the issue — as well as several
justices — made reference to the marble frieze on the wall above them in the
Court chamber, which shows Moses holding the Ten Commandments in a display of
historic lawgivers.
"How about that frieze?" Justice Ginsburg asked at one point, wagging her pencil
at the sculpted panel and noting that it displays only the last five
commandments, generally viewed as the more secular ones. Because Moses is
accompanied by other historical figures, including Hammurabi, Solon, and
Solomon, the frieze was cited as an example of an acceptable display of the Ten
Commandments that did not convey government endorsement of a religious message.
Similarly, in the Van Orden case from Texas, many of the justices seemed
satisfied that because the 6-foot-high monument is in a parklike setting in
Austin dotted with more than 20 other monuments and historical markers, any
message of government endorsement is diluted.
"If an atheist walks by, they can avert their eyes," said Justice Anthony
Kennedy, who also complained of society's "obsessive concern with any mention of
religion." He added, "I don't see a balanced dialogue."
Duke University Law School professor Erwin Chemerinsky, arguing against the
Texas monument, countered that it is the only monument in the area religious in
nature and that it does convey endorsement. "Enforcing the establishment clause
is not about hostility toward religion," he said. Chermerinsky also said that
the Moses frieze in the Court chambers is "exactly" how the Ten Commandments can
be displayed constitutionally.
Texas Attorney General Greg Abbott defended the monument as a "historic
recognition" of the role the Ten Commandments played in legal history. Asked by
Justice John Paul Stevens whether Texas could post a crucifix on state grounds,
Abbott at first called it a close question but, when pressed, said he would
"seriously question" its constitutionality: "A crucifix is not the same as the
Ten Commandments."
Abbott, who was left partly paralyzed in an accident as a young man, argued the
case before the Court in a seated position instead of standing at the lectern.
After he finished, Stevens, who was presiding over the session, commended Abbott
for showing that "it is not necessary to stand at the lectern to do a fine job."
Clement, who argued in both cases in favor of the displays, said that the Ten
Commandments are "undeniably religious," but that they have "secular
significance" and so don't constitute a state endorsement of the text.
The tenor of the arguments in the Kentucky case was different, with several
justices appearing concerned about the history of the courthouse displays.
At first, framed copies of the Ten Commandments stood alone on walls in the
courthouses. But when the displays were first challenged in 1999, county
officials altered the displays twice by surrounding them with other documents,
some secular and others religious.
"Both the purpose and the effect was to endorse religion," said ACLU lawyer
David Friedman of the Louisville firm Fernandez Friedman Grossman Kohn & Son.
"It was not a neutral display of lawgivers like the one in this court."
Mathew Staver, president of the Florida-based group Liberty Counsel, the lawyer
defending the Kentucky displays, acknowledged that officials "made a mistake"
with the earlier versions, but now they are in a historical context of important
documents that include the Magna Carta. Even if the displays had a "religious
purpose" at first, "it has been abandoned," said Staver.
But in past establishment clause cases, the intent of legislators in fostering
religious practices has been an important factor, and several justices explored
that aspect of the case.
Justice David Souter dismissed the additions as "litigation dressing" aimed at
ending the lawsuit without changing the purpose of the display.
Souter said it would be "crazy" if the upshot of the cases was that "you can
engage in religion so long as you hide the ball well enough."
And Justice Stephen Breyer asked, "If it was wrong to begin with, is it wrong to
end with?"
Clement urged the justices not to punish the counties for "trying to bring the
displays into compliance." He also urged the justices to stop relying on the
"purpose prong" of its establishment clause analysis.
Justice Antonin Scalia was the biggest booster of the displays, asserting
several times that the message conveyed by the display was both deeply religious
and constitutionally acceptable.
"It is a symbol that government derives its authority from God, and that's
appropriate," said Scalia. He estimated that 90 percent of Americans agree with
the message — even if, as he joked, "85 percent couldn't tell you what the Ten
Commandments are."
For those who disagree, Scalia said, "turn your eyes away if it is such a big
deal for you."