Court unlikely to resolve commandments disputes forever

Thursday, March 3, 2005

  • Oral argument transcript in Texas case, Van Orden v. Perry
  • Oral argument transcript in Kentucky case, McCreary County v. ACLU

    WASHINGTON — The Supreme Court appears poised to approve at least some Ten Commandments displays on public property — though not with a bright-line ruling that will resolve all future disputes.

    The justices heard two hours of arguments yesterday testing whether the First Amendment’s establishment clause was violated when Texas allowed a 6-foot granite Ten Commandments monument to be placed on state Capitol grounds in Austin, and when officials in two Kentucky counties placed framed copies of the commandments on courthouse walls.

    The 5th U.S. Circuit Court of Appeals upheld the Texas display, but the 6th Circuit found that McCreary and Pulaski counties in Kentucky violated the establishment clause.

    At one point during the arguments Justice Sandra Day O’Connor, likely to be the swing vote in the cases, said, “It’s so hard to draw the line.”

    Afterward, supporters of the displays were encouraged. “I would be surprised if the U.S. Supreme Court rules that the Ten Commandments displays in question violate the U.S. Constitution,” said Pat Trueman of the Family Research Council.

    Much of the questioning from the justices yesterday was case-specific, focusing on the context, setting and history of the displays — the Court’s typical approach in church-state cases. The arguments suggested the possibility that the Court will rule differently in the two cases, Van Orden v. Perry and McCreary County v. ACLU, with O’Connor’s vote decisive in both.

    Justice Antonin Scalia was clearly the biggest supporter of the displays, asserting repeatedly that the message conveyed by the Ten Commandments is both deeply religious and entirely constitutional. Justice Anthony Kennedy also seemed supportive, and if, as expected, they are joined by Chief Justice William Rehnquist and Justice Clarence Thomas, they will only need one more vote. Thomas asked no questions yesterday, and Rehnquist was absent because of his cancer treatments, though he will likely participate.

    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. 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 imply government endorsement of a religious message.

    In the Van Orden case from Texas, many of the justices also seemed satisfied that because the 6-foot-high monument is in a park-like 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 Kennedy, who also complained of society’s “obsessive concern with any mention of religion.” He added, “I don’t see a balanced dialogue.”

    Several justices referred approvingly to Marsh v. Chambers, a 1983 precedent in which the Court said it was permissible for legislatures to open their sessions with a prayer.

    But Duke University Law School professor Erwin Chemerinsky, arguing against the Texas monument, countered that legislative prayers have a “unique history” that is not similar to the Ten Commandments displays. The Ten Commandments, Chemerinsky said, is “God dictating to God’s followers rules of behavior.” The memorial in Austin is the only monument in the area that is religious in nature, so it does convey endorsement, Chemerinsky said.

    “Enforcing the establishment clause is not about hostility toward religion,” he said. Chemerinsky also pointed to the Moses frieze in the Court chambers as “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.”

    Even though Scalia was supportive, he chided Abbott at one point for downplaying the religious meaning of the Ten Commandments. It would be a “pyrrhic victory,” Scalia said, if Ten Commandment displays were allowed on the theory that they were secular. “Our laws come from God. If you don’t believe it sends that message, you’re kidding yourself.”

    Acting U.S. Solicitor General Paul 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 don’t constitute a state endorsement of the text.

    The Kentucky displays were given tougher scrutiny by the Court, with several justices appearing concerned about the history of the courthouse displays.

    At first, depictions of the Ten Commandments stood alone on walls in the courthouses, placed there with what opponents say were clearly religious motives. 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. “It was not a neutral display of lawgivers like the one in this Court.”

    The lawyer defending the Kentucky displays acknowledged that officials “made a mistake” with the earlier versions but now they are shown in a historical context of important documents that include the Magna Carta and the Declaration of Independence. Even if the displays had a “religious purpose” at first, “it has been abandoned,” said Mathew Staver, president of the Florida-based group Liberty Counsel.

    But in past establishment-clause cases, the intent of legislators in fostering religious practices has been an important factor, and several justices pressed that issue yesterday.

    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.”

    Justice Stephen Breyer asked, “If it was wrong to begin with, is it wrong to end with?”

    Staver and Clement urged the justices not to punish the counties for “trying to bring the displays into compliance,” as Clement put it. Clement also urged the justices to stop relying on the “purpose prong” of its establishment-clause analysis.

    Scalia was persistent in proclaiming the religious meaning of the Ten Commandments. “It is a symbol that government derives its authority from God, and that’s appropriate,” said Scalia. He estimated that 90% 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.”

    Also during the argument, Clement distanced himself from the display that cost former Alabama 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 state court building’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.”

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