The Supreme Court on Wednesday heard arguments on whether Ten Commandments displays on government property unconstitutionally entangle church and state, a cultural battle that has splintered lower courts for more than two decades.
The Bush administration, via acting Solicitor General Paul Clement, argued against a strict First Amendment wall between church and state.
Ten Commandments displays should be allowed on government property because they pay tribute to America’s religious and legal history, he argued in court. “The idea of having a fence around the Ten Commandments to make clear the state has nothing to do with it, I think that is bending it too far,” said
David Friedman, an attorney for the American Civil Liberties Union who is challenging 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.”
In their comments and questions from the bench, justices were reluctant to adopt a blanket ban on such displays. They struggled to formulate a clear constitutional rule that could determine the fate of thousands of religious symbols on public property around the country, including one in their own courtroom featuring Moses holding the sacred tablets.
Justice Antonin Scalia noted that legislative proclamations and prayer invoking God’s name are permissible. “I don’t see why the one is good and the other is bad,” he said.
In the high court’s first confrontation with the Ten Commandments issue in a quarter-century, a case from Texas also was being argued.
Erwin Chemerinsky, a lawyer representing a man who seeks its removal, told the justices the display is a “religious symbol.” The prominence of the display on the capitol grounds and the fact that so many of the commandments deal with God “does promote religion,” he maintained.
Ten Commandments monuments are common in town squares, courthouses and other government-owned land around the country. At issue is whether they violate the First Amendment ban on any law “respecting an establishment of religion,” or simply represent a secular tribute to America’s legal heritage.
The question has sparked dozens of heated legal battles, including one in Alabama by Roy Moore. He lost his job as 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.
About two dozen demonstrators earlier gathered in front of the Supreme Court in the icy cold for rallies following a candlelight vigil by supporters of the displays.
“I don’t think government should be in the business of morality,” said David Condo, of Beltsville, Md., as protesters wrapped in parkas, scarves and ear muffs marched nearby. “I’d rather brave the elements on a cold morning than start on a slippery slope to theocracy.”
Another demonstrator, the Rev. Patrick Mahoney, director of the Christian Defense Coalition, said most Americans support public display of the Ten Commandments.
“The court should be very careful to respect the viewpoint of the overwhelming majority of the American people,” said Mahoney. “The Ten Commandments do not divide Americans; they unite Americans.”
More than 50 groups have filed “friend-of-the-court” briefs weighing in on the issue.
While the cases strictly involve Ten Commandments displays, a broad ruling could define the proper place of religion in public life — from use of religious music in a school concert to students’ recitation of “under God” in the Pledge of Allegiance.
The Bush administration, which sided with a California school district last year to keep “God” in the Pledge, is now joining Texas and Kentucky officials to back the Ten Commandments displays.
“Countless monuments, medallions, plaques, sculptures, seals, frescoes, and friezes — including, of course, the Supreme Court’s own courtroom frieze — commemorate the Decalogue. Nothing in the Constitution requires these historic artifacts to be chiseled away or erased,” writes Texas Attorney General Greg Abbott in his court filing.
Chemerinsky, in his filing, countered: “The government’s symbolic endorsement of religion is most obvious from the content of the monument itself. In large letters, the monument proclaims ’I AM the LORD thy God.”’
Poll: Most Americans back displays
An AP-Ipsos poll taken in late February found 76 percent supportive of and 23 percent opposed to Ten Commandments displays.
Past polling has found majority support for the general concept of separation of church and state. That sentiment is not always reflected when people are asked about specific cases.
Support for the Ten Commandments displays was strong among most groups in the AP poll of 1,000 adults conducted by Ipsos-Public Affairs Feb. 22-24. The margin of sampling error was plus or minus 3 percentage points.
Older adults were more likely to feel the Ten Commandments should be allowed on government property. People with only a high school education or some college were more likely to favor allowing the display of the Ten Commandments than those with college degrees.
People in the Midwest and South were more likely than those in other regions to favor allowing such displays.
Background to the cases
In the Texas case, Thomas Van Orden lost his lawsuit to have a 6-foot granite monument removed from the state Capitol grounds.
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.
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 court 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.
The last time the Supreme Court weighed in on the issue was 1980, when it struck down a Kentucky law requiring Ten Commandments displays in public classrooms. Since then, more than two dozen courts have ruled in conflicting ways on displays in various public contexts.
Justices have outlined several different tests in recent years to determine their constitutionality:
- Secular purpose; was there religious motive?
- Endorsement; do they show a government neutrality toward religion?
- Coercion; do they place impermissible pressure, such as school prayer?
- Historical practice; are they part of the “fabric of our society,” such as legislative prayer?
The Supreme Court frieze, for instance, depicts Moses and the tablets as well as 17 other figures including Hammurabi, Confucius, Napoleon and Chief Justice John Marshall. Because it includes secular figures in a way that doesn’t endorse religion, the display would be constitutional, Justice John Paul Stevens suggested in a 1989 ruling.
The cases are Van Orden v. Perry, 03-1500, and McCreary County v. ACLU, 03-1693.
A ruling is expected by the end of June.