The day after banning the death penalty for convicted murderers under the age of 18, the justices of the Supreme Court, minus ailing Chief Justice William Rehnquist, heard arguments in two cases, one from Texas, the other from Kentucky which will decide whether the Ten Commandments can be displayed on state or county property.
The atmosphere at the court Wednesday morning was electric, with such luminaries as White House official Tim Goeglein, in charge of outreach to religious groups, in attendance.
The court and especially Justice Anthony Kennedy, who wrote Tuesday’s death penalty decision, reminded the nation just how powerful the justices are by decreeing an end to juvenile executions.
Kennedy, the substitute for Reagan nominee Robert Bork after the Senate defeated Bork in 1986, has caused nightmares for conservatives, writing the decision to strike down state sodomy laws and joining in other liberal-leaning decisions.
Kennedy defends religion
But in Wednesday’s argument, Kennedy assumed the role of defender of religion.
Kennedy rebuffed arguments presented by Erwin Chemerinsky, who was presenting the case for Thomas Van Orden, the plaintiff seeking to ban the Texas display.
The justice suggested that for the courts to tell a state that it could not allow the Ten Commandments on state land would wrongly cater to “an obsessive concern with references to religion.” He said that banning displays of the Ten Commandments on state property might “show hostility to religion.”
Kennedy chided Chemerinsky, saying, “I think you’re telling us the state can not accommodate religion,” adding that the plaintiff was essentially “asking religious people to surrender their beliefs.”
Kennedy offered a solution for those offended by the sight of the Commandments on state property: “If an atheist walks by, he can avert his eyes.” Moments later Justice Antonin Scalia endorsed Kennedy’s idea, “Turn your eyes away, if it’s such a big deal to you.”
At stake in the Texas case: a six-foot high, three-foot wide monument of the Ten Commandments, near the State Capitol and the Texas Supreme Court in Austin. The monument was donated to the state by the Fraternal Order of Eagles and dedicated in 1961.
Scalia took the most assertive stance, saying the monument should be seen as “a symbol of the fact that government derives its authority from God” and such a symbol on state grounds was quite “appropriate,” he said.
Scalia later told Chemerinsky that the American people understood that a display of the Ten Commandments stands for the proposition that “our laws are derived from God.”
When Chemerinsky objected that the Texas display sent a state-endorsed religious message to visitors to the Capitol, Scalia replied, “It’s a profoundly religious message, but it’s a profoundly religious message believed in by a vast majority of the American people.”
The exact version of the Ten Commandments — Protestant, Jewish or otherwise — was unimportant, Scalia said, opining that “probably 90 percent of the American people believe in the Ten Commandments and 85 percent couldn’t tell you what the ten are.”
Also voicing skepticism of Chemerinsky’s argument, Justice Stephen Breyer said his approach was to “look at the divisive qualities of individual displays on a case-by-case basis. I don’t find much divisiveness here.”
Breyer approvingly cited the words of Justice Arthur Goldberg, who warned in his concurrence to the 1962 decision which banned prayer in public schools that government neutrality toward religion should never go so far as to become “a brooding and pervasive devotion to the secular and a passive, or even active, hostility to the religious.”
Answering Breyer, Chemerinsky insisted that the Texas monument was “enormously divisive” because many people objected to it.
What about the Muslim?
At another point in his argument Chemerinsky asked the justices to consider a Muslim Texan and a Buddhist Texan who would feel that “it’s not his or her government” when visiting the state Capitol or the Texas Supreme Court and seeing the Commandments.
While rhetorically pounding away at Chemerinsky, Scalia also displayed scant patience with the arguments presented by Texas Attorney General Greg Abbott.
The Texan used the mantra “a museum-like setting” at least a half dozen times, arguing that the Ten Commandments monument was innocuously placed among many other monuments on the Capitol grounds, including the figure of a Confederate soldier, a monument to Texans who died at Pearl Harbor and a pioneer mother cradling a baby in one arm.
Abbott defended the monument by pointing out it was “one of the smallest monuments” on the capitol grounds and had historic value because it “has stood for more than 40 years without controversy.”
Given the court’s previous rulings banning overtly religious displays such as Christmas nativity scenes, Abbot pretty much was forced to make the argument that the monument was not primarily a religious display, and forced to resort to apologetic measurement in order to defend the monument as neither too big nor too overt.
Scalia impatiently told Abbott that if he and the state of Texas were going to “water it down” by claiming the monument “sends a secular message,” not a religious one, then “I can’t agree with you.”
Later he complained to Abbot, “I would consider it a Pyrrhic victory if you win on the grounds you’re arguing.”
Kennedy seemed to agree with Scalia on this point, telling Abbott “You’re asking us to ignore the religious purpose that is the most manifest value of these symbols.”
Kennedy and Scalia appeared to be persuaded by Chemerinksy’s brief in which he noted that “supporters of Ten Commandments monuments are forced to defend them as secular ... This denigrates religion by denying the essential and profoundly religious nature of the Ten Commandments.”
O'Connor's historic leaning
But, one key swing vote in this case, Justice Sandra Day O’Connor, seemed receptive to the historic or antiquarian argument, askingChemerinsky whether the Ten Commandments monument would pass constitutional muster if it were “packaged in a museum-like setting.”
When Chemerinsky replied, “This isn’t a museum-like setting, your honor,” O’Connor patiently inquired, “Is it a park-like setting?”
At another point she suggested that “the state’s interest in preserving old objects” might help overcome any constitutional objection to the monument.
The companion Kentucky case, McCreary County v. ACLU, would appear problematic for O’Connor since it does not involve “preserving old objects,” but rather a government-sponsored display of the Commandments erected within the past five years.
To both Abbott and Chemerinsky, Justice John Paul Stevens suggested another solution: as was done in La Crosse, Wisc., sell the property on which the monument stands to the Fraternal Order of Eagles and attach to the monument a written disclaimer saying the state of Texas does not endorse the religious message of the Ten Commandments.