Supreme Court Wrestles With Ten Commandments Issue

Supreme Court Wrestles With Ten Commandments Issue by David G. Savage
Times Staff Writer

7:06 PM PST, March 2, 2005

WASHINGTON -- The Supreme Court struggled Wednesday with the
politically charged issue of whether prominent display of the Ten
Commandments at government buildings violates separation of church and
state.

In a Texas case, the court heard a challenge to a granite monument
depicting the biblical Ten Commandments that sits near the entrance to
the state Capitol in Austin. A second case tests whether Kentucky
judges went too far when they posted framed copies of the Ten
Commandments on the walls of their county courthouse.

Defenders of the displays say they merely acknowledge the nation's
religious heritage and the historical role of the Ten Commandments as
a source of law and morality. The challengers say the biblical
commands show the government to be endorsing religion, a violation of
the First Amendment's ban on an "establishment of religion."

The questions asked by the justices suggested they are headed for a
split decision.

"It's so hard to draw the line," said Justice Sandra Day O'Connor, the
frequent centrist who is likely to draw the line in both cases.

State lawmakers may open their sessions with a prayer delivered by a
chaplain, O'Connor noted, citing a past ruling that upheld this
practice. How then can it be unconstitutional to have a monument with
Ten Commandments sitting outside the Capitol, she asked.

Because placing the Ten Commandments in front of the Capitol "conveys
a powerful message" that the government itself "is endorsing
religion," said Duke law professor Erwin Chemerinsky on behalf of
Thomas Van Orden, a homeless Texas man who sued to have the monument
removed. "This is a sacred and solemn text. These are God's words to
God's followers."

To which Justice Antonin Scalia replied, in effect, what's wrong with that?

"It's a symbol that the government derives its authority from God," he
said. "That's what this is about. Our laws are derived from God."

Scalia said he believed 90 percent of the American people supported
having the Ten Commandments on display, even if "85 percent of them
couldn't tell you what they say."

Justice Anthony M. Kennedy said he too saw no problem with the display
of the Ten Commandments. He said he did not understand "this obsessive
concern with anything religious." Those who do not wish to see the Ten
Commandments at the Capitol grounds "can avert their eyes." Demands to
remove the Ten Commandments show "hostility to religion," he added.

The justices heard two hours of argument, and they sounded closely
split. Four justices -- John Paul Stevens, David H. Souter, Ruth Bader
Ginsburg and Stephen G. Breyer -- support a distinct separation of
church and state, and signaled they are likely to vote to strike down
the religious displays in Texas and Kentucky.

When Mathew Staver, a lawyer representing the Kentucky judges,
described the Ten Commandments as secular, not just religious,
Ginsburg stopped him.

"Have you read the first four Commandments?" she asked.

They begin with the words, "I Am the Lord Thy God. Thou shalt have no
other gods before me." Followers are also told not to have "any graven
images," to "take the Name of the Lord Thy God in vain," and are
reminded to keep the Sabbath Day holy.

Four others -- Chief Justice William H. Rehnquist and Justices
Clarence Thomas, Scalia and Kennedy -- have upheld religious displays
and invocations at public buildings.

None of the lawyers took an all-or-nothing stand on the issue.

Chemerinsky, for example, said he saw no problem with a display in the
courtroom where the justices met Wednesday -- high on the wall carved
in marble is a depiction of Moses holding the stone tablets. The
marble frieze depicts "lawgivers" throughout history, from Hammurabi
and Solomon to Napoleon and John Marshall, the fourth chief justice of
the Supreme Court.

Lawyers on the opposite side of the case from Chemerinsky agreed that
religious presentations by government could go too far. Acting
Solicitor General Paul Clement, arguing on behalf of the Bush
administration, was asked about Alabama Justice Roy Moore, whose
display of the Ten Commandments in the center of the state's Supreme
Court building has been rejected by lower courts. That "crosses a
constitutional line," Clement replied.

Texas Attorney General Greg Abbott was asked whether the state could
display a crucifix.

"I seriously question whether a crucifix would be acceptable," he said.

By contrast, the Ten Commandments are not just a religious symbol, he
said. They "are a historically recognized symbol of law," Abbott said.

O'Connor could decide to split the difference on the issue by
upholding the Ten Commandments in one case and striking them down in
the other. For example, she could vote to uphold the Texas monument
because it sits among other statutes and monuments on the Capitol
grounds -- at one point, she described it "as a park-like setting."

However, she could also agree with her more liberal colleagues that
the Kentucky judges went too far because they were determined to post
the Ten Commandments so visitors would be all but obliged to read
them. She sharply questioned the lawyer in the Kentucky case because
officials there said they were trying to "demonstrate America's
Christian heritage" when they first posted the Ten Commandments five
years ago.

The Supreme Court, including the ailing Rehnquist, will vote on the
two cases behind closed doors later this week. The justices will issue
a written opinion by late June.