Ten Commandments — a split verdict?

By Lyle Denniston
on Mar 2, 2005 at 3:56 pm

With only Justice Antonin Scalia seeming dead-certain of his views on government display of the Ten Commandments, the Supreme Court on Wednesday spent two hours ambiguously exploring just how far to let public officials go to place religious monuments or plaques on public buildings or grounds. The end result of this exploration seemed to be that context may mean everything to the constitutional equation, and that, as a result, some displays will be allowed, and others not.

An initial impression was that a Ten Commandments monument on the state capitol grounds in Austin, Texas, might pass a variety of constitutional tests the questioning Justices posed, but that a framed display of the Decalogue amid other Kentucky courthouse wall decorations, hastily added to neutralize the religious effect, might be in trouble. It was not evident that the Court would be able to speak definitively on a much-litigated facet of the culture war.

Justice Sandra Day O’Connor, very likely to cast a decisive vote on the issue in the two cases, left the impression that she might have little difficulty permitting government displays of the Decalogue “packaged in a museum-like setting and displaying a whole lot of things,” but that she was quite troubled about a county governing board’s decision to put up the Ten Commandments to make the point that “Jesus Christ was the Prince of Ethics.”

Scalia, who has little patience with church-state separation concepts, was expected to be a very active participant in the oral arguments, and he was. But, early in the argument, he essentially took himself out of the combat by stating his position with utmost clarity. He said that the Ten Commandments have long been accepted by the Nation’s majority as “a symbol of the fact that government derives its authority from God,…The minority should be tolerant of the majority expressing its belief that this government comes from God.”

But six of his colleagues (all of the others except Chief Justice William H. Rehnquist, who was absent, and Justice Clarence Thomas, who said not a word) were more interested in examining details and alternative theories than in drawing instant conclusions. One inquiry that persisted throughout the two hours was the distinction – or lack of it – between legislative chaplains’ prayers (allowed by the Court) and displays of frankly religious inscriptions (banned by the Court but, so far, only for public school classroom walls). “It is so hard to draw that line,” said O’Connor.

The Court, in the cases of Van Orden v. Perry (03-1500) and McCreary County v. ACLU-Kentucky (03-1693), will not be ruling on the hottest arena of controversy over the Commandments: displays in public schools. The Justices so far have refused to grant a new review of that issues, thus leaving intact a 1980 decision (Stone v. Graham) forbidding posting of the Commandments in public school classrooms. But the school situation is sure to arise anew in lower courts, after the Court this Spring gives its first pronouncement on the Commandments since that 1980 ruling.

The monument on Texas’ state capitol grounds seemed relatively unscathed during the hearing in the Van Orden case. One of its principal defenders, it seemed, was Justice Anthony M. Kennedy – potentially, another “swing voter” if the Court is closely divided on that case. He suggested several times that the monument’s challenger, Duke law professor Erwin Chemerinsky, was arguing too broadly against government accommodation of religion, suggesting at one point that the professor seemed to be advocating that “the word ‘accommodaton’ should not be in our jurisprudence” — a suggestion Chemerinsky denied making. The professor said that “accommodation” is a concept that has a place in guarding the free exercise of religion, but has not been a factor in judging government “establishment” of religion.

Greg Abbott, Texas’ attorney general, who argued his side of the case from a wheelchair at counsel’s table (and won praise from presiding Justice John Paul Stevens for demonstrating that one could argue well from other than a standing position), ran into some difficulty with Kennedy for attempting to argue away most of the religious content of the capitol grounds display.

Acting Solicitor General Paul D. Clement, who argued for the Bush Administration as amicus in both cases, sought to persuade the Court not to draw the constitutional line against symbolic displays that include religious texts; allowing only blank tablets or illustrative murals.

In his cameo role in the Kentucky courthouse displays hearing, Clement found some of the Justices to be interested in exploring at more depth his recommendation that the Court in judging government displays of religion look to the message that the overall display conveys, rather than to the purpose officials had in putting them up.

That may have been a necessary line of argument, since most of the Justices appeared troubled by the vividly religious intention of county officials in displaying the Commandments on courthouse walls in McCreary and Pulaski Counties. That history posed great difficulty during the argument for the counties’ lawyer, Mathew D. Staver, of the Liberty Counsel, a Longwood, Fla., advocacy group for conservative causes.

Staver’s adversary, David A. Friedman of Louisville, had the easiest time at the lectern of any of the five counsel who appeared. Basing his argument on context, content and history, he had little difficulty getting the Justices to focus closely on county officials’ unabashed embrace of religious themes in the initial display – an embrace that they have never repudiated, even while changing the display twice to try to thwart litigation against it.