WASHINGTON (BP)–Defenders of Ten Commandments displays on government property expressed optimism after listening to oral arguments on the issue before the U.S. Supreme Court March 2.
“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, senior legal counsel for the Family Research Council, in a written statement. “[A] clear Supreme Court majority appeared very reluctant to suggest that the Ten Commandments violate the establishment clause of the First Amendment.”
The justices heard oral arguments for two consecutive hours in separate cases, one involving a stand-alone monument on the Texas state capitol grounds in Austin and the other framed displays of the Decalogue in two Kentucky courthouses as part of exhibits of historical documents that included the Declaration of Independence, Bill of Rights and Magna Carta.
Religious liberty litigator Jay Sekulow told reporters outside the court building he “thought the arguments went very well.” He expressed confidence the court would uphold the display in Texas but thought its ruling on the Kentucky exhibits would be closer.
The justices are “hard pressed to just order their removal,” said Sekulow, chief counsel of the American Center for Law and Justice, before predicting what their consolidated decision or separate opinions would look like. “It’s going to say that the Ten Commandments, in and of themselves, are constitutional. [The justices] are going to look at context. I don’t think they’re going to go broader than they have to.”
The case for the Kentucky displays is hampered by the fact that the original displays consisted only of the Ten Commandments. The other documents were added after the ACLU of Kentucky challenged the exhibits in court.
“I think [the justices] are going to say at the end of the day the displays are OK,” Sekulow said. “Whether [the Kentucky displays are] OK or not, that’s going to depend.”
Most historical documents displays that include the Ten Commandments do not have that kind of difficult legal history, he said.
Jordan Lorence of the Alliance Defense Fund also was encouraged after attending the arguments. The justices “understood from the arguments of the counsel that the Ten Commandments are a universal symbol of law that comes from God,” ADF’s senior counsel said in a written release. “They understood that this is reflected in the earliest history of the United States and should be allowed under the establishment clause.”
Only the Texas display survived scrutiny at the federal appeals court level. In Van Orden v. Perry, the Fifth Circuit Court of Appeals found the display, which was donated by a private association in 1961 and is one of 17 monuments on the capitol grounds, was constitutional. In McCreary County v. ACLU of Kentucky, the Sixth Circuit ruled the government-initiated displays violated the establishment clause.
Opponents of the displays expressed hope after the arguments the high court would side with them in at least one case.
David Saperstein, director of the Religious Action Center of Reform Judaism, disagreed with Sekulow’s view the Texas case was a clear victory for supporters of Ten Commandments displays.
“I didn’t read it that way at all,” Saperstein told Baptist Press outside the court building. “A number of the justices seemed to be very concerned about the question of endorsement when you have this religious message [on a stand-alone monument]. And usually justices who want to justify a position will go very hard on the people on their side of it to try and get help from them in drawing the lines.”
Brent Walker, executive director of the Baptist Joint Committee for Religious Liberty, told BP, “I think the court may well affirm both [appeals court decisions]. But you can’t tell; you don’t know.”
Liberty Counsel President Mathew Staver, who argued before the justices on behalf of the Kentucky counties, offered no prediction. “I have no idea,” Staver told BP afterward.
Among the organizations filing friend-of-the-court briefs supporting both displays were the ACLJ, FRC, Becket Fund for Religious Liberty, Focus on the Family, Rutherford Institute and Wallbuilders Inc.
In addition to the BJC and Religious Action Center, organizations on briefs opposing both displays were the American Atheists, Americans United for Separation of Church and State and Freedom From Religion Foundation.
Although the Southern Baptist Ethics & Religious Liberty Commission was not a party to briefs in the cases, the entity’s president affirmed March 2 the ERLC supports Ten Commandments displays.
“It is clear to any reasonable mind that the posting of the Ten Commandments along with other documents foundational to the constitutional and legal system of the United States either by government or private citizens is not a violation of the establishment clause,” ERLC President Richard Land told BP by phone. “Our founding fathers would find the argument that it was a violation to be incomprehensible.”
Land cited a newly released Associated Press survey that found 76 percent of Americans believe such displays on government property should be permitted.
“Once again we are going to see if we will continue to have government of the people, by the people and for the people or government of the judges, by the judges and for the judges,” Land said.
One significant factor in the cases could be the participation of Chief Justice William Rehnquist, who has been battling cancer since the fall. Rehnquist, who has been a supporter of government acknowledgments of religion, was not present for oral arguments in the Ten Commandments cases. John Paul Stevens, senior associate justice, announced that Rehnquist reserved the right to participate in the opinions, but it was not clear from his statement if that would definitely occur.
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