WASHINGTON (BP)–The Supreme Court will need to render its decision cautiously in two cases involving public displays of the Ten Commandments in order to protect such portrayals even on its own building, First Amendment specialist Jay Sekulow said in a Feb. 24 debate in Washington.
The high court will hear oral arguments in both cases March 2 and is expected to release a consolidated ruling or separate opinions before it adjourns this summer.
Speaking opposite University of Texas law professor Douglas Laycock at a Washington forum on the cases, Sekulow asked, “Does the court issue an opinion that requires a sandblaster to come in and remove the Ten Commandments depiction of Moses holding those stones? I think not.”
The court “has to be careful when it issues its opinion to leave room not only for its own display but for the … thousands of displays in courthouses and county facilities throughout the United States,” said Sekulow, chief counsel of the American Center for Law and Justice.
The cases vary in their facts.
In Van Orden v. Perry, the justices will consider whether the Fifth Circuit Court of Appeals ruled correctly that a stand-alone monument of the Ten Commandments on the Texas capitol grounds in Austin is constitutional. A private organization, the Fraternal Order of Eagles, donated the monument to the state in 1961.
In McCreary County v. ACLU of Kentucky, the high court will determine whether the Sixth Circuit was right in rejecting the inclusion of the Ten Commandments in a display of historical documents in two Kentucky county courthouses.
In the debate, Laycock described the Ten Commandments as religious; thus, government displays of them endorse religion and fail to meet the church-state standard the Supreme Court has established, Laycock said.
Contending that government bodies defend the depictions by arguing the Ten Commandments are the basis of American law, Laycock said, “This is all sham litigation.”
“Everybody knows the Ten Commandments are there because a local majority thinks they’re a good religious teaching and they ought to be displayed,” Laycock said, “but government officials are forced to say that isn’t why they did it at all.
“The government puts up a religious display because somebody in the government thought it was a good thing to display and that people ought to read it and think about it and believe it and act on it,” he said. “To say that the Ten Commandments are about law is to rip them” from their context.
Sekulow countered that while the Ten Commandments are religious they also are a universal symbol of law.
The Ten Commandments, “perhaps more so than any other symbol, are uniquely symbolic of law,” Sekulow said. “When you see the Ten Commandments, people think of law, and you find this in the Supreme Court’s own chambers.
“You have to look at the Ten Commandments in this unique, universal appeal as a code of law,” he said. “When you see the tablets and someone with a beard holding those tablets, even if there is nothing written on those tablets, you kind of know it’s the Ten Commandments.”
Laycock said, “I don’t think the Ten Commandments are a secular symbol of law or a universal symbol of law. I think they are a Christian and Jewish symbol of law.”
He said, however, he thinks the high court’s commandments display is OK, “given the context that [it is] surrounded with in the Supreme Court.”
In the high court’s own chamber where the arguments will be conducted, there is a sculpture of Moses holding the tablets on which are some Hebrew words. Moses is included among a series of well-known lawgivers through the centuries. The Ten Commandments contain the only words in the frieze, Sekulow said.
Also, at the top of the east side of the court building’s exterior, there is a sculpture of Moses holding the tablets between two other famous lawgivers.
One of the questions the justices will consider is whether they should change their standard in determining when the First Amendment’s ban on government establishment of religion has been violated. The standard, known as the Lemon test, has guided the high court’s decision-making in such cases since it was outlined in the 1971 Lemon v. Kurtzman opinion. According to the test, a government does not establish religion if its action has a secular purpose, does not promote or inhibit religion and does not entangle government excessively with religion.
The Supreme Court’s rulings on the establishment clause in recent years have been “confusing, complex, contradictory, in many cases,” Sekulow said. The justices “have ignored [Lemon] when they wanted to. They have worked around it when they wanted to.”
Five or six justices have expressed misgivings about Lemon, “but five of them don’t have a way they want to proceed,” Sekulow said.
Laycock and Sekulow agreed the cases should be narrowly decided, and Associate Justices Sandra Day O’Connor and Anthony Kennedy will provide the determinative swing votes.
“It’s 4 to 3 to strike them down [among the other justices],” Laycock said. “It’s up to Kennedy and O’Connor, and I don’t think anybody can predict” what they will do.
The Pew Forum on Religion and Public Life sponsored the debate, which was 90 minutes long.