WASHINGTON (BP)–The U.S. Supreme Court sparred March 2 with lawyers in two cases involving public displays of the Ten Commandments that center on the proper relationship between church and state.
The justices heard oral arguments for two consecutive hours in the cases, which differed factually though both were about Ten Commandments displays on government property. During the first hour, representatives of both the state of Texas and the U.S. Department of Justice argued that a stand-alone monument on the state capitol grounds in Austin is constitutional. In the second hour, the DOJ joined religious liberty lawyer Mathew Staver in urging the high court to validate the inclusion of the Ten Commandments in a display of historical documents in two Kentucky county courthouses.
The justices are expected to rule on both cases in either a consolidated opinion or separate decisions before they adjourn this summer. They listened to the arguments with the recognition that the Ten Commandments are displayed in thousands of government settings throughout the country, including inside and outside their own chamber, though the high court’s sculptures do not include the English text.
The cases came to the Supreme Court with different track records. The Fifth Circuit Court of Appeals ruled in Van Orden v. Perry that the monument on the Texas capitol grounds 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, however, the Sixth Circuit decided the Ten Commandments’ place in the display violated the First Amendment’s ban on government establishment of religion. Both displays include the English text.
The six-foot-tall Texas monument, which is one of 17 on the capitol grounds, sends a “powerful religious message” of endorsement that is unconstitutional, lawyer Erwin Chemerinsky told the justices.
Some members of the court challenged his assertion, however, asking his position on Thanksgiving proclamations and prayers by chaplains in legislatures.
Chemerinsky did not find fault with those scenarios and said it was permissible for government to place religious symbols on its property but not the Ten Commandments as a solitary display.
Associate Justice Antonin Scalia said of Chemerinsky’s distinction between legislative prayers and a Ten Commandments display, “I don’t see why the one is good and the other is bad.”
Associate Justice Sandra Day O’Connor told him it is “so hard to draw that line” between legislative prayers and the Ten Commandments on the capitol grounds.
“This is God dictating to God’s followers rules for behavior,” Chemerinsky said of the Ten Commandments. The government cannot make “some [people] feel like they’re insiders and some feel like they’re outsiders,” he told the court.
Associate Justice Anthony Kennedy and Scalia both told Chemerinsky his position sounded like hostility toward religion. “I think you’re telling us the state cannot accommodate religion,” Kennedy said.
Texas Attorney General Greg Abbott told the court the Ten Commandments are an “historically recognized symbol of law” and send both a secular and religious message. He denied he wanted the justices to ignore its religious purpose, saying “religion was not a driving purpose” in the monument’s establishment.
As did other justices during the arguments, Associate Justice David Souter referred to the sculpture of Moses and the Ten Commandments among a series of famous lawgivers on the court chamber’s south frieze. “There is an obvious theme … lawgivers,” said Souter, denying there was a theme in the Texas displays.
Acting Solicitor General Paul Clement told the court the Ten Commandments have “undeniable religious significance, but they also have secular significance as a [universal symbol of law].”
The Texas monument “is not endorsing the religious text,” Clement said. “I would hope the constitutional line wouldn’t be: ‘There can’t be text.’”
A sizable portion of the arguments in the Kentucky case involved the history of the displays in two counties in the southern part of the state, McCreary and Pulaski. The displays were just of the Ten Commandments originally but eventually were changed to include other documents, such as the Declaration of Independence, Bill of Rights and Magna Carta.
Staver, president of Liberty Counsel, said the displays should not always be tainted because of their original content. “As government officials, they’ve got to be able to correct their missteps when they step on a constitutional landmine,” he said.
Referring to changes in the display, Justice Souter said it would be “crazy law” to say government can endorse religion “as long as you hide the ball well enough.”
Clement countered, saying he thought it would be “crazy law” to allow the Ten Commandments as part of historical displays in all the county courthouses in Kentucky except for McCreary and Pulaski counties, because of the history of their exhibits.
Arguing on behalf of the ACLU, David Friedman disagreed. “I don’t think [the taint] can dissipate,” Friedman said. It is not a neutral display because it still asserts “the primacy of the Ten Commandments” in American law, he said.
Scalia said he thought all the displays stand for is the belief the moral code of law comes from God. “What the commandments stand for is the direction of human affairs by God,” he said.
One of the questions the justices are considering is whether they should change their standard in determining when the establishment clause 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.
In his brief, Staver called for a new three-part test based on whether a governmental action comports with history and ubiquity, fails to coerce religious participation and does not discriminate among sects based solely upon religious character.