Church-state cases before the Supreme Court always precipitate a whirlwind of activity here at Americans United. This was particularly true in early March when a duo of back-to-back arguments about placement of the Ten Commandments on government property were argued, one from Texas and the other from Kentucky.
I was up early to tape a debate for MSNBC with Jay Sekulow, chief counsel of the American Center for Law and Justice. It was then just a two-floor elevator ride down to the studios of C-SPAN. There I did a 45-minute discussion on “Washington Journal” with Kelly Shackleford, an attorney with a Texas-based group called the Liberty Legal Institute.
Shackleford’s main argument was that if the court rules that the six-foot-high granite display on the grounds of the Texas state capitol is unconstitutional, then thousands of these monoliths will have to be “bulldozed” off public land. I explained that, given the number of churches in America, these structures could simply and reverentially be relocated to appropriate private spaces.
Apparently my comments were not reassuring, because Shackleford used the bulldozer image another five times during the show. Several callers to the program made particularly offensive references to minority religious groups.
The oral arguments were up next. Arriving at the court, I spotted demonstrators on both sides and was pleased to see a healthy number of Americans United members were among them, some being interviewed by the media.
The arguments were simultaneously enlightening and scary. Duke University Law School professor Erwin Chemerinsky began to set out the argument in the Texas case (representing the plaintiff, who is a homeless former attorney), but after just a few sentences, as is so often the case, Justice Antonin Scalia interrupted with a harangue disguised as a question.
Scalia has an extremely narrow view of religious freedom, but he seemed particularly antagonistic that morning – perhaps hitting a new low. According to Scalia, government-sponsored Commandments displays are only intended to reinforce the idea that our government flows from God. He has a simple remedy for those who might be offended: “Turn your eyes away if it’s such a big deal to you.”
Thankfully, many of the other justices asked more thoughtful questions that indicated they were taking the issue more seriously. Justice Ruth Bader Ginsberg challenged an assertion by Mathew Staver of the conservative Liberty Counsel that the Ten Commandments aren’t really that religious, firing back, “Have you read the first four commandments and could you say that?”
From the court, I headed over to the offices of the Fox News Channel to discuss the arguments. To my surprise, I encountered former Alabama Chief Justice Roy Moore in the “green room.” Despite AU’s long legal tangle with him over his display of his two-and-a-half-ton granite Ten Commandments in the state judicial building, I had never met the man face to face. We had a civil, albeit chilly, conversation. I commented that I had “followed your career”; he responded, “I’ve noticed.”
As I was on Fox, Cedric Harmon, AU’s associate field director for religious outreach, was on CNN debating Religious Right pastor Lou Sheldon of the Traditional Values Coalition. Cedric, who like me is an ordained minister, made it clear that religious leaders can handle the promotion of the Commandments without the “help” of government. I thought Cedric “handled” the flamboyant Sheldon well himself.
I wrapped up my day with another appearance with Sekulow, this time before a live audience on CNN’s “Crossfire.” Other AU staff members were discussing the controversy on talk radio that night and for the next few days.
It is very difficult to tell how these cases will turn out. The court remains closely divided over many church-state issues. Justice Sandra Day O’Connor is considered a swing vote, and she asked probing questions of both sides.
It’s also important to remember that there are two different kinds of displays being challenged, and the specific facts could make all the difference. The Texas case challenges a Commandments monument that has stood on the grounds of the state capitol since l961. There are other types of monuments displayed, mostly war memorials, but these are spread out all over the 22-acre grounds.
The McCreary County, Ky., display is much more recent. It now includes other “historic documents” (like the Magna Charta), but those were only added after a lower court struck down the display of a framed Decalogue alone on the wall.
In other cases in other courts, context (age, size, surroundings) has been everything. Here, the Supreme Court could uphold one display while striking down another. I’m not making any predictions, but I can guarantee that just as Americans United filed briefs in both of these cases, we will be vigilant and remain involved as much as the results permit. Hearing the arguments only strengthened my resolve that government “owned and operated” religious displays have no place in America.
Whether you see or hear any of us in the electronic media, or see us quoted in print, be assured we are out there with the Americans United message far and wide. A strong defense of the separation of church and state means we need to be wherever the battle is on: in the press, in the courts and legislatures or at demonstrations outside the seats of power.
Barry W. Lynn is executive director of Americans United for Separation of Church and State.