Nine Justices, Ten Commandments, Two Important Cases

Church-State Separation hangs In The Balance As The Supreme Court Debates Decalogue Displays

Supreme Court Justice Antonin Scalia has some advice for all those people out there who might be offended by government’s display of the Ten Commandments: Just stop looking at them.

“Turn your eyes away if it’s such a big deal to you,” Scalia chided during an oral argument at the high court March 2.

Scalia’s fellow justice, Anthony M. Kennedy, had a similar thought.

“This is the classic ‘avert your eyes,’” he insisted. “If an atheist walked by, he can avert his eyes, he can think about something else.”

The Scalia and Kennedy descents into intolerance came during two hours of back-to-back oral arguments over the constitutionality of government-sponsored Commandments displays in Texas and Kentucky. At the end of the spirited session, the justices had asked many questions but shed little light on the quandary they face: How much government promotion of religion is too much?

Perhaps a defining moment occurred when Justice Sandra Day O’Connor expressed her frustration by blurting out, “It’s so hard to draw the line!”

Americans United Legal Director Ayesha Khan, who observed both arguments at the high court, said it’s unfortunate that some of the justices are so confused over the issue.

“The United States should have nothing like an official religion, even in a watered-down or generic sense,” Khan said. “The Ten Commandments can be displayed by government as part of an historic display, as the Supreme Court itself does. But that’s not what the state of Texas and McCreary County have done. Their aim is to promote religion, and this the high court must not allow.”

At issue are two separate displays with their own unique sets of facts. The Texas dispute, Van Orden v. Perry, challenges a granite Commandments marker displayed on the 22-acre grounds of the Texas state capitol along with other monuments, mostly war memorials. The second case, McCreary County v. ACLU of Kentucky, deals with a Kentucky county that displayed the Commandments on the walls of its courthouse and added other legal documents to the display only after a federal court struck down the Decalogue-only posting. The new display was also declared unconstitutional.

Van Orden was argued first. The case was originally brought by Thomas Van Orden, a Vietnam veteran and homeless lawyer in Austin who argued it himself in the lower courts. Unable to travel to Washington and battling depression, Van Orden turned the case over to Duke University professor Erwin Chemerinsky, a noted constitutional law scholar.

The Texas monument’s religiosity would seem to be undeniable. The tablet is inscribed with the words, “I AM the LORD thy God” and goes on to list the Commandments in the order used by most Protestant groups. The bottom of the monument includes two Stars of David and the Greek letters chi and rho, which, when superimposed, stand for Christ.

Chemerinsky had barely started explaining this when Scalia pounced, demanding to know if all ceremonial uses of religion by government, such as Thanksgiving proclamations, are unconstitutional.

Chemerinsky calmly pointed out that the high court has approved things like legislative chaplains.

“It all depends on how it is done,” he said. He argued that Texas stepped over the line by erecting a six-foot monument that “proclaims not only there is a God, but God has dictated rules of behavior for those who follow him or her.”

Scalia would have none of it. Asserting that “90 percent of the people believe in the Ten Commandments, and I’ll bet you 85 percent of them couldn’t tell you what the 10 are,” the combative justice insisted that government display of the Decalogue is simply no big deal.

“It’s a symbol of the fact that government comes – derives its authority from God,” Scalia said. “And that is, it seems to me, an appropriate symbol to be on state grounds.”

But Scalia didn’t stop there. “We’re a tolerant society religiously,” he opined, “but just as the majority has to be tolerant of minority views in matters of religion, it seems to me the minority has to be tolerant of the majority’s ability to express its belief that government comes from God, which is what this is about.”

Chemerinsky also had to deal with a series of questions from O’Connor, considered a swing voter, who seemed to be looking for a way to approve Texas’ monument. First, she demanded to know if the state capitol grounds are like a museum. Later, she wanted to know if the monument could be displayed simply because it is 44 years old and might be of historic value.

Kennedy, another swing voter, seemed caught up in the idea that ordering the removal of religious influences from courtrooms might signal government hostility toward religion. When Kennedy asserted that Americans take religion seriously and to pretend otherwise is hostility, Chemerinsky replied, “It is about making sure that every person who walks into that courtroom can feel that it’s his or her government.”

Texas Attorney General Greg Abbott followed Chemerinsky. Abbott began by arguing that the monument should be allowed to stay because it was a gift to the state from the Fraternal Order of the Eagles, it is smaller than the other monuments around it and it has been there since 1961.

Justice John Paul Stevens quickly cut in with a question: Could the state erect a crucifix? Abbott replied, “I think that would pose a much greater problem” and asserted the two are not the same because a crucifix is not a recognized symbol of the law.

But that statement seemed to annoy Scalia. He accused Abbott of “watering down” the religious message of the Commandments and said it would be a “Pyrrhic victory” if Texas won only because it convinced the court that the Ten Commandments really aren’t religious.

Justice David H. Souter then challenged Abbott on the state’s involvement in erecting the monument. Texas officials, Souter noted, do not permit any group that asks to put a monument on the capitol grounds; the organizations must receive approval first from the state. This sends a message, Souter said, “that the state of Texas approved this message, and thought it was appropriate to devote state property to its promulgation.”

Pointing to a frieze running along the courtroom that depicts a parade of historic lawgivers ranging from Hammurabi and Solon to Confucius and Napoleon, Souter noted that Moses is among them, but added, “There is an obvious theme. Anybody who looks at the identity, or knows the identity of these figures, is saying they’re getting lawgivers. But if you look at the grounds of the Texas State Capitol, you see wars, pioneer women, children and so on. There is no one common theme. The only theme seems to be these are objects or symbols that are worthy of some kind of respect.”

Abbott replied that the Texas array does have a common theme of recognizing historical influences.

Acting U.S. Solicitor General Paul D. Clement was allotted 10 minutes to argue on behalf of the Commandments. Picking up on Kennedy’s concern, Clement, speaking for the Justice Depart­ment and by extension the Bush administration, asserted that it would be hostility toward religion to remove the monument.

But almost immediately Clement was challenged by Justice Ruth Bader Ginsburg, who wanted to know if a courthouse could display a huge Commandments monument in its rotunda, similar to one erected by former Alabama Chief Justice Roy Moore.

Interestingly, Clement refused to defend Moore’s display. It had the effect, he said, of making the court rotunda look too much like a “religious sanctuary within the walls of a courthouse.” Such a display, Clement conceded, “may well cross the constitutional line.”

Summing up, Clement told the court, “The state can have, as this court has acknowledged many times, permissible acknowledgements of religion. And I don’t think in this case that the state of Texas has gone too far.”

Religious Right attorney Mathew D. Staver of the Florida-based Liberty Counsel then began arguments in the Kentucky case.

The situation in McCreary and Pulaski counties present a unique set of facts. Officials in the counties first posted the Ten Commandments alone. When a federal court ruled those displays unconstitutional, the officials added other documents that purported to show America’s “Christian heritage.”

To many observers, the new displays were even worse, and they too were struck down by the federal court. County officials then erected new displays that include the Commandments as well as the Declaration of Independence, “The Star-Spangled Banner,” the Mayflower Compact, the Bill of Rights, the Magna Carta, the seal of the United States and the Preamble to the Kentucky Constitution.

Staver started off by asserting that the Ten Commandments appear in courthouses “all over this nation. It is associated with courthouses for a clear historic reason, because the Ten Commandments has played an influential role in American law and government and our system of law in this country.”

But Souter seemed skeptical that the claim was relevant. McCreary County, he noted, erected its Commandments display recently and added other historic documents only begrudgingly. The county’s intent, he asserted, was to endorse religion.

“Should anyone believe these displays would be there for any other reason than religious display of the Command­ments?” Souter asked. “It would be crazy law from this Court that said you can engage in religious endorsement, promotions, etc., so long as you hide the ball well enough.”

Staver insisted that the county has abandoned its religious intent and said McCreary officials should not be punished for trying to do the right thing.

Asked by Kennedy if the display is in any way coercive or harmful to those who may disagree with it, Staver responded, “It’s a passive display in a courthouse in a hallway and you could simply walk past that and avert your eyes once you see this. It inflicts no harm….”

Staver also asserted that the Ten Commandments are a “unique symbol.” They helped shape the law, he asserted, but they are not all that religious.

Said Staver, “It does have some statements about God, but frankly, very few when you look at the overall context.”

It was a curious argument for a Christian fundamentalist to make, and it didn’t go unchallenged. Staver’s claim led Ginsburg to fire back, “Have you read the first four commandments and could you say that?”

Staver bent over backwards to present a reasonable-sounding argument before the Supreme Court. In reality, the attorney, now affiliated with TV preacher Jerry Falwell, has ambitious goals: He and Falwell would like to see the high court toss out its long-standing guidelines for deciding church-state cases. Both Falwell and Staver have called the church-state wall a myth. Staver, however, is savvy enough to realize that he can’t take an outrageous argument into the Supreme Court and win, so even he argued that displaying the Commandments need not be a religious act.

That argument – the secularization of the Ten Command­ments – was picked up by Clement, who took the last 10 minutes of Staver’s time. Clement, once again representing the U.S. government, insisted that Ten Commandments displays are merely meant to honor history and not promote religion.

The final argument of the morning was presented by David A. Friedman, an ACLU attorney from Louisville, Ky. Friedman strongly opposed claims by Staver and Clement that the Mc­Creary County display had a non-religious purpose. The history of how it got there, he told the justices, clearly belies that.

Friedman noted that county officials posted the Command­ments in three different displays, calling them “the moral background of the Declaration of Independence.” The county also passed a resolution lauding America as a “Christian nation” and stated upfront that one of the displays was intended to honor America’s “Christian heritage.”

“[The county’s] asserted secular purpose is a sham,” Friedman argued.

None of this mattered to Scalia. He called the idea that the Declaration of Independence sprang from the Ten Com­mand­ments “idiotic.”

“You can’t get the Dec­laration of Independence from the Ten Command­ments,” he said, adding, “And I don’t think that’s how somebody would normally read it. I think what they’re saying is the principle of laws being ordained by God is the foundation of the laws of this state and the foundation of our legal system.”

In belittling the facts of the case, Scalia seemed to be arguing that the county’s clearly religious motivation could be safely cast aside simply because it is implausible.

But Friedman stuck to his guns, noting that county officials obviously wanted to endorse religion. The resolution lauding Jesus remains in force, he said, and anyone who followed the controversy in the small, rural county would know that.

Stevens then asked if the display would be unconstitutional had county officials never passed the resolution or promoted religion in other ways.

“It would be a closer question,” Friedman replied, “but in this context, what we have is the assertion that the Ten Commandments are the source, the moral background of the Declaration of Independence, the foundation of our legal system. It is not incorporating the Ten Commandments as part of a neutral course of study. It is not like having Moses along with 15 other...lawgivers. It is the assertion of the primacy of the Ten Commandments.”

By the end of the two hours, the frustration some of the justices felt in trying to determine where to draw the line was clear. During Abbott’s argument, Stevens asked if it would help if Texas officials put up a disclaimer explaining that the Commandments monument had been donated by a private group.

When Abbott replied, “That would help,” Scalia quickly interjected, “Then why don’t you do it, and we won’t have this case?,” sparking a round of laughter in the courtroom.

Religious Right groups are well aware that these cases represent a type of culture war showdown – and they dropped amicus briefs all over the court.

At the same time, defenders of church-state separation have hardly been silent. Americans United filed friend-of-the-court briefs in both cases, joined by People For the American Way Foundation and National Council of Jewish Women.

In McCreary, friend-of-the court briefs were filed on the side of the county by: TV preacher Pat Robertson’s American Center for Law and Justice; the American Legion; the Ashbrook Center and Ohio Sen. Bill Harris; the Becket Fund for Religious Liberty; the Conservative Legal Defense and Education Fund, Joyce Meyer Ministries, Committee to Protect the Family Foundation, Lincoln Institute for Research and Education, American Heritage Party, Public Advocate of the United States, Radio Liberty, and Spiritual Counterfeits Project; Phyllis Schlafly’s Eagle Forum Education and Legal Defense Fund; Family Research Council and James Dobson’s Focus on the Family; Roy Moore’s Foundation for Moral Law; Judicial Watch; the Pacific Justice Institute; the Rutherford Institute; the Thomas More Law Center and David Barton’s WallBuilders.

In addition, a number of states joined forces to file briefs in support of the Ten Commandments displays. One brief includes Alaba­ma, Florida, Idaho, Indiana, Kansas, Kentucky, Louisi­ana, Mississippi, Ohio, Pennsylvania, South Carolina, Texas, Utah, Virginia and Wyoming. Another consists of the states of Minnesota, Missouri, Illinois, Iowa, New Mexico, Oklahoma and Wisconsin.

Amicus briefs in support of the ACLU of Kentucky included: the Anti-Defamation League and Philip A. Cunningham of Center for Christian-Jewish Learning at Boston College; American Atheists; the Atheist Law Center; the Baptist Joint Committee on Public Affairs, the American Jewish Committee, the American Jewish Congress and The Interfaith Alliance Foundation; the Freedom From Religion Foundation and a brief filed by several legal historians and law scholars.

In the Van Orden case, briefs filed on the side of the state of Texas are: the American Center for Law and Justice; the American Family Association Center for Law and Policy; the Becket Fund for Religious Liberty; the Claremont Institute Center for Constitutional Jurisprudence; Family Research Council and Focus on the Family; the Fraternal Order of Eagles; the National Jewish Commission on Law and Public Affairs; the Rutherford Institute and WallBuilders.

States filing briefs were: Indiana, Alabama, Arizona, Arkansas, Florida, Idaho, Kansas, Kentucky, Louisiana, Mississippi, North Dakota, Ohio, Pennsylvania, South Carolina, South Dakota, Utah, Virginia and Wyoming and a separate brief by Indiana, Alabama, Delaware, Florida, Kansas, North Dakota, South Carolina, Utah and Virginia.

Pro-separation briefs were filed by the Baptist Joint Committee and Interfaith Alliance Foundation, as well as a separate brief by the Hindu American Foundation.

The legal historians’ brief filed in the McCreary case is especially enlightening. Coordinated by Steven K. Green, former AU legal director who now teaches at Willamette University College of Law in Oregon, the brief debunks the common Reli­gious Right claim that U.S. law is based on the Ten Command­ments.

The brief traces the development of civil law during the founding period of American history and notes that the Constitution and Bill of Rights “did not include even a perfunctory or formalistic reference to God.”

Observes the brief, “Thus, it comes as no surprise that the Ten Commandments and biblical law received nary a mention in the debates and publications surrounding the founding documents. In the wide-ranging debates – reprinted in Madison’s Notes, the Annals of Congress, Farrand’s Records, Elliot’s Debates, and elsewhere – the Founders mentioned Roman law, European Continental law, British law, and various other legal systems, but as can best be determined, no delegate ever mentioned the Ten Commandments or the Bible.”

Aside from filing briefs, Americans United helped organize a show of support for church-state separation outside the court as well. When AU staff members learned that Religious Right activists planned to demonstrate outside the court the morning of the arguments, they worked with other separationist activists to organize a counter-demonstration.

The morning was chilly with temperatures hovering near freezing, but rally attendees didn’t let that dampen their enthusiasm. From a make-shift stage, the Rev. Cedric Harmon, AU’s associate field director for religious outreach, reminded attendees that the Religious Right does not speak for all Americans.

Harmon, an ordained minister, told the crowd he honors the Ten Commandments and is offended by claims that the document isn’t really religious.

“The First Amendment wisely promotes religious liberty and provides for freedom of conscience,” Harmon said. “In so doing, it honors the spirit of ‘loving your neighbor as yourself.’ No one should be coerced or force-fed religion at a courthouse, statehouse or capitol building. Faith is a deeply personal matter and must be left to the dictates of one’s heart. And the Ten Commandments, just on the basis of simple and certain common sense, are all about religion.”

AU members, some religious and some non-religious, joined forces at the rally to support the wall of separation between church and state.

“I don’t think government should be in the business of morality,” David Condo, an AU member from Beltsville, Md., told the Associated Press. “I’d rather brave the elements on a cold morning than start on a slippery slope to theocracy.”
AU Legal Director Khan, who observed the arguments along with AU Executive Director Barry W. Lynn, Assistant Legal Director Richard B. Katskee and Senior Litigation Counsel Alex Luchenitser, said the rulings, expected by the end of June, will be very important to Americans United.

AU is currently litigating Commandments cases in Washington state and Maryland. It was considering adding others but put them on hold when the high court announced it would hear these disputes.