The Ten Commandments took center stage yesterday at the U.S. Supreme Court, with legal supporters urging they not be torn from the public square and opponents saying their presence evokes an improper blessing by government.
Justices questioned how displays of the Ten Commandments on government property compare to Thanksgiving proclamations, legislative prayers, and a marble carving above the justices that features Moses among other lawgivers. All those religious displays are considered constitutional.
“It’s so hard to draw that line,” said Justice Sandra Day O’Connor, referring to the point at which a government display involving religion becomes unconstitutional.
Back-to-back oral arguments focused on a monument at the Texas Capitol and courthouse displays in Kentucky. They figure into a much wider debate over the appropriateness of hundreds, if not thousands, of Ten Commandments displays across the country and dozens of court cases challenging whether these religious symbols represent a government endorsement of religion. In the days and weeks ahead of the arguments, people on both sides prayed, debated, and speculated about how the justices might rule.
“The Ten Commandments is enormously divisive right now,” argued Erwin Chemerinsky, who represented Thomas Van Orden, a homeless man who challenged the Texas monument.
He cited numerous examples of the tension, including hate messages he had received and especially the ousting of former Alabama Chief Justice Roy Moore, who unsuccessfully placed a commandments monument in his state’s judicial building.
In the Texas case, the court considered whether a 6-foot granite monument outside the state Capitol should be permitted to remain where it has been for decades, declaring “I am the Lord Thy God” in large letters.
Attorney Mathew Staver argued that the display of the commandments in Kentucky courthouses affirmed their role in shaping national history.
“There’s clearly no evidence that the display is solely intended to be a religious display,” said Staver, adding that those who were offended by them could “avert your eyes.”
In the Kentucky case, the justices were asked to determine whether displays of a framed version of the commandments—surrounded by other law-related documents—belong on courthouse walls. Staver discussed how government officials struggled to make the display constitutional by adding other historical documents such as the Declaration of Independence.
Justice David Souter questioned whether the other documents were added in good faith. Justice John Paul Stevens wondered if they were merely “litigation dressing.”
But Staver said that local government officials should not be penalized for trying to comply with the law.
“They were trying to do the best that they could,” he said, saying they didn’t have much guidance. “They’re not jurists schooled in the law.”
Two and half decades later, Texas Attorney General Greg Abbott argued for letting his state’s monument to the commandments stand.
“This court should agree that the Texas monument should not be torn down,” he said, saying the commandments have been historically recognized as a symbol of law and the monument has stood for decades “without controversy.”
Souter attempted to distinguish the Supreme Court frieze from the Texas monument, saying that Moses in the Supreme Court fit into a common theme about lawgivers while he saw no specific theme to the monuments on the Texas campus, which honor veterans and pioneer women.
But Abbott argued the Ten Commandments monument fits into a general theme of the entire display on the Capitol grounds, which recognizes historical influences on the nation.
David Friedman, who represented the American Civil Liberties Union in the Kentucky case, also made comparisons to the Supreme Court frieze. He said the Kentucky display more explicitly ties government to religion. “It is not a neutral display of lawgivers like the frieze in this court,” he said.
More than one justice turned the discussion to the religiosity of the nation.
Justice Antonin Scalia pointed out how many people nationwide affirm the essence of the commandments. “I think probably 90 percent of American people believe in the Ten Commandments,” he said, even though “85 percent couldn’t tell you what the 10 are.”
Justice Anthony Kennedy wondered if taking down the monuments to please the few would “be a hostility toward religion.”
Scalia seemed to agree. “We’re a tolerant society,” he said. “It seems to me the minority has to be tolerant of the majority’s belief.”
The court is expected to rule in June.
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Related Elsewhere:
Uproar Predicted If Justices Remove Public Ten Commandments Displays | Conservatives warn about “bulldozing” monuments, a backlash against “judicial activism,” and an “ugly” confirmation process for future justices.
Other Christianity Today coverage of the Ten Commandments debate includes:
Decalogue Debacle | What we can learn from a monument now locked in an Alabama closet. (April 12, 2004)
The Tourist Attraction That Isn’t There | Alabama’s Ten Commandments monument still drawing visitors despite its absence from the state Supreme Court building. (Jan. 12, 2004)
God Reigns-Even in Alabama | Let’s not make the Commandments into a graven image. (Oct. 2003)
How to Really Keep the Commandments in Alabama—and Elsewhere | Since when did the public display of the Ten Commandments become the eleventh commandment? (Sept. 03, 2003)
The Ten Commandments, How Deep Our Debt | The words of the Decalogue run like a river through not only the church but also English and American history. (Aug. 22, 2003)
Ten Commandments Judge Praised and Panned | Roy Moore fulfills a campaign promise with a 5,280-pound granite monument. (Nov. 29, 2001)
Why Rules Rule | Debates on the Ten Commandments expose our culture’s ultimate rift. (Sept. 6, 2001)
Ten Commandments Case Turned Down | Denial means Indiana town’s Decalogue display is unconstitutional. (June 13, 2001)
Ten-Commandments Judge Aims for High Post | After taking on the ACLU, Moore is now a nominee for the Alabama Supreme Court. (Aug. 1, 2000)
Hang Ten? | Thou shalt avoid Ten Commandments tokenism. (March 6, 2000)
Ten Commandments Judge Cleared | Roy Moore’s integrity confirmed regarding legal fund. (Oct. 25, 1999)
House Upholds Display of Ten Commandments | Spurred by recent fatal shootings in public schools, the House of Representatives voted to permit the display of the Ten Commandments. (April 9, 1999)
Ten Commandments Judge Looking for Federal Fight | Does Judge Roy Moore’s courtroom display defy separation of church and state? (Dec. 12, 1997)
