WASHINGTON—The Supreme Court on Wednesday challenged advocates for the public display of the Ten Commandments in courthouses and other government settings to justify the monuments as something other than religion in disguise.
The justices heard arguments in three cases—involving monuments in Kentucky and Texas—that pit those who want to honor the commandments as the fundamental basis for Western jurisprudence against those who want to strip references to religion from public life on the grounds that they violate the separation of church and state.
As expected, the justices attempted to sort out the context and intent of each display. They seemed less comfortable with the circumstances behind the monuments in two Kentucky courthouses and more at ease with Texas' 40-monument park, which included one display of the commandments.
A lawyer for an Austin man who opposes the Texas monument tried to convince the justices that there is an express religious purpose behind the display, but faced tough questions. The small stone monument sits in a park with about 40 other non-religious items, and has been there for 40 years.
"If the legislature can open sessions with a prayer, why can't they place a copy of the Ten Commandments in their hall?" Justice Sandra Day O'Connor asked Erwin Chemerinsky, a Duke law professor and First Amendment expert representing the Austin man. "It's just so hard to draw that line."
Justice Anthony Kennedy said Chemerinsky seemed to be asserting hostility to religious belief and expression. He said he wasn't sure the court should indulge the "obsessive concern with any mention of religion."
"Can't an atheist just avert his eyes?" Kennedy asked.
Chemerinsky insisted that the Ten Commandments, by definition, are religious, and therefore have no place in government space.
"This is the most powerful and profound religious message," Chemerinsky said. "It says God has dictated the rules of behavior to his people."
The justices seemed more skeptical of the rationale offered by lawyers for two Kentucky counties that put the commandments up in their courthouses.
Mathew Staver told the court that they shouldn't look at whether Kentucky officials intended to endorse religion by hanging the displays; instead they should accept that the Ten Commandments played an influential role in secular law and are therefore appropriate.
Justice David Souter said that would invite counties to pursue religious endorsement while simply calling it an acknowledgment of history.
"Should anyone believe these displays would be there for any other reason than religious display of the Commandments?" Souter asked. "The court doesn't say you can involve the state in religion so long as you hide the ball well enough."
The court's decision, expected by July, would clarify church and state boundaries that are increasingly the subject of a heated national debate. The Ten Commandments have become a symbol of the struggle over whether government should have a religious or secular foundation. At its base, the argument is about the country's founding, its history and direction.
The court hasn't always been clear about where the line is.
The court has outlawed prayer or the posting of the Ten Commandments in schools, for example, but has said the prayer to open congressional sessions is OK. It has sanctioned certain religious holiday displays, but not defined clear tests for when they amount to unconstitutional religious endorsement.
In Wednesday's arguments, both sides claimed a display of Moses and the Ten Commandments in the Supreme Court building itself supported their position. Advocates for Texas and Kentucky said it wasn't different from their displays; challengers said the marble friezes, which display historic lawgivers, are more secular than any of the representations at issue in the cases.
Texas Attorney General Greg Abbott seemed to argue Wednesday that the Ten Commandments have no significant religious component when they're displayed in the context of other symbols—even if those other symbols have nothing to do with law or religion. But the Austin man challenging the monument there would always classify the Ten Commandments as religious.
Kentucky officials are asking the court to rule that the Commandments are fine even if they're hung alone in public spaces. But the Kentucky challengers say the court should focus on the intent of the display—whether officials had an express religious purpose—when they decide these issues.
"The counties announced their purpose in the displays and resolutions authorizing the displays," David Friedman, a lawyer for the Kentucky ACLU, told the justices. "They said this is a Christian nation. They said the Commandments are the foundation for the Declaration of Independence and American law. They intended the display not for history, but because of its religious nature."
Justice Antonin Scalia said that shouldn't matter in the court's decision, because it's "idiotic" to draw any connection between the Ten Commandments and the Declaration.
But he insisted that the Commandments are appropriate as an acknowledgement that the nation's moral compass is derived from God. "That's all it is," Scalia said.
(c) 2005, Knight Ridder/Tribune Information Services.
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