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Justices to hear Ten Commandments cases below image of Moses

WASHINGTON—Any visitor to the Supreme Court can see it, high above the red velvet drapes and marble columns in the justices' august courtroom: a depiction of Moses, carrying the Ten Commandments.

One might think the presence of Mosaic law in the nation's highest court would give lift to arguments that there's nothing wrong with the commingling of church and state.

On Wednesday, when the court hears two blockbuster cases challenging Ten Commandments monuments at the Texas Capitol and in two Kentucky courthouses, the justices will be confronted with briefs that cite the high court depiction—and the nation's history—as proof that wedded images of church and state are just fine.

But look more closely at what's at the Supreme Court:

Moses isn't alone in the sculpted mural that sits high on the courtroom's east wall. He's sharing space with more than a dozen other figures, including the Babylonian King Hammurabi, the Chinese philosopher Confucius, French Emperor Napoleon and the Muslim prophet Muhammad, who's pictured holding the Quran.

There's no particular religious significance assigned to Moses or anyone else in the mural, and Moses is far from the central character.

Adolph Weinman, the artist who was hired in 1931 to create the sculptures for the building, described them as a "procession of the great lawgivers of history." Correspondence between Weisman and Cass Gilbert, the courthouse architect, reveals nothing about religion.

The lesson: Context matters. So does intent. They mark the line between acceptable public recognition of religious history and unconstitutional government endorsement of particular sectarian beliefs. And they're the tests the court will apply in deciding about the Texas and Kentucky displays.

"Moses isn't in the Supreme Court mural as a religious figure, but as a historical one," said Barry Lynn, a minister in the United Church of Christ and a constitutional expert whose group, Americans United for Separation of Church and State, supports the removal of the Texas and Kentucky monuments. "That's a totally different thing."

Jay Sekulow, the chief counsel for the American Center for Law and Justice, which supports the monuments in both states and will defend Texas in court Wednesday, said the states' displays should survive on context and intent.

He said the Ten Commandments are to law what McDonald's is to fast food, markers so fundamental that they define everything that comes after them. But he said they would be just as acceptable even if their intent were explicitly religious.

"In a case like this, overtly sectarian purposes make cases more difficult but not impossible," Sekulow said. "But there's no doubt the founding generation had a religious influence, and even the Supreme Court admitted this is a Christian nation up until the 1930s."

The court steps into these cases as the issue has reached near-fever pitch.

Last year, Alabama Chief Justice Roy Moore lost his job for defying an order to remove a large Ten Commandments monument from his courthouse steps. His monument is now on a national tour and support for the ousted judge nearly inspired him to run for president.

In legislatures, city halls and county courthouses around the country, politicians and judges are being drawn into similar battles that in a larger sense challenge the very basis of the nation's founding.

Some Christian conservatives see the monuments as a way to loosen more of the nation's church-state separation and to assert that America's birth was a religious exercise.

Justice Clarence Thomas, in an opinion about the words "under God" in the Pledge of Allegiance, said last year that the First Amendment barred only the federal government, not states or local governments, from fully embracing religious endorsement.

"It's a position that's gaining strength," Sekulow said.

Lynn said that reasoning was flawed.

"It's just a completely false history that's being promoted," said Lynn, whose group has been resisting what it sees as attempts to overstate the importance of religion in the nation's founding.

"It's bad logic and bad history that's fueling this, and it's dangerous. Religion and the Constitution just aren't related. None of the debates over the Constitution are over how to fit this into a biblical context."

Lynn said there were several important contradictions between the Ten Commandments and the Bill of Rights. Prohibitions on taking the Lord's name in vain conflict with guarantees of free speech. The Ten Commandments' insistence on recognizing only one God contradicts the Constitution's guarantee of the free exercise of religion.

"We don't have laws against coveting, either, or else everyone whose neighbor had an SUV would be in the penitentiary," Lynn said. "The idea of keeping a separation between religious institutions and government, in my view, is one of the greatest contributions the U.S. has made to world thinking. And they're trying to destroy that."

Both sides in the cases to be heard Wednesday claim they have history, context and intent on their side.

In Kentucky, where courthouses in two counties were adorned with Ten Commandments displays in 1999, lawyers for the local officials said that because the displays were later surrounded with other historical documents, they lost any religious meaning or intent.

"The display is about law, not religion," the counties assert in their brief to the court. "The Ten Commandments are law and have influenced American law. The purpose of the display is to educate about some of the documents that influenced law and government. That purpose is secular."

The American Civil Liberties Union, which is challenging the Kentucky displays, charges that surrounding the Commandments with other information was just a cover.

"They have erected displays highlighting the religious nature of the Ten Commandments," the ACLU's brief says. "They have announced their purpose of demonstrating `America's Christian heritage.'"

In Texas, the monument at issue is between the state Capitol and the statehouse, on a historic site that includes several other monuments. The Ten Commandments have been there since 1961.

A homeless man, with the ACLU's help, challenged the monument, but the state said it was historical in nature, not religious.

In 1980, the last time the high court dealt with the Ten Commandments, it barred a Kentucky school district from posting them in classrooms. In its 5-4 ruling, the justices said it amounted to a government endorsement of religion.

Sekulow hopes the justices see the connection between the Texas and Kentucky displays and what's above them in their courtroom.

"The Commandments represent law and the Western development of law," he said. "That's all we need them to say."

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The Supreme Court's courtroom friezes are shown and described on the Web at

http://www.supremecourtus.gov/about/north&southwalls.pdf

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(c) 2005, Knight Ridder/Tribune Information Services.

PHOTO (from KRT Photo Service, 202-383-6099): SCOTUS-COMMANDMENTS

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