Supreme Court Hears Ten Commandments Case
WASHINGTON — The United States Supreme Court was to hear hear oral arguments March 2 in two cases involving the constitutionality of public displays of the Ten Commandments.
The Bush administration, 22 states and a host of organizations have all filed briefs with the high court supporting states’ rights to have them displayed publicly.
The Ten Commandments are currently on display in government buildings throughout the United States, but the question before the Supreme Court is whether states displaying them are in violation of the First Amendment’s establishment clause, which states that “Congress shall make no law respecting an establishment of religion.”
State courts have reached differing decisions in the two cases before the court. In Kentucky, a lower court ordered officials in McCreary and Pulaski counties to remove a Ten Commandments display from courthouse walls, while a Texas appeals court allowed a 6-foot monument bearing the Decalogue to remain on the grounds of the Austin Capitol.
Ben Taylor, spokesman for Texas Attorney General Greg Abbott, said he believes the high court will allow the monument to remain where it has stood since 1961 when the Fraternal Order of Eagles donated it to the state.
“They had donated similar monuments to other states around the same time to promote a personal code of conduct for youth and to combat what they saw as a problem with juvenile delinquency,” he said.
The Texas Legislature has to approve any donation to the state, Taylor said.
“The Fraternal Order of Eagles donated the monument to the state for secular reasons. It was in that sprit that the legislature accepted it. There’s no record of clergy being present when the monument was dedicated, and when it was placed, the legislature specifically placed it … with an eye toward recognizing its impact on Texas laws, Texas legal institutions. It was placed halfway between the capital and the state Supreme Court building to symbolize that impact.”
But Erwin Chemerinsky, a Duke University law professor who was to argue the case at the Supreme Court against Texas, said that the state is in violation of the establishment clause.
“If it were one of several religious monuments together to celebrate the diversity of religion in Texas, it would be fine,” he said. “If it were one of several monuments about the origins of law, it would be fine. This stands by itself as the only religious monument.
“If the casual observer would see this as an endorsement of religion, it violates the establishment clause. I think the Ten Commandments with the big letters, ‘I am the Lord thy God,’ clearly does this.”
Edward White III, trial lawyer for the Thomas More Law Center in Ann Arbor, Mich., however, says Chemerinsky’s argument is too narrowly focused.
In its decision on the case, the Fifth Circuit Court of Appeals ruled that the Texas monument is constitutional when looked at in its entire context, said White, whose firm has filed friend-of-the-court briefs in both cases.
“Anyone would understand that the monument doesn’t establish anything, but it’s showing a legal underpinning (of the law),” White said. “On one side of the grounds you have the State Capitol, and on the other side you have the state Supreme Court. This Ten Commandments monument shows that there’s a basis for our law, and a reasonable person looking at the monument would understand that.”
In the Kentucky case, the American Civil Liberties Union filed suit against the two counties and the Harlan County School District in 1999, saying that framed displays of the commandments in the courthouses and in schools were unconstitutional. The counties and the district responded by modifying the displays to include other documents.
A federal judge, however, ruled in favor of the ACLU. Again, the plaintiffs modified the exhibit titled “Foundations of American Law and Government.”
The ACLU responded by asking for a contempt-of-court citation, but the judge asked the two sides to settle their differences. When talks broke down, the judge issued a new preliminary injunction against the displays, and the counties and school district lost on appeal.
The counties and school district filed petitions asking for Supreme Court review, but the high court only accepted the counties’ case.
Beth Wilson, executive director of American Civil Liberties Union of Kentucky, said that the presence of the Ten Commandments on government property threatens religious freedom.
“The Ten Commandments advocate religious beliefs, and those should be left to each individual,” she said. “Especially at a courthouse, people should not be made to feel like outsiders because they might not share the dominant religious view of their community.”
Wilson, however, was unaware that the Ten Commandments are prominently displayed inside and outside the U.S. Supreme Court building in Washington.
“The Ten Commandments are posted at the Supreme Court building?” she asked. “All I can say is that … religious freedom is … Let me think that through before I answer that question.”
Moses, holding two tablets, is the central figure in the building’s East Pediment. Inside the court, the commandments are visible in several places including on the courtroom doors and above the bench where Moses is shown in two friezes in a procession of 18 significant lawgivers. His tablets show the commandments in Hebrew with only partial words.
Wilson later said that the Supreme Court displays of Moses and the Ten Commandments are merely symbolic references.
“Moses carrying the stone tablets is a symbol that expresses a more universal theme,” she said. “The McCreary County [display] is the actual Ten Commandments document. It’s meant to be read word for word.”
But Mathew Staver, who was to argue the counties’ case before the Supreme Court, dismissed Wilson’s reasoning.
“I think the ACLU’s attempted distinction between using symbols versus text is ludicrous because in many cases, a symbol speaks a thousand words — the United States flag, symbols of the smoldering twin towers speak more than volumes could hold.”
Lower court rulings have permitted text on Ten Commandments displays, said Staver, president of the Orlando-based Liberty Counsel.
“It would be discriminatory, indeed, to say that the Ten Commandments can only be used in tablet form,” he explained. “That would be contrary to what is in the Supreme Court. The Supreme Court has blank tablets, they have Roman numerals and they have actual Hebrew text.
“There’s a difference between acknowledgement of religion, which is permissible, and an establishment of religion, which is prohibited. The ACLU has gotten the two confused.”
Staver said the outcome of the case — expected in June — could have implications for other causes, such as whether the phrase “In God We Trust” can stay on the nation’s currency.
Patrick Novecosky writes
from Ann Arbor, Michigan.
- March 6-12, 2005