Justices weigh Commandments case
Debate suggests court won't render definitive ruling
By Charlie Savage, Globe Staff | March 3, 2005

WASHINGTON -- The Supreme Court yesterday wrestled with whether the Constitution allows displays of the Ten Commandments on government property, bringing to a climax the latest battle in the culture war over the role of Christianity in the nation's public life and the exact line between church and state.
Lawyers with the American Civil Liberties Union and a Texas plaintiff argued that the Ten Commandments presuppose the existence of a God. Although the tablets can be displayed on government property in a secular context, they said, displays in Texas and Kentucky went too far, violating the First Amendment's prohibition on establishing an official state religion.

But supporters of the displays argued that the Ten Commandments serve a secular historic function as well as a religious one. They said the displays should be allowed to stay on the Texas state capitol grounds and in two Kentucky courthouses.

Should the Ten Commandments displays be allowed on government land?


The arguments signaled little chance that the perennially contentious issue will be definitively resolved. The justices showed no appetite for creating a clear rule that state exhibits of the Ten Commandments will henceforth either always be allowed or always be forbidden.

Instead, the arguments revolved around which legal doctrine should be used to decide on a case-by-case basis, how the details of the two cases before the court fit those tests, and whether those tests should be kept or modified.

''Because of our religious traditions, there's no way to do it other than to look at divisive qualities on a case-by-case basis," said Justice Stephen G. Breyer said. ''When I do that, I don't find divisiveness here."

Not so, responded Erwin Chemerinsky, a lawyer arguing against the Texas display. He noted that the chief justice of the Alabama Supreme Court lost his job in 2003 for defying a federal order to remove a Ten Commandments monument from his state courthouse.

''The Ten Commandments is enormously divisive today," he said. He also noted the hundreds of evangelical Christian protesters praying outside the Supreme Court walls and said he had received hate messages in the past week.

The Texas case involves a Ten Commandments monument on the capitol grounds that was donated to the state four decades ago. The only one of 17 monuments on the grounds that has a religious theme, it was formally endorsed by the Legislature.

The Kentucky case involves a recent effort to exhibit the Ten Commandments in a county courthouse as part of a ''Foundations Display" along with political and patriotic texts that are not religious in nature. The first version contained only the Commandments, and a second added excerpts from speeches and public documents that made specific reference to Christianity. The display in dispute, the third version, dropped the Christian references and added such documents as the Magna Carta.

The courthouse changed the display in response to a lawsuit by the American Civil Liberties Union. A judge ruled that the new display was unconstitutional, because the history showed that officials' clear intent was to post a religious document. The counties asked the Supreme Court for a new test that looks at the effects of the display, not the intent of its sponsors.

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The dispute also had personal overtones for the Supreme Court. Its courtroom is replete with Ten Commandments imagery, from a frieze that includes Moses holding the tablets to several images of twin tablets with Roman numbers from 1 to 10.

Lawyers challenging the constitutionality of the Texas and Kentucky displays showed no desire to confront the high court about its own use of the iconography. They said the Supreme Court's use of the image was obviously of a secular nature, to acknowledge one source of law among many, while insisting that the Texas and Kentucky displays went too far.

Nevertheless, the Supreme Court's use of Commandments imagery was a regular theme. Justice Ruth Bader Ginsberg pointed to the frieze on the south wall of the courtroom, which depicts Moses with eight other ancient lawgivers. The tablets of Moses are tilted so only the second five Commandments, all secular rules, such as ''Thou shalt not kill," are visible. Religious rules, such as ''Thou shalt not take the name of the Lord thy God in vain," are hidden.

Ginsberg asked whether an inscription of the secular rules without the tablets would be acceptable on government property. Chemerinsky said they would be since those rules are also found in Texas statutes. That led Justice Antonin Scalia to interrupt with a scoff: ''Who are you kidding? Everyone knows these come from the Ten Commandments."

Scalia, a devout Catholic, also took issue with the argument by Attorney General Greg Abbott of Texas that the display from that state serves a secular function. Scalia denounced the idea of ''watering down" the religious message of the Ten Commandments, which he said was ''government derives its authority from God," and suggested that it would be a ''Pyrrhic victory" if Texas won on those grounds.

Atheists should ''turn your eyes away if it's such a big deal to you," he added.

The court's two swing voters, Justices Anthony M. Kennedy and Sandra Day O'Connor, both appeared uneasy about the prospect of ordering governments to take down all of the thousands of Ten Commandments displays around the country.

Kennedy talked about ''an obsessive concern with any mention of religion" that would amount to impermissible ''hostility to religion." O'Connor suggested that for older monuments and displays, the state's ''interest in preserving old objects" in a ''museumlike setting" could be an alternative justification for not tearing down Ten Commandments monuments.

© Copyright 2005 Globe Newspaper Company.