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Supreme court considers display of ten commandments { March 2 2005 }

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   http://www.nytimes.com/2005/03/02/politics/02cnd-scotus.html

http://www.nytimes.com/2005/03/02/politics/02cnd-scotus.html

March 2, 2005
Court Considers Government Displays of Ten Commandments
By LINDA GREENHOUSE

WASHINGTON, March 2 - The justices of the Supreme Court appeared to wrestle with contradictory impulses as they heard arguments today in two cases challenging government displays of the Ten Commandments.

On the one hand, they were searching for a broad principle that could provide an answer not only for the two cases at hand, from Texas and Kentucky, but for future cases that were not likely to be identical in all particulars.

On the other hand, the justices appeared powerfully drawn to the specific facts of the two cases, details that could provide grounds for decision even at the risk of inviting an endless parade of future cases.

Was the 22-acre park surrounding the Texas Capitol, where a Ten Commandments monument sits among 16 other displays, all of them nonreligious, the equivalent of an outdoor museum or sculpture garden? Fine: Maybe just such a mixed display might pass constitutional muster, even if a stand-alone Ten Commandments in a future case might prove more troublesome.

Did it matter that the two Kentucky courthouses now seeking to display a framed Ten Commandments surrounded by nine other nonreligious historical documents had at first hung unadorned copies of the Commandments and did not add the other documents until after a lawsuit was filed? If that history provided the constitutional taint that led a federal appeals court to order removal of the entire displays, then the answer to whether a display without such a history would be acceptable could wait for another day.

The justices' visible struggle reflected the fact that the Supreme Court's own precedents provide relatively little guidance on how to tell the difference between religious displays that amount to an unconstitutional "establishment" of religion and those that acknowledge religion in such a minimal or contextual way that the Constitution is not offended, even if some individuals are. In this pair of cases, one federal appeals court upheld the Texas display even as another struck down the two in Kentucky.

Would it be permissible for the Texas Legislature to post the Ten Commandments, not in an outdoor park, but in the halls of the Capitol, Justice Sandra Day O'Connor asked Erwin Chemerinsky, who was representing the Austin man who challenged the Texas display.

No, replied Mr. Chemerinsky, a professor at Duke University Law School, because that would be a sign of government endorsement of religion.

But the Supreme Court itself has upheld the practice of beginning a legislative session with a prayer, Justice O'Connor pointed out.

"It can't be that just because a prayer is permissible, everything becomes permissible," Mr. Chemerinsky replied, adding that a Legislature could not mount a large Latin cross on the top of a state Capitol.

"It's so hard to draw the line!" Justice O'Connor exclaimed.

Justice Stephen G. Breyer said he had reluctantly and tentatively come to the conclusion that there was no way for the court to decide religious display cases other than by evaluating the divisive nature of the display on a case-by-case basis.

The Ten Commandments are "enormously divisive," Mr. Chemerinsky responded, urging that the court "not ignore social reality." He mentioned the crowds that the arguments themselves drew to the court, as well as the dispute in Alabama two years ago over Chief Justice Roy Moore's display of a large Ten Commandments monument in the courthouse rotunda.

Justice Scalia asked whether the marshal's invocation that begins each Supreme Court session, "God save the United States and this honorable court," was not also "divisive, because there are people who don't believe in God."

Mr. Chemerinsky replied that it was important to draw a distinction between "minimal and maximum religious content." The message of the Ten Commandments was deeply religious he said: "All of these are God's commands to his people."

Justice David H. Souter asked whether a tablet containing only the last five commandments, the injunctions against killing, stealing and so on, might be constitutional because, unlike the first five, they did not necessarily imply religious belief.

That would be a harder case, Mr. Chemerinsky replied, but such a tablet would still be unconstitutional because it would still convey the Ten Commandments' message.

What about a "piece of stone" simply carved with the various "thou shalt nots," Justice Souter asked.

That would be acceptable as a "reflection of law" rather than religion, Mr. Chemerinsky replied.

"Who are you kidding?" Justice Scalia broke in, adding that "everyone knows" that the reference would be to the Ten Commandments.

"Context matters enormously," Mr. Chemerinsky said.

Greg Abbott, the Texas attorney general, described the Ten Commandments as a "recognized symbol of law" and defended the state's display as having the secular purpose of "recognizing historic influences" on the legal system.

The attorney general's argument distressed Justice Scalia. "You're watering it down to say the only message is a secular message," the justice said. "I can't agree with you. 'Our laws come from God.' If you don't believe it sends that message, you're kidding yourself."

Later, Justice Scalia told Mr. Abbott: "I would consider it a Pyrrhic victory for you to win on the grounds you're arguing."

In both the Texas case, Van Orden v. Perry, No. 03-1500, and the Kentucky case, McCreary County v. American Civil Liberties Union, No. 03-1693, the Bush administration argued on behalf of the displays.

"The Ten Commandments have an undeniable religious significance, but also a secular significance as a code of law and a well recognized symbol of law," Paul D. Clement, the acting solicitor general, told the justices.

He added: "The Establishment Clause should not be interpreted to force the state to send a message of hostility toward religion."

The question was one of degree, Mr. Clement suggested. In answer to a question from Justice Anthony M. Kennedy, he said Chief Justice Moore in Alabama "probably" crossed the constitutional line when he turned the courthouse rotunda into the equivalent of a "religious sanctuary."

Mr. Clement added: "The state can have a permissible acknowledgment of religion, and I don't think in this case the state of Texas has gone too far."

In defending the Kentucky courthouse displays, Mathew D. Staver, a lawyer with Liberty Counsel, a Florida-based group associated with the Rev. Jerry Falwell, said the appeals court had "ignored the overall context" when it ordered the removal of courthouse displays that contained the Ten Commandments surrounded by the text of nine historic documents, including the Mayflower Compact.

But it was the context that the justices probed, several dwelling on the original 1999 displays that contained the Ten Commandments alone. The two counties, McCreary and Pulaski, had decided to "switch rather than fight," Mr. Staver said, and should be "rewarded, not punished, for trying to get things right."

But "the courts cannot turn a blind eye to a sham secular purpose," David A. Friedman, general counsel of the American Civil Liberties Union of Kentucky, told the justices. He said a "reasonable observer" would know the history and understand the counties' real purpose.



Copyright 2005 The New York Times Company


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