Dispute Over Displays Reaches the Supreme Court

By LINDA GREENHOUSE
The New York Times


WASHINGTON (Feb. 27) - One federal court upheld them as a symbol of the country's devotion to its legal heritage. Another federal court ordered them removed as an illicit message of religious endorsement. Fifteen months ago, Alabama's chief justice lost his job over them, and the two-ton granite monument that once sat in the rotunda of the state courthouse is now the star of a national tour. The profile of the Ten Commandments, it seems, has rarely been higher, or their ability to attract lawsuits greater.

Now, as with all great controversies in American life, this one has finally reached the Supreme Court. In two cases to be argued on Wednesday, the basic question for the justices will be: what does it mean for the government to display a copy of the Ten Commandments?

To those who seek removal of the displays - a six-foot red granite monument that has sat since 1961 on the grounds of the Texas Capitol, and framed copies of the Ten Commandments that were hung five years ago on the walls of two Kentucky courthouses - the meaning is as obvious as it is impermissibly sectarian.

"There is no secular purpose in placing on government property a monument declaring 'I am the Lord thy God,' " Prof. Erwin Chemerinsky of Duke University Law School wrote in his brief for Thomas Van Orden, an Austin resident who has so far been unsuccessful in his challenge to the Texas monument. It is one of thousands placed around the country in the 1950's and 1960's by the Fraternal Order of Eagles with the support of Cecil B. DeMille, the director, who was promoting his movie "The Ten Commandments."

"The government is not supposed to be for religion or against religion," Douglas Laycock, a professor and associate dean at the University of Texas School of Law, said in a discussion of the cases here on Thursday sponsored by the Pew Forum on Religion and Public Life. "You don't put up a sign you disagree with, and the government doesn't disagree with these."

At the same event, Jay Sekulow, chief counsel of the American Center for Law and Justice, a law firm established by the Rev. Pat Robertson that litigates for evangelicals and other religious communities, offered a different perspective. The Ten Commandments have acquired secular as well as religious meaning, he said, and have come to be "uniquely symbolic of law."

Mr. Sekulow noted that the marble frieze in the courtroom of the Supreme Court Building itself depicts Moses, holding the tablets, in a procession of "great lawgivers of history." (The 17 other figures in the frieze include Hammurabi, Confucius, Justinian, Napoleon, Chief Justice John Marshall and Muhammad, who holds the Koran.) "Does the Supreme Court now issue an opinion that requires a sandblaster to come in? I think not," Mr. Sekulow said.

The Bush administration, which has filed briefs urging the justices to uphold the displays in both cases, takes the same approach, calling the Ten Commandments "a uniquely potent and commonly recognized symbol of the law."

Professor Laycock, who filed a brief on behalf of the Baptist Joint Committee against the display in the Texas case, Van Orden v. Perry, No. 03-1500, disparaged as "sham litigation" the effort to depict the Commandments as anything other than profoundly religious. To defend the Commandments as a historical or legal document is "to desacralize a sacred text, to rip it out of context and distort its meaning and significance," he said. "It ought to be unconvincing to people outside the religious tradition and insulting to those within it."

The debate over the Ten Commandments is reminiscent of the debate before the court a year ago over the phrase "under God" in the Pledge of Allegiance, which an atheist from California, Michael A. Newdow, challenged as an unconstitutional establishment of religion and the Bush administration defended as a historical reflection of the country's spiritual roots. The court never resolved the issue, eventually dismissing the case on the ground that Dr. Newdow had lacked standing to bring it.

The Pledge case nonetheless drew an illuminating separate opinion from Justice Sandra Day O'Connor, who has often cast the deciding vote in religion cases. She called the words "under God" an example of "ceremonial deism," which she defined as the use of religious idiom for "essentially secular purposes" that does not offend the Constitution.

Whether Justice O'Connor will take a similar view of the Ten Commandments is anyone's guess. On the one hand, the Commandments contain not two words but approximately 120, closer to the 100-word high school graduation prayer that Justice O'Connor found unconstitutional in a 1992 case.

On the other hand, while the Pledge is recited each morning in public school classrooms, creating a powerful government message that is difficult to ignore even for those children who exercise their constitutional right not to participate, the Ten Commandments stand mute. People who do not feel drawn to a monument or framed depiction can avert their eyes and walk on by.

Clearly, context matters, although exactly how it matters is open to debate, as the Kentucky case, McCreary County v. A.C.L.U. of Kentucky, No. 03-1693, demonstrates. The case began in 1999, when the American Civil Liberties Union challenged the display of the Ten Commandments, hanging unadorned in solitary frames in the McCreary County and Pulaski County Courthouses.

The counties quickly modified the displays to include the texts of the Declaration of Independence, the Mayflower Compact, "The Star-Spangled Banner," the Bill of Rights, and several other images that the counties named, collectively, the "foundations of American law and government."

Nonetheless, the federal district court in London, Ky., ordered the entire display removed, and the United States Court of Appeals for the Sixth Circuit, in Cincinnati, agreed. It held that the "foundations" documents as a collective retained the "unconstitutional taint" of the original, solitary Ten Commandments display.

The counties' lawyers at Liberty Counsel, a Florida-based organization affiliated with Liberty University, whose chancellor is the Rev. Jerry Falwell, object in their brief that "no reasonable observer would consider the Foundations Display an endorsement of religion."

In the Texas case, the United States Court of Appeals for the Fifth Circuit, in New Orleans, upheld the Texas monument on essentially that basis, finding that "a reasonable viewer touring the Capitol and its grounds" would find a predominantly secular rather than religious message in the Ten Commandments, one of 17 monuments in a 22-acre park that carries a designation as a national historic landmark.

One question is whether the court will try to derive a broad principle from the pair of cases or whether it will stress the distinct facts of each. Another question is the standard for judging governmental displays with religious content. Justice O'Connor has long advocated an "endorsement" test: does the government appear to be endorsing religion to the extent that a nonbeliever would be made to feel an outsider?

Other touchstones for the court's analysis in such cases include an evaluation of "purpose," "effect," and - sometimes present but never acknowledged - politics. "Supreme Court Strikes Down Ten Commandments" is a headline that few Supreme Court justices want to read.

Well, I guess if you wanted to live in a theocracy (and it suited your business interests.....)

Please include links to the original article when posting them. Thanks.

http://www.nytimes.com/2005/02/27/politics...ed=1&oref=login

A government that simply affirms the existence and authority of a Supreme Being--an idea shared by the three most distinguished religions of the civilized world--is obviously not the same thing as a "theocracy".

Your comment about business interests is vague, but if I'm not mistaken you are hinting that you think everyone on the Right is motivated by business interests, even when the policies in question have nothing to do with business. (I.e. you probably think that this administration invaded Iraq to boost Halliburton's profits etc.) Rather than acknowledging and addressing the political philosophies of your opponents, you prefer to call into question their motives, as if you were a mind reader. You need to realize that you are simply a conspiracy theorist, no more, no less.

Oh, don't be silly. I'm not even qualified to be a conspiracy theorist, and everyone here knows.

But I certainly do believe in presenting facts clearly, so that clever deceptions of the real people in this world can fight the chicanaries and falsehoods of the neocom invaders.

I don't believe that Iraq was invaded solely on Halliburton's behalf, but everybody can see clearly how Halliburton and American industry certainly is capitalizing-big time-on US and Iraqi loss of life, and the attempts of the Iraqi people to restore order out of the chaos that we have wrought.

Frankly, I have no ambition to dissect neocon political philosophies that even the most ardent Republicans are questioning.

The Iraqi people gave us a whole year to restore order. We invaded without anything even resembling an exit strategy. The people after one year had no water, no electricity. They don't spend hours discussing political philosophy. They smelled the same rat most of our own troops did, and insurgency was the result.

Yet another brilliant scheme by the Bush crime family.

so was bosnia under clinton another international conspiracy since haliburton had an exclusive contract there too?

You all are falling into BP's trap. Don't get sidetracked. The issue is if an image Ten Commandments can be shown in a courthouse.



BP, you are being disingenous and you know it. Weather or not the U.S. can affirm the existance of a Supreme Being isn't the issue here. The issue is about showing the image of a particular religion's 10 main rules, affirming that religion's legitimacy, which a U.S. courthouse may not do.

Bosnia was a different sort of situation.

The corporations may have profiteered, but not to the extent that it has been under the current regime.

We did not inflict the same rate of human carnage or suffer the same amount of military casualties.

Most other nations concurred that something had to be done in the former Yugoslavia. Very few nations concurred with the invasion of Iraq.

We did not have the obscene amount of independent contractors giving illegal orders to defenseless American troops the way we had in Bosnia, or any other conflict for that matter.

And we didn't dismantle the government as in Iraq. Even Germany was allowed to keep their chancellory system, and Japan its emperor setup.

Bush talks freedom out of one side of his mouth and takes it away with the other.

The degree to which American and European public are desinformed about Bosnia and Kosovo still amazes me ...

in all fairness, he's not the one who made the original theocracy comment. and he's right - there's a big difference between a theocracy, a state with an official religion, and a state that nods its head to a particular religious doctrine. the question here is where to draw the line between the latter two.

Off topic, but images of the tablets with rounded tops are problematical, including those in shuls; our mesorah is straight topped Luchot.

(Further off topic, but for all the many many faults of my shul, at least the image of the luchot in the main Ulam are rectangles).