Dispute over public display of the Ten Commandments
The court hears cases Wednesday that challenge public displays.
WASHINGTON — Wednesday, as the justices of the US Supreme Court take up the thorny issue of whether the Constitution permits the Ten Commandments to be displayed on government property, Moses himself will be gazing upon the scene.
Stone carvings depicting him with tablets in hand are prominently displayed at the high court. He occupies a dominant position on the court's east pediment. Within the courtroom itself, Moses appears on an elevated frieze among 18 "great lawgivers of history."
The central issue in two Ten Commandments cases to be decided by the court is whether the public display of religious symbols and ideas on government property amounts to an unconstitutional endorsement of religion in violation of the First Amendment. It is one of the hottest of the nation's hot-button issues, and both sides are primed for high-stakes legal warfare.
The debate over Ten Commandments displays mirrors a broader aspect of the so-called culture war under way between religious conservatives and secular humanists.
Many religious conservatives believe the government should play an active role in advancing the cause of morality in the United States, in part by promoting religious ideas and themes. But such a religious purpose would clearly violate the high court's current church-state jurisprudence.
On the other side, secular humanists are attempting to eliminate virtually all acknowledgments of religion from public life, including removing the words "under God" from the Pledge of Allegiance and barring the offering of a prayer at the presidential inauguration. Opponents of these efforts see them as a form of censorship that ignores the important role of religion in America.
The first case being heard by the court, Van Orden v. Perry, challenges a large monument of the Ten Commandments in tablet form on public land between the Texas Capitol Building and the Texas Supreme Court in Austin.
The second case, McCreary County v. ACLU of Kentucky, challenges framed displays of the Ten Commandments in two county courthouses in Kentucky, one in McCreary County, the other in Pulaski County. Initially, the Decalogue was displayed alone, but after opponents sued, other historical documents were added to create a larger presentation.
The Texas and Kentucky cases are among scores of similar battles currently under way across the country. The most highly publicized battle came in 2003, when Roy Moore, the Alabama Supreme Court chief justice, was thrown out of office after defying a federal judge's order to remove a two-ton granite rendering of the sacred tablets from the lobby of the state judicial building. The US Supreme Court declined last year to take up Mr. Moore's case but agreed to hear the Kentucky and Texas cases.
Lawyers challenging the displays say they are a form of government favoritism that violates the constitutional principle that government may not endorse a particular religion over others.
"The government is expressing the religious beliefs of some religions. Many prominent religions, such as Buddhism and Hinduism, reject the Ten Commandments' view that there is a single God who dictates rules for behavior," says Prof. Erwin Chemerinsky of Duke Law School in his brief challenging the Texas display.
Texas officials say the monument is one of 17 statues on the state Capitol grounds commemorating people, events, and ideas that contributed to the history of Texas. They say similar commemorations of the Ten Commandments exist across the country - including at the US Supreme Court.
"Nothing in the Constitution requires these historic artifacts to be chiseled away or erased," says Texas Solicitor General Ted Cruz in his brief to the court.
The First Amendment says in part: "Congress shall make no law respecting an establishment of religion." Some scholars say this Establishment Clause requires a strict separation between church and state. Others say the wall should be lower. Still other scholars say the clause merely bars the national government from passing a law establishing a single national religion.
The high court is unlikely to embrace an extreme, legal analysts say. Instead, the constitutional debate is over where to the draw the line within a relatively moderate range of choices. Four justices - John Paul Stevens, David Souter, Ruth Bader Ginsburg, and Stephen Breyer - lean toward a more strict separation between church and state.
Three justices - Chief Justice William Rehnquist and Justices Antonin Scalia and Clarence Thomas - lean toward lowering the church-state wall to allow a more open acknowledgment of religion and things religious. In addition, Justice Thomas agrees with the view that the Establishment Clause applies only to the national government, not the states.
In the center of the court are the two potential swing votes, Justices Sandra Day O'Connor and Anthony Kennedy. It is their perspectives that may well tip the constitutional balance one way or the other.
The high court last addressed the Ten Commandments issue in 1980, when the court summarily struck down a Kentucky law requiring the Decalogue be posted in every public-school classroom in the state.
Paul Clement, acting US solicitor general, is urging the justices to uphold the Ten Commandments displays in both Texas and Kentucky. "Governmental commemorations of history, heritage, and culture properly need not exclude references to religious influences," he says in his brief. To hold otherwise would suggest "a fundamental hostility to or suspicion of religion that has no place in Establishment Clause jurisprudence."
Beth Wilson, executive director of the American Civil Liberties Union of Kentucky, disagrees. "There are at least five different versions of the Ten Commandments," she says. "Even if you believe that posting the Ten Commandments is a good idea, the question is whose version do you use and who decides?"
Decisions in the two cases are expected by the end of June.