Thursday, March 3, 2005

Opponents of government displays of the Ten Commandments told the Supreme Court yesterday that such monuments are an endorsement of Christianity, while state officials and their supporters maintain that the displays are historical and acknowledge the roots of U.S. law.

“The Ten Commandments have an undeniable religious significance, but they also have a secular significance as a source of the law, a code of the law and a well-recognized historical symbol of the law,” acting Solicitor General Paul Clement said.

In two cases expected to have wide impact on the relationship between governments and religion, the justices heard oral arguments about whether such Ten Commandments displays on government property violate the First Amendment’s prohibition on the establishment of religion.

One case centers on a 6-foot-high Ten Commandments monument that has sat on the grounds of the Texas Capitol since 1961, and the other involves framed posters of the Commandments in two Kentucky courthouses.

The government can erect religious symbols such as the Ten Commandments, but “it must do so in a way that does not endorse or support any particular religion,” said Erwin Chemerinsky, the lawyer arguing that the Texas monument is unconstitutional.

“Here you have a monument that claims not only is there a God, but God has dictated 10 rules for behavior,” he said.

Because it is the only symbol of its kind on statehouse grounds, Mr. Chemerinsky said the Texas monument marks a clear endorsement by the state of a particular brand of religious beliefs.

Texas Attorney General Greg Abbott disagreed, saying his state’s monument is in “a museum setting” near 17 other monuments around the Capitol. It fits, he said, within an overall theme of “historical influences” on the state.

Similar battles have been fought in dozens of lower courts and in communities across the country, where monuments or references to the Commandments pepper an unknown number of courthouses and other government buildings.

A wide carving high on the wall inside the Supreme Court depicts several classic figures from the history of law. Among them is Moses, shown carrying a tablet with the Commandments written in Hebrew.

Repeatedly during yesterday’s arguments, litigants and Supreme Court justices gestured toward the carving to make their points.

“There’s an obvious theme,” said Justice David H. Souter as he pointed toward the carving, which shows Moses next to 17 other figures including Confucius, Napoleon and Muhammad, who holds the Koran. “Anyone who looks at this scene says, ‘They’re getting at lawgivers.’

“On the Texas grounds, as far as I can see, there is no common theme,” he said.

But Justice Antonin Scalia disagreed, noting that legislative proclamations and prayer invoking God’s name are permissible.

“I don’t see why the one is good and the other is bad,” he said.

The Supreme Court has taken on the Ten Commandments only once before, when in 1980, the justices struck down a Kentucky law requiring the Commandments be posted in all classrooms of the state’s schools.

The justices declined an appeal last year from Roy Moore, who was ejected as Alabama Supreme Court chief justice in 2003 after overseeing the installation of a Ten Commandments monument, then disobeying court orders to remove it.

The Supreme Court is expected to rule in the Texas and Kentucky cases by late June.

The justices — whose court sessions begin with a marshal shouting, “God save the United States and this honorable court” — made no ruling last year on the constitutionality of “under God” in the Pledge of Allegiance, dismissing an atheist’s challenge on technical grounds.

Although Justice Souter appeared to openly agree with Mr. Chemerinsky yesterday, the other justices were more guarded, delivering an exhaustive and critical round of questioning to litigants on both sides.

Justice Anthony M. Kennedy noted an “obsessive concern with religion” in the case and said that ordering the Texas display removed might “show hostility to religion.”

“If an atheist walks by, he can avert his eyes,” he said of the memorial.

Justice John Paul Stevens asked whether the furor might be remedied if a “disclaimer” were attached to Ten Commandment monuments, saying they don’t represent a given state’s views.

When arguing the Kentucky case on behalf of the Bush administration, which intervened in the state dispute, Mr. Clement said, “The idea of having a fence around the Ten Commandments to make clear the state has nothing to do with it, I think that is bending it too far.”

One exchange centered on the thoughts of a Muslim who enters a U.S. court and sees a carving of the Ten Commandments on the wall.

“Imagine the Buddhist or Muslim who walks into the Supreme Court. He will realize this is not his government,” Mr. Chemerinsky said.

“I thought that Muslims accept the Ten Commandments,” Justice Scalia said.

“No, your honor, they don’t,” Mr. Chemerinsky responded.

However, in an editorial published yesterday, Arsalan Iftikhar, the national legal director for the Council on American-Islamic Relations, said, “The Quran, Islam’s revealed text, contains injunctions similar to all the commandments.”

A CNN/USA Today/Gallup poll released this week found that 76 percent of respondents support displaying the Commandments, while 21 percent were opposed.

The Kentucky case, meanwhile, arose after officials in two counties posted privately donated copies of the Ten Commandments in courthouses. When the American Civil Liberties Union of Kentucky challenged the displays, the officials added copies of other documents such as the Declaration of Independence.

David Friedman, who argued the Kentucky case for the American Civil Liberties Union, said during yesterday’s arguments that “an assertion that the Ten Commandments is the source, the foundation of our legal system … is simply wrapping the Ten Commandments in the flag, and that’s endorsement.”

Lower courts sided with the ACLU, prompting county officials to appeal to the Supreme Court to weigh in on the matter.

A throng of demonstrators from church groups in Kentucky and Tennessee braved the cold outside the Supreme Court yesterday.

“I came here to support the Ten Commandments,” said Izora Stover, 73, who was with a group from her church in Albany, Ky.

“I have a right to see that in my schools, in my courthouses or on the sidewalk, anywhere,” she said, adding, “Judges and the ACLU have no right to sit here and destroy the foundation that this country was built on.”

ACLU Legal Director Steven R. Shapiro, who also appeared outside the court, disagreed, saying, “The Supreme Court has the right and the responsibility to interpret the Constitution.”

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