Ten Commandments — a split verdict?
With only Justice Antonin Scalia seeming dead-certain of his views on government display of the Ten Commandments, the Supreme Court on Wednesday spent two hours ambiguously exploring just how far to let public officials go to place religious monuments or plaques on public buildings or grounds. The end result of this exploration seemed to be that context may mean everything to the constitutional equation, and that, as a result, some displays will be allowed, and others not.
An initial impression was that a Ten Commandments monument on the state capitol grounds in Austin, Texas, might pass a variety of constitutional tests the questioning Justices posed, but that a framed display of the Decalogue amid other Kentucky courthouse wall decorations, hastily added to neutralize the religious effect, might be in trouble. It was not evident that the Court would be able to speak definitively on a much-litigated facet of the culture war.
Justice Sandra Day O’Connor, very likely to cast a decisive vote on the issue in the two cases, left the impression that she might have little difficulty permitting government displays of the Decalogue “packaged in a museum-like setting and displaying a whole lot of things,” but that she was quite troubled about a county governing board’s decision to put up the Ten Commandments to make the point that “Jesus Christ was the Prince of Ethics.”
Scalia, who has little patience with church-state separation concepts, was expected to be a very active participant in the oral arguments, and he was. But, early in the argument, he essentially took himself out of the combat by stating his position with utmost clarity. He said that the Ten Commandments have long been accepted by the Nation’s majority as “a symbol of the fact that government derives its authority from God,…The minority should be tolerant of the majority expressing its belief that this government comes from God.”
But six of his colleagues (all of the others except Chief Justice William H. Rehnquist, who was absent, and Justice Clarence Thomas, who said not a word) were more interested in examining details and alternative theories than in drawing instant conclusions. One inquiry that persisted throughout the two hours was the distinction – or lack of it – between legislative chaplains’ prayers (allowed by the Court) and displays of frankly religious inscriptions (banned by the Court but, so far, only for public school classroom walls). “It is so hard to draw that line,” said O’Connor.
The Court, in the cases of Van Orden v. Perry (03-1500) and McCreary County v. ACLU-Kentucky (03-1693), will not be ruling on the hottest arena of controversy over the Commandments: displays in public schools. The Justices so far have refused to grant a new review of that issues, thus leaving intact a 1980 decision (Stone v. Graham) forbidding posting of the Commandments in public school classrooms. But the school situation is sure to arise anew in lower courts, after the Court this Spring gives its first pronouncement on the Commandments since that 1980 ruling.
The monument on Texas’ state capitol grounds seemed relatively unscathed during the hearing in the Van Orden case. One of its principal defenders, it seemed, was Justice Anthony M. Kennedy – potentially, another “swing voter” if the Court is closely divided on that case. He suggested several times that the monument’s challenger, Duke law professor Erwin Chemerinsky, was arguing too broadly against government accommodation of religion, suggesting at one point that the professor seemed to be advocating that “the word ‘accommodaton’ should not be in our jurisprudence” — a suggestion Chemerinsky denied making. The professor said that “accommodation” is a concept that has a place in guarding the free exercise of religion, but has not been a factor in judging government “establishment” of religion.
Greg Abbott, Texas’ attorney general, who argued his side of the case from a wheelchair at counsel’s table (and won praise from presiding Justice John Paul Stevens for demonstrating that one could argue well from other than a standing position), ran into some difficulty with Kennedy for attempting to argue away most of the religious content of the capitol grounds display.
Acting Solicitor General Paul D. Clement, who argued for the Bush Administration as amicus in both cases, sought to persuade the Court not to draw the constitutional line against symbolic displays that include religious texts; allowing only blank tablets or illustrative murals.
In his cameo role in the Kentucky courthouse displays hearing, Clement found some of the Justices to be interested in exploring at more depth his recommendation that the Court in judging government displays of religion look to the message that the overall display conveys, rather than to the purpose officials had in putting them up.
That may have been a necessary line of argument, since most of the Justices appeared troubled by the vividly religious intention of county officials in displaying the Commandments on courthouse walls in McCreary and Pulaski Counties. That history posed great difficulty during the argument for the counties’ lawyer, Mathew D. Staver, of the Liberty Counsel, a Longwood, Fla., advocacy group for conservative causes.
Staver’s adversary, David A. Friedman of Louisville, had the easiest time at the lectern of any of the five counsel who appeared. Basing his argument on context, content and history, he had little difficulty getting the Justices to focus closely on county officials’ unabashed embrace of religious themes in the initial display – an embrace that they have never repudiated, even while changing the display twice to try to thwart litigation against it.
If the Supreme Court can open each session as follows: Marshal of the Court chants, “The Honorable Chief Justice and the Associate Justices of the Supreme Court of the United States. Oyez! Oyez! Oyez! All persons having business before the Honorable Supreme Court of the United States are admonished to draw near and give their attention, for the Court is now sitting. God save the United States and this Honorable Court!”
The Supreme Court of the United States of America is crying out to the Lord God for wisdom and guidance each day they conduct court hearings. There is no separation of church and state if the highest court in the land is acknowledging and requesting guidance from the Lord God. The Supreme Court has set the precedence since the founding of our nation.
Displaying a monument of the Ten Commandments does not thrust ones religion upon a person anymore than having the phrase “In God We Trust” printed on the currency of the United States of America, engraved in the marble or granite of public buildings or hanging from a nail on the wall of a court room.
The government of the United States has always sought guidance from the Lord God. Let’s not forget what is the government of the United States of America? It is the people of this great land and the majority of people are saying “God save the United States” as they have since the founding of our nation.
The Supreme Court must rule displaying of the Ten Commandments is Constitutional. If not then be prepared for God’s blessing to stop being bestowed upon our great nation and fear the Lord God for his wrath is just!
Comment by Ed Davis — March 2, 2005 @ 3:44 pm
My impression of the arguments coincides with that of Mr. Denniston, though others who have studied the Justices closely and who were present seem to believe that the governments in both cases will prevail and that the Commandments will survive constitutional scrutiny. The second case might actually be the tougher of the two (as confirmed by the three opinions in the Sixth Circuit) because, while the purpose of the local government was unabashedly to promote religion, the “Foundations” display as it stands now is no longer as overtly religious/sectarian. All of this for naught, of course, if Justice Thomas is correct and the Establishment Clause does not apply to the States!
Comment by SM — March 2, 2005 @ 3:44 pm
When some of the commandments have overtly religious character, and no secular purpose at all, how can that be squared with a secular government. This is not a theocracy, and these are government displays.
Perhaps the court will weasel out like in Newdow? They don’t want this kind of heat. Look at the support of Roy in AL, and his approved candidates getting sworn in on that court.
Ed, is the USA still getting God’s blessing, how so?
What will happen when/if it is gone? Couldn’t it be argued that it should have already occurred, if ever?
SM, If Thomas is able to carve out the states from the 1st Am., that would open so many strange doors, that it would just never happen. He will just remain as that odd justice in the corner, the loyal minority, that keeps the rest somewhat honest.
Comment by aj — March 2, 2005 @ 5:15 pm
If a courthouse was to place the Mona Lisa on a wall, would that establish the Mona Lisa as the State Painting?
Comment by Matt Nellans — March 2, 2005 @ 5:16 pm
The USA was founded on religious freedom and a religious foundation. Why is everyone trying to change that. If you dont like the USA like it was founded then leave it. I think it is the best just like it was founded and dont want it changed. Thank You…
Comment by phillip gowan — March 2, 2005 @ 6:10 pm
The comparison to the mona Lisa is off-point. What is the result of looking at that painting? “Hmm, the judges are displaying an Italian work of art… I’m not Italian (I’m not even French). I’m not one of them, the court is stacked against me.” Nor does the Constitution prohibit the establishment of State Paintings.
Comment by Brendan McLaughlin — March 2, 2005 @ 6:23 pm
the Ten Commandments are slightly different than “in god we trust” or “god save the united states and this honorable court” in my opinion. Those general “theistic acknowledgments” are likely to annoy a few aethists, but the Commandments are quoted directly from the Christian/Jewish sacred text.
The stronger argument is to say that the monuments are an acknowledgment of the history of the rule of law. Wasn’t one of these monuments on display with the Code of Hammurabi? That’s not religious, that’s just history.
As for Justice Thomas, he often wants to take a mulligan on older decisions, but it just won’t happen here. It’s well established that the 14th ammendment applies the Establishment clause to the states.
Comment by Daniel Chapman — March 2, 2005 @ 6:38 pm
If the Commandments are allowed to stay, I wonder if we will then move onto suits over equal representation of various religions? If the courthouse displays the quotes from the Old Testament, yet refuses to display quotes from the Bhagava Gita or the Buddhist sutras, will the Hindus and Buddhists have a legitimate gripe? Could they say that preferential treatment of one religion is a form of establishment over the non-represented religions?
Comment by Elliot — March 2, 2005 @ 7:17 pm
“a symbol of the fact that government derives its authority from God,…The minority should be tolerant of the majority expressing its belief that this government comes from God.”
Thus saidth Justice Scalia. And, if said statement comes from clearly sectarian commandments, which themselves come in various forms, no problem?
Justice Kennedy once suggested (in Allegheny) that a big permanent Christian cross on top of a gov’t building would be a problem. I don’t think a big granite commandments display — again, there isn’t just one version — is so much better.
Comment by Joe — March 2, 2005 @ 8:02 pm
I highly recommend the article, “Our Godless Constitution,” published in the Nation last month, which speaks about how the “founding fathers” did not establish the US as a Christian country.
link to the entire article below
“It is hard to believe that George Bush has ever read the works of George Orwell, but he seems, somehow, to have grasped a few Orwellian precepts. The lesson the President has learned best–and certainly the one that has been the most useful to him–is the axiom that if you repeat a lie often enough, people will believe it. One of his Administration’s current favorites is the whopper about America having been founded on Christian principles. Our nation was founded not on Christian principles but on Enlightenment ones. God only entered the picture as a very minor player, and Jesus Christ was conspicuously absent.
Our Constitution makes no mention whatever of God. The omission was too obvious to have been anything but deliberate, in spite of Alexander Hamilton’s flippant responses when asked about it: According to one account, he said that the new nation was not in need of “foreign aid”; according to another, he simply said “we forgot.” But as Hamilton’s biographer Ron Chernow points out, Hamilton never forgot anything important.”
http://www.thenation.com/doc.mhtml?i=20050221&s=allen
Comment by Marc — March 2, 2005 @ 9:50 pm
As a corollary to Daniel’s comment, the Ten Commandments needs to be distinguished from other statements such as “in god we trust,” “god save the united states and this honorable court,” or even “under god.” It would seem that the prescriptive and proscriptive nature of the text of the commandments is relevant, as opposed to a mere statement of principle embodied by these other examples. The pre/proscriptive nature also takes on heightened effect when placed in the presence of not just government buildings, but courts and legislative houses, seats of legal authority and with the power to impose pre/proscriptive action upon the citizenry. Thus, it would be normal to presume the intimacy of the settings with the text has the special effect to persuade and intimidate an observer that the commandments are the law. Certainly the opposite effect is illogical.
Comment by Michael Epley — March 3, 2005 @ 9:13 am
It’s funny to me that anyone - particularly of Christian faith - would use the “will of the majority” to support his argument. The Bible teaches the importance of protecting the least of us. At best a Christian could say that promoting their beliefs is good for everyone because accepting Jesus as your savior is the only way to salvation. But, that is exactly the sort of thing the FIRST amendment was written to guard against. Not, the 5th or the 8th, but the 1st.
The Court was formed to protect the entire population of the United States, not just the majority. Working for the majority is the duty of the political branches. The most important function the judiciary can perform is the protection of the least of us.
Most polling data indicates that abortion is accepted by the majority. Should then the Court continue to uphold Roe based on that data? I doubt your answer would be yes, and I would agree with you.
Comment by Paul — March 3, 2005 @ 9:28 am
“…a symbol of the fact that government derives its authority from God,…The minority should be tolerant of the majority expressing its belief that this government comes from God.”
Scalia needs to take a breath. Government, at least our Government, derives its authority from the People. Whether God plays a part in the People’s lives is up to the individual members. Indeed, the minority should never be tolerant of the majority’s intolerance for other’s beliefs.
Comment by Richard Hausman — March 3, 2005 @ 11:16 am
I don’t think anyone is seriously making the argument that the majority has the right to force its will on everyone. The closest argument I see is that the majority has the right to express itself without being smothered by a small minority that has a problem with religious symbolism like this.
I’ll use my opinions here as an example… My religious beliefs don’t rely on displaying the ten commandments anywhere. If no courts had ever displayed them, I wouldn’t have noticed. When I see the outrage over such a simple (and arguably secular) display, however, it strikes me as distinctly hostile to Christianity. I think this is the reason most Christians object to the removal… not that they want to convert the masses.
It’s irrelevant to whether the display violates the establishment clause, however. Michael’s argument that displaying the Commandments might elevate them to the level of “The Law” in some people’s eyes is much more relevant. I had never thought of that before.
Comment by Daniel Chapman — March 3, 2005 @ 12:10 pm
From Dahlia’s column:
Ginsburg asks why it’s acceptable for legislatures to open their sessions with a prayer after Marsh v. Chambers but unacceptable for the court to do so. “I’m not sure we don’t,” says Scalia. I don’t know who we’re addressing when we say, “God save this honorable court.”
Answer: It’s not a prayer, it’s a writ of mandamus.
Comment by Roger Friedman — March 3, 2005 @ 4:26 pm
I see some themes running through the commentary: religion vs. secularism (the two concepts are far more structurally similar than one may think); fine-line drawing between “acceptable” and “non-acceptable” religious symoblogy; majoritarian tyranny–the list can go on.
It seems to me that if we as a society decide to “separate” religion and state, we should try to the utmost–ban anything which has a scintilla to do with religion in the conduct of state business (including words like “god,” pictures, prayers, what have you). This is obviously extremely difficult and perhaps malconceived, given the discursive and cultural realities uniquely situated in our historical experience.
Establishment Clause aside, the other way is to allow such symbology with no limit, because quite frankly it is intellectually indefensible to “draw the line” anywhere and still maintain a semblance of ideological cohesion and popular acceptance. I am essentially stating that we give up this farce separating “church” from “state” and freely allow religion and secular government to mix. It is no argument to me that history has never seen this type of government work before–we know that war kills people and yet we still engage in it, trying to limit its evils. The evil here is that the state risks empowering a certain religion over others–which is also why it would make sense to apply an equal protection principle to the use of religion by the state. This would essentially give everyone from the 7th-Day Adventists to the Church of Scientology carte blanche legal remedies for government not putting THEIR tablets up next to the 10 Commandments. The Court can, of course, limit the definition of what constitutes an acceptable “religion”–but that would fall into the incoherent constructs discussed earlier and would probably be considered unacceptable. The benefit I see to this approach is that it will pretty much force government to reconsider the use of any religious totemism–lest it incurs the wrath of the all-powerful Litigation God. The end result would practically be the same as complete separation of church and state. Of course, one would first have to provide the minor miracle of disgarding the establishment clause. I will caution here that this is not without analytical voodoo–the clever lawyer can always argue that even the most unassuming symbol can be interpreted in a religious light, thereby making it unfair for others to be excluded. I do not think, however, that we are incapable of making distinctions somewhere down the line.
Comment by John — March 3, 2005 @ 6:45 pm
Robert Hausman brought up a great point… Those were my thoughts exactly as I read Scalia’s quotes from oral argument. I thought it was bizarre that a strict-construction scholar like Scalia would say that government derives its power from God.
Last I checked, our Constitution draws its powers from the collective will of the states…. not god… and least of all a partiucular deontological religious identity.
Comment by Greg Adamo — March 3, 2005 @ 7:13 pm
Black robed God
On the other hand, Scalia’s further comments on the display of the Ten Commandments are wrongheaded. His appeal to majority…
Comment by Population: One — March 4, 2005 @ 7:26 am
Seems to me that, as illustrated by the second case, the test has to be one based on the effect of a display, not its purpose. Purpose is not only beside the point, but undermines the whole issue of endorsement or non-endorsement.
If a city put up a series of latin crosses in front of city hall — say, some simple, others stylized — for the purpose of showing different ways in which the cross has been rendered throughout time — in other words, a display devoted to the artistic rendering of the cross as opposed to its religious nature, that would undoubtedly convey a message of endorsement to a reasonable observer who came across them. The fact that the display was meant only as an art show would not change the message for most people.
Conversely, if the city put up a group of candles in the same place, which were expressly meant to convey a message of worship, hardly anyone would interpret the symbolism as an endorsement of religion, even though that’s how it was intended. The intent is irrelevant if the purpose is to prevent a message of endorsement: the focus has to be on the effect of the display (which is why context is paramount).
The opposite holding would mean that one city could put up the crosses (or the ten commandments) by documenting a non-secular purpose, while a neighboring city whose motives were more secular could not — even if the displays were exactly the same, and even if the message of endorsement was indistinguishable to the reasonable observer. Moreover, as with the second case, once your motives were called into question, you could never fix the problem, because regardless of what the display looked like, your motives would presumably remain the same, or at least subject to challenge.
Comment by Jon — March 8, 2005 @ 4:44 pm