Display of Scripture May Split Justices

WASHINGTON —  The Supreme Court struggled Wednesday with the politically charged issue of whether prominent display of the Ten Commandments at government buildings violated separation of church and state.

In a Texas case, the court heard a challenge to a granite monument depicting the biblical Ten Commandments that sits near the entrance to the state Capitol in Austin. A second case tests whether Kentucky judges went too far when they posted framed copies of the Ten Commandments on the walls of a county courthouse.

Defenders say the displays merely acknowledge the nation’s religious heritage and the historical role of the Ten Commandments as a source of law and morality. The challengers say the biblical commands show the government to be endorsing religion, a violation of the 1st Amendment’s ban on an “establishment of religion.”

The questions asked by the justices suggested they were headed for a split decision.

“It’s so hard to draw the line,” said Justice Sandra Day O’Connor, the centrist who is likely to draw the line in both cases.

State lawmakers may open their sessions with a prayer delivered by a chaplain, O’Connor noted, citing a past ruling. How then can it be unconstitutional to have a monument with the Ten Commandments sitting outside the Capitol? she asked.

Because placing the Ten Commandments in front of the Capitol “conveys a powerful message” that the government “is endorsing religion,” said Duke University law professor Erwin Chemerinsky on behalf of Thomas Van Orden, a homeless Texan who sued to have the monument removed. “This is a sacred and solemn text. These are God’s words to God’s followers.”

To which Justice Antonin Scalia replied, in effect, what’s wrong with that?

“It’s a symbol that the government derives its authority from God,” he said. “That’s what this is about. Our laws are derived from God.”

Scalia said he believed that 90% of the American people supported having the Ten Commandments on display, even if “85% of them couldn’t tell you what they say.”

Justice Anthony M. Kennedy said he too saw no problem with the display of the Ten Commandments. He said he did not understand “this obsessive concern with anything religious.” Those who do not wish to see the Ten Commandments at the Capitol grounds “can avert their eyes,” he said. Demands to remove the Ten Commandments show “hostility to religion,” he added.

The justices heard two hours of argument, and they sounded closely split. Four justices -- John Paul Stevens, David H. Souter, Ruth Bader Ginsburg and Stephen G. Breyer -- support a distinct separation of church and state, and signaled they were likely to vote to strike down the religious displays in Texas and Kentucky.

When Mathew Staver, a lawyer representing the Kentucky judges, described the Ten Commandments as secular, not just religious, Ginsburg stopped him.

“Have you read the first four commandments?” she asked.

They begin with the words, “I am the Lord thy God. Thou shalt have no other gods before me.” Followers are also told not to have “any graven images,” to “take the name of the Lord thy God in vain,” and are reminded to keep the Sabbath day holy.

Four other justices -- Chief Justice William H. Rehnquist and Justices Clarence Thomas, Scalia and Kennedy -- have upheld religious displays and invocations at public buildings.

None of the lawyers took an all-or-nothing stand on the issue.

Chemerinsky said he saw no problem with a display in the courtroom where the justices met Wednesday: High on the wall carved in marble is a depiction of Moses holding the stone tablets. The marble frieze depicts lawgivers throughout history, from Hammurabi and Solomon to Napoleon and John Marshall, the fourth chief justice of the Supreme Court.

Lawyers on the other side of the case agreed that religious presentations by government could go too far.

Acting Solicitor General Paul D. Clement, arguing on behalf of the Bush administration, was asked about Alabama Chief Justice Roy Moore, whose display of the Ten Commandments in the center of the state’s Supreme Court building has been rejected by lower courts. That “crosses a constitutional line,” Clement replied.

Texas Atty. Gen. Greg Abbott was asked whether the state could display a crucifix.

“I seriously question whether a crucifix would be acceptable,” he said.

By contrast, the Ten Commandments are not just a religious symbol, he said. They “are a historically recognized symbol of law,” Abbott said.

O’Connor could decide to split the difference on the issue by upholding the Ten Commandments in one case and striking them down in the other. For example, she could vote to uphold the Texas monument because it sits among other statues and monuments on the Capitol grounds -- at one point, she described it as a “park-like setting.”

However, she could also agree with her more liberal colleagues that the Kentucky judges went too far because they were determined to post the Ten Commandments so visitors would be all but obliged to read them.

She sharply questioned the lawyer in the Kentucky case because officials there said they were trying to “demonstrate America’s Christian heritage” when they first posted the Ten Commandments five years ago.

The high court, including the ailing Rehnquist, will vote on the two cases behind closed doors this week. The justices will issue a written opinion by late June.