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Ruling on Ten Commandments

June 27, 2005 at 12:00 AM EDT

GWEN IFILL: The Supreme Court cleared its docket today on this, the final day of its term. Among the decisions issued: Divergent rulings on the right to display the Ten Commandments. As she has been throughout the term, NewsHour regular Jan Crawford Greenburg of the “Chicago Tribune” was in the court today.

Welcome back, Jan. Split decision. What does that mean?

JAN CRAWFORD GREENBURG: Well, this case – this issue involved two cases: One from Texas and one from Kentucky. They were different displays of the Ten Commandments. The Texas Ten Commandments was a six-foot tall monument that was displayed on public property on the grounds of the state capital. The Kentucky Ten Commandments display was inside two county courthouses, a framed display of the Ten Commandments that contained other things surrounding it.

So we had two very different cases that made their way up to the Supreme Court. And today the court split the difference. It said the Texas monument on the grounds of the Texas statehouse surrounded by all the other monuments there that illustrate the ideals of the Texas settlers — that was not unconstitutional — that Texas could keep that monument there.

But it said with a different set of Justices, it said that the Kentucky Ten Commandments display in those two county courthouses were unconstitutional because officials in those Kentucky counties had a purpose of promoting religion. They looked at what was behind the point of putting those displays up.

GWEN IFILL: So it came down to a question of whether they were promoting religion, not a question of whether – where it was physically located.

JAN CRAWFORD GREENBURG: That’s exactly right. And in the Texas case, the Justices emphasized the context and the history of that display. Now this case was very bitterly divided. It was 5-4. Both of the cases were decided 5-4.

GWEN IFILL: But you said there were different groups of Justices in each time?

JAN CRAWFORD GREENBURG: That’s right. And Justice Breyer saw these cases differently. He was the key vote. He sided with the four more conservative Justices in the Texas case and he stressed he didn’t join the reasoning of their opinion because they would have gone much further and allowed Ten Commandments in other context.

But Justice Breyer in the Texas case stressed that the history and the context of this display was so important, it had been there for 40 years without really any complaints. It was surrounded by a host of other monuments, monuments to war veterans and tributes to Texas children and the Alamo. And so an observer would not think the government was promoting religion. That was very different in the Kentucky case.

GWEN IFILL: He didn’t see that kind of history and legacy in the Kentucky case?

JAN CRAWFORD GREENBURG: The Kentucky case was written, that decision was written by Justice David Souter, and it said officials in the two counties clearly were trying to promote religion and that violates the Constitution’s First Amendment, which prohibits an establishment of religion.

What the officials did there, the Supreme Court ruled today, was to promote religion. They had ordered these displays be hung and prominently displayed and they were hung alone.

There was a lawsuit filed so the county eventually put some other document around it but the court said the taint was still so great because the original purpose was still there and that was to promote religion or to show… there was this religious purpose to it.

That produced a very bitter dissent by Justice Scalia who took a rare step of summarizing it ten minutes from the bench. Now on the bench he sits right next to Justice Souter so Justice Souter announced his opinion and Justice Scalia summarized in a passionate and clear voice why he thought the court was so terribly wrong in this case.

GWEN IFILL: What happens inside the courtroom in a moment like that? They’re sitting right next to each other; they completely almost violently disagree – if that’s not overstating it. Do they look at each other?

JAN CRAWFORD GREENBURG: No. Typically, they just look straight ahead. And that’s what happened today. I mean, Justice Souter sat quietly of course. I mean, he didn’t sigh loudly or roll his eyes. I mean, he looked straight ahead as Justice Scalia very forcefully said that today the court was wrong and it in fact was ratcheting up the public’s — government’s hostility toward religion. And he said religion has always had a place in our nation’s heritage, that governments could of course show that religion is, you know, the foundation or part of our country’s founding. And he cited numerous examples of God in public life, including the oath of office and the way the court….

GWEN IFILL: Including right in the court’s chambers. So this reasoning also covered what had other people say are the displays we’ve seen everywhere. It’s on the money – it’s on — everyplace else.

But the court has often seemed to send kind of mixed messages about where religion is permissible and where it is not in a public square.

JAN CRAWFORD GREENBURG: This area has deeply divided these Justices and the rulings from the court in this area about what the government can say or how it can speak about religion has been very divided. Lower courts have been deeply confused by the court’s rulings in this area, so there was great hope that today the Supreme Court would finally provide some clear guidance that they could use in other context about public expressions of religion on public property, but people on both sides of the issue that I spoke with after today’s ruling, while they were both disappointed because it wasn’t a clear decision said that today’s ruling, above all, means that these battles will continue and that lower courts will still lack that clear guidance.

GWEN IFILL: Okay. Stay right there, Jan. We have more to talk to you about. Ray Suarez has more on the reaction to today’s Ten Commandments rulings.

RAY SUAREZ: Here to explore some of the questions raised by the court’s dual decisions are Jay Sekulow, chief counsel of the American Center for Law and Justice, which filed friend-of- the-court briefs in both cases, and Rabbi David Saperstein, director of the Religious Action Center of Reform Judaism, which signed on to a brief in the Texas case.

And I’m wondering, for you both since you are both interested parties, whether a rule of thumb emerges when you take these two decisions together? Is there any guidance of when it is okay and when it is not okay? Jay Sekulow?

JAY SEKULOW: I think the one aspect we would probably agree on this is the court, when it comes to the monuments like the fraternal Order of Eagles Monument in the Texas case, which is — there are almost 4,000 of them around the country – that is where most of the litigation is actually focused, of the 30 cases that are being litigated – and my office checked on this today — 28 of them involved these Fraternal Order of Eagles Monuments like in Texas, and the court there, by a thin majority, very thin, because Justice Breyer really was the key vote as Jan just said — and the court there said those are okay if they’re in that kind of context and they’re all basically displayed the same way.

So for most of the litigation that’s involved in these cases, it’s resolved. Where the litigation will continue is cases like the Kentucky case, but for the vast majority of the cases, the Supreme Court has held those Ten Commandment monuments can stay. They almost had to in light of their own Supreme Court building which, of course, has the depiction of Moses with the words of the Ten Commandments emblazoned in the marble in Hebrew.


RABBI DAVID SAPERSTEIN: Well, I see it somewhat differently in the sense that while each side had some victory here, the one bright line rule that seemed to have been reaffirmed was the notion, Ray that in the United States, for the government to endorse a religious message is a violation of the establishment clause.

And, therefore, any time that a reasonable observer would see the portrayal of the Ten Commandments as government endorsement of its religious message, it is forbidden. And only in those cases where it has been somewhat muted in its context and represents endorsement of a civil moral message or an historical acknowledgment would it be upheld.

Now, I’m bothered because I don’t like to see the Ten Commandments stripped of its religious message but in that sense, I think it was more of a victory for the separationist side than it was for those who want to tear down the law of separating church and state.

RAY SUAREZ: Do you think that’s what happened, Jay Sekulow, that the Ten Commandments were stripped somewhat of their religious message?

JAY SEKULOW: No. Here’s how I view it, and David knows this and we’ve talked about this a lot, and I argue this in my brief. I don’t think there is anything wrong with the civil religion. And there’s a lot of people that would disagree with that but civil religion in the context of what the court meant, which is this acknowledgment that faith and values and God have played a role in the development of American republic and is part of who we are.

You can trace that right into the Declaration of Independence. So this idea that you have the civil acknowledgment of this, whether it’s the Ten Commandments or in God we trust, I don’t think that causes a constitutional problem.

Now, there are some that would say, well, that trivializes religion. I don’t think so. I think it’s kind of the American experience really that’s at play here. And that’s one of the things we argued in our brief.

RAY SUAREZ: Rabbi Saperstein, are these cases and their decisions so specific that you don’t derive anything from the way they were decided – that comes in useful if you’re supervising a courthouse somewhere in America or getting ready to put up a display inside your high school?

RABBI DAVID SAPERSTEIN: Good question. One of the disappointments was that the court did not use this as an opportunity to set out generic bright lines of what is allowed and what is not allowed.

However, certainly in the Kentucky case, it did make clear that if you go about presenting the Ten Commandments as part of an historical display, not endorsing its message and clearly as Justice Souter said to the freeze on the Supreme Court, where he said there is Moses surrounded by 30 other law givers, clearly what is being portrayed and endorsed are law givers, not the religious message of the Ten Commandments.

So if you set out to clarify what your intent is, acknowledgment of the history of America, the development of law, and you surround it with other portrayals that clarify that that is the case, it would be allowed.

In that sense, it was helpful but the court did find that in the Kentucky case that is exactly what did not happen; it had a clear religious intent and the government cannot endorse religion. And that was an important signal to the country as well.

JAY SEKULOW: And that’s going to bring up I think where the litigation is primarily going to focus because, as I said, the 4,000 Fraternal Order of Eagle Monuments that are around the United States, those are fine, they’re constitutional; the court said that. But as David said, the issue is going to be: What was the intent of the city council or the county commission when they put that up? And that’s always a difficult task.

Although today – and I think we both would agree on this – the court did say we’re going to look at what the real intent was and don’t play games with it here. We want to know really what they were thinking when they put this up, to the best you can from the record.

RABBI DAVID SAPERSTEIN: And what Souter clarified and the majority agreed with him on was this reaffirmation that separation of church and state is good for religion, as well as for the nation; it prevents religious strife and competition, or whose religious symbol is going to be posted where, and which religious message will be endorsed and it serves to protect religion because the wall that keeps government out of religion has allowed religion to flourish with the diversity and strength in America unmatched anywhere in the democratic world, far more religions, more people going to worship, more people believing in God and holding religious values central to their lives.

It’s ironic that there are people on the religious right that want to tear down the wall. And Scalia’s message that this country and this country the government can endorse religion was held and supported by only three Justices on the Supreme Court. The rest think that is inappropriate.

JAY SEKULOW: But there was an important part of this also. Not only did Justice Scalia say that the religious values should be acknowledged when appropriate by government and there were two other Justices that agreed with him, but Justice Breyer said something very important in his concurring opinion. He said the idea that we would order through this court’s decision the removal of these monuments around the country would show not neutrality towards religion but hostility towards that which is prohibited also by the establishment clause.

And having Justice Breyer make that analysis that the removal across-the-board, literally 4,000 of these monuments, would show that kind of hostility towards religion I think was a step forward.

No one can sit here today and claim complete victory in either one of these cases because you have got very thin majorities on both sides, I mean, very thin, as thin as they can be, five to four cases, I mean, one Justice viewing the case a little bit differently, and it goes the other way. So in a case like this, the principle I think we draw out of this is it is probably very good for the lawyers because there’s going to be a lot more litigation going on, on this.

RAY SUAREZ: Well, where does the action shift now, now that the court has spoken on the Texas case and specifically on the kind of things that were done in Kentucky, that association between religious and public space, where is the action now?

RABBI DAVID SAPERSTEIN: It’s likely to move from the Ten Commandments for a while probably to other religious symbols. There’s likely to be more of about clarifying the Allegheny, the question of crèches and menorahs and exactly where they can be placed under what circumstances.

But I think the rule enacted today is a rule that would be followed in all, Ray. If to a reasonable observer, this is endorsement of religion, it will not be allowed. If it is endorsement of the history of our country and the role that religion played, it will be allowed. That links all those cases together.

RAY SUAREZ: That endorsement of religion question, in whose eyes, in the eyes of a minority religionist, in the eyes of an atheist?

JAY SEKULOW: Ray, it’s a good question. The courts talked about the idea of the reasonable observer. What would the reasonable observer say viewing this, although today in the court’s opinion you don’t have a whole lot of discussion, a little bit, about the reasonable observer, not a lot.

But I think here’s what we’ve learned from this. When the court looked at the nativity scene cases, there were a lot of those in the past, menorah cases. Now they’re haven’t been so many. Why is that? Well, the court said that if a private organization sponsors a nativity scene, a menorah, even on public property, it’s constitutional; the court voted in that case seven to two. That kind of ended the litigation there.

Now, I don’t think this case is going to cause that to be re-looked at, but I’ll tell you where I do think this is going to go. I think you’re going to see cities and counties around the country reevaluating how they can best describe it, as David correctly said, the religious influences on America’s legal development, and I think that’s where this is going to go.

RAY SUAREZ: Gentlemen, thanks a lot.

JAY SEKULOW: Thank you.