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Ten Commandments

March 2, 2005 at 12:00 AM EDT
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RAY SUAREZ: A 6-foot granite replica of the Ten Commandments bearing the words “I am the Lord thy God” has occupied a space on the Texas capitol grounds in Austin for more than 40 years.

But today, it was at the center of a legal argument heard by the U.S. Supreme Court. At issue: Whether its presence blurs the line between church and state. Attorney Erwin Chemerinsky, who represents the plaintiff in the case, said the monument’s display of the biblical laws violates the US Constitution.

ERWIN CHEMERINSKY: The Ten Commandments is sacred text. It expresses a profound religious message that there is a God and that God has commanded rules of behavior. To put it at the very seat of Texas state government and the Texas state capitol and the Texas Supreme Court is for the government to endorse religion in an impermissible way.

RAY SUAREZ: On the other side, Texas Attorney General Greg Abbott’s argument to keep the monument where it is prevailed in a lower court.

GREG ABBOTT: We made clear to the court that the Ten Commandments is of historical significance as a symbol of law in this country, and that it is perfectly constitutional for a government to recognize a symbol or text that is religious so long as it is equally clear that a government is not officially endorsing religion.

RAY SUAREZ: The Texas case was one of two argued at the high court today. The other came from Kentucky, where framed copies of the commandments are on display at two courthouses, along with other privately donated historical documents. A court of appeals ruled against the displays.

The justices’ decision to hear the cases came as a surprise, since they have refused to consider the impact of the high court’s 1980 decision that banned such displays in public classrooms. Lower courts have since made about two dozen rulings on the subject.

Last year, the high court refused to hear the appeal of Alabama Chief justice Roy Moore. In 2003, Moore was removed from office after he defied a court order to remove a sculpture bearing the Ten Commandments from the state Supreme Court building. The 2-ton granite marker was ultimately taken away.

RAY SUAREZ: Here to bring us inside the courtroom for today’s arguments in the Texas and Kentucky cases is NewsHour regular Jan Crawford Greenburg, Supreme Court reporter for the Chicago Tribune.

Now, Jan, the court’s taken up a lot of these questions before, hasn’t it?

JAN CRAWFORD GREENBURG: It’s struggled for decades with the role of religion in public life, religious symbols in the public square. As you just mentioned, it’s decided that public schools cannot display the Ten Commandments.

But it’s always looked at those public school cases a little differently because of the age of the students. Maybe they’re more susceptible to the message and the government endorsement than it has other context of the legislatures and the courtrooms and the parks, those kind of cases.

So these are issues that the court has struggled with for many years, prayer in legislatures, Ten Commandments on a courtroom or in a park. It gave the Justices tremendous difficulty during these arguments.

RAY SUAREZ: And today the Texas and Kentucky cases, even though they were heard together, they were sticking argued separately?

JAN CRAWFORD GREENBURG: Right, they present very different facts, different displays and different issues. They could come out differently. The Justices could decide for the government in one and against the government in the other.

RAY SUAREZ: So, how did the Texas argument go?

JAN CRAWFORD GREENBURG: The justices in that argument I think seemed more sympathetic to the government’s argument that it should be able to allow this monument on the grounds of the state capitol. Now, there are four justice on the Supreme Court, I believe, that would vote to affirm the Ten Commandments in public life and in the public square, the four more conservative Justices.

And today Justice Antonin Scalia was very vocal in suggesting that states should be able to display the Ten Commandments to acknowledge this country’s religious heritage. Justice Kennedy also expressed his concern that, as he said, there had been almost this obsessive concern about any mention of religion and that that might express a hostility to religion, indicating that he thought that these displays were permissible. The chief justice, William Rehnquist, and Justice Thomas also have indicated they would support these displays.

But from there it gets difficult. Justice O’Connor expressed her concern today that perhaps this could be sending a message that the government was endorsing religion in violation of the First Amendment, which, as you know, prohibits the establishment of a religion. Other justices also expressed concern.

Justice Breyer appeared to be looking for middle ground, some way that the court could draw the lines in these very difficult cases. I think one thing was clear today in what is a very confusing and complex area of the law. The court is not going to order the wholesale removal of the Ten Commandments from public life.

I mean, after all, it appears in Supreme Court and in the U.S. Capitol in displays about the foundation of our nation’s lives. But it also is not going to allow the 2-and-a-half ton monument that the former Chief Justice of the Alabama Supreme Court erected in that state Supreme Court’s building.

But the hard line, and as Justice Breyer said today, he’s looking for a key. What goes too far. What does not? Justice O’Connor today, these lines are very hard to draw. The more difficult cases are the ones in the middle and the ones we saw today, the monument in Texas, the framed plaques in Kentucky surrounded by these other historical documents.

RAY SUAREZ: How is that case different? When they got to the Kentucky case, where there were framed copies of the Ten Commandments inside public places, did the tone change?

JAN CRAWFORD GREENBURG: I thought it may have changed a little bit for Justice O’Connor. I don’t think it would have changed the calculus for the four more conservative Justices. Justice O’Connor seemed a little troubled by the history of this case.

The county officials in this case had passed a resolution urging the local officials to erect Ten Commandments in the public buildings, and the lower court had found that the county’s reason for having this display, that it was, you know, the foundation of our lives, was really a sham. So that may have tainted the government’s rationale for erecting the Ten Commandments and caused some of the Justices, such as O’Connor, to be more troubled by those displays in the Kentucky case.

RAY SUAREZ: So when they write their opinions on these cases, are we going to get some ground rules on how to display a text like the Ten Commandments in a public place, or might it end up having very narrow bearing?

JAN CRAWFORD GREENBURG: This court has always looked at these issues under the establishment clause on a case-by-case basis. They’ve drawn these lines very finely. They’ve not issued these sweeping decisions, giving very clear guidance to the lower courts.

And, in fact, today the justices seemed divided even on how to tackle this issue, the kind of rules and tests that they should use in deciding whether or not the Ten Commandments violates the First Amendment. So the lower courts, I am certain, and the state legislatures, I am sure, hope that the Supreme Court gives them very clear guidance in these opinions.

But as the justices showed today, that’s going to be very difficult to do to draw these fine lines on when you can allow Ten Commandments and when you can’t. And it’s come up with this court time and time again in this area. For example, the issue of prayer in the public life and in the public sphere, the court has said, “of course, you can’t have school prayers in school settings, you know, even a moment of silence is unconstitutional.”

But it’s said that legislatures could have a chaplain come in and give a prayer. It’s said that you can’t have a crèche in a courthouse during the holiday season, but it’s allowed a Nativity scene around a public building when there are Santas and reindeer. So these are very complex issues. It’s a very murky area of law, and perhaps we will get some guidance.

RAY SUAREZ: Jan, thanks for coming over today.

JAN CRAWFORD GREENBURG: Thank you. My pleasure.