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COVER STORY:
U.S. Supreme Court and the Ten Commandments
February 11, 2005    Episode no. 824
Read This Week's November 7, 2008
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BOB ABERNETHY, anchor: Next month, the Supreme Court considers whether it is constitutional to display the Ten Commandments on public property. It is an issue that has triggered strong emotions and competing opinions. A court in Kentucky said that state cannot display the commandments. But a court in Texas said it's okay there. Tim O'Brien surveys the arguments and the people making them.

TIM O'BRIEN: The Ten Commandments have been on display at the Texas state capitol for more than 40 years -- one of dozens of such monuments donated to states and cities by the Fraternal Order of Eagles, a national civic group.

Photo of statue of Ten Commandments Is the display an unconstitutional government promotion of religion? The question made headlines in another case two years ago when a federal court ordered Alabama's chief justice, Roy Moore, to remove this two-and-a-half-ton granite monument from the rotunda of the state supreme court. Moore refused and lost his job as a result. But courts in other cases have both allowed and disallowed the Ten Commandments on public property. The conflicting decisions have produced uncertainty over what states can do.

The U.S. Supreme Court has now agreed to settle the question in a challenge to the Texas display brought by Thomas Van Orden.

THOMAS VAN ORDEN (Plaintiff, VAN ORDEN V. PERRY): There's an old Jewish saying that is: "If not you, who? If not now, when?"

O'BRIEN: Van Orden, at least to some, is an unlikely plaintiff. Trained as a lawyer, he is broke. He lives in a tent in a city park. He has scrupulously avoided the news media who, he complains, are more interested in his personal problems than in any First Amendment issues. But Van Orden says he is "proud as hell" that on Wednesday, March 2, the country's highest court will take up his case.

Photo of THOMAS VAN ORDEN Mr. VAN ORDEN: We have two religion clauses in the First Amendment. The second one guarantees to each of us -- each American citizen -- the right to exercise that person's religious belief as that person sees fit. But that right to exercise religious beliefs applies to us individually. It does not apply to government. Government, rather, is restricted by the establishment clause; it must stand neutral.

O'BRIEN: The Supreme Court has squarely considered the display of the Ten Commandments only once, in 1980, ordering school officials in Kentucky to remove them from public school classroom walls. Involving impressionable schoolchildren, that case is quite different from the one here in Texas. But what the court said about the Ten Commandments 25 years ago could still have a bearing in this case.

In finding that school officials had acted with a "plainly religious purpose," the justices said the commandments "are undeniably a sacred text in the Jewish and Christian faiths."

Photo of GREG ABBOTT GREG ABBOTT (Texas Attorney General): Yeah, sure, it's a sacred religious text. But at the same time, there are important fundamental core values represented in the Ten Commandments that have been a very important part of the rich tradition and history of this state.

O'BRIEN: State Attorney General Greg Abbott will defend the Texas display in the U.S. Supreme Court.

Mr. ABBOTT: You look at the context, and the context is a vast outdoor museum, and this is just one piece of that museum. All you have to do is look up the sidewalk, and you see countless other museum pieces. You see the Statue of Liberty; you see a monument to a pioneer woman in the state of Texas; you see monuments of Texas children.

Mr. VAN ORDEN: The Ten Commandments appear on the state capitol of Texas -- alone. It is the only code of conduct that appears to be endorsed by the state of Texas, but it is a religious code of conduct. It is sectarian. It applies only to Christianity and Judaism.

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O'BRIEN: Along with the Texas case, the high court will also hear another case from Kentucky, where a federal appeals court ordered the Ten Commandments removed from county courthouses. The lower court found there was a religious purpose that could not be cured by merely adding other historical documents like the Mayflower Compact and "The Star-Spangled Banner."

It is an emotional issue in Kentucky, Texas, and elsewhere.

Photo of cross with American flag UNIDENTIFIED MAN: We're here today to sound the alarm of the dying of a nation.

O'BRIEN: Last month, supporters of the Texas display held a rally at the state capitol.

Popular sentiment strongly favors allowing the Ten Commandments.

There's an old saying that the Supreme Court follows the election returns. Religion played a huge role in the last election, and President George Bush is now asking the Supreme Court to allow the Ten Commandments a larger role in public life.

In a friend-of-the-court brief, the Justice Department writes: "Religious faith has played a defining role in the history of the United States. Government may commemorate the Decalogue's influence on American legal and cultural history."

Photo of Supreme Court justices Although the justices ordinarily seem impervious to public opinion, some legal scholars suspect the current religious climate in the country could make the court more tolerant of religious symbolism.

Professor DOUGLAS LAYCOCK (University of Texas Law School): It's not supposed to matter, but it will. One of the things they will think about is whether this is an issue that they should use some of their credibility on.

O'BRIEN: Their "capital"?

Prof. LAYCOCK: Their capital. Exactly.

O'BRIEN: Professor Douglas Laycock, on behalf of a coalition of religious groups, is siding with Van Orden, saying it demeans the Ten Commandments to minimize its unique religious significance.

Photo of DOUGLAS LAYCOCK Prof. LAYCOCK: Theologians talk about the two tables of the Ten Commandments, the two halves. And the first half, the first table, is plainly about one's duties to God. It is plainly religious; it is no part of our law and could not be part of our law. "Thou shalt have no other gods before me; thou shall not make any graven images" -- those are clearly religious commandments.

O'BRIEN: The Ten Commandments are currently on display in government buildings all over the United States and in Washington -- on the new Ronald Reagan Building; in the main reading room of the Library of Congress. They're on the U.S. Supreme Court itself.

Photo of U.S. Supreme Court building The court will surely allow some display of the Ten Commandments. How they are displayed -- context -- will be critical in deciding whether it's more a celebration of history, which is permissible, or promotion of religion, which is not.

For RELIGION & ETHICS NEWSWEEKLY, I'm Tim O'Brien in Washington.

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