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The Ten Commandments Reach the Supreme Court
The New York Times ^ | February 27, 2005 | LINDA GREENHOUSE

Posted on 02/26/2005 11:27:46 PM PST by Former Military Chick

WASHINGTON, Feb. 26 - One federal court upheld them as a symbol of the country's devotion to its legal heritage. Another federal court ordered them removed as an illicit message of religious endorsement. Fifteen months ago, Alabama's chief justice lost his job over them, and the two-ton granite monument that once sat in the rotunda of the state courthouse is now the star of a national tour. The profile of the Ten Commandments, it seems, has rarely been higher, or their ability to attract lawsuits greater.

Now, as with all great controversies in American life, this one has finally reached the Supreme Court. In two cases to be argued on Wednesday, the basic question for the justices will be: what does it mean for the government to display a copy of the Ten Commandments?

To those who seek removal of the displays - a six-foot red granite monument that has sat since 1961 on the grounds of the Texas Capitol, and framed copies of the Ten Commandments that were hung five years ago on the walls of two Kentucky courthouses - the meaning is as obvious as it is impermissibly sectarian.

"There is no secular purpose in placing on government property a monument declaring 'I am the Lord thy God,' " Prof. Erwin Chemerinsky of Duke University Law School wrote in his brief for Thomas Van Orden, an Austin resident who has so far been unsuccessful in his challenge to the Texas monument. It is one of thousands placed around the country in the 1950's and 1960's by the Fraternal Order of Eagles with the support of Cecil B. DeMille, the director, who was promoting his movie "The Ten Commandments."

"The government is not supposed to be for religion or against religion," Douglas Laycock, a professor and associate dean at the University of Texas School of Law, said in a discussion of the cases here on Thursday sponsored by the Pew Forum on Religion and Public Life. "You don't put up a sign you disagree with, and the government doesn't disagree with these."

At the same event, Jay Sekulow, chief counsel of the American Center for Law and Justice, a law firm established by the Rev. Pat Robertson that litigates for evangelicals and other religious communities, offered a different perspective. The Ten Commandments have acquired secular as well as religious meaning, he said, and have come to be "uniquely symbolic of law."

Mr. Sekulow noted that the marble frieze in the courtroom of the Supreme Court building itself depicts Moses, holding the tablets, in a procession of "great lawgivers of history." (The 17 other figures in the frieze include Hammurabi, Confucius, Justinian, Napoleon, Chief Justice John Marshall and Muhammad, who holds the Koran.) "Does the Supreme Court now issue an opinion that requires a sandblaster to come in? I think not," Mr. Sekulow said.

The Bush administration, which has filed briefs urging the justices to uphold the displays in both cases, takes the same approach, calling the Ten Commandments "a uniquely potent and commonly recognized symbol of the law."

Professor Laycock, who filed a brief on behalf of the Baptist Joint Committee against the display in the Texas case, Van Orden v. Perry, No. 03-1500, disparaged as "sham litigation" the effort to depict the Commandments as anything other than profoundly religious. To defend the Commandments as a historical or legal document is "to desacralize a sacred text, to rip it out of context and distort its meaning and significance," he said. "It ought to be unconvincing to people outside the religious tradition and insulting to those within it."

The debate over the Ten Commandments is reminiscent of the debate before the court a year ago over the phrase "under God" in the Pledge of Allegiance, which an atheist from California, Michael A. Newdow, challenged as an unconstitutional establishment of religion and the Bush administration defended as a historical reflection of the country's spiritual roots. The court never resolved the issue, eventually dismissing the case on the ground that Dr. Newdow had lacked standing to bring it.

The Pledge case nonetheless drew an illuminating separate opinion from Justice Sandra Day O'Connor, who has often cast the deciding vote in religion cases. She called the words "under God" an example of "ceremonial deism," which she defined as the use of religious idiom for "essentially secular purposes" that does not offend the Constitution.

Whether Justice O'Connor will take a similar view of the Ten Commandments is anyone's guess. On the one hand, the Commandments contain not two words but approximately 120, closer to the 100-word high school graduation prayer that Justice O'Connor found unconstitutional in a 1992 case.

On the other hand, while the Pledge is recited each morning in public school classrooms, creating a powerful government message that is difficult to ignore even for those children who exercise their constitutional right not to participate, the Ten Commandments stand mute. People who do not feel drawn to a monument or framed depiction can avert their eyes and walk on by.

Clearly, context matters, although exactly how it matters is open to debate, as the Kentucky case, McCreary County v. ACLU of Kentucky, No. 03-1693, demonstrates. The case began in 1999, when the American Civil Liberties Union challenged the display of the Ten Commandments, hanging unadorned in solitary frames in the McCreary County and Pulaski County courthouses.

The counties quickly modified the displays to include the texts of the Declaration of Independence, the Mayflower Compact, the Star-Spangled Banner, the Bill of Rights, and several other images that the counties named, collectively, the "foundations of American law and government."

Nonetheless, the federal district court in London, Ky., ordered the entire display removed, and the United States Court of Appeals for the Sixth Circuit, in Cincinnati, agreed. It held that the "foundations" documents as a collective retained the "unconstitutional taint" of the original, solitary Ten Commandments display.

The counties' lawyers at Liberty Counsel, a Florida-based organization affiliated with Liberty University, whose chancellor is the Rev. Jerry Falwell, object in their brief that "no reasonable observer would consider the Foundations Display an endorsement of religion."

In the Texas case, the United States Court of Appeals for the Fifth Circuit, in New Orleans, upheld the Texas monument on essentially that basis, finding that "a reasonable viewer touring the Capitol and its grounds" would find a predominantly secular rather than religious message in the Ten Commandments, one of 17 monuments in a 22-acre park that carries a designation as a national historic landmark.

One question is whether the court will try to derive a broad principle from the pair of cases or whether it will stress the distinct facts of each. Another question is the standard for judging governmental displays with religious content. Justice O'Connor has long advocated an "endorsement" test: does the government appear to be endorsing religion to the extent that a nonbeliever would be made to feel an outsider?

Other touchstones for the court's analysis in such cases include an evaluation of "purpose," "effect," and - sometimes present but never acknowledged - politics. "Supreme Court Strikes Down Ten Commandments" is a headline that few Supreme Court justices want to read.

TOPICS: News/Current Events
KEYWORDS: billofrights; churchandstate; justiceoconnor; politics; revjerryfalwell; scotus; tencommandments
I would love to be able to be there in person to hear both sides argue this issue.
1 posted on 02/26/2005 11:27:47 PM PST by Former Military Chick
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To: Former Military Chick

If you're anything like me, I'd have to be sedated in order to listen to their side without embarrassing myself.

2 posted on 02/26/2005 11:33:14 PM PST by coconutt2000 (NO MORE PEACE FOR OIL!!! DOWN WITH TYRANTS, TERRORISTS, AND TIMIDCRATS!!!! (3-T's For World Peace))
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To: Former Military Chick

Sodom and Gomorrah disobeyed God Laws.
Gee, I can't find them on the world map anymore, and I wonder why

3 posted on 02/27/2005 1:59:30 AM PST by Orlando
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To: Former Military Chick
"The government is not supposed to be for religion or against religion," Douglas Laycock, a professor and associate dean at the University of Texas School of Law, said


4 posted on 02/27/2005 2:03:09 AM PST by beyond the sea (Barbara Boxer is Barbra Streisand on peyote .....)
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To: Former Military Chick

Not being able to be for or against something is nothing but nebulous insanity.

No, not the white, shirt, yes, the white shirt. On the other hand, no, not the white shirt. Well, I'm just going to wear it, but I can't...

Utter insanity. If they strike down the monuments, then they have adopted ACTIONS (not matter WHAT words they use) that PROHIBIT THE ****FREE**** EXERCISE OF RELIGION...

Oooops, that little used phrase in circular legal reasoning because the FREE exercise of religion would mean the monuments have to stand...

5 posted on 02/27/2005 3:25:44 AM PST by woodb01 (Re-Designed ANTI-DNC Web Portal at --->
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To: Orlando
By killing millions of unborn babies, in open defiance of God's law, we may deserve greater condemnation than Sodom. By toying with the idea of homosexual marriage, we have made our nation ripe for the judgment of Gomorrah. It is only by God's mercy that we still survive. Retaiing ten commandment monuments in the face of our abominable sins as a nation does little, apart from our repentance as a nation.

That being said, monuments to our godly heritage are necessary and proper. The SCOTUS, even if only concerned with it continued legitimacy as an institution, is not likely to do anything so radical as to allow sandblasting crews into its building to remove a frieze containing the decalogue. They will sidestep the issue like the artful dodgers they are and leave first amendment jurisprudence in the fshambles that it created.

6 posted on 02/27/2005 3:51:00 AM PST by Don'tMessWithTexas
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To: Former Military Chick

How the Courts can declare mere display of the Ten Commandments to be any violation of the Establishment clause defies logic and Law. For in 1853-1854 the Judiciary committee Reports of both the Senate Jan.19,1853)
and the House (March 27,1854) discussed the Establishment Clause.And their findings are easy to reconcile to that
which was written by Justic eJoseph Story in his Commentaries on the Constitution in 1833,And all of this
easy to reconcile to the clear language used and expressed intent in the First Federal Congress when they debated the
First Amendment. Any display in any Governemnt building or public school is NOT a violation of the Establishemnt Clause.Only someone who HATES America and seeks to destroy our Country could say otherwise.

7 posted on 02/27/2005 4:53:26 AM PST by StonyBurk
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To: Former Military Chick
A flag has been deemed an expression of free speech and protected as such.

I wonder, if a flag with the 10 commandments on it is planted on gov't property, is it protected free speech?

How about a flag with a Nativity scene on it? Hmmmmm
8 posted on 02/27/2005 5:32:43 AM PST by Smartaleck (Av "Never argue with an idiot, he'll bring you down to his level - then beat you with experience.")
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To: Former Military Chick
As a part of larger sculptural clusters, Moses is shown with tablets in the Great Hall, The East Pediment, and the North Courtroom of the U.S. Supreme Court, DeMar said. There is also an image of the Ten Commandments that is engraved on the frame of the bronze gates separating the courtroom from the aisle.

Also, above where the chief justice sits, a banner reads, "Justice, the Guardian of Liberty." Centered above the banner is a depiction of Moses seated and holding the Ten Commandments, DeMar added.

This is an except from an article on CNSNews, Moses, Ten Commandments Already Featured at US Supreme Court

9 posted on 02/27/2005 5:57:51 AM PST by kdot
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To: Don'tMessWithTexas

Joel ch2,ver 29
Lord God, I am trying my best and many of your servants are doing there best too in trying to shine the light of truth, but Lord it is hard and your soldiers of light are losing many battles. Lord, protect those that believe from your judgement.Lord GOD I Love You always and forgive me for becoming weak. In Jesus Christ name ,amen .

10 posted on 02/27/2005 10:40:24 AM PST by Orlando (Fatima, Save Theresa of Clearwater)
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To: Chieftain; Ragtime Cowgirl; americanmother; The Mayor; Titan Magroyne; 68skylark; EGPWS; ...

Supreme Court PING

11 posted on 03/01/2005 12:12:57 AM PST by Former Military Chick
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To: Former Military Chick

God is watching us..

12 posted on 03/01/2005 5:05:06 AM PST by The Mayor (
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