By Michael Collins
Scripps Howard News Service
March 01, 2005
One of the cases originated in Kentucky, where elected officials in two rural counties posted privately donated, framed copies of the Ten Commandments in their courthouses.
The other involves a 6-foot granite monument that has been located for decades on the grounds of the Texas State Capitol. The monument is inscribed with the Ten Commandments and is in the shape of the tablets that some religions believe God gave to Moses.
The central question in both cases is whether the Ten Commandments are an integral part of America's legal and cultural history and thus may be displayed on public property, or whether such displays amount to an inappropriate endorsement of a particular religion.
"The Ten Commandments advocate religious beliefs that should be left to each individual," said Beth Wilson, executive director of the American Civil Liberties Union of Kentucky. "And, especially when you're talking about public buildings like a courthouse, people should not be made to feel like outsiders in their own communities because they might not share the dominant religious view."
But Florida attorney Mathew Staver, who will argue the Kentucky case before the Supreme Court, counters that the Ten Commandments form the backbone of American law and have become such an important part of the secular culture that they are represented in the architecture and artwork of courthouses across the country.
Staver and others point out that, inside the Supreme Court chambers where the case will be argued, a ceiling frieze contains the image of Moses bearing two stone tablets. Several similar images can be found throughout the chamber.
"What's at stake is not only the Ten Commandments, but also other religious symbols that are displayed on our mottos, our seals, our government architecture and buildings, our songs and so forth," said Staver, president of the religious-law group Liberty Counsel. "I think any public acknowledgement of religion is at stake."
The cases mark the first time in a quarter century that the court has agreed to clear up confusion over when and where Ten Commandments displays on public property violate the constitutional ban on "establishment of religion."
The last case the court agreed to hear was in 1980, when justices struck down a Kentucky law that required public schools to post a copy of the Ten Commandments in every classroom. In that case, the court held that the law lacked a plausible secular purpose.
But the makeup of the court has changed considerably since then. In some subsequent decisions, the court has shown more tolerance toward public religious expression.
And the fight over Ten Commandments displays has escalated in recent years, with officials like former Alabama Chief Justice Roy Moore staking their political reputations on such cases. Moore lost his job in 2003 after refusing to remove a 5,300-pound granite Ten Commandments monument from the Alabama courthouse rotunda.
The latest Kentucky case before the Supreme Court began five years ago when officials in McCreary and Pulaski counties posted copies of the King James Version of the Ten Commandments in their courthouses. The posting was part of a nationwide effort by a coalition of groups, primarily evangelical Protestants, to encourage public display of the biblical rules.
After the ACLU sued, the counties put up additional documents, such as the Magna Carta, the Declaration of Independence and the Star Spangled Banner, in an effort to demonstrate their secular role in the nation's history.
A federal district court ruled that the displays must come down, and the 6th U.S. Circuit Court of Appeals upheld the lower court's decision.
In the Texas case, Thomas Van Orden of Austin sued to have the monument taken down on the grounds that it violated the First Amendment ban on government "establishment of religion."
A federal district court ruled in the state's favor, and the 5th U.S. Circuit Court of Appeals agreed, saying the monument did not impermissibly endorse religion because it was one of a number of displays inside and outside the Capitol building.
Legal scholars predict that the Supreme Court will probably try to find some middle ground in the two cases by allowing room for some religious displays while more clearly defining what's unacceptable.
But unless the court draws a clear line between what is and isn't allowed, "we are going to get an endless flood of litigation" for years to come, said Douglas Laycock, a First Amendment expert at the University of Texas.