After sidestepping politically sensitive issues for much of the presidential campaign season, the U.S. Supreme Court yesterday squarely entered the emotional debate over whether displays featuring the Ten Commandments should be allowed on government property.
The court agreed to hear appeals in two cases involving displays on the state Capitol grounds in Texas and in local courthouses in Kentucky, revisiting for the first time its 1980 decision that banned the posting of the Ten Commandments in public school classrooms.
In the more than two decades since the court struck down a Kentucky law that required the posting of the Ten Commandments in classrooms, lower courts have produced a grab bag of conflicting rulings on whether such displays violate the constitutional ban on state "establishment" of religion as spelled out in the First Amendment.
Advocates and attorneys across the political spectrum said the Supreme Court's intervention - in two cases with conflicting rulings - could offer much-needed clarity on what has become a divisive battle in communities throughout the country.
"The establishment clause needed to be revisited," said Matthew D. Staver, president and general counsel for the Liberty Counsel, a conservative legal group that is representing local officials in the appeal from Kentucky. "I believe these Ten Commandment cases will probably be the blockbuster religious-freedom cases, not only for this term, but possibly of recent time."
Roger Pilon, vice president for legal affairs at the libertarian Cato Institute, welcomed the court's review while urging a different outcome. "The principle at issue is clear," Pilon said. "On religious matters, government must be neutral. It may not endorse either particular religious beliefs or religious beliefs as such."
The court is expected to hear arguments in the two cases in February and is unlikely to issue a ruling before June. That means the cases will be removed from the kind of election-year pressures that accompanied the court's review of whether the phrase "under God" should remain in the Pledge of Allegiance (the court avoided the question on a legal technicality) or whether to get involved in attempts by presidential candidate Ralph Nader to gain access to the ballot in Oregon (the court declined).
As recently as last week, the court signaled it might pass on the Ten Commandment issue. The justices declined to hear an appeal in former Alabama Chief Justice Roy Moore's long-running, high-profile legal battle over a Ten Commandments monument in the rotunda of the Alabama State Judicial Building in 2001. The court did not comment in declining to hear Moore's appeal, but the case was far from a clear review of a Ten Commandments display. In his appeal to the Supreme Court, Moore had claimed that the state judicial conduct panel that banished him from the bench for defying a federal court order to remove the display had effectively applied a religious test for holding office.
The cases from Kentucky and Texas were cleaner test cases and ones the justices had been urged to address. A group of state attorneys general who want the court to permit such displays warned in a supporting brief filed in the Texas case that the issue would not go away quietly. "Ten Commandments litigation is not just a breezy summer pastime; it represents an ongoing and metastasizing philosophical battle," Thomas Fisher, counsel to Indiana Attorney General Steve Carter, said in a brief urging the court to hear and uphold the lower court ruling in the case from Texas, Van Orden v. Perry.
In that case, Austin resident Thomas Van Orden claimed a 6-foot-high granite Ten Commandments monument that has stood on the grounds of the Texas state Capitol violated the establishment clause. The monument, donated to the state by the Fraternal Order of Eagles in 1961, sits near a variety of other monuments and memorials - a tribute to African-American legislators, a plaque commemorating the war with Mexico and a replica of the Statue of Liberty.
In a unanimous decision last year, a three-judge panel of the 5th U.S. Circuit Court of Appeals ruled that the display was constitutional.
"We are not persuaded that a reasonable viewer touring the Capitol and its grounds, informed of its history and its placement, would conclude that the state is endorsing the religious rather than the secular message of the Decalogue," Circuit Judge Patrick E. Higginbotham wrote in an opinion that also brought the issue plainly home for the Supreme Court: "A display of Moses with the Ten Commandments, such as the one located in the United States Supreme Court building, makes a plain statement about the Decalogue's divine origin. Yet in context even that message does not drown its secular message. So it is here."
In the Kentucky case, McCreary County v. ACLU, a divided panel of the 6th U.S. Circuit Court of Appeals took another view of Ten Commandment displays at local courthouses in two adjoining counties in rural southern Kentucky.
Local officials in McCreary and Pulaski counties hung framed copies of the Ten Commandments in their courthouses, then later added a variety of other historical documents - such as the Declaration of Independence - after the American Civil Liberties Union and various citizens sued.
The counties have sought to portray the revised displays as contextual, "where the Ten Commandments are part of the foundation of law," said Staver, the lawyer who has represented the local officials whom he described yesterday as "very happy."
David A. Friedman, general counsel for the ACLU of Kentucky, said yesterday that the revised displays were a fraud. The counties were "simply looking for some way to display the Ten Commandments," he said.
In rejecting the displays last year, the 6th Circuit appeals court agreed in a 2-1 decision, saying the courthouse displays "utterly fail to integrate the Ten Commandments with a secular subject matter."
"When distilled to their essence, the courthouse displays demonstrate that [the counties] intend to convey the bald assertion that the Ten Commandments formed the foundation of American legal tradition," the court said.
As local officials waited to hear whether the Supreme Court would review the case, most of the document display in the front lobby of the Pulaski Courthouse has remained. Visitors yesterday could read copies of the Declaration of Independence, the Magna Carta, the preamble to the Kentucky Constitution, "The Star-Spangled Banner," the Mayflower Compact and the Bill of Rights - and see a picture of Lady Justice, near an empty frame that formerly held the Ten Commandments.