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Supreme Court weighs Ten Commandments cases

By Bill Mears
CNN Washington Bureau

• Texas case:  Van Orden v. Perry
• Kentucky case:  McCreary County v. ACLUexternal link
Supreme Court
Justice and Rights

WASHINGTON (CNN) -- A cautious Supreme Court walked a legal tightrope Wednesday, seeming to look for ways that would allow displays of the Ten Commandments on government property to continue.

The justices heard two separate appeals over whether such displays on public property represent government endorsement of religion, forbidden by the U.S. Constitution. A ruling on the divisive issue could create new boundaries on religion's broader cultural and legal status in American society.

Lawyers representing the federal, state, and county governments argued the 4,000 Ten Commandments displays in public courthouses and parks nationwide simply acknowledge the role belief in a higher authority has had in the development of the United States.

"The Ten Commandments are a historically recognized system of law," said Greg Abbott, Texas attorney general. A granite monument on the state capitol grounds in Austin was erected with private funds in 1961. Thomas Van Orden, who describes himself as a "religious pluralist," opposed the display and filed suit.

Van Orden's attorney, Erwin Chemerinsky, drew intense questioning from the justices over the limits of religious expression in government.

"Are you saying Thanksgiving proclamations are inappropriate?" asked Justice Antonin Scalia, comparing that to the Decalogue. "I don't see why the one is good and the other is bad."

Sandra Day O'Connor, who could prove a key swing vote in the case, followed up, asking "If legislatures open their sessions, that the public can attend, with a prayer, why can't it allow monuments? It's so hard to draw that line," she added. noting that one is proper and the other is not.

Justice Anthony Kennedy went further, observing, "There is this obsessive concern over any mention of religion, that shows a hostility toward religion." He suggested, "It's the classic 'avert your eyes.' If the atheist walks by this monument, he can just avert his eyes."

Chemerinsky said that would be hard in this case, since the six-foot-high monument in Austin stands prominently between the capitol and judicial buildings. "Here venue is very important," he said. "This religious symbol conveys government endorsement of religion" since it favors a particular faith.

In a separate case argued after the Texas appeal, two Kentucky counties tried to justify separately posting copies of the King James version of the Ten Commandments on the walls of their courthouses.

These were privately donated displays of 11 frames of historical documents and symbols that they said helped form the basis of American law and government, including the Declaration of Independence. All but the Ten Commandments were secular in nature.

Mathew Staver, representing McCreary and Pulaski counties, argued that "these documents reflect American law and government."

Justice David Souter appeared skeptical, saying the displays have a clear religious message. "Everybody knows what's going on" when people see them, he said.

Justice Ruth Bader Ginsburg followed up. "These are not simple messages, like 'In God We Trust,'" on U.S. currency, she said. "The Ten Commandments are a powerful statement of the covenant God made with his people."

Scalia agreed, but apparently for different reasons. "What the Ten Commandments stands for is the human affairs of God," he said.

The Bush administration supports the local governments. Acting Solicitor General Paul Clement noted that while the Kentucky and Texas displays are "undoubtedly religious symbols," they also have a "significant secular purpose."

The First Amendment states, "Congress shall make no law respecting an establishment of religion." The Supreme Court has traditionally interpreted that to mean government actions must have a "secular purpose."

The court has tread carefully on the potentially explosive issue. It ruled in 1980 that the Ten Commandments could not be posted in public school classrooms.

Public acceptance of such monuments also played a part in Wednesday's oral arguments. A CNN/USA Today/Gallup poll released this week found 76 percent of respondents support display of the Ten Commandments at the Texas Capitol, while 21 percent were opposed. Other recent polls showed similar results.

The justices several times referred to an ornate frieze above their courtroom, showing Moses carrying the Ten Commandments, but without the text. He is placed with other historical figures such as Mohammed, Confucius, Solon, and other prominent lawgivers.

Chief Justice William Rehnquist was not present for the arguments, but is expected to vote eventually on the cases.

The cases are Van Orden v. Perry, case no. 03-1500, and McCreary County, Kentucky, et al. v. ACLU, case no. 03-1693. Rulings are expected by the end of June.

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