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U.S. Supreme Court Argues Cases on Ten Commandments Displays

Mark V. Tushnet
Carmack Waterhouse Professor of Constitutional Law at Georgetown University
Thursday, March 3, 2005; 10:45 AM

The Supreme Court argued the cases Wednesday of Van Orden v. Perry and McCreary County, Kentucky v. American Civil Liberties Union of Kentucky. Lawyers argued for and against displays of the Ten Commandments on public property in Texas and Kentucky.

The Washington Post reports today that opponents of displaying the Ten Commandments on public property say it amounts to a governmental imposition of monotheism, whereas proponents say it is often nothing more than a recognition of the role Judeo-Christian norms played in western civilization and the founding of the United States itself.


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Carmack Waterhouse Professor of Constitutional Law at Georgetown University Mark V. Tushnet was online Thursday, March. 3, at 10:45 a.m. ET to examine the constitutionality of religious displays on public property.

With expertise in constitutional and first amendment law, Tushnet is the author of the recently published book, "A Court Divided: The Rehnquist Court and the Future of Constitutional Law."

The transcript follows.

Editor's Note: Washingtonpost.com moderators retain editorial control over Live Online discussions and choose the most relevant questions for guests and hosts; guests and hosts can decline to answer questions.

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Washington, D.C.: Prof. Tushnet: As one of your former students (GULC '00), I learned that one should always try to understand why the Supreme Court agrees to take a particular case by looking towards the Court's recent opinions. With this in mind, the majority opinion in Roper v. Simmons, the opinion in which was issued just one day before the "Ten Commandments cases" were heard, was apparently largely influenced by what the majority viewed as a "change in national consensus" on the issue of the death penalty's applicability to juveniles.

Do you think that cases such as those heard yesterday may similarly be influenced by the Court's view of a "change in national consensus" with regard to the acceptability of governmental displays (or even outright endorsement) of religion, which seems to be occurring since Sept. 11, 2001?

Mark V. Tushnet: You're right that the Court is often influenced by national trends, but typically that occurs "under the radar," as the justices get a feel for where the nation is, what's acceptable, what would be too controversial, and the like. Death penalty cases are different (a bit, as I'll explain) because the stated constitutional doctrine makes public views directly relevant to the constitutional question (that is, if a penalty is widely regarded as cruel and unusual, then it *is* cruel and unusual). In the non-establishment context, sometimes the justices say that one important question is whether a reasonable observer would conclude that the government was endorsing the religious sentiments at issue, and answering that question might depend on having some sense of what the public thinks. My reading of news stories about the oral argument, though, suggests to me that everyone basically agreed that a reasonable observer *would* find these displays to be endorsements, so that part of the test might not be at issue.

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Silver Spring. Md.:
I am afraid that it is unfortunate that this case has come before the Supreme Court, although I guess it was bound to happen sooner or later. The court seems to me to be in a no-win situation. If they outlaw the public funding and display of the Ten Commandments, then they will be creating fodder for the "anti-judiciary" crowd and progressives will continue to be branded as "anti-god." If they allow it, we will see a lot of self-righteous bible-thumping pols pushing to get Ten Commandments displays on every street corner, which is of course, much more important than providing education and health care to the population. It is very similar to the gay marriage debate, where the fact that the majority is comfortable with a certain course of action, whether it be the display of the Ten Commandments or outlawing gay marriage, does not necessarily make that the right (or righteous) course of action.

I would hope that at least one of the judges would suggest that the display of the Ten Commandments on state property would be outlawed in states where the "Thou Shalt Not Kill" commandment has been repudiated by state law in the form of the death penalty.

Mark V. Tushnet: It might be worth noting that in some situations the government has sold the monument and the land on which it is located to private organizations. The courts are split on what to do in these situations, and a lot depends on the facts (whether the land was sold at market value, whether there was a public auction or an essentially private sale, and so on). This might be a strategy that would allay your concerns if the Court rules against one or both of the displays before it.

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Alexandria, Va.: Why is it that groups like the ACLU trumpet the sanctity of the establishment clause of the First Amendment, as if the free exercise clause is only an afterthought?

The establishment clause was written specifically to preclude any religious test as a qualification for holding office, and as such it's not violated by the mere display of a religious symbol on government property.

However, for anyone to forbid such a display DOES violate the free expression clause, which was included to prevent the government -- or anyone else -- from interfering with the right of an individual or a community to profess their beliefs.

Mark V. Tushnet: I think it helps to note that not only is there the non-establishment clause, but also a specific prohibition on religious tests (Art. VI, clause 3). The non-establishment clause thus has to do something else -- obviously, a matter of controversy. But I don't think that in the pending cases there's a free expression or free exercise problem. Such a problem would arise if, for example, the suit was against the Eagles for maintaining a display in front of their building on property they owned. That is, those clauses kick in only when truly private expression is involved. The non-establishment principle is the one that matters when the government is engaged in these activities.

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Silver Spring, Md.: Charles Lane's article quoted Justice Scalia as saying that "[The Commandments are] a profoundly religious message, but it's shared by the vast majority of the people ... It seems to me the minority has to be tolerant of the majority's view."

Hasn't it been generally accepted that the chief purpose of the religion clauses was to protect the rights of the religious minority? How can Scalia reconcile this idea with his belief that the minority should essentially subordinate their views to that of the religious majority?

washingtonpost.com: Division of Church, State At High Court (Charles Lane, March 3, 2005)

Mark V. Tushnet: I find the statement puzzling as well, although maybe his point is that -- at least when there's a really large consensus on a question -- the non-establishment principle doesn't kick in. I think it would be hard to work that out as a matter of constitutional doctrine. I would note, though, that typically the vehicle for protecting the interests of religious minorities is the Free Exercise Clause, which can be taken to mean that majorities can't interfere with the religious practices of minorities. The Establishment Clause in some of its aspects, but not all of them, serves the same interest, so maybe the question in the pending cases is whether the displays implicate the "religious liberty" features of the Establishment Clause.

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Bethesda, Md.: If the Court allows the Ten Commandments to be displayed, don't they also have to allow the Koran and the Torah to be displayed? And, If I created my own religion, and came up with my own list of commandments, would I be able to display them too?

Mark V. Tushnet: It would, I think, almost certainly *allow* such displays -- and there are scattered cases involving displays of menorahs. The real question is the one you suggest: Can a government that's displaying the Ten Commandments refuse to display some other religious symbol on request? My first instinct is to say that it can't (which might be a reason for the government to *choose* not to display the Ten Commandments either), but I'm sure there's a principle that would imply that the government doesn't have to accommodate "invested" religions. (Again, there are scattered cases involving Wiccans, the analysis of which has given the courts a lot of trouble.)

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Chicago, Ill.:
What is the overarching question to guide the analysis of this topic?

For instance, if the justices start with an analysis of what the Framers thought was permissible, it will likely yield a different outcome than if they interpose their own judgement on what the Amendment means.

Mark V. Tushnet: Just as a matter of stated doctrine, the overarching questions are two: (1) When you take the displays in their entire context -- both physical (mostly implicated in the Texas case) and political (mostly at issue in the Kentucky case) -- would a reasonable person knowing a fair amount about the background believe that the government was endorsing the substance of the specifically religious views expressed? As I've indicated, my sense is that this isn't a matter of real controversy. Which leads to the second question: (2) Assuming that the displays are endorsements, are they constitutionally permissible because, for example, they record a religious heritage, or because they (the Texas one, at least) have been around long enough to be treated as historical monuments, or because the religious content, while present, is relatively small.

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Austin, Tex.: It's my understanding that they're depictions of Moses & Muhammad in the actual Supreme Court courtroom. Can the Supreme Court rule unconstitutional the Ten Commandments monuments when the justices preside underneath images of religious figures? How would the Court have to distinguish between the two situations?

Mark V. Tushnet: A couple of possibilities have been suggested. One is that the displays at the Supreme Court are embedded in a larger context that substantially reduces the specifically religious content of the inclusion of Moses, etc. Another is that, again in context, the displays are "merely" ceremonial in a way that the seemingly free-standing monument in Texas is not (that is, at the Supreme Court the displays are associated with the Court's operation, whereas in Texas there's nothing else going on in connection with the displays).

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Boulder, Colo.: Thanks for taking my question. In general it seems to me that a lot of the arguments brought forward in this case skirt the topic of the psychology of the situation, even though at the same time they appeal to it in vague terms like what "a reasonable person" would think. Some of these are actual empirical questions (that I'll frame in the way that cognitive psychologists do, not in legalese): To what extent do people perceive that the placing of a monument suggests a state endorsement of a particular religion? To what extent are naïve onlookers aware of the required "secular purpose" of such displays? What would people's reactions to other kinds of displays reveal to us about their implicit attitudes?
The whole case seems to depend on "perceived messages" but nobody is investigating them.

Mark V. Tushnet: This is a very good point about existing doctrine. As it stands, the doctrine asks what a reasonably well-informed reasonable observer would think (thus making the naive viewer's understanding irrelevant). And, although this may be a little harsh, the justices who use this approach seem to take the position that *they* are reasonably well-informed reasonable observers, so they can apply the test themselves without actually looking for the empirical information that, you correctly say, would seem to be required.

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Arlington, Va.: If the Court rules that the Ten Commandments may not be displayed, does that indicate that it's likely unconstitutional to designate Christmas as a federal holiday? What possible justification could still be articulated for permitting the Government to recognize the Christmas holiday?

Mark V. Tushnet: The standard answer to this is administrative efficiency: So many workers are going to take the day off (as a personal or vacation day) that neither businesses nor the government could operate effectively. So, instead of going through the administrative hassle of counting personal or vacation days, everyone gets the day off.

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Washington, D.C.: Professor Tushnet, do you think the Court is likely to say that the constitutionality of Ten Commendments displays is determined by context, as in whether it is one element of a larger display on sources of law or a 5x5x5 statue sitting by itself in front of the courthouse?

Mark V. Tushnet: Existing doctrine does make context important, and free-standing things are more questionable than ones located in larger displays. But it's clear that making context matter also makes it much harder to give clear answers, which generates litigation and more social stress over these problems. I think the justices are likely to prefer to come up with a crisp rule, but to do so they'd have to decide whether to treat a display of the Ten Commandments as like a creche (and so not permitted if free-standing but allowed if part of a larger display), or as something quite different, allowable under any circumstances.

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Dallas, Tex.: Why does a display of the Ten Commandments cause so much furor? No one is imposing them on anybody. If this were the case, we should rename the planets since they are named after Roman gods, and rename the days of the week as they are named after Norse gods. What is your view on this?

Mark V. Tushnet: I've mentioned the idea of ceremonial deism in connection with "In God We Trust," and I think the point is even stronger in connection with the names of the months and the days of the week. Whatever their origins in religion, those names today have essentially no religious content at all, and so don't raise Establishment Clause questions.

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Columbus, Ohio: Their (those for the Ten Commandments on public property) belief that the United States was founded on the belief of Christianity is false. That claim is nowhere mentioned in the Constitution, Declaration of Independence or Bill of Rights. We are ensured "freedom of religion," not freedom of only one religion.

Mark V. Tushnet: I should note that the claim is (at least in its best form) not about Christianity but about either a generic deism (that the nation, like all nations, is under God) or about the Judaeo-Christian tradition. And, as to that, the Declaration of Independence certainly does appear to invoke at least deism (referring, for example, to the laws of nature's God, and saying that people are endowed by their Creator with rights).

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Phoenix. Ariz.: Which Ten Commandments? There are Catholic, Protestant, Hebrew and biblical versions. Just selecting a version is in itself an endorsement of a church.

Mark V. Tushnet: I should note that I personally find this a troubling problem, but that defenders of the displays think it insubstantial because, in their view, the differences are trivial ("thou shalt not kill" versus "thou shalt not murder," the numbering of the Commandments, etc.).

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Austin, Tex.: I recall earlier Supreme Court decisions mentioning topics that might offend constitutional protections at some level, but they were deemed below the constitutional radar screen. Is a Ten Commandment display of that nature?

Mark V. Tushnet: The idea of ceremonial deism is designed to get at the "below the radar screen" idea. The difficulty in these cases is that that concept doesn't seem to capture what's going on.

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Syracuse, N.Y.: Why does the U.S. maintain this double standard insisting on separation of church and state, but acceptance of "In God we trust" (among many others)? The two fundementally conflict.

From my personal point of view, our countries founding documents (Declaration of Independence, Constitution, Bill of Rights, etc.) were formed based on several historical texts, all of which can be displayed in public, the only one withstanding is the Ten Commandments -- because it is a religous text. Since it's the only one being fought over (largely because it is the only one being displayed) I personally perceive all of these fights to be religous in nature. Few if any are even trying to show the other sources of law, and the only groups fighting for the Ten Commandments are religous based groups.

I recognize personal views are not legal views, but I am curious what the legal viewpoint is.

Mark V. Tushnet: Again, I think it is worth emphasizing that no one seems to be contesting at this point whether the displays really do have religious content. In contrast, in the past some justices have described "In God We Trust" and the like as what they call expressions of ceremonial deism, which appears to mean that they don't really have much religious content even though words about as closely associated with religion as there can be are used in them.

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Yorktown Heights, N.Y.: You refer to the "non-establishment" clause as if establishment were a verb. I have always interpreted an "establishment of religion" as a church or denomination. Therefore to "respect an establishment of religion" is giving recognition or special treatment to one church or denomination over another, i.e. a state religion. Is this the interpretation generally given to this clause by constitutional experts? If not, what is?

Mark V. Tushnet: The evidence regarding the original understanding of the terms "respecting an establishment of religion" is of course contested, but for what it's worth my evaluation of the scholarly discussions leads me to conclude this: The clause was aimed not simply at the establishment of one religion over another or of a state religion (sometimes referred to as the "non-preferentialist" view), but more broadly. Exactly what the broader aim was is harder to figure out, but Justice Black's reference in the late 1940s to a ban on preferring religion to non-religion seems reasonably close to the mark. But, as I say, the interpretation of the original understanding is quite contested, so you should't simply take my word for it.

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Boston, Mass.: Re:(2) "Assuming that the displays are endorsements, are they constitutionally permissible because, for example, ... or because the religious content, while present, is relatively small."

Coming from my own perceptions, if this was the ennunciated reason for not displaying them "The Ten Commandments are way too important as Religious symbols" how could a group easily argue that Progressives or anyone is being anti-God? The Court would be coming out as pro-religion, and be admitting to the incredible religious significance of the Ten Commandments.
I'd think that saying they are of so little religious significance that the display of which can be funded by the government would be more anti-God.

Mark V. Tushnet: Your statement reflects an older tradition in the non-establishment literature, usually associated with Baptists (of any earlier time), which took the position that government support or endorsement of religion should be avoided because it was bad for religion. I believe Justice Scalia said at the argument yesterday that allowing the displays because their content wasn't all that religious would be a Pyrrhic victory, and I'm sure he's right on that.

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Clifton Park, N.Y.: Hello,

In the media there is often a debate as to whether or not the founders of the U.S. formed this country based on Judeo-Christian values, principles, etc.
Based on your superior knowledge, would you say our country was formed based on religous principles, or were the founders influenced by other knowledge, such as the Age of Reason?

Mark V. Tushnet: I'm afraid I have to resist the form of the question: It's not one or the other. The founding generation was influenced both by religious principles and by the more secular approaches reflected in the Enlightenment.

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New York, N.Y.: When the Court agrees to hear two separate cases on the same subject, does that usually signal that at least some of the justices see the differences between the factual backgrounds of the two cases as determinative? You suggested that the Commandments display in Texas may be old enough to be a "monument," is that where you see this case heading?

Mark V. Tushnet: I'm not sure that, when they grant review, they have a sense of where they are going to come out. Here one lower court said that the Constitution prohibited the display, and another said that it permitted it. That conflict's probably enough to get the Court to review both decisions. Whether the justices will decide that the cases are different from each other in ways that justify different results is impossible to tell -- although I think a fair-minded observer of the Court would say that somewhere between six and seven of the justices will certainly think that there are no relevant differences in the cases (but some of that group will think that both are permissible and the rest will think that both are constitutionally impermissible).

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Arlington, Va.: Your answer regarding the Christmas question and making it a holiday because so many people will treat it as one anyway -- isn't that an example of what Scalia meant when he talked about the minority being tolerant of the majority's wishes?

Mark V. Tushnet: I'm not sure. In the Christmas case, there's a clear non-religious reason for closing -- administrative convenience. So religious minorities are at most acknowledging the fact that the existence of a large number of Christians allows a purely administrative response. Justice Scalia seemed to be referring to the need for religious minorities to acknowledge/accept the specifically religious preferences of the majority. (I'm not sure I've expressed the difference clearly enough here, but I want to move on to the next question.)

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SIlver Spring, Md.:
You wrote that by permitting private organizations to purchase public lands for the specific purpose of maintaining religous displays, we might avoid some separation issues. However, this solution is truly frought with peril, as it opens the door to more egregious use of public venues for religious promotion, such as huge, privately funded, religious displays on "privatized" portions of public lands. The front lawn of the State House belongs de facto to the State, whether or not some portion of it is transferred, de jure, to another party.

Mark V. Tushnet: The cases I referred to do mention the problem of large-scale transfers and the like, and one of them, if I remember correctly, does invalidate a land transfer where the effect was to allow the continued display of an extremely prominent religious symbol.

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Pittsburgh, Pa.: Politics has become such a huge role in the actions of the Supreme Court in past years. What impact will politics play in deciding this case? Does the strong religious backing of the Bush administration play a key factor?

Mark V. Tushnet: Scholars often distinguish between "low" politics -- will a decision one way or the other help one or the other political party -- and "high" politics. The latter refers to large-scale "ideologies" or ways of thinking about the law. Such ways of thinking about the law often (not always) are associated with positions taken by political parties, etc. Most scholars, me among them, believe that high politics often plays a large role (and low politics rarely does). So, to answer the question directly, high politics will matter, and that will have some implications for the more partisan, "low" politics that goes on.

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With all due respect...: The difference between "Thou shall not kill" and "Thou shall not commit murder" are not trivial. Is the difference due to a translation error, or is it due to a division of beliefs? And if we have state-sanctioned killing in the form of the death penalty, doesn't it make sense to use language that fits with our justice system? Do we need to update our Commandments?

Mark V. Tushnet: Again, I want to stress that I personally agree with your position, and think that differences in translation and numbering reflect rather deep differences in religious belief (and not simply choices made by translators). Others have a different view (although the word "trivial" might be too strong, for which I apologize and justify only because I'm writing quickly).

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Annapolis, Md.: In Brown v. Board of Education it was declared that segregation fostered feelings within blacks of second class citizenship and inferiority in general, irrespective of how "equal" the public accommodations were. Is any party arguing that similar feelings are generated by Ten Commandments displays? Personally, I could see atheists or those who worship religions other than Christianity or Judaism experiencing such feelings when they petition a legislature or have their rights adjudicated by a court where a display exists? Are any analogies between Ten Commandments displays and Brown being drawn?

Mark V. Tushnet: When the Court (actually, Justice O'Connor, but later accepted by a majority) adopted the doctrine that the Constitution was violated by government actions endorsing religion, one reason -- explicitly -- was that endorsements communicated a message to non-believers that they were not full members of the political community. And, again for what it's worth, and for all the difficulties associated with the endorsement test, I think that the Court is on to something deeply important in that perception.

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Cabin John: You mentioned that:

"Existing doctrine does make context important, and free-standing things are more questionable than ones located in larger displays."

However, Kentucky's "larger display" includes a Congressional resolution EXPLICITLY extolling the Bible and stating that we should all worship it! So, Kentucky's "larger context" works the other way, and PROVES that the intended effect of the whole display, including the Ten Commandments, is to endorse the Bible, and thus one particular religion (or, I guess, two particular religions).

So, Kentucky isn't even a close call, it seems to me. Texas is much closer in my opinion. Do you agree?

Mark V. Tushnet: In the form of "much closer call," I do agree. I'm not making any predictions about either case, though.

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Durham, N.C.: An earlier question raised these questions in my mind: What do we mean when we say the "Judeo-Christian" tradition or principles? Isn't this nation founded more on Enlightenment principles than on Judeo-Christian principles? Thank you.

Mark V. Tushnet: I suggested earlier that the real answer is, "Both." This may be the point to note as well that we might want to start to refer to the Judeo-Christian-Islamic tradition, because Muslims incorporate the prior traditions into their theology, or to the monotheistic tradition of what some call the Jerusalem religions.

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Baltimore, Md.: The "historical antecedent" argument that the Ten Commandments are the basis of our system of laws does not wash when the symbols of Christianity are allowed to the exclusion of those of other religions with conflicting dogma. Those supporting such displays would not support government sponsored displays celebrating non-Christian deities. These state-sponsored displays are messages, affirmations, of the state's (or their actors, e.g., Roy Moore) religious preference. They are not nuetral; like any message, they are conveyed to persuade the recipient. The real question in my mind is this: Why is it ever the business of government to ever be in the religous dialogue? How is it the function of government to ever endorse any religion at any time?

Mark V. Tushnet: On this one, I'd restate my earlier point or observation: I do think that, if these displays are found constitutional, there will be difficult questions about what governments will have to do when adherents of other religions want to include their own materials in these displays.

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Mark V. Tushnet: Thanks for the interesting and provocative set of questions. I have to return to my "day job," but I hope that readers found the discussion helpful.

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