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Division of Church, State At High Court

Ten Commandments Displays On Government Land at Issue

By Charles Lane
Washington Post Staff Writer
Thursday, March 3, 2005; Page A03

The subject at the Supreme Court yesterday was the Ten Commandments on government property, and Moses was the star of the show.

A stone image of the patriarch, holding a Hebrew-inscribed tablet, occupies a prominent place in the justices' own courtroom, alongside Confucius, John Marshall and others in a frieze dedicated to history's great lawgivers.

The Rev. Henry Westerfield of Corbin, Ky., leads a demonstration in support of Ten Commandments displays. (Nikki Kahn -- The Washington Post)

_____Live Discussion_____
Transcript: Georgetown Professor of Constitutional Law Mark V. Tushnet discusses the constitutionality of religious displays on public property.
_____Dockets From FindLaw_____
Van Orden v. Perry
McCreary County v. ACLU

As lawyers argued for and against disputed displays of the Decalogue in Texas and Kentucky, they and the justices repeatedly referred to that frieze.

What if, instead of a six-foot stone monument on the state Capitol grounds bearing the words of the Ten Commandments -- beginning with "I am the Lord thy God" -- Texas posted a version such as the one Moses holds in the frieze, in which only the last five are visible, Justice Ruth Bader Ginsburg asked.

"That is still unconstitutional. It would still be the state of Texas expressing the message that there is a God," replied Erwin Chemerinsky, a Duke University law professor representing an opponent of the Texas monument. The court's frieze is constitutional, Chemerinsky said, because it places the Commandments in a secular, historical context.

So does the Texas monument, countered Greg Abbott, the attorney general of Texas. He told the court that it is part of a "parklike" area dotted with monuments to veterans, pioneers and other "historical influences" that have shaped Texas.

The Texas and Kentucky cases, argued separately over two hours, represent the court's first foray since 1980 into an issue that most recently boiled over in 2003 with the failed effort of then-Alabama Chief Justice Roy S. Moore to install a massive stone copy of the Ten Commandments at the state Supreme Court.

Opponents of displaying the Ten Commandments on public property say it amounts to a governmental imposition of monotheism. 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.

The court banned the mandatory display of the Commandments in public schools in 1980. Its broader doctrine on publicly sponsored religion permits limited exercises or displays that serve a secular purpose, such as acknowledging the historical role of religion in American life, without "endorsing" particular beliefs.

Accordingly, the court has approved of a prayer to open the session of a state legislature, upheld a city-sponsored Nativity scene alongside other Christmas symbols such as Santa Claus, struck down an invocation at a public high school graduation -- and ducked a controversy over the words "under God" in the Pledge of Allegiance.

But, as yesterday's debate showed, that body of law has grown tangled and difficult to apply.

Matthew D. Staver, representing two rural Kentucky counties that display the Commandments in their courthouses, noted the "historical nature" of those exhibits, which include the Commandments among other documents such as the Magna Carta and the lyrics to the "Star-Spangled Banner."

But David A. Friedman of the American Civil Liberties Union's Kentucky chapter pointed out that the displays had at one time featured only religiously oriented texts, and were changed after the ACLU's lawsuit began. He also said they were posted in response to a resolution by the county legislatures declaring support for Moore and referring to Jesus Christ as "the prince of ethics."

This, Friedman said, showed that the counties' claims of a "secular purpose" for the displays are "a sham."

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