Friedman was banking on past Supreme Court decisions that have spoken of the need for a "secular purpose" in government-sponsored religious display, but there were indications yesterday that the justices are finding that unworkable.
The Bush administration, which supports Texas and the Kentucky counties, encouraged those doubts. In responses to questions from two justices, David H. Souter and Sandra Day O'Connor, Acting Solicitor General Paul D. Clement urged the court to abandon its efforts to judge the intent behind various religious displays and focus instead on their effects.
"The focus on purpose is not so productive," he said.
Still, in a remark that may have disappointed some administration supporters, Clement conceded that Moore's monument to the Commandments "may well cross the constitutional line."
Justice Antonin Scalia saw a different problem in the court's precedents, noting that they effectively force governments to adopt nonreligious pretexts for what should be unabashed religious displays.
The Commandments, he told Chemerinsky, are "a symbol that government authority comes from God, and that's appropriate." When Chemerinsky objected that "it is a profoundly religious message," Scalia responded: "It is 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."
Justice Anthony M. Kennedy seemed to agree, chiding Chemerinsky for "an obsessive concern with any expression of religion."
Several times, Justice John Paul Stevens asked attorneys for the various parties whether the Texas issue could not be settled by simply selling the land under the monument to a private group and erecting a sign declaring that the state did not intend to endorse religion.
"That's bending too far in the other direction," Clement said.
"It's so hard to draw that line," O'Connor observed, possibly speaking for many on the court and in the audience.
The cases are Van Orden v. Perry, No. 03-1500, and McCreary County v. ACLU of Kentucky, No. 03-1693. Decisions are expected by July.
