The Supreme Court on Wednesday heard arguments in two cases concerning the public display of the Ten Commandments on government property. Decisions are expected by July. The following are excerpts from the arguments for those cases: Van Orden v. Perry, involving a stone Decalogue monument on the statehouse grounds in Austin, and McCreary County, Ky., v. ACLU, challenging Ten Commandments displays inside courthouses. The excerpts were recorded by Alderson Reporting Co. Inc.
Erwin Chemerinsky, attorney for man seeking removal of the Texas display: The government may put religious symbols on its property, including the Ten Commandments, but must do so in a way that does not endorse religion or a particular religion . . . does not have the purpose of advancing religion . . . does not favor any particular religion.
Justice Antonin Scalia: Mr. Chemerinsky, I suppose that opening statement suggests that you think that Thanksgiving proclamations are also unconstitutional, which were recommended by the very first Congress, the same Congress that proposed the First Amendment.
Chemerinsky: No, your honor, I think the Thanksgiving proclamations would be constitutional. I think it's analogous to the legislative prayers that this court upheld in Chambers v. Marsh [a 1983 case in which the court voted 6 to 3 to allow a publicly funded chaplain to begin state legislative sessions with prayer]. I think it's very different than this Ten Commandments monument.
Justice Anthony Kennedy: In the First Amendment speech area, we're very, very strict. A moment's delay in publication is a constitutional crisis. And I'm not sure that we should carry that over to this area, where there is this obsessive concern with any mention of religion. That seems to me to show a hostility to religion. I just don't see a balanced dialogue in our cases or in these kinds of arguments.
Chemerinsky: Your honor, I don't believe there should be an obsessive concern with religion. If the Ten Commandments are displayed as part of an overall display of lawgivers, like that frieze [of Moses and other lawgivers over the justices' heads], it's permissible. But when you put sacred texts somewhere on government property, then the message is that the government is endorsing.
Justice Sandra Day O'Connor: It's so hard to draw that line. If the legislature can open its own sessions attended by the public with a prayer, you say it cannot, in the same building, display the Ten Commandments.
Chemerinsky: That's right, because the message from the government is quite different. The message with legislative prayers, as this court found in Chambers v. Marsh, is a recognition of a long historical practice. But when it comes to the Ten Commandments, it really is different than even a legislative prayer. This declares not only there is a God, but that God has proclaimed rules for behavior. The Ten Commandments come from sacred texts.
Justice John Paul Stevens: Would it equally be permissible to have a crucifix of the same size in the same location on the Capitol grounds?
Texas Attorney General Greg Abbott: I seriously question whether or not a crucifix would be constitutionally acceptable in that same location, and for the very same reasons which I'm articulating why the Ten Commandments would be acceptable in this location. The crucifix is not like the Ten Commandments in that it's not an historically recognized symbol of law. It doesn't send a secular message to all the people, regardless of whether they are believers or not believers, of the important role the Ten Commandments have played in the development of law.
Scalia: It's not a secular message. I mean, if you're watering it down to say that the only reason it's okay is it sends nothing but a secular message, I can't agree with you. I think the message it sends is that our institutions come from God. And if you don't think it conveys that message, I just think you're kidding yourself.
Stevens: General Abbott, would the Texas purpose be equally served if the monument had on it the kind of disclaimer that the city in Wisconsin put on its monument? [Plaques near a monument on a private plot in a La Crosse, Wis., public park assert that the city does not endorse religion.]
Abbott: A disclaimer like that would surely ensure that this display is constitutional.
Justice Ruth Bader Ginsburg: Let's take this monument and put it in the rotunda of the court because the judges of that court choose to have it there. Is that all right?