Sometime in late winter, advocates for and opponents of public displays of the Ten Commandments will argue the issue before the U.S. Supreme Court for the first time in 25 years.
Litigators on both sides agree that the justices probably will set parameters on what constitutes an acceptable display of the commandments, relying partly on the court's previous decisions on the display of Nativity scenes in town squares and courthouses.
They disagree, however, on whether the existence of different versions of the Ten Commandments -- reflecting theological differences among Protestants, Catholics and Jews -- will or should affect the court's decision.
"No doubt it's something I'm going to emphasize," said Erwin Chemerinsky, a Duke University constitutional scholar who will appear before the court on behalf of Thomas Van Orden, a homeless man and former defense lawyer who for several years has been fighting to have a six-foot granite monument of the commandments removed from the statehouse grounds in Texas.
"My argument in part is: Is there 'a' Ten Commandments?" Chemerinsky said. If such monuments are allowed, the "choice of which one to use is a religious choice."
But Mat Staver, president and general counsel for Orlando-based Liberty Counsel, which is representing two Kentucky jurisdictions whose framed commandment displays were ordered removed from courthouses, said, "The issue of different versions is a red herring." The King James-based list posted in the courthouses was "no one's version," he said, arguing that it -- like all renderings -- was an abbreviated form of biblical passages.
That debate will be part of a broader First Amendment argument over whether the displays constitute government endorsement of religion or government allowance of the free expression of religion.
The court last addressed the Decalogue issue in 1980, when it struck down, 5 to 4, a Kentucky law that required the posting of the commandments in public school classrooms. The court ruled that the law had "no secular legislative purpose."
Since then, advocates of church-state separation have clashed with those who argue that the 1980 ruling does not prohibit all government-backed displays of the commandments. Dozens of cases have worked their way through lower courts, and many have been appealed to the Supreme Court without success.
Last week, the court decided to hear the Kentucky and Texas cases.
Those cases will rely less on the previous commandments decision and more on subsequent rulings involving Nativity scenes, litigators predicted. In 1984, the Supreme Court upheld the display of a creche on city property, ruling that religious symbols can be placed on government property as long as the displays are not "motivated wholly by religious considerations."
Such symbols also must have a secular purpose, such as being placed among other symbols, religious and otherwise, that present the cultural, historical and legal foundation of a city, county or state, the court said.
In 2001, in a possible preview of arguments to come, Chief Justice William H. Rehnquist quoted the 1984 case and similar creche cases in dissenting with the court's decision not to hear a case in which a monument virtually identical to the one in Texas was ordered removed from city property in Elkhart, Ind.
Joined by Justices Antonin Scalia and Clarence Thomas in dissenting from the court's denial, Rehnquist acknowledged that the Ten Commandments are sacred texts of Judaism and Christianity but said they "have secular significance as well, because they have made a substantial contribution to our secular legal codes." He noted that a carving of Moses holding the Ten Commandments is part of a frieze of historic lawgivers "that adorns . . . the south wall of our courtroom."
A sculpture of Moses also appears on the pediment above the east entrance to the Supreme Court building.
Those who argue for allowing public displays of commandments have said that the differing versions of the commandments are irrelevant because the Decalogue's role in the formation of Western jurisprudence meets the requirement for a "secular purpose." Those who oppose the displays point to differences in content and numbering as indicators of theological disagreements that might be exacerbated by the public showing of any one version of the commandments.
Three generally accepted versions of the Ten Commandments exist, according to religious scholars: Jewish, Catholic-Lutheran and Protestant. (The Protestant version also is used by many Orthodox Christians.)
The commandments appear several times throughout the Bible but most notably in Exodus 20 and Deuteronomy 5. The earliest manuscripts of the Hebrew Bible present the passages as blocks of text without paragraphs or verse enumerations. Those were added later by different schools of interpreters -- which led to varied numbering systems.
The Jewish version, often called the "Ten Utterances," presents the First Commandment as a statement of the relationship between God and the Israelites: "I the Lord am your God who brought you out of the land of Egypt, the house of bondage." The Second Commandment is, "You shall have no other gods besides Me."
The Catholic-Lutheran and Protestant versions present "I am the Lord your God" as a preface to their First Commandment, "You shall have no other gods before Me."
Jewish scholars point to what they consider a more crucial ethical and moral distinction: the Jewish translation of the Sixth Commandment as "You shall not murder." Traditional Catholic and Protestant versions say "You shall not kill" -- a broader ban that might cover such societal actions as capital punishment.
The two Christian versions also differ in substantive ways. The Protestant version lists, as a separate commandment, "You shall not make of yourself a graven image," a statement the Catholic version omits. Some analysts say the Protestant version arose from Reformation efforts to rid churches of statues of saints, while the Catholic version allows such statues.
The Catholic version breaks the prohibitions against covetousness into two parts, "9. You shall not covet your neighbor's wife" and "10. You shall not covet your neighbor's goods." The Protestant version combines covetousness into one, as No. 10.
Such differences are not insignificant, said Jeffrey Sinensky, general counsel for the American Jewish Committee, which, along with other national Jewish organizations, plans to write amicus briefs opposing the public display of the Ten Commandments.
"Many people of strong faith belief are concerned when someone takes what they believe to be the word of God and uses it in a fashion they are uncomfortable with," he said.
Jay A. Sekulow, chief counsel for the Washington-based American Center for Law and Justice, said he believes the court will pay little attention to arguments about different versions of the Ten Commandments.
"It's not a factor in these cases," said Sekulow, who has successfully argued eight of 11 First Amendment cases before the court and is representing pro-display clients in 10 lower-court cases. Instead, the court will focus on the historic nature of the displays, including the length of time they have been in place and the context in which they appear, he said.
The displays in Kentucky and Texas involve different versions of the Ten Commandments.
The monument on statehouse grounds in Austin has been in place since 1961, one of as many as 200 monoliths donated from the 1950s through mid-1980s by the Fraternal Order of Eagles, said Sue Hoffman, a retired schoolteacher in Washington state who has researched the history of the Eagles' placement of monuments nationwide.
Most of the granite monoliths, including the one in Austin, use an interfaith version put together by a committee of Roman Catholic, Protestant and Jewish clergy, she said. The text begins with an overline "I AM the LORD thy God," then proceeds with 10 unnumbered commandments in smaller lettering that are a variation of Jewish and Christian versions.
The Eagles' monument project began in earnest after the release of Cecil B. DeMille's 1956 film "The Ten Commandments." DeMille helped the Eagles program get started, Hoffman said, and replicas of the tablets used in the movie appear at the top of the monument. Two Stars of David and a symbol of Jesus -- the superimposed Greek letters Chi and Rho -- are at the bottom.
The Ten Commandments displays in the Kentucky courthouses were framed, printed pages citing the King James translation of the Decalogue, unnumbered, from Exodus 20:3-17. The statement "I the Lord am your God" does not appear; the prohibition against making graven images does; and the translation of the Sixth Commandment is "Thou shalt not kill."
The court is expected to issue its decisions by the end of June.