Supreme Court shalt decide on displays
Should the Ten Commandments be displayed on public property? The high court will hear arguments this week in a Texas case.
By BILL ADAIR
Published February 27, 2005
WASHINGTON - The 6-foot granite monument outside the Texas Capitol in Austin is shaped like two tablets, with the Ten Commandments etched in the stone. It begins, "I AM the LORD thy God." Like hundreds of monuments built around the nation in the 1950s and '60s, it was the brainchild of a Minnesota judge who believed the displays would discourage juvenile crime.
For more than 40 years, no one raised a fuss about the Texas monument. But a few years ago, a homeless man named Thomas Van Orden saw it during one of his frequent trips to the state's law library. He didn't like what he saw. He filed a federal lawsuit that said the monument violated the separation of church and state.
On Wednesday, the U.S. Supreme Court will hear Van Orden's case and a related one involving the posting of framed copies of the commandments in courthouses in two Kentucky counties. The outcome could affect hundreds of similar displays around the country, including one at the Polk County courthouse in Bartow.
Opponents say the displays violate the First Amendment because they promote religion on government property. Paul Finkelman, a law professor at the University of Tulsa, says people can put such displays on private property, but "they don't have a right to do that on the front lawn that belongs to all of us."
Supporters say the displays simply recognize the important role the Ten Commandments played in U.S. history.
The Ten Commandments are "almost Americana," said Randy Wilkinson, a commissioner in Polk County. "The people that are arguing against it are arguing against history and tradition."
"Moses comes to Fargo'E.J. Ruegemer was a believer in the Ten Commandments.
A juvenile court judge in Minnesota in the 1940s, he presided over a case of a boy who stole a car and struck and injured a priest. Ruegemer sentenced him to learn the Ten Commandments.
That seemed to help the boy, which spurred Ruegemer to launch an effort with the Fraternal Order of Eagles to post them in schools and courtrooms.
"Everybody thought this was a good idea, a way to help build morality and character," he told the Star Tribune of Minneapolis two years ago. "I still think it's a good idea."
In the mid 1950s, the effort got a boost from Hollywood. Director Cecil B. DeMille decided the displays would be a good way to promote his film, The Ten Commandments, and urged the Eagles to build monuments instead of posting paper copies.
The Eagles reportedly built 4,000 of them; Demille dispatched Charlton Heston and Yul Brynner, the stars of the film, to appear at some of the dedications.
"There are scores of newspaper clippings in which the local newspaper says things like "Moses Comes to Fargo,' with a picture of Heston flying into the small town," Finkelman said.
The Texas monument was installed on the Capitol grounds in 1961, but there's no indication that Heston or Brynner appeared at that dedication.
Hundreds of the Eagles monuments are still standing and countless others have been built by other groups.
At the Polk courthouse, a civic group erected the American Heritage Foundation Rock, a 5-foot-high stone topped with a Liberty Bell replica. The stone has an assortment of documents and quotations, including the Ten Commandments, the Declaration of Independence, the Bill of Rights and quotations from Thomas Jefferson and John Adams.
Wilkinson, the Polk commissioner, said the inclusion of the Ten Commandments recognizes the role they played in creating our laws. He says there should be a separation of church and state, but he bristles at groups that want to prevent the government from mentioning God.
"I don't think you can ever separate faith and state," he said. Faith "is what gave us our peculiar American gumption."
National polls show strong support for the displays. Last summer, a Pew Research Center survey said 72 percent of the people believe it is proper to put the displays in government buildings.
The displays have prompted controversy for years. The Supreme Court in 1980 struck down a Kentucky law that required they be posted in public school classrooms.
A display in Alabama two years ago led to the removal of Chief Justice Roy Moore, who refused to comply with a federal court order to remove it. The case was appealed to the U.S. Supreme Court, but justices chose not to hear it.
The Supreme Court has its own displays of the Ten Commandments, including a frieze of Moses with the tablets in its courtroom, along with other historical figures.
Attorneys for the Texas state government, who want the court to permit the Austin monument, point out in their court filing that the justices will hear the case with Moses looking over their shoulders.
"A sacred text'Van Orden likes to talk about his case, not himself.
A recent profile in the Washington Post described him as a former defense attorney whose life unraveled in the early 1990s. He is about 60, lives in a tent in Austin and likes to hang out in the state law library.
Last week, in an exchange of e-mails with the St. Petersburg Times, he bristled at personal questions.
"Reporters know nothing about the First Amendment (and) would be lost after reading two pages of any brief I wrote," he said, "but they want to write something and so they write homeless stereotypes. I'm not going to help you do that."
He had plenty to say about why it's wrong to put a religious monument on state property.
"The commandments are a sacred text in the Jewish and Christian faiths, the monument includes symbols for these two faiths alone, and the text itself "have no other gods' (in the commandments) is exclusive, not inclusive."
He said the government is favoring certain religions by displaying the monument. "Lending the prestige and authority of government to a religious faith - even two faiths - is no small thing. And such an endorsement cannot help but send a corollary message that government disapproves of all the others."
Van Orden's attorney, Erwin Chemerinsky, said Catholics, Protestants and Jews use different versions of the commandments. The Jewish version says, "You shall not murder," but the Protestant one used on the Texas monument says, "Thou shalt not kill."
Chemerinsky said Texas officials are "making an inherently sectarian choice by adopting the Protestant faith's version."
Chemerinsky said government should be able to display the Ten Commandments as long as it is put in a historical context, such as the frieze of Moses at the Supreme Court. That's appropriate because he is accompanied by other historical figures who had an impact on the U.S. legal system.
"I am not taking the position that the Ten Commandments can never be displayed on government property," Chemerinsky said. "I am saying they need to be done so they don't endorse religion."
A shrine to many ideasAttorneys for Texas say the Ten Commandments monument is just one of 17 on the Capitol grounds commemorating everything from volunteer firefighters to the Alamo. They say the grounds are essentially a government museum that pays tribute to important people, groups and ideas "that have helped to shape the Texan identity."
The attorneys said in a court filing that the Fraternal Order of Eagles made the monument neutral. "To ensure that their monument would not be identified with any particular religious group, the Eagles carefully selected a nonsectarian text of the Ten Commandments that had been developed by representatives of the Jewish, Protestant and Catholic faiths."
The Texas government says the presence of a monument does not connote an endorsement - or the condemnation of an opposite group. "The volunteer firemen monument reflects no official disapproval of those who pursue firefighting as a paid profession."
Likewise, the attorneys say, the presence of the Ten Commandments is not a statement against people who use a different version - or no version at all.
So far, the courts have ruled against Van Orden. The Fifth U.S. Circuit Court of Appeals agreed with the Texas attorneys that the monument had "a nonsectarian version."
At the nation's highest court, both sides are making not so subtle appeals to Justice Sandra Day O'Connor, who is likely to be the decisive vote.
In his brief to the court, Chemerinsky mentions O'Connor's opinions 21 times. Likewise, the Texas attorneys use the phrase "reasonable observer" 26 times. O'Connor used that phrase in an opinion on a similar case.
On church and state cases like this one, O'Connor often applies "the endorsement test" - whether the government appears to be making an inappropriate endorsement of a particular faith.
Eddie Lazarus, a former clerk at the Supreme Court and author of Closed Chambers, an inside look at the court, calls her "the pivot on this issue."
"She is going to approach this case narrowly. The key is going to be articulating a vision that strikes a chord with Sandra Day O'Connor."
Times researcher Kitty Bennett contributed to this report. Bill Adair can be reached at adair@sptimes.com or 202 463-0575.
KEY DECISIONS ON RELIGIOUS FREEDOM1879: Reynolds vs. United States. Held that polygamy was a crime, not a religious practice.
1905: Jacobson vs. Massachusetts. Rejected Seventh-day Adventists' challenge to compulsory vaccination law.
1940: Minersville vs. Gobitis. Ruled public schools may require students to salute the flag and pledge allegiance even if it violates their religious scruples.
1940: Cantwell vs. Connecticut. Struck down state law forbidding solicitation for religious causes without a license certifying the religion as legitimate.
1962: Engel vs. Vitale. Banned state-sponsored prayer in public schools.
1980: Stone vs. Graham. Struck down Kentucky law requiring posting of Ten Commandments in public school classrooms.
1984: Lynch vs. Donnelly. Sanctioned a city's Christmas display that included a nativity scene.
1989: County of Allegheny vs. American Civil Liberties Union. Barred a creche inside a government building, but allowed a menorah and Christmas tree outside another government building.
1992: Lee vs. Weisman. Extended the prohibition of school prayer to graduation ceremonies.
2000: Santa Fe Independent School District vs. Jane Doe. Ruled public schools cannot allow student-led prayer before football games.
Source: Congressional Quarterly's Guide to the U.S. Supreme Court; The Supreme Court A to Z