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The Supreme Court on Wednesday appeared no closer than ever to drawing a bright dividing line between church and state as it debated the constitutionality of Ten Commandments displays on public property. “It’s so hard to draw that line,” said Justice Sandra Day O’Connor early in two hours of debate over a Ten Commandments monument on the grounds of the Texas state capitol and wall displays in two Kentucky courthouses. The U.S. Court of Appeals for the 5th Circuit upheld the Texas display, but the 6th Circuit found that McCreary and Pulaski counties in Kentucky violated the establishment clause of the First Amendment. The argument also saw the Bush administration’s top lawyer before the Court, Acting Solicitor General Paul Clement, distance himself from the display that cost former Alabama Supreme Court Chief Justice Roy Moore his job. In 2003, Moore refused to obey a federal court order to remove a Ten Commandments monument he had installed in the Supreme Court’s rotunda. Asked by Justice Ruth Bader Ginsburg about such a display, Clement said that the Alabama monument “probably does cross the constitutional line” because it turned a public space into something akin to a “religious sanctuary.” As often happens in church-state cases, much of the questioning from the justices Wednesday was case-specific, focusing on the context, setting, and history of the displays. The arguments suggested the possibility that the Court will rule differently in the two cases, Van Orden v. Perry and McCreary County v. American Civil Liberties Union of Kentucky, with O’Connor possibly holding the swing vote. Throughout the morning, lawyers on both sides of the issue � as well as several justices � made reference to the marble frieze on the wall above them in the Court chamber, which shows Moses holding the Ten Commandments in a display of historic lawgivers. “How about that frieze?” Justice Ginsburg asked at one point, wagging her pencil at the sculpted panel and noting that it displays only the last five commandments, generally viewed as the more secular ones. Because Moses is accompanied by other historical figures, including Hammurabi, Solon, and Solomon, the frieze was cited as an example of an acceptable display of the Ten Commandments that did not convey government endorsement of a religious message. Similarly, in the Van Orden case from Texas, many of the justices seemed satisfied that because the 6-foot-high monument is in a parklike setting in Austin dotted with more than 20 other monuments and historical markers, any message of government endorsement is diluted. “If an atheist walks by, they can avert their eyes,” said Justice Anthony Kennedy, who also complained of society’s “obsessive concern with any mention of religion.” He added, “I don’t see a balanced dialogue.” Duke University Law School professor Erwin Chemerinsky, arguing against the Texas monument, countered that it is the only monument in the area religious in nature and that it does convey endorsement. “Enforcing the establishment clause is not about hostility toward religion,” he said. Chermerinsky also said that the Moses frieze in the Court chambers is “exactly” how the Ten Commandments can be displayed constitutionally. Texas Attorney General Greg Abbott defended the monument as a “historic recognition” of the role the Ten Commandments played in legal history. Asked by Justice John Paul Stevens whether Texas could post a crucifix on state grounds, Abbott at first called it a close question but, when pressed, said he would “seriously question” its constitutionality: “A crucifix is not the same as the Ten Commandments.” Abbott, who was left partly paralyzed in an accident as a young man, argued the case before the Court in a seated position instead of standing at the lectern. After he finished, Stevens, who was presiding over the session, commended Abbott for showing that “it is not necessary to stand at the lectern to do a fine job.” Clement, who argued in both cases in favor of the displays, said that the Ten Commandments are “undeniably religious,” but that they have “secular significance” and so don’t constitute a state endorsement of the text. The tenor of the arguments in the Kentucky case was different, with several justices appearing concerned about the history of the courthouse displays. At first, framed copies of the Ten Commandments stood alone on walls in the courthouses. But when the displays were first challenged in 1999, county officials altered the displays twice by surrounding them with other documents, some secular and others religious. “Both the purpose and the effect was to endorse religion,” said ACLU lawyer David Friedman of the Louisville firm Fernandez Friedman Grossman Kohn & Son. “It was not a neutral display of lawgivers like the one in this court.” Mathew Staver, president of the Florida-based group Liberty Counsel, the lawyer defending the Kentucky displays, acknowledged that officials “made a mistake” with the earlier versions, but now they are in a historical context of important documents that include the Magna Carta. Even if the displays had a “religious purpose” at first, “it has been abandoned,” said Staver. But in past establishment clause cases, the intent of legislators in fostering religious practices has been an important factor, and several justices explored that aspect of the case. Justice David Souter dismissed the additions as “litigation dressing” aimed at ending the lawsuit without changing the purpose of the display. Souter said it would be “crazy” if the upshot of the cases was that “you can engage in religion so long as you hide the ball well enough.” And Justice Stephen Breyer asked, “If it was wrong to begin with, is it wrong to end with?” Clement urged the justices not to punish the counties for “trying to bring the displays into compliance.” He also urged the justices to stop relying on the “purpose prong” of its establishment clause analysis. Justice Antonin Scalia was the biggest booster of the displays, asserting several times that the message conveyed by the displays was both deeply religious and constitutionally acceptable. “It is a symbol that government derives its authority from God, and that’s appropriate,” said Scalia. He estimated that 90 percent of Americans agree with the message � even if, as he joked, “85 percent couldn’t tell you what the Ten Commandments are.” For those who disagree, Scalia said, “turn your eyes away if it is such a big deal for you.” Tony Mauro can be contacted at [email protected].

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