High Court Tackles Religion

The Supreme Court, which has been closely split on religious issues, announced Tuesday that it would decide whether a government display of the Ten Commandments at public buildings violated the 1st Amendment’s ban on “an establishment of religion.”

Plaques and monuments depicting the biblical commandments are at the center of the continuing dispute over the meaning of the U.S. Constitution. Does the document create a “wall of separation between church and state,” as President Thomas Jefferson once said, or does it permit officials to publicly recognize the nation’s religious heritage?

The court said it would take up two Ten Commandment cases.

The first concerns a monument outside the main entrance of the Texas State Capitol in Austin. A gift from the Fraternal Order of Eagles in 1961, the monument is near several others. The commandments include the words “I am the Lord thy God. Thou shalt have no other gods before me.”

The Texas case has an unusual history. Thomas Van Orden, a former criminal defense lawyer who became homeless after suffering a mental disorder, brought a suit against the state and argued the case himself.

“I didn’t sue religion,” Van Orden, 59, said last year. “I sued the state for putting a religious monument on the Capitol grounds.”

Though Van Orden lost in the federal courts, the Supreme Court agreed to hear his case. Duke University law professor Erwin Chemerinsky wrote his appeal in Van Orden vs. Perry.

The second case arose when judges in three eastern Kentucky counties decided in 1999 to post copies of the Ten Commandments in their courthouses. The American Civil Liberties Union sued and won, but the high court agreed to hear the appeal from the judges, in McCreary County vs. ACLU.

The outcome at the Supreme Court probably depends on Justice Sandra Day O’Connor. In past cases, she has asked whether the government’s action appears to endorse religion. If so, she has voted to strike it down as unconstitutional.

For example, she joined her liberal colleagues in ruling that city officials in Pittsburgh went too far when they displayed a nativity scene inside the county courthouse during the winter holidays. O’Connor also joined with the liberals to rule that public school officials may not have a student deliver a prayer over the public address system.

However, she also has voted with her conservative colleagues in upholding the use of state tax money that allowed parents to send their children to religious schools. These “vouchers” do not endorse religion, she said, but merely give parents more choices for education.

The other eight justices are more predictable. The conservative faction, led by Chief Justice William H. Rehnquist, has said the government may aid religion in general, so long as it does not favor a particular faith. The liberal faction, led by Justice John Paul Stevens, has supported the separation-of-church-and-state principle and says the government may not promote religious views.

It is conceivable that O’Connor would vote with Rehnquist to uphold the display of the commandments at the Texas Capitol because it sits among several other monuments, but vote with Stevens to strike down the display in Kentucky.

The two cases will be argued in February in the high court, where a partial depiction of the commandments can be seen in a ceiling panel high above the courtroom.

In 1932, when the Supreme Court building was under construction, Adolph Weinman was hired to sculpt a ceiling panel depicting 18 famous lawgivers. They include Hammurabi of ancient Babylon; Confucius; and Sir William Blackstone, the 18th century English jurist. It also includes Moses, holding a tablet that represents the Ten Commandments.

Advocates on both sides in the long-running dispute over religion say they hope the court issues a clear ruling on the constitutionality of displaying the commandments.

“This is a critical opportunity for the high court to clarify one of the most confusing areas of church-state law,” said Jay Sekulow, chief counsel for the American Center for Law and Justice. “It is clear that the commandments have played a vital role in the formation of Western law.”

The Rev. Barry W. Lynn, executive director of Americans United for Separation of Church and State, says he hopes the court makes clear the government has no business promoting religion. “Religious symbols belong in houses of worship, not courthouses, city halls and public schools,” he said.

Meanwhile, the court also will decide whether prisoners and others in state custody are entitled to full religious freedom.

The 1st Amendment protects the “free exercise of religion,” but state officials say they need not make special arrangements for meals and services for inmates who practice nontraditional religions.

Congress sought to protect religious freedom four years ago when it passed a measure saying officials may not “impose a substantial burden” on the religious rights of inmates. But a U.S. appeals court struck down the law on the grounds that it amounted to favoritism for religion.

The high court said it would take up a case brought by Ohio inmates who are Satanists and Wiccans to decide the constitutionality of the federal law. The case, Cutter vs. Wilkinson, also will be heard in February.