Transcript of Pew Forum Debate on Ten Commandments - Jay Sekulow & Douglas Laycock at National Press Club in Washington, D.C. | American Center for Law and Justice

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The Pew Forum on Religion & Public Life

A Monumental Decision: High Court Considers Constitutionality of Ten Commandments Displays on Public Property
Thursday, February 24, 2005
2:00-3:30pm
National Press Club, Holeman Lounge
529 14th Street, NW, 13th Floor, Washington, D.C.

On March 2, the Supreme Court will hear oral arguments in two cases that concern the placement of Ten Commandments displays on public property. The commandments controversy came to national prominence in 2003, when the chief justice of the Alabama Supreme Court, Roy S. Moore, refused to honor a court order to remove a 5,280-pound Decalogue monument from his courthouse and was subsequently removed from office. The Supreme Court has declined to involve itself in Moores case, but it is considering the constitutionality of displaying copies of the commandments on courthouse walls in two Kentucky counties and on the grounds of the Texas State Capitol.

Are the commandments an integral part of American legal and cultural history, and thus deserving of display in government buildings? Or, as others claim, could this constitute a constitutionally inappropriate government promotion of religion? What impact will these cases have on future church-state issues, especially those involving the display of religious symbols, such as nativity scenes, on government property?

Speakers:
Douglas Laycock, Associate Dean for Research and Alice McKean Young Regents Chair, University of Texas School of Law
Jay Sekulow, Chief Counsel, American Center for Law & Justice

Moderator:
Luis Lugo, Director, Pew Forum on Religion & Public Life


Event Transcript

LUIS LUGO: Good afternoon, and my heartfelt thanks to all of you for showing up today despite the inclement weather. This is a town where we refuse to be cowed by terrorists but a couple of inches of snow will bring us to our knees. (Laughter.) My name is Luis Lugo and I am the director of the Pew Forum on Religion & Public Life. We are a nonpartisan organization and we do not take positions on policy debates, including the issue under consideration this afternoon. The Forum is a project of the Pew Research Center here in Washington.

It is my pleasure to welcome you to what we believe will be an informative discussion on the constitutionality of state-sponsored displays of the Ten Commandments. As I'm sure most of you know, next Wednesday the Supreme Court will be hearing oral arguments in two related cases that involve the placement of the Commandments in public places. The Supreme Court has decided a series of cases involving the public display of Christmas crches, Jewish menorahs and even the Ten Commandments, and yet while these court opinions have set some rough boundaries for what is permissible and impermissible, there remains a substantial gray area into which these two cases fall.

Now, to examine the possible outcome and impact of these cases, we have with us today I should say, back by popular demand since they've appeared at our programs before two of the nation's top experts on church-state questions, each with his own very different perspective, as you'll see. You have a more detailed biographical sketch in the packet you've been handed, so I'll keep my introductions brief.

Up first will be Douglas Laycock, who is one of the country's leading authorities on religious liberty issues. In this capacity he regularly testifies before congressional committees and has argued numerous cases in the courts including the U.S. Supreme Court. Doug teaches at the University of Texas Law School, where he has been since 1981. Before that he taught at the University of Chicago Law School, which also happens to be his legal alma mater.

Like Doug Laycock, Jay Sekulow is no stranger to the high court. As co-founder and chief counsel of the American Center for Law and Justice, he has argued a number of very important church-state cases before the Supreme Court. Jay also hosts a daily nationally syndicated call-in radio show, which is carried by hundreds of radio stations around the country.

Recently Jay was named by Time magazine as one of the nation's 25 most influential evangelicals. Said Time, and I quote, "If God is heading to an appeals court, Jay Sekulow is likely to be sitting at the counsel table." That's are pretty high-powered client you have there, Jay. Doug, I'm sure has some very high-powered clients as well. (Laughter.)

DOUG LAYCOCK: Not that high.

MR. LUGO: Maybe the same client? (Laughter.)

Now, before I hand things over to our panelists I want to quickly mention two other items. The first is, as you were coming in there should have been a nice Forum backgrounder on these cases called "
A Monumental Decision." If you didn't pick one up on the way in, please be sure to get one on your way out. It's good reading for a snowy day, I guarantee you.

I also would like to ask everyone to please turn off your cell phones and pagers so the speakers and other audience members are not distracted during the presentation. The discussion is going to be so engaging that you probably wouldn't notice anyway, but just so that we can be polite towards everyone, please.

And now, without further ado, Doug Laycock.

MR. LAYCOCK: Thanks, Luis. I should say, as I did the last time Jay and I did this, he and I are more often on the same side than on opposite sides. We both file on what the press views as the religious side in free exercise cases, and I'm quite sympathetic to what the press views as the religious side in funding cases. In these cases of governmental religious speech I'm on what the press views as the secular side, although I'm usually representing religious clients who don't think it is a good idea for government to take over their sacred texts, use them for political purposes and display them in county courthouses and capitol lawns.

The basic standard the Supreme Court has announced over the years is that government may not endorse a position on a religious question. Government is not supposed to be for religion or against religion. Religious liberty means each of us gets to make those choices for ourselves. We don't vote on religious questions. And unlike political questions where the government is entitled to try to lead public opinion, government really has no business in religion the government doesn't even lead public opinion, or isn't supposed to, in that area. Each of us individually and in our families and churches is free to make up our own minds about religion without advice from the government.

Now, under that standard, if the Court took that standard literally, plainly these government displays of the Ten Commandments have to come down or be given to a private owner. If you think about your common experience, people who put up a sign with a text on it expect you to read that text and agree with it, or at least think about it and take it seriously. People endorse the messages they send out. You don't put up a sign that you disagree with that is a very rare event. And the government doesn't disagree with these signs either. The government puts up religious displays because somebody in the government thought it was a good thing to display and that people ought to read it and think about it and believe it and act on it, and that's why we have a monument of the Ten Commandments on the capitol grounds in Texas and that's why we have these displays in two Kentucky courthouses in the other case.

Why did they take two cases? You should probably know the facts are a little bit different. The Ten Commandments display in Texas is a large red granite monument standing all by itself at the corner of the capitol with no additional message around it, not in any kind of context. The Kentucky cases started out as a paper display of the Ten Commandments on the courthouse wall, and then in response to litigation after the local District Court said that was unconstitutional, the Kentucky authorities added a variety of other documents, from the Magna Carta to "In God We Trust" to the preamble to the Kentucky constitution, and said, "See, now it's all secular." Think about that if your kids ever watch Sesame Street, this is a problem: which of these things is not like the others; which one doesn't belong? (Laughter.)

So all this litigation, then, is about some explanation of why the Ten Commandments are up there, apart from the fact that we want you to believe the Ten Commandments. This is all sham litigation. Everybody knows the Ten Commandments are there because a vocal majority thinks they're a good religious teaching and they ought to be displayed, but government officials are forced to say, "That isn't why we did it at all." They may not like the rule that they can't endorse religion, but a majority of the court seems committed to that rule and so all the cases have to be argued within the boundaries of a rule against governmental endorsements of religion.

And so the claim from the governmental side is always, "We're not really endorsing the religion; we don't really care about the religious teaching of the Ten Commandments. Their primary purpose, in effect, is secular." And some religious folks are comfortable supporting that position. But others say, "Look, what you're doing is systematically attempting to de-sacralize a sacred text. You're taking the religious and sacred meaning out of it, at least for litigation purposes, and offering these transparently phony secular explanations." And the principle the secular explanation of choice for the Ten Commandments is that these are important: the American law or the law of Western civilization or the Western legal tradition is based on, derived from, the Ten Commandments. These are the foundations of American law.

Now, if you think about the content of the Ten Commandments, that's not very plausible. The Texas display begins following roughly a condensed version of the King James version with some changes but it begins in larger type with the phrase, "I am the Lord thy God," and then says, "Thou shalt have no other gods before me. Thou shalt not make any graven images." That sounds like religion. The first half of the Commandments really have no secular equivalents. They are purely and entirely about one's duties towards God. The second half do have some secular equivalents: "Thou shalt not kill, Thou shalt not steal, Thou shalt not bear false witness," are indeed embedded, in one form or another, in the law of murder, the law of theft, the law of perjury and defamation. "Thou shalt not covet" could have a secular moral equivalent but obviously has never been part of our law, and so far as I can tell, national economic policy is based on encouraging us all to covet freely and grandly. (Laughter.)

So we've got three out the 10 that have some corresponding provision in law. Now, it turns out, of course, that killing, stealing, perjuring and defamation are very basic principles that appear early in every legal system, including legal systems not affected by the Ten Commandments. They were part of ancient Jewish law; they were part of ancient Egyptian law and Mesopotamian law, and ancient Greek law, and Roman law before the Christianization of Rome. And more relevant to the origins of American law, we got these rules from the common law of England, and the common law of England got them from the earliest inhabitants of England. Murder, theft, perjury and defamation were part of Anglo-Saxon law before the Christianization of the Anglo-Saxons and before they had ever heard of the Ten Commandments. These rules did not come from the Ten Commandments. And to say the Ten Commandments are about law is to rip them out of context, to strip away the clearly religious ones "Have no other gods before me" put all the focus on just the three that have secular equivalents, and then to distort the meaning and significance of those secular equivalents.

The Kentucky case is, in some ways, even more extreme. The Kentucky folks quickly put up these nine other documents to say, "The Ten Commandments are just like all these other things," and then they put in explanations to show how these things allegedly fit together. They didn't spend too much time thinking about the plausibility or accuracy of their explanations. One of their explanations is that the National Anthem was inspiring to soldiers in the Revolution who were fighting about 40 years before the National Anthem was written in the War of 1812.

And on the Ten Commandments they say, "The Ten Commandments are the foundation of the Western legal tradition and you can especially see this in the Declaration of Independence." The one legal analogue they have is murder, theft and false witness. They don't even go there. They don't have the laws of the Kentucky murder and theft statutes up; they have the Magna Carta up, they have the Bill of Rights up. The Ten Commandments is a great document, but it does not say anything about individual liberty. It really isn't connected to the Magna Carta or the Declaration of Independence, and the Ten Commandments and the Declaration display or state two fundamentally different theories of the nature of law and where law comes from. In the Ten Commandments, law is handed down from on high. The people wait in the valley at the floor of the mountain. Moses goes up. God hands down the commandments by an edict and Moses brings it back to the people and says, "Here, follow this." And the theory of law in the Declaration is that governments derive their just powers from the consent of the governed; law comes up from below. We each vote on what the law is going to be. It is absurd beyond words to say that the Ten Commandments are reflected in the Declaration of Independence. They're fundamentally different documents.

Now, millions of Americans revere both; how can that be? Well, the answer of course is that millions of Americans, in their own minds, separate church and state. Religious law can come down from above, or religious teachings can be the direct word of God, but our political law our secular law that we can go to jail for, that the government will enforce is made by the will of the people and the consent of the governed. If you separate church and state, the Declaration and the Ten Commandments can both be two enormously important and foundational documents, but if you refuse to make that separation if you try to run the two together you get results that seem to be absurd.

The Kentucky counties and the United States Justice Department have filed briefs that say, "It doesn't matter; what Kentucky says about the Commandments doesn't have to be accurate." They say that explicitly essentially, "It's enough that they put up some secular explanation, however phony." They don't say "however phony"; but they do say that it doesn't have to be accurate, and the Bush administration, the Justice Department, says it can be uncommonly silly and disunified and it's still okay. Well, government does a lot of silly things and they're not all unconstitutional, but if the point is that you've displayed a religious text and now you have to rebut the appearance that you've endorsed it by giving us a secular explanation that dispels the appearance of endorsement, that secular explanation has to make some sense. And what the supporters of the Commandments are saying is, "No, it doesn't have to make any sense; any phony thing will do, however uncommonly silly or disunified." That's how the case is being argued.

Well, how can they possibly expect to win on that ground? They can expect to win on that ground because the Court is not absolutist about enforcing its rule that the government cannot endorse religion. We talked here in this forum a year ago about the Pledge of Allegiance. I said the real question here is of course "under God" is a religious statement but the Court has what lawyers call a de minimus exception: things that are too minimal, too small to be worth invoking the powers of the Court and striking down, and two words, "under God" in the Pledge might be one of those things that's just too short to bothered with. And I think the real question in the Ten Commandments cases is whether Justice Kennedy and Justice O'Connor will think this is important enough to be worth striking down. Knowing that there's going to be a bit of political reaction and hostility to the decision, are they going to be willing to pay that cost?

This is not nearly as de minimus as the Pledge of Allegiance was, in some ways. "Under God" was two words; this is a lot more. This is a sacred text from a particular tradition, a particular set of scriptures, about 120 words. Justice O'Connor in her opinion in the Pledge case said a prayer that lasted a minute and came in at 102 words was not de minimus that that was too long. On the other hand, there are other ways in which this is less troubling than the Pledge because no one has to pay any attention to these displays. You don't necessarily go by them, and if you do go by them you can just keep walking; you don't have to stop and read them, whereas the Pledge was a ceremony in public schools every morning. Every child was asked to participate. So the Court may ultimately decide this is not worth bothering with. And if they would write an opinion that says, "This isn't really hurting anybody; this is just a little bit of religion and we're not absolutist a little bit is okay," a lot of people could live with that. But what's likely going to happen is that if they decide this is just a little bit and we're not going to spend the credibility and the political clout to strike it down, then they're quite likely to write some phony argument about how this is connected to American law. And they will leave the law seriously confused.

In closing, let me pick up one other point that I think is important to remind people of. One of the reasons, particularly for the Texas display and some similar displays from that era, from the '50s and the early '60s around the country, the Fraternal Order of Eagles was putting up these monuments with funding help from Cecil B. DeMille, who though it was great advertising for his movie about the Ten Commandments, but the original motivation of the Eagle's project was a juvenile judge who thought that if kids in trouble read the Ten Commandments they'd have some rules of behavior and maybe they would live by them and stay out of trouble. And that seems a little nave, but the question is, is it secular? Is that a secular reason for the Ten Commandments?

And the answer is no, because it depends upon people accepting a religious belief. And the core debate about disestablishment of religion in America at the time of the founding was precisely over that issue, and the supporters of an established church said, "People won't behave morally; we won't be able to govern them unless they are religious, and so we've got a secular reason for supporting religion. The more we get people to go to church the better behaved they will be." And the other side, the folks who wanted to disestablish religion in America, didn't disagree with the start of that premise. They said, "That's right; people who are religious will be better behaved and easier to govern, but religion doesn't depend upon government support, and in fact is hurt by government support. Religion will be stronger, healthier, more vibrant if it is on its own, if it is voluntary, if it is supported because people want to be there." And this argument that juvenile delinquents will be kept out of trouble is really a replay of that argument in the 1780s that government should support religion so that kids will see it and be more religious. That's precisely the argument that was rejected at the founding when we adopted the Establishment Clause in the first place.

(Applause.)

MR. LUGO: Thanks, Doug.

Jay Sekulow.

JAY SEKULOW: First let me thank the Pew Forum, and it's always great to be with my friend Doug Laycock. Obviously, although most of the time we are on the same side of these issues, this is one of these times, like the Pledge of Allegiance case, where we're not.

I want to respond to something Doug said initially, and that is this idea of the utilization of the Declaration of Independence and its interplay with the Ten Commandments display, and particularly in the Kentucky case. I don't think that, if you view the Declaration as a whole which I think is the proper textual analysis that it's simply inappropriate here. First, Doug, you made the statement that the Ten Commandments for you, law is handed down from, quote, "on high," and bestowed on mankind that way.

The Declaration of Independence really recognized that, too. The Declaration itself says, "We hold certain truths to be self-evident; that all men were created equal, they were endowed by their Creator with these unalienable rights, and amongst them were life, liberty and the pursuit of happiness." That was a recognition by the founders, which was actually based on a very John Lockean concept that rights, liberty, and freedoms do not simply derive from the government; that there are certain transcendent rights, liberties, and freedoms that do, in fact, derive from a higher authority, and that was, in the words of the founders, the Creator and the idea that if government was the bestower of these freedoms and liberties, of course to our founders that meant that government could thus take them away. And the idea was that there were certain transcendent rights that were beyond the reproach of government, which required in that case that they be recognized as from a creator.

So I think we have to put all of this in a historical context, and of course the Ten Commandments do predate the Declaration of Independence no matter the theory of counting you utilize.

There is also a tactical issue in a case like this. That is, the Ten Commandments, perhaps more so than any other symbol, are uniquely symbolic of law. When people see the Ten Commandments, they think of law. And, in fact, you find this in the Supreme Court's own chambers. Many people say when they look above the chief justice's head and when you're arguing cases granted, we're not generally staring over the chief justice's head but there is a depiction of something with Roman numerals one to 10, and no one knows for sure if that is the Ten Commandments or not.

But there is one thing that is very clear that if you look to the lawyer's right, on the frieze, engraved in the marble is a depiction of Moses, and he is holding two tablets and the words are in Hebrew. There is no doubt that the founders were not writing words in Hebrew; Moses was not holding the Declaration of Independence; he was, in fact, holding what was a representation of the Ten Commandments. The words the only words on that entire depiction of all of the famous lawgivers are the words of the Ten Commandments in Hebrew. Now it's not the entire Ten Commandments, just various phrases. But this portion of the Ten Commandments Moses is holding them in the depiction and it's clearly in Hebrew.

What does this mean? That when the designers of the Supreme Court building itself looked at the depictions of great lawgivers, maybe for them also, the Ten Commandments was unique. It was different than the Code of Hammurabi; it was different than other famous codes of law the Justinian Code, for example. It had a different appeal.

Now, that doesn't mean that the justices or that Cass Gilbert in the wonderful design decided that we must read, follow, and obey them. But there was a reason that they were depicted in the Supreme Court building itself. And I suspect that it was not the idea of the architect, Cass Gilbert, to have that depiction put in place to simply be a code to follow a moral guidance if you will but it also impacted a rule of law, an understanding of revealed law. In fact, in courthouses throughout the country and we put this extensively in our brief at the Supreme Court there are depictions dating back many, many decades to the Ten Commandments in various contexts.

Let me give you a couple of interesting ones. There is one beautiful depiction of the Ten Commandments that is actually in the Pennsylvania Supreme Court building. It is a magnificent artistic painting with the words of the Ten Commandments in English. The under caption and again, this is in the Pennsylvania Supreme Court is the Decalogue Hebrew idea of revealed law. And, again, the words of the Ten Commandments are in English.

We had a case at the U.S. Court of Appeals that is currently pending at the Supreme Court and based on their orders list on Monday, I suspect it's being held pending these Ten Commandment cases, where a judge in Ohio posted a copy of the Ten Commandments among other documents in his court building. It was challenged; we lost. And at the Sixth Circuit Court of Appeals, as we're walking in to prepare for the arguments and deliver the arguments to the U.S. Court of Appeals for the Sixth Circuit, there is a monument, a magnificent 40-foot-by-30-foot mural that would probably take up a good portion of this wall. It is a depiction of the Ten Commandments with the words again in English.

Now, our Ohio judge's display was about eight inches by 10 inches maybe 12 by 12 but it was small. And we argued the case and said, "Look, you have got it right here; walk out your hallway, there it is." Again, it's not up there to observe as a religious devotion, but as symbolic of the rule of law, or codes of law. The court struck down our judge's display, conveniently ignoring their own display that has been there for literally 70, 80, maybe even 100 years.

The Justice Department has frequent references to great lawgivers, including Moses and the Ten Commandments, in their building. But in the courthouses in particular and in the Justice Department building itself, there is a reason that it is there. And it's not there to scare the school children of Kentucky, as was the case in Stone v. Graham as Justice Sevens expressed his concern in that case "that, my goodness; we post the Ten Commandments; there could be some problems; students might read them, study them, venerate them, follow them." I don't think that would necessarily be a horrible thing, but Justice Stevens was concerned enough about that to say that was a basis for a statute requiring the posting of the Ten Commandments to go very different than this case.

But you have to look at the Ten Commandments in this unique universal appeal as a code of law. It may not be a code of law that every tradition understands, and we live in a culturally and religiously diverse society. But when you see the tablets and someone with a beard holding those tablets, even if there is nothing written on those tablets, you kind of know it's the Ten Commandments. It's almost like and I don't want to give free advertising here; if I were to give any free advertising it would be for the Pew Forum for having these great events but it's kind of like McDonalds. You know, you see those golden arches, and you don't have to see a whole lot else to know what it is. The Ten Commandments have that same kind of universal symbolic association with the law. And I certainly don't want to offend Wendy's or Hardee's, or anybody else. So I will say that as my disclaimers. But these are fascinating cases. It's not so fascinating when you're the lawyers doing these cases because although they are interesting and thought provoking, they are difficult no matter what side you are on.

Someone asked me, is there an easy Establishment Clause case? And there is one I can think of: a school district that had a policy saying teachers must lead a prayer at the beginning of the school day. That is probably unconstitutional it's pretty easy to argue that one. Short of that, everything else is line drawing. In this case, the court talks about how context matters. Why did they take two cases? Why did they take a case out of Kentucky and a case out of Texas? One of the monuments or displays is interior with other codes of law around them; the other one is a monument that, actually, as Doug mentioned whatever the motivations of the juvenile court judge in Minneapolis were initially to have the Ten Commandments up as a moral code Cecil B. DeMille decided that it would be even better to have it as a promotion for the movie the Ten Commandments.

And I'll give you a little anecdote. In preparing one of the cases that the court looked at a few years ago that I was counsel of record in and although the court did not take the case, it received a lot of interest the chief justice and Justices Scalia and Thomas actually issued a dissent from denial of review. In these cases you tend to become an expert in something, and I became the expert in how these monuments actually got there. And they actually would have and I kid you not Moses as depicted by Charlton Heston and Yul Brynner, who was pharaoh, attend these various events where they would have the dedication of these monuments. Now, they didn't go to all of them I think there were 4,200 of them throughout the United States but in the bigger cities they went there for a clearly secular purpose of promoting the movie.

Having said that, I don't know if the lawyers advocating my position are going to utilize that. My advice to them would be it might be a good retort; but it also might get you in all kinds of trouble; and if you're going to do that, you better be an expert on the cinema.

Speaking of the cinema, to describe the Establishment Clause jurisprudence as confusing, complex, and contradictory in many cases is not an understatement. These are opinions that are hard to reconcile. The court has struggled with the Establishment Clause cases; there is no doubt about it. And this Lemon test this three-part test of a secular purpose and it better not have the primary effect of advancing religion and we don't want to get involved with what is an entanglement religion it kind of comes up sometimes and then we don't hear about it for a few years and then it comes back up again. Justice Scalia called the test "a ghoul in a late-night horror show that continues to" as he called it in this particular case I argued "stalk the school board attorneys of Center Moriches Union Free School District and frighten the little children." Justice White, in retort, said that despite Justice Scalia's trip to the cinema, there is a proper way to inter a precedent and that is to overrule it; they have not done so.

The have ignored it when they have wanted to; they have worked around it when they have wanted to. This case is different, though. One of the certiorari questions presented deals with this kind of reanalysis of this test. And there is if you were to count the majority of justices that have said this test isn't working out very well, we would clearly get a new test. The problem is, I think there are probably five, maybe even six current justices that think the test isn't particularly great, but five of them don't have the way they want to proceed, and that presents a very difficult situation for those of us that handle these cases.

Now, one of the issues that is going to be clearly relevant in the Kentucky case is what I call the taint issue. You know, Kentucky really wanted the Ten Commandments and the rest of this is window dressing and they put up the Ten Commandments first and then some lawyer got to them and said, "You know, you may want to have other documents around that." In a case in Atlanta 13 or 14 years ago there was a challenge to the Ten Commandments display in the Cobb County courthouse. And the district court judge in Atlanta, said, "Look, put some other things around it and you're okay," and that kind of became the standard.

Well, in Kentucky, they apparently first started without having this particular legal advice given about surrounding it with reindeer and candy canes, which is how you do a nativity scene in the public square by the government. You put up some other things and they say then it's okay, the landscaping is right. So here they were going to put other things like the preamble but they didn't start out that way. They started out with just the Ten Commandments.

So here is my analysis of this. The idea is that we're now going to say to a city or county official the Supreme Court of the United States is going to say once tainted, always tainted. It's as if you kind of get the death penalty if you violate the Establishment Clause once. And I'm not arguing, by the way, that posting the Ten Commandments is in and of itself a violation of the Establishment Clause.

But let's assume the court didn't like the history of the display and how it developed. Are we going to penalize a local county who is trying to figure out how to comply by getting various legal advice to figure out how to do this and maybe they really do want the Ten Commandments up there because they really do think there is both a secular and a religious purpose. (I mean, to go up there and argue that the Ten Commandments has no religious significance is absolutely ridiculous no one is going to say that. I don't think Cass Gilbert in the design of the building would have said that.) So it has both a secular and religious purpose. I don't think that makes it disqualified.

Not only is there a Ten Commandments display, by the way, in the Supreme Court inside that courtroom, but when you walk in I think it's the rear side maybe there is a huge depiction of Moses holding those tablets of law, the Ten Commandments. So there are numerous depictions within that Supreme Court building itself and that presents an interesting issue. Does the lawyer arguing the case get up and argue, and as the questions are coming, do you kind of keep looking to your right? Do you translate the words that are written? but you'd better pronounce the Hebrew correctly. There are all kinds of interesting issues. Does the court issue an opinion that requires a sandblaster to come in and remove the Ten Commandments depiction of Moses holding those stones? I think not. But if it's not good in one case I mean, context matters. Are we going to have to go back and review the documents of the architectural renderings of the Supreme Court building itself to determine what was the intent of the architects in putting up that depiction of Moses, and why did they only put Moses with words actually written? And in a language that is clearly reflective of the religious underpinning of the Ten Commandments, the words are in Hebrew. Why did they do that?

I don't think there a conspiracy going on; I don't think they were probably even consulting lawyers. In fact, at that point the Establishment Clause wasn't applying to the states, but it certainly was applying to the federal government and the Supreme Court was part of the federal government. So some people have tried to argue the whole Establishment Clause application with the notion that it's a federal facility.

So is the Supreme Court of the United States going to remove by sandblaster, I guess, or marble removal however you would do that its own displays? Are they going to walk across the street and say now that we have issued a decision in this particular case, we have got some other problems and we need some people to go around to all of the major monuments, including the monuments in the U.S. District Courthouse right here in Washington, D.C., that have statues of Hammurabi and Moses and Justinian? Do we send the police over to the Ronald Reagan building, which has a depiction of the Ten Commandments in it? What about the National Archives Building?

More impressive maybe in its stature would be to send the court police over to the Library of Congress because in the Library of Congress, in the central main reading room, is a large depiction of Moses holding the tablets of the Ten Commandments. And if you can get behind the statue, you can see some of the text it's clearly a depiction of the Ten Commandments. Why is it there? It is there because it is a universal symbol of law. And the Supreme Court has to be careful when it issues its opinions to leave room, not only for its own display, but for the tens of thousands of displays in courthouses, in county facilities throughout the United States. So the reach of these two cases is very significant.

Now, one of the things that we try to analyze and reanalyze on these matters is the motivation for accepting two cases. I have had that situation before, where they have taken two cases, and we've had to brief them separately, but generally consolidate them for oral arguments. Each party will issue separate opening briefs and reply briefs, but there is one argument. For the lawyers that argue these case it's a lot of fun, but the fact is that it is the briefs that really matter more than the oral argument. So a lot of briefing is going on, but they are keeping the cases completely separate. What I think that means is that the court is looking to find some room for where these monuments or depictions are constitutional, and probably some warnings as to where they are not. And I think that is why the court has taken two very, very different cases involving the very same type of depiction.

Thank you. (Applause.)

MR. LUGO: That was wonderfully thoughtful and provocative. Thank you both so much for setting up our discussion. I'm going to ask the two of you to come back up here, and I'm actually going to take a seat. This is a seating reversal for the benefit of our friends in the media who are taping this. That way they get a better shot of you up here. But my concern, of course, is that you'll run wild and not pay attention to me, so I'm going to maybe kick you in the back if I need to grab your attention. I'm warning you in advance. As is our pattern, we want to open up the opportunity for our friends from the media to ask the first few questions. Please identify yourself clearly, hopefully giving us your real name that's become an issue here in town among journalists. So if you could do that, we would really appreciate it.

MICHAEL MCGOUGH: I'm Mike McGough, and I cover the Supreme Court for the Pittsburgh Post-Gazette. This question is for Jay, but I would like to hear Doug Laycock's response as well. I'm sorry it's a two-part question. The first part is in regards to the taint question. We had the Commandments by themselves. Then we covered them with other things. And you were impatient of the idea that the court should really look at this as a subterfuge or sham litigation, which is the way Doug described it. But would you be a little more explicit about that? In this case, is it sham legislation? And the second part of the question and this is not facetious is, as a Christian, does it trouble you in the lawyer's role to be making a tactical argument that some would say is bearing false witness? saying that this is about a collage of documents illustrating the foundations of western law when what the people you're representing really see it as is a way to say that we're a Christian or at least a Judeo-Christian nation?

MR. SEKULOW: Those are both good questions, and let me take the second question first, if I might. I don't think it's a sham if they would have just kept the Ten Commandments up there by themselves. I don't think it's a sham that in the Supreme Court facility, the only depiction with wording in it is Moses with the Ten Commandments, or that the Sixth Circuit Court of Appeals facility has a magnificent mural with angels surrounding the Ten Commandments. It's clearly religious in its theme, but also secular in its view of the importance of law, and the Ten Commandments represented that. I don't think that's a sham.

I think what happens with these counties and I get these calls is that they put up a monument and then they get worried. And then the lawyers say, "Well, you know, I don't know exactly where the court's going to come out on this, but I'll tell you what they have been saying in some of the lower court cases, and that is that if you've got enough around it, it's kind of like the Nativity scene with the reindeer, then you might be okay." So the tendency is that this is lawyer-moved rather than necessarily client-moved. That's not always the case, of course, and I'm not speaking to the Kentucky situation I didn't represent them in Kentucky.

I will also tell you this. It was very nice of Luis to bring up the Time article. Fortunately for all of us, God does not need a lawyer. I always say that as a prerequisite, but I don't think there's anything wrong with religious symbolism taking on a secular meaning. When Justice O'Connor talks about ceremonial deism, I'm not offended by that phrase. I think that's part and parcel of world experience and we do that. So it does not tend to bother me.

MR. LUGO: Doug, if you could address this question but also feel free to respond to some of Jay's comments

MR. LAYCOCK: Oh, I probably will. On the taint question, of course a government can violate the Constitution once, deliberately or by accident make a mistake and fix it thereafter. The question is, did you really fix it, and in this particular context under the endorsement test the standard is, what message is the government sending? And so the fix has to actually and effectively change the message. And if what all reasonable observers see is that these counties are determined to display the Ten Commandment no matter what, and they're experimenting to find the minimum amount of other things they have to put up alongside to let the Ten Commandments stay, my view is they haven't really changed the message. But that's one of the issues before the court. I don't want to take a rebuttal on Jay, but I can probably focus or clar
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