UPI News - Bush Administration Backs Ten Commandments

By Michael Kirkland
UPI Legal Affairs Correspondent
January 28, 2005

WASHINGTON -- Outside groups are weighing in as the Supreme Court prepares to hear argument this spring on whether the Ten Commandments can be displayed on government property.
    
    Interested friends of the court, all the usual suspects including 22 states, are practically thrusting green-colored support briefs at the justices.
    
    But the real heavy hitter is the Bush administration, which has come down firmly on the side of those who want to keep the commandments on display at statehouses and courthouses.
    
    The underlying cases involve McCreary and Pulaski counties in Kentucky, and the state of Texas.
    
    In 1999 the American Civil Liberties Union helped seven private individuals file suit against the two counties and the Harlan County (Ky.) School District. The suit said the framed displays of the commandments in the courthouses and in the schools violated the separation of church and state.
    
    After the suit was filed the counties and the district modified the displays to include other documents.
    
    A federal judge, however, ruled for the challengers. Instead of appealing the ruling the counties and district tried again to include the commandments in larger set-pieces titled "Foundations of American Law and Government Display" containing a variety of other documents said to have played a role in the formation of law and government.
    
    The school district also included a school board resolution that discussed the historical background of the documents and gave the community the opportunity to display an unlimited number of similar historical documents.
    
    The ACLU then asked for a contempt of court citation, but the judge told the two sides to settle their differences. When that didn't happen, the judge issued a new preliminary injunction against the displays, and the counties and school district lost on appeal. The counties filed their own petition asking for Supreme Court review, as did the school district, but the justices accepted only the counties' case for argument.
    
    The separate Texas case is somewhat different. The six-foot monument to the Ten Commandments has been on the Statehouse lawn in Austin since it was installed by the Fraternal Order of Eagles in 1961. The monument stands with other displays, and Texas won its case in the lower courts after the commandments monument was challenged by a homeless man.
    
    Though it may seem odd, the Supreme Court has not dealt with the issue of displaying the Ten Commandments on public property since 1980.
    
    There has been plenty of action in the lower courts, however, where an estimated 20 cases are percolating their way up the legal ladder. One of the more celebrated lower-court cases involved Alabama Chief Justice Roy Moore, who installed a 5,280-pound Ten Commandments monument in the Judicial Building in Montgomery several years ago in the dead of night. Moore refused an order from a federal judge to remove the monument, but he himself was removed from office by a special state judicial court, and the other state justices took the monument from public display.
    
    Moore asked unsuccessfully for Supreme Court review of his removal.
    
    In 1980 the Supreme Court heard the case of Stone et al vs. Graham et al. At issue was a Kentucky law that required the posting of the commandments in each public school classroom.
    
    Back then the justices ruled 5-4 that the law had "no secular legislative purpose" and was therefore in violation of the First Amendment's ban on the government establishment of religion.
    
    The majority said the Kentucky law was not saved by the inclusion in small print at the bottom of each display that the Ten Commandments had a secular application because they were adopted into the fundamental legal code.
    
    Chief Justice William Rehnquist, then an associate justice, and Justice John Paul Stevens were members of that 1980 court. Rehnquist dissented in a way that may offer a clue to his thinking in the current cases.
    
    "The Court's summary rejection of a secular purpose articulated by the legislature and confirmed by the state court is without precedent in establishment clause jurisprudence," Rehnquist wrote in dissent. " ... The fact that the asserted secular purpose may overlap with what some may see as a religious objective does not render it unconstitutional."
    
    Meanwhile, back in 2005, the Justice Department asked for and received permission to argue part of the new Kentucky case when it and the Texas dispute are heard by the Supreme Court March 2.
    
    In a brief filed last month Acting U.S. Solicitor General Paul Clement noted that the Supreme Court in the past has permitted religious displays among others in a public forum, even if that forum is provided by the government.
    
    "Justices of this court, decisions of lower courts and the writings of countless historians and academics have long recognized the significant influence that the Ten Commandments have had on the development of American law," Clements' brief said. He also argued strongly that the Supreme Court should not look at the counties' original action -- the display of the Ten Commandments alone -- as an indicator of the purpose of the display.
    
    In their own brief unsuccessfully opposing Supreme Court review of the Kentucky dispute, the ACLU and the Kentucky challengers said a high-court ruling in 2000, Santa Fe Independent School District vs. Doe, required the appeals court to consider the "evolution" of the displays in determining their primary purpose.
    
    The appeals court "found all three factors -- content, context and evolution of the displays -- showed a predominantly religious purpose."
    
    As expected, friend-of-the-court briefs have been raining down on the Supreme Court even before the justices decided to hear the cases, and the bundled briefs make a file thick enough to choke a horse.
    
    Besides the 22 states, organizations supporting the display of the commandments on public property have a decidedly conservative background and include such organizations as the Family Research Council, Focus on the Family, the American Center for Law and Justice, the Becket Fund for Religious Liberty, the Rutherford Institute, the Thomas More Law Center and, perhaps surprisingly, Washington-based Judicial Watch.
    
    Organizations predictably filing briefs supporting the other side include the Baptist Joint Committee, the American Jewish Committee, the American Jewish Congress, the Interfaith Alliance Foundation and the Alabama-based Atheist Law Center.
    
    A brief filed by the National School Boards Association, the Horace Mann League and National Association of Secondary School Principals supports neither side.
    
    Instead, the educators' brief pleads with the Supreme Court to bring some clarity to the law regarding the display of the Ten Commandments on property bought by the taxpayer.
    
    (No. 03-1693, McCreary County et al vs. ACLU of Ky. et al; and No. 03-1500, Van Orden vs. Perry et al.)