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In Ten Commandments Case, U.S. Justices Seek Middle Ground

March 3, 2005
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Jewish scholars say there are some circumstances in which they would find the public display of the Ten Commandments on government property acceptable — but not the cases now before the Supreme Court. In oral arguments on two separate Ten Commandments cases Wednesday, the justices seemed to be looking for the line that divided acceptable acknowledgment of the role religion played in the founding of American law and government, and an outright endorsement of religion.

Jews seem to be grappling with the same question.

Many Jewish groups are by and large opposed to the public display of the Ten Commandments, viewing it as an endorsement of Judeo-Christian values, and in some cases, pushing a Protestant message over Jewish and Catholic interpretations of the Ten Commandments.

A coalition of Orthodox groups has taken an opposing tack, saying that religious symbols also can have secular meaning and that the Ten Commandments’ role in modern legal codes should be acknowledged.

The court’s decision, expected in June, could have a great impact on the growing debate about the role of religion in government and society.

Approval of such displays could lead to their proliferation, while rejection could spark a backlash similar to what was seen, beginning in 2002, against the removal of “under God” from the Pledge of Allegiance.

But even opponents say public displays that framed the Ten Commandments in a historic context without express endorsement of religion would be acceptable.

“There is a general consensus that if the posting of the Ten Commandments is part of a historical display, it would be permitted,” Rabbi David Saperstein, director of the Religious Action Center for Reform Judaism, said outside the courthouse.

Some Jewish observers suggested that a ruling allowing historical displays could pave the way for those with more covert religious motives.

“If the court attempts to draw some lines, there are going to be those who take the ruling in good faith and those who take it in bad faith,” said Jeffrey Sinensky, general counsel for the American Jewish Committee.

As they heard the two cases on Wednesday — one about a monument near the Texas State Capitol and the other about a display of historical documents hung in front of courthouses in two Kentucky counties — the justices seemed to be trying to find an acceptable use of the Ten Commandments on government property.

But acting U.S. Solicitor General Paul Clement, who spoke in both cases on behalf of the Bush administration, which is backing both displays, said,

“The idea of having a fence around the Ten Commandments to make clear the state has nothing to do with it, I think that is bending it too far.”

In her questioning, Justice Sandra Day O’Connor wondered whether a display would be beyond reproach in a museum-like setting. She also wondered how displaying the Decalogue is any different from starting court or legislative sessions with a prayer.

Justice Stephen Breyer had the same question. “I’m really looking for a key of what’s too far and what’s not,” he said.

Some Jewish court watchers said they are concerned about the possibility that a line will be drawn, because, they say, there is little way to present the Ten Commandments without it offending people outside the Judeo-Christian religions, and more people will be offended when Protestant or other interpretive text is added.

Michael Lieberman, Washington counsel for the Anti-Defamation League, said if the court rules that all displays of the Ten Commandments on government property are unconstitutional, some grass-roots forces likely would launch an effort to amend the Constitution that would permit them.

And if the court draws a line for the acceptable use of the Ten Commandments, individual displays would be questioned for context.

“There’s the possibility that this issue would move from a legal issue to a packaging issue, and how a particular display is packaged,” he said.

During the oral arguments Wednesday, some justices questioned whether it would make a difference if there were no text but just the symbol of two tablets, perhaps with numerals symbolizing the commandments

The Ten Commandments are shown on the wall of the Supreme Court, with Moses holding two tablets containing Hebrew text.

The justices all seemed to agree that the courtroom display was constitutional, because Moses was shown alongside other historical figures, and, they said, it is a tribute to the origins of American law.

It is notable that only commandments six through 10 are visible. Those list sins against man, not God.

In the Kentucky case, McCreary County v. ACLU, the state of Kentucky said it, too, was placing the Ten Commandments alongside other historical documents, such as the Declaration of Independence. But justices seemed concerned that the display had been changed three times in a year, each time becoming less overtly religious.

“It seems all they tried to do is surround what went too far with other things that somehow made it legal,” Breyer said.

In the Texas case, Van Orden v. Perry, proponents argued that the monument had a secular purpose of honoring the Fraternal Order of Eagles, which presented the display to the state legislature in 1961. But opponents argue it is sending a profoundly religious message.

“When you put sacred text somewhere on government property, it is the government endorsement,” said attorney Erwin Chemerinsky, who was arguing the case on behalf of plaintiff Thomas Van Orden, who was protesting the Texas display

“Government cannot endorse religion in a way that makes some people feel like insiders and some people feel like outsiders,” he said.

It was noted that Texas’ display could make Jews feel like outsiders because the text does not follow the Jewish form of the Ten Commandments.

In the Jewish version, the first line is “I the Lord am your God who brought you out of the land of Egypt, the house of bondage.” That second phrase does not appear in the Christian text, and some Jews see its omission as a rejection of Jewish tenets — or, at least, an implicit endorsement of a particular religious tradition.

But Justice Anthony Kennedy suggested those who oppose the Decalogue display could just avert their eyes, and that minority religions must have some tolerance for the majority’s viewpoint.

Justice Ruth Bader Ginsburg seemed to try to find a line between the display of the Ten Commandments and acts of ceremonial deism — allowing the words “In God We Trust” on currency or “Under God” in the Pledge of Allegiance. Most Jewish groups do not oppose those uses.

“It’s not about a brief reference,” Ginsburg, who is Jewish, said of the Ten Commandments displays. “It is a powerful statement of the covenant the Lord” is making with his people.

Justice Antonin Scalia seemed to support the Orthodox perspective that the displays should not be disqualified just because they have religious context.

“It’s a symbol that government derives its authority from God, and it seems to me to be an appropriate symbol for government,” he said.

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