Blame It On Moses

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Attorney Andrew Cohen analyzes legal issues for and CBS News.
The Supreme Court has an opportunity Wednesday to begin to offer clarity and certainty to an area of First Amendment law that cries out for bright lines. Reviewing two contradictory rulings in cases from Kentucky and Texas, the justices now will chime in on the growing battle over what role "Ten Commandments" displays ought to play in public life.

The Court is being asked to determine whether state-sanctioned displays of the Ten Commandments, surrounded by other historical and religious symbols, violate the Establishment Clause of the First Amendment to the Constitution. When a state encourages or permits the creation and promotion of such displays, on government property, usually near a seat of power, is it impermissibly endorsing one religion or another or one sect of a religion over another? Or is it just recognizing that the laws some believe the Lord gave to Moses form part of the historical and legal underpinnings to our modern-day legal system?

The answers to those questions depend entirely upon who you talk to. If you talk to former Alabama Supreme Court Chief Justice Roy Moore, for example, he'll surely tell you that the Commandments deserve unique recognition by the government because America is a Christian nation, founded upon Judeo-Christian values, many of which are written in the tablets that Moses supposedly brought down from the mountain. Moore, remember, is the anti-judge judge who was forced to remove his Ten Commandments display from his Montgomery courthouse last year. This is the position, pretty much, that Kentucky and Texas are taking in their appellate briefs.

On the other hand, if you talk to the ACLU and other individuals and organizations who oppose the use of the Commandments as "official" displays, they'll tell you that there is no way to separate the clear and unilateral religious message of the Decalogue from whatever historical value they may have in shaping American law. These folks also will tell you the Ten Commandments crowd is disingenuously trying to bootstrap American history into the debate over the religious monuments in order to convince courts, like the Supreme Court, that the religious import and impact of the Commandments doesn't rise to an Establishment Clause level.

The justices took these cases because two lower courts came to different results when looking at similar issues. In Texas, the 5th U.S. Circuit Court of Appeals upheld a display of the Ten Commandments on the Texas Capital Grounds. In Kentucky, the 6th U.S. Circuit Court of Appeals voided two similar displays of the Ten Commandments that had been posted in two counties in the state. Because the Kentucky case does not square with the Texas case, and because other states are soon going to have similar litigation, the Supreme Court decided it had better referee the fight now.

It will not be easy. When it comes to the Establishment Clause in particular, First Amendment law is a mess. The legal test that the justices love to apply in hard cases hasn't work out so well in these sorts of cases, mostly because the test over the generation since it was first announced seems to have more exceptions than rules. Indeed, both Texas and Kentucky told the justices that they wouldn't mind doing away with the Court's Lemon test, named for the 1971 landmark Court ruling that was supposed to generate some certainty in this fact-specific area of the law. And there appears to be an open-mindedness to do just that among some of the justices, particularly Justice Sandra Day O'Connor, who is often the Court's designated swing voter.

If the law in this area will make it difficult for the justices to reach a Solomon-like ruling, the facts of both cases won't help either. The briefs by the parties are littered with claims that one side or the other has misrepresented material facts. The intent and motives of public officials, especially in the Kentucky case, are in play, which further complicates the role of the justices. And both sides can point to legal and factual precedent to support their current positions. In 1980, for example, the Supreme Court struck down the placement of the Ten Commandments in a classroom. Since then, however, on issues of school prayer to vouchers, the Court has been far more open to religion being a part of public life.

As if all that weren't complicated enough, there appears to be a great deal of dispute over the true legal and historical tie-in between the Ten Commandments and modern American law. Not surprisingly, supporters of public Commandments displays say that our justice system is rooted in many of those "Thou Shalt Nots." And, naturally, opponents of the public displays say that they are overwhelmingly religious and represent the core of what the First Amendment was designed to prevent: government siding with certain religious beliefs over others.

In the Kentucky case, officials in two counties have tried for years to figure out a way to keep public their Commandments' display. When they first posted it, and were challenged, they argued that the display did not violate the Establishment Clause because the commandments represented "the inseparable connection between the ethical conduct of [Kentucky's] legislative body and the Christian principles which permeate our society and its institutions." Sensing correctly that this argument wasn't going to cut it, the counties then tried to surround their Commandments displays with other displays that included references to God and religion.

A trial judge ruled that the counties were illegally endorsing religion by "narrowly" tailoring [their] selection of foundational documents to incorporate only those with specific references to Christianity…" The counties tried a third time, this time surrounding the Ten Commandments with less religious (and more patriotic displays), but by then it was too late. The courts had given up believing that the efforts by the counties were anything but a way to keep the Ten Commandments in the middle of public life.

The Texas case was not nearly as long and winding on its path to the Supreme Court. The display in Texas has been standing for over 40 years and is now a part of a larger display that is more patriotic than religious. Indeed, Texas says that the whole display area is akin to an outdoor museum, like the National Mall in Washington, so that whatever religious impact the Commandments display offer is muted both by the space of the outdoors and the diffusion with other displays.

Moreover, unlike the Kentucky kafuffle, the Commandment display in Texas seems to have a built-in secular purpose that might protect it from First Amendment meddling. It was initially posted as an honor to the Fraternal Order of Eagles, its donor, as a monument to its work against juvenile delinquency, although for the life of me, beyond the Honor Thy Mother and Thy Father part, I cannot see the link between juvenile delinquency and the Commandments. "There is no secular purpose," says the brief challenging the Texas Commandments, "in placing on government property a monument declaring: 'I AM the LORD thy God. Thou shalt have no other gods before me. Thou shalt not make thyself any graven image. Thou shalt not take the Name of the Lord thy God in vain.'"

With clear factual distinctions between the two cases, the justices could take the easy was out and declare Texas' display valid while striking down the displays in Kentucky. I'm hoping they don't. I'm hoping (but not expecting) that the justices come up with a bold new legal test that provides once and for all clear rules in this area of the law. The Ten Commandments surely are religious — their public placement ought to be immediately suspect. But perhaps over time they have become what the law recognizes as "ceremonial deism;" as watered down as the phrase "In God We Trust" on our money or the invocation "God Save This Honorable Court" in halls of justice.

Whether or not the Commandments are the words of God, they are clear and direct and thus a good mark for the justices to shoot for as they decide these cases. It's time for the Court to declare a black-letter standard that would apply to any Commandments display anywhere in the nation.

By Andrew Cohen