Sculptures and plaques of the Ten Commandments appear in or on numerous governmental facilities in the Nation (pictures can be found here).
The Main Reading Room in the Library of Congress has a large bronze statute of Moses holding the Ten Commandments. The recently completed
Last Wednesday, the U.S. Supreme Court heard arguments in Van Orden v. Perry and
The following are excerpts from the Supreme Court arguments:
Erwin Chemerinsky (attorney for man seeking removal of the Texas display): The government may put religious symbols on its property, including the Ten Commandments, but must do so in a way that does not endorse religion or a particular religion, but does not have the purpose of advancing religion, but does not favor any particular religion.
Justice Antonin Scalia: Mr. Chemerinsky, I suppose that opening statement suggests that you think that Thanksgiving proclamations are also unconstitutional, which were recommended by the very first Congress, the same Congress that proposed the First Amendment.
Chemerinsky: No, Your Honor, I think the Thanksgiving proclamations would be constitutional. I think it’s analogous to the legislative prayers that this Court upheld in Chambers v. Marsh. I think it’s very different than this Ten Commandments monument.
Justice Anthony Kennedy: In the First Amendment speech area, we’re very, very strict. A moment’s delay in publication is a constitutional crisis. And I’m not sure that we should carry that over to this area, where there is this obsessive concern with any mention of religion. That seems to me to show a hostility to religion. I just don’t see a balanced dialogue in our cases or in these kinds of arguments.
Chemerinsky: Your Honor, I don’t believe there should be an obsessive concern with religion. If the Ten Commandments are displayed as part of an overall display of law givers, like that frieze, it’s permissible. But when you put sacred texts somewhere on government property, then the message is that the government is endorsing.
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Justice Sandra Day O’Connor: It’s so hard to draw that line. If the legislature can open its own sessions attended by the public with a prayer, you say it cannot, in the same building, display the Ten Commandments.
Chemerinsky: That’s right, because the message from the government is quite different. The message with legislative prayers, as this Court found in Chambers v. Marsh, is a recognition of a long historical practice. But when it comes to the Ten Commandments, it really is different than even a legislative prayer. This declares not only there is a God, but that God has proclaimed rules for behavior. The Ten Commandments come from sacred texts.
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Justice Scalia [to the attorney arguing that the display of the Ten Commandments should be upheld as a secular message]: It’s not a secular message. I mean, if you’re watering it down to say that the only reason it’s OK is it sends nothing but a secular message, I can’t agree with you. I think the message it sends is that our institutions come from God. And if you don’t think it conveys that message, I just think you’re kidding yourself.
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Justice Ginsburg: What about all the distinctions that have been made between messages that are brief — or, I think, the expression has been "minimal" or "minimum" in some of our cases — like "In God we trust," like "God save the United States and this honorable court," like "under God," and a document that is about worshipping the Lord, at least as many words devoted to that topic. So it’s not a brief reference. It’s a powerful statement of the covenants that the Lord is making with his people.
Staver: The Ten Commandments is a unique symbol in the area of acknowledgment because of its historic role in influencing our law and government. It is displayed in this context for that unique role. It does have some statements in there about God but, frankly, very few when you look at the overall context.
Justice Ginsburg: Have you read the first four commandments and could you say that?
Staver: Sure. And those are definitely and decidedly religious. There is no question that the Ten Commandments is a religious document. There is also no question that it has influenced our American law.
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Justice Scalia: I don’t think they’re really saying that the particular commandments of the Ten Commandments are the basis of the Declaration of Independence. That’s idiotic. What the commandments stand for is the direction of human affairs by God. That’s what it stands for.
Erwin Chemerinsky, one of the most prominent Jewish attorneys in the nation, has been handling this case pro bono — using his own money to print the briefs and travel to Washington, D.C. for the argument. Rabbi David Saperstein likewise traveled to the Court for the argument.
I do not know whether Chemerinsky’s arguments are right or wrong from a constitutional standpoint (we’ll find out in June or July), but his extraordinary commitment to this case (together with that of the leader of one of the most prominent Jewish organizations in the nation) raises an issue on which I want to comment later in the week.