WASHINGTON — The Ten Commandments are a recurring symbol in American government: carved into granite monuments at state capitols, framed on the walls of county buildings and painted on murals at courthouses. At the U.S. Supreme Court, a depiction of Moses holding the Commandments is etched into marble, part of a frieze on history's great lawgivers.
But in a nation that prohibits government from endorsing religion, do some public displays of the Commandments — the principles of behavior for Christians and Jews — violate the Constitution? It's a legal question that has been brewing for years, and one that now is the focus of a national debate over religion's role in government.
Today, the Supreme Court is hearing arguments in two cases that test whether displays of the Commandments on public property are unconstitutional under the First Amendment. The disputes come from Texas and Kentucky, where federal courts have issued conflicting rulings. (Analysis: Court unlikely to make more historic moves)
In the Texas case, a U.S. appeals court ruled that a 6-foot-high, 3-foot-wide granite monument erected in 1961 on the Capitol grounds in Austin could remain standing because it is part of a larger presentation commemorating state history and culture.
In the Kentucky case, however, a federal court ordered McCreary and Pulaski counties to take down framed copies of the Ten Commandments that had been put up in their courthouses in 1999. The court said the displays were blatantly religious — and therefore unconstitutional — even after officials twice added other documents, including the Declaration of Independence and the Magna Carta.
The cases have drawn intense interest from across the nation. Sixty "friend of the court" briefs have been filed by groups representing religious interests, civil libertarians, historians and state governments. This morning's hearing is expected to draw long lines for the few visitors' seats in the ornate courtroom.
The disputes come to the court three years after an Alabama judge, Roy Moore, gained national attention by installing a 5,300-pound granite monument depicting the Commandments in the state's judicial building in Montgomery. Moore's defiance of a federal court order to remove the monument cost him his job as chief justice of Alabama's Supreme Court.
The monument was wheeled away in 2003. Many of the issues raised by Moore's efforts haven't gone away, however.
Some evangelical Christians are casting the debate over the Commandments as a significant part of their increasingly aggressive efforts to have government recognize religion. That's led to a backlash by the ACLU, Jewish organizations, atheists and others who say the efforts by evangelicals threaten America's secular heritage.
"The real issue is the right to acknowledge God," says Jody Hice, a Baptist pastor who is leading a fundraising effort in Barrow County, Ga., to help the county defend its display of a Ten Commandments plaque in the local courthouse against a lawsuit filed by the ACLU.
"Everyone has a right to have a religion and to practice it — but not in our public buildings," counters Pat Cleveland, an atheist in Talladega, Ala., who protested Moore's monument.
"This is not a Christian nation. ... I'm not a person who hates religion. It's not about atheists vs. Christianity. It's about what government can do."
The Supreme Court has not ruled on public displays of the Ten Commandments since 1980, when it struck down a Kentucky law that required public schools to post the Commandments. Much has changed since then: The Supreme Court is more conservative, and the evangelical Christian movement has become a significant political player in Washington.
Religious president in office
President Bush often refers to his relationship with God. Bush — whose administration supports the displays of the Commandments in the Texas and Kentucky cases — was overwhelmingly backed by evangelical Protestants in last November's election.
Meanwhile, public support for Ten Commandments displays is strong. A USA TODAY/CNN/Gallup Poll taken last weekend indicates that only 20% of Americans believe that such a monument would be inappropriate on the grounds of their state capitol.
David Friedman, a lawyer for the ACLU of Kentucky who has been involved in local church-state disputes for 20 years, says that community officials are becoming more willing to challenge the traditional divide between church and state by posting the Commandments.
"I think they are more emboldened," Friedman says. He notes that legal groups associated with prominent television preachers Pat Robertson and Jerry Falwell have been at the forefront of defending Ten Commandments monuments.
Herbert Titus, a Virginia lawyer who wrote a court brief on behalf of seven conservative groups that support Commandments displays, says Christians are fighting for such monuments because they believe their values are being threatened by judicial rulings such as those endorsing same-sex relationships.
"People feel as if they lost something," Titus says.
In Georgia, the Rev. Hice says he believes his religious values are under assault more than at any other time in his 20 years in the ministry. He criticizes a federal judge's ruling in January against a Cobb County school district that had begun putting stickers on science textbooks stating that evolution was a theory and not a proven fact.
John Green, a political science professor at the University of Akron who studies religion and politics, says his polling indicated that 25% of Americans considered themselves evangelical Protestants in 2004, up from 22% in 1980. During the same period, he says, the percentage of those with no religious affiliation rose from 12% to 16%.
"Evangelicals are excited about wanting to keep the Ten Commandments," he says. "But you have a vocal group of non-religious people against it."
Meeting O'Connor's standard
Disputes over freedom of religion are as old as the USA. The First Amendment's mandate that government "shall make no law respecting the establishment of religion" flowed from the colonists' experience with religious persecution in England.
In 1980, when it struck down the Kentucky law that required the Commandments to be posted in schools, the Supreme Court rejected state officials' assertion that the purpose of the law was merely secular: to promote moral values.
"The Ten Commandments are undeniably a sacred text in the Jewish and Christian faiths," the court said, "and no legislative recitation of a supposed secular purpose can blind us to that fact."
Since then, however, the court has allowed displays of some religious symbols on public property, as long as they were mixed with secular symbols. In a 1989 case involving two holiday displays in Pittsburgh, the court allowed a menorah to stand next to a Christmas tree at a government building. But the court rejected a crèche scene that stood alone near a staircase in the Allegheny County courthouse.
The court's general test for whether to allow such a symbol on public property was devised by Justice Sandra Day O'Connor. It asks whether a "reasonable observer" would believe from the display that government was supporting religion. If so, according to the test, the display should not be allowed.
The dispute from Texas was brought to the Supreme Court by Thomas Van Orden, who once was a practicing lawyer but who is now homeless. Van Orden sued Texas in 2001, saying that the Commandments monument on the grounds of the Texas Capitol favors the Christian and Jewish faiths.
The monument was given to Texas in 1961 by the Fraternal Order of Eagles, which wanted to provide troubled youth "with a common code of conduct." Adorned with Christian and Jewish symbols, it features large type of the Commandments, beginning with, "I am the Lord thy God. Thou shalt have no other gods before me." It stands alone, but is among 17 monuments around the Capitol.
A U.S. district court ruled against Van Orden. It said that, "viewed in the proper context, and in light of its history, this passive monument cannot be said to advance, endorse or promote religion." An appeals court agreed.
In Van Orden's appeal to the Supreme Court, Duke University law professor Erwin Chemerinsky notes that the monument "is the only expression of a religious message on the Capitol's grounds." He says a display could be permissible if it were part of a presentation about the law, like the one at the Supreme Court.
The Kentucky case stems from the posting of privately donated, framed copies of the Commandments in the two county courthouses. After the ACLU of Kentucky challenged the displays, officials in the counties added copies of documents and said the Commandments were part of historical presentations.
Two federal courts sided with the ACLU. In their appeal to the Supreme Court, attorneys for the counties say a reasonable observer would be "aware of the historical influence" of the Commandments.