Commandments Controversy: A Whirlwind Day For Americans United

March 2nd, 2005
By Barry W. Lynn
Judicial Nominations, Religious Symbols on Public Property

The Supreme Court heard back-to-back arguments in two cases dealing with government display of the Ten Commandments this morning, and interest from the national media has been high. Americans United has been in the thick of it.

I wanted to take a few moments to share with you some thoughts about what the day has been like. For me, it started early. I was on C-SPAN’s “Washington Journal” at 7:30 a.m. for 45 minutes discussing the cases with Kelly Shackleford, a Texas attorney who seems convinced that if our side wins, government workers will have to sandblast images of Moses off the U.S. Supreme Court building. I assured him and many of the people who called in that that won’t happen but that maybe some overtly religious displays on government property will be moved to more appropriate venues – such as a house of worship.

From the C-SPAN studios it was off to the Supreme Court to sit in on the oral arguments. As an attorney, I find this a fascinating experience. As a regular citizen who values religious liberty, it often scares me to hear that some justices simply have no grasp of how separation of church and state under girds our religious liberty rights.

Take Justice Antonin Scalia, for example. I have to say, I’ve heard Scalia say some pretty callous things about separation of church and state over the years, but today he hit a new low. According to Scalia, government-sponsored Ten Commandments displays are only intended to reinforce the idea that our government flows from God. He had an easy remedy for those who might be offended: “Look away if you don’t like it.”

Thankfully, many of the other justices asked more thoughtful questions that showed they are taking this issue seriously. Justice Ruth Bader Ginsburg took issue with an assertion by Religious Right attorney Mathew Staver that the Ten Commandments aren’t really that religious, firing back, “Have you ever read the first four commandments?”

It’s hard to tell how these cases will turn out. The court remains closely divided over many church-state issues. Justice Sandra Day O’Connor is considered a swing voter, and she lobbed tough questions to attorneys from both sides.

It’s important to remember there are two separate cases under challenge here – one from Texas and one from McCreary County, Ky. The facts are not the same in both, and that could make all the difference.

The Texas case challenges a Ten Commandments monument that has stood on the grounds of the state capitol since 1961 and that is surrounded by other types of monuments, mostly war memorials. The McCreary County display is much more recent. It includes other “historic documents,” but they were added only after a federal court struck down the display of the Commandments alone. Officials in that county made it clear their goal was to endorse religion and in fact passed a resolution lauding the alleged Christian roots of American government.

Context is everything in these cases. The high court could uphold one display while striking down another. I’m not making any predictions but wanted to let you know that Americans United, which filed legal briefs in both cases, will remain involved. Hearing the argument today only strengthened my resolve.

From the court I went to the offices of the Fox News Channel to offer some thoughts on the issue. While there, I met former Alabama Supreme Court Chief Justice Roy Moore in the Fox “green room.” Despite AU’s long legal tangle with Moore over his courtroom Ten Commandments display, I had never met the man face to face. We had a brief but civil conversation before I headed back to Americans United.

While I was appearing on Fox, Cedric Harmon, AU’s associate field director for religious outreach, was on CNN debating Religious Right minister Lou Sheldon of the Traditional Values Coalition. Cedric, who like me is an ordained minister, made it clear that religious leaders can handle promotion of the Ten Commandments without the “help” of the government.

Later today I’ll be appearing on CNN’s “Crossfire,” and other AU staff members are discussing the Ten Commandments controversy on talk radio stations in cities around the country. We’re also talking to a lot of newspaper reporters. Our goal is to get AU’s perspective out far and wide.

Maybe you’ll see me or a members of the AU staff on television, hear us on the radio or see us quoted in print. But even if you don’t, be assured we’re working to present a strong defense of church-state separation before the courts, the media and the American public.

For more information see AU’s Questions & Answers on this important issue: Why The Ten Commandments Shouldn’t Be Posted In Government Buildings

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