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Two Tablets May Renew A High Court Headache
Disputes in Alabama, Other States Prompt Call For Supreme Court to Issue Definitive Ruling
By Manuel Roig-Franzia
Washington Post Staff Writer
Sunday, August 31, 2003; Page A03
MIAMI -- Those familiar tablets with the parallel strings of thou-shalt-nots peek out from mossy granite blocks tucked into city hall gardens. They are chiseled into limestone monuments rooted on statehouse grounds and are cast onto bronze plaques that loom over county courthouses.
Some of these Ten Commandments displays were once forgotten, obscured by untended shrubbery or simply ignored. But a surge in efforts by conservative Christians to place more tablets in public buildings, and the resulting constitutional challenges to both new and existing displays, have transformed the Ten Commandments into the most visible symbol of the moment in the church-state conflict.
Judges at all levels are being tugged, sometimes reluctantly, into a deeply divisive debate over Ten Commandments displays. Their rulings, so many and so seemingly contradictory, have led to a growing clamor for the U.S. Supreme Court to make a definitive statement about where and how the tablets can be displayed.
"There is a line, but it's not a clear line," said Eugene Volokh, a law professor at the University of California at Los Angeles who specializes in cases involving the separation of church and state. "There are some white areas and some black areas, but there's plenty of gray."
The two-ton monument that workers rolled out of the Alabama Supreme Court rotunda Wednesday might be the best-known Ten Commandments display in the nation, primarily because its champion, Alabama Chief Justice Roy S. Moore, defied a federal court order to remove it.
But 20 or so other cases inching through the courts may eventually become more important, legal experts said. Some displays, such as the Ten Commandments monument on the Texas state capitol grounds in Austin and the tablets on the courthouse in Chester County, Pa., have withstood federal court challenges. Others have been ruled unconstitutional, including a six-foot granite monument to the Ten Commandments placed on the state capitol in Frankfort, Ky., and tablets at four public high schools in Adams County, Ohio.
Some rulings have said that displays grouping the Ten Commandments with other historical documents, such as the Declaration of Independence and the Magna Carta, are constitutional. Other rulings have said the opposite.
"The courts are issuing confusing and conflicting opinions," said Jay Sekulow, chief counsel of the American Center for Law and Justice, which was founded by religious broadcaster Pat Robertson. "The Supreme Court is going to have to weigh in on this, but I think they're going to try to avoid this as long as they can; that's becoming painfully obvious."
The U.S. Supreme Court has consistently refused to hear cases about Ten Commandments displays in public buildings since a 1980 decision overturning a Kentucky law that required public schools to display the tablets in every classroom.
Some Ten Commandments proponents hope the high court will pass on hearing Moore's case because he emphasized religion in his public remarks rather than playing up the historical aspect of the commandments. "Of the cases out there, that's the worst case legally," said Matthew Staver, president and general counsel of the Liberty Counsel, which has had some successes advising government clients to install displays coupling the Ten Commandments with historical documents. "It could cause damage to the legal landscape that could adversely affect the other Ten Commandments cases."
No one is sure exactly how many Ten Commandments displays are in public buildings in the United States, but the highest estimates place the figure in the hundreds, perhaps even the thousands.
A movie promotion might have a lot to do with it.
In the mid-1950s, the director Cecil B. DeMille and the Fraternal Order of Eagles service organization distributed several thousand sets of stone tablets to promote DeMille's film "The Ten Commandments." Lawsuits challenging the monuments distributed by the Eagles are popping up across the country. Ken Falk, of the Indiana Civil Liberties Union, said there may be a dozen of the monuments in his state alone.
City officials in Everett, Wash., have vowed to fight a lawsuit seeking removal of the Ten Commandments monument they received from DeMille and the Eagles, which for a time was partially hidden by tall grass outside the police station. The statehouse monument in Austin, which came from the Eagles, has been allowed to stay; a similar monument in front of the Elkhart, Ind., municipal building was ordered removed.
The Elkhart case produced the closest thing to a U.S. Supreme Court statement about Ten Commandments displays since the Kentucky schools case. Chief Justice William H. Rehnquist, along with Justices Antonin Scalia and Clarence Thomas, took the rare step of commenting on a decision not to hear the case. Rehnquist wrote that Elkhart's Ten Commandments monument was "a celebration of its cultural and historical roots, not a promotion of religious faith." He also pointed out that the U.S. Supreme Court has a carving of Moses with a pair of tablets on a frieze inside its courtroom.
Attorneys for Moore and other Ten Commandments advocates often cite the U.S. Supreme Court frieze as evidence of what they say is a fundamental unfairness in the application of the First Amendment to religious displays. But their opponents cite the frieze just as often, saying it is an example of an appropriate display, because Moses holds tablets with Hebrew lettering and stands alongside other lawgivers, such as Hammurabi and Justinian.
The possible ambiguity, and the lack of a firm Supreme Court mandate, provides an opening for groups that have the means to wage court fights. Moore, for instance, is backed by Coral Ridge Ministries, a Florida-based evangelical group that has collected $375,000 in donations for his ongoing legal fight to keep, and now to try to return, his monument to the Alabama Supreme Court rotunda. The state of Alabama, which is facing a budget crisis and a $600 million shortfall, may be asked to pay $900,000 to cover the plaintiffs' legal costs.
Despite the high costs for both sides, the courts could swell with more cases soon. Angered by their defeat in Alabama, several fundamentalist groups have vowed to install hundreds of Ten Commandments slabs and plaques in public buildings in the coming months.
Even Moore's monument, now hidden from view in a storage room at the Alabama court building, may someday get a new life and, perhaps, face a new legal challenge: Both candidates for governor in Mississippi, incumbent Ronnie Musgrove (D) and challenger Haley Barbour (R), issued statements last week saying they'd be happy to take it off his hands.
© 2003 The Washington Post Company
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