Ten Commandments in court's hands

WASHINGTON — The marshal yelled "God Save the United States and this honorable court," and the U.S. Supreme Court justices took their seats in a room bearing a sculpted depiction of Moses holding a Ten Commandments tablet.

That backdrop became part of the questioning Wednesday as the justices considered the ways in which government and religion intertwine during oral arguments in two closely watched cases from Texas and Kentucky. Their ruling — due by the end of June — is expected to clarify when government may acknowledge religion and, more specifically, under what circumstances it can display the Ten Commandments.

One of the cases originated when Thomas Van Orden, a homeless former lawyer, sued Texas officials in 2001, claiming that a Ten Commandments monument near the rear entrance to the state Capitol violated the constitutional separation between church and state. He lost at trial and then on appeal and the monument remains.

His lawyer, Duke University Law Professor Erwin Chemerinsky, was the first to field questions from the justices.

"What happens if (the Ten Commandments) are packaged in a museumlike setting?" asked Justice Sandra Day O'Connor, echoing an argument by Texas Attorney General Greg Abbott that the monument is one of many on the grounds that shows different influences on Texas culture.

"This isn't a museumlike setting," Chemerinsky said, dismissing Abbott's argument with one one of his own — that the monument is in a uniquely prominent place on the Capitol grounds, away from any other display.

"Doesn't the venue count?" asked Justice Ruth Bader Ginsburg, noting that there is a difference between prayer in schools — which the court has struck down — and a prayer to open a legislative session, which the court has allowed.

Chemerinsky agreed, saying that "monument standing alone does convey the government's endorsement for religion."

Justice Anthony Kennedy said he would be worried that any ruling by the court that showed "obsessive concern with any message of religion" would suggest a "hostility towards religion."

"This is a classic avert your eyes," Kennedy said. "If an atheist walks by he can avert his eyes."

"I don't think so, your honor," Chemerinsky said, arguing that the message conveyed by the monument is that the Texas government favors Judeo-Christian religions above others.