Bush Administration Enters Fray Over Ten Commandments Displays
This article is from the archive of The New York Sun before the launch of its new website in 2022. The Sun has neither altered nor updated such articles but will seek to correct any errors, mis-categorizations or other problems introduced during transfer.

A looming Supreme Court fight over public displays of the Ten Commandments could become a vehicle for a major overhaul of the legal standard that has governed the church-state balance for the past three decades.
In a surprise to some observers, the Bush administration entered the controversy this week, weighing in on behalf of a Kentucky county that was ordered to take down the Decalogue from a courthouse display that included the Declaration of Independence, the Bill of Rights, and the Magna Carta.
The Justice Department’s brief argues that an appeals court decision rejecting the display in McCreary County “bespeaks a level of hostility to religion that is antithetical to the very purpose of the Establishment Clause.”
When the justices take up the issue, probably at the end of February, they will not have to look far to see the potential impact of their decision. One wall of their courtroom contains a depiction of Moses bearing two stone tablets. A similar image is on the building’s pediment and in at least three other locations inside.
Some lawyers involved in the case said yesterday that all those displays could be in jeopardy if the Supreme Court declares that the Kentucky display was unconstitutional.
“If you were to rule against the Ten Commandments in this case especially, in the context of the foundation of law, it would have broad ramifications for every other Ten Commandments display in the country,” said Mathew Staver, an attorney with a conservative legal organization representing the county, Liberty Counsel.
Mr. Staver and his allies clearly hope that the prospect of stonemasons chiseling away at Ten Commandments displays on government buildings across the country will give the justices some pause.
The Kentucky case and a similar one involving a Ten Commandments monument on the grounds of the Texas state capitol have caused a split among Jewish and Christian groups. Liberal Jewish organizations say the displays often amount to endorsements of religion or a particular religion. An attorney with the American Jewish Congress, Marc Stern, noted that different religions and sects use different versions of the Decalogue. “There is no ‘Ten Commandments,’ ” he said.
A lawyer for an Orthodox Jewish association said he doubted many, if any, people would see the displays as endorsing a specific religious view. “I don’t think people pass by and say, ‘Hey, that’s the King James version,’ ” said Rabbi David Zweibel of Agudath Israel.
Rabbi Zweibel said Jews should be particularly proud of the Ten Commandments displays because they are an explicit recognition of America’s Jewish roots. “The overall message, I don’t think, is one that any Jewish person ought to feel is exclusionary,” he said. “This was God’s gift to the Jewish people.”
The rabbi said he sees the Kentucky lawsuit, which was brought by that state’s chapter of the American Civil Liberties Union, as part of a campaign to eliminate religion from public life. “It’s important to resist these efforts to rid the public square of any of these acknowledgements of the American character,” he said.
The Kentucky ACLU did not respond to calls seeking comment for this story. A legal group that often represents evangelical Christians said it will argue to the court that, like Santa Claus, the Ten Commandments now have a secular meaning that has little to do with religion.
“You don’t find crucifixes in courthouses. You don’t find nativity scenes in courthouses. You don’t find Stars of David in courthouses. You do find Moses and the Ten Commandments,” said an attorney with the American Center for Law and Justice, Francis Manion. “It has taken on this whole secular importance.”
Mr. Manion said his argument is bolstered by a Web search he did that found versions of the Ten Commandments prepared for a host of products, services, and hobbies. One was the Ten Commandments of hitting a baseball, he said.
“A lot of religious people don’t like this argument,” the attorney added.
Indeed, a lawyer for two Christian groups told The New York Sun that he plans to argue that the suggestion that the commandments have been secularized is both wrong and hurtful to the devoutly religious.
“It’s absurd, but that is the tenor of what happens to parts of religion the government takes over,” said a law professor at the University of Texas, Douglas Laycock. Mr. Laycock is preparing an amicus brief on the case for the Baptist Joint Committee and the Interfaith Alliance.
“These displays do endorse religion, and the government’s repeated effort to explain them away distorts and undermines their religious significance. It’s actually harmful to religion for these things to be up,” the professor said. “For the seriously religious, the words of the Ten Commandments are pretty heavy stuff. To have government lawyers all over the country saying they don’t really mean anything… it’s pretty offensive.”
One factor complicating the Kentucky case is the history of changes to the courthouse display in question. At first, officials only posted a copy of the Ten Commandments. After a federal judge ruled against that display, some other documents and historical quotes about religion were added. When the judge ruled against the county again, officials added even more documents.
The county argued that it was just trying to comply with the law. However, in a 2-to-1 decision last December, the 6th Circuit Court of Appeals found that one of the county’s main purposes all along was to promote religion. The court said the display was, therefore, unconstitutional. The court’s reasoning allowed that the same array of documents in another setting might be legal, if it had a truly secular purpose.
The Texas case involves a Ten Commandments monument that was donated to the state in the 1960s. It sits on the state capitol grounds along with numerous other monuments, but is not part of any display on a particular theme.
Some attorneys hope the Supreme Court will use the two Ten Commandments cases to revisit its key standard for determining whether a government action violates the establishment clause of the Constitution. In a 1971 case, Lemon v. Kurtzman, the Supreme Court said a government policy must have a secular purpose, cannot have a principal effect of advancing or inhibiting religion, and must not foster excessive entanglement between church and state.
Over time, Chief Justice Burger’s so-called Lemon test has been pilloried by legal scholars and judges across the ideological spectrum.
In a brief filed with the Supreme Court this week, 15 states asked the justices to do away with the decades old rule. “Given the confusion and ambiguity that the Lemon test has engendered – not to mention the ceaseless litigation hostile to religion that the test’s vagaries have fueled… the time has come simply to abandon it,” the state attorneys general wrote.
New York was not among the states signing that brief, but the Justice Department’s filing mentions that the facade of a state courthouse in Brooklyn depicts Moses carrying two stone tablets.
In another amicus brief, educators complain that the Supreme Court’s rulings on church-state issues virtually guarantee litigation anytime religion is mentioned in or excluded from a public school.
The filing by the National School Boards Association in the Kentucky case takes neither side, but simply asks the court to provide some relief to embattled principals and school administrators.
“Schools are put in this terrible position where they get sued by both sides. It’s litigation whiplash,” said an attorney for the schools’ group, Julie Underwood. “In many situations, the only thing the schools can control is which side is going to sue them first.”