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Squeezed Lemon

Law | Is the high court warming to religious displays by government?

Issue: "Big mouth on campus," March 12, 2005

WASHINGTON, D.C. - Pedestrians tramping by the Supreme Court on March 2 knew some contentious cases were lined up that morning from the demonstrators outside. By 9 a.m. Americans United for the Separation of Church and State were in full throttle, giving little heed to the few Christians who showed up. Three hours later, however, they had mostly given way to prayer groups.

Even with icy winds dragging temperatures into the low 20s, the two sides were bound to turn out with the court hearing oral arguments on Ten Commandments displays on government property. But inside was warmer, and so, it seemed, were the eight justices toward finding ways for government to acknowledge religion.

The two cases argued back-to-back were Van Orden v. Perry and McCreary County v. ACLU of Kentucky. The first dealt with a 40-year-old Decalogue display on the Texas Capitol grounds. The second dealt with county courthouse displays of the commandments, but could be the one to set a new precedent on the constitutionality of religious displays.

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McCreary is crucial because in accepting it for review, the Supreme Court agreed to chuck the so-called "Lemon test"-a judicial government-entanglement yardstick that grew from the 1971 public-school case Lemon v. Kurtzman-and hammer out a new test. Lemon has for decades caused confusion and conflicting rulings over the display of the Decalogue. That is why schools and government agencies are watching McCreary closely, hoping for some new consistency.

McCreary County initially displayed just the commandments in its courthouse, but reworked the exhibit twice after lower courts struck it down. The third time set the Decalogue alongside nine other frames showing historical documents such as the Declaration of Independence and Magna Carta. ACLU lawyer David Friedman argued that even the third version "asserts the supremacy of the Ten Commandments . . . it says the Ten Commandments are THE moral foundation" of the Declaration of Independence. Justice Stephen Breyer replied that the difference is between endorsement and acknowledgment: "Of course counties and governments can acknowledge the role religion played in history."

Justice Antonin Scalia also gruffly took issue with interpreting the McCreary display to be asserting the Ten Commandments as the favored basis for the declaration. "If that's what it means it's idiotic," he said. "You can't get the declaration from the Ten Commandments. I think what they're saying is the principle of the commandments being ordained by God is the foundation of the state."

Attorney Mathew Staver, president of Orlando-based Liberty Counsel, represents McCreary County. He also got some prodding from Justice David Souter, who questioned whether the third version of the display was not just trying to mask religious intent from the beginning. "What you started with is a pretty religious-looking exercise. Did they go from a religious exercise to a secular exercise or did they go from an obviously religious exercise to an obscure religious exercise?" Mr. Staver argued that treating counties showing historical displays differently amounted to "crazy jurisprudence."

Overall the justices seemed opposed to eliminating all religious expression by the government, enough to prompt Mr. Staver later on to predict a "favorable" outcome when the court rules on the cases in June. In Van Orden, Sandra Day O'Connor, generally considered a swing vote, exclaimed that it was "hard to draw the line" when determining government endorsement of religion. Justices Anthony Kennedy and Breyer also expressed concern that government should not turn hostile to religion.

While the legal parsing continued indoors, Christians arrived by the dozens on the steps outside, carrying placards and cardboard tablets of the commandments. One Texas minister, Tony Espinoza, traveled to Washington alone to pray outside the courthouse on the day of the arguments. Toting a cross with the word "government" emblazoned on the horizontal bar, he explained why he was there. "We have to have morals and principles," he said. "Otherwise our nation will decay."

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