The U.S. Supreme Court heard oral arguments on March 2 in one of two appeals it has accepted over the constitutionality of Ten Commandments postings on public property.
The case involves a challenge of a Ten Commandments monument given to the Texas State Legislature by the Fraternal Order of Eagles, placed on Capitol grounds in Austin. Former attorney Thomas Van Orden, now homeless, who brought the case, lost it at both the lower and appellate branches. He was represented by Erwin Chemerinsky, a Duke Law faculty member, at the bar.
While Justice Kennedy had been considered a possible swing vote, his remarks showed cavalier disregard for the rights of conscience, decrying this obsessive concern with any mention of religion. That seems to me to show a hostility to religion . . .
“This is a classic avert our eyes. If an atheist walked by, he can avert his eyes, he can think about something else,” Kennedy said.
Justice Scalia, whose vote on this matter is not in doubt, repeatedly insisted that “government comes–derives its authority from God,” calling the Ten Commandments “an appropriate symbol to be on State grounds.” He said they “are engraved on the human heart” and “come from God.”
Scalia also said: “. . . it seems to me the minority has to be tolerant of the majority’s ability to express its belief that government comes from God, . . . As Justice Kennedy said, turn your eyes away if it’s such a big deal to you.”
Scalia nevertheless derided Texas Attorney General Greg Abbott for portraying the Commandments as sending “a secular message. . . . I would really consider it something of a Pyrrhic victory if you win the ground you’re arguing.”
Chemerinsky made a generally capable argument, but, in response to a question by Scalia, said: “I’m not arguing for a heckler’s veto by atheists.”
Justice Souter, who is solid on state/church matters, volunteered that “it’s hard to find . . . that there’s anything here but an expression of approval by the State of Texas for a religious expression, and only for the religious expression.”
Justice Ginsburg pointed out the so-called Ten Commandments depicted in artwork at the Supreme Court are “blank tablets” which many onlookers suppose “is the Bill of Rights.”
Justice Sevens observed that there “are three different versions at least” of the commandments.
As usual, the swing vote is Justice O’Connor, who commented at one point, “If legislatures open their sessions, that the public can attend, with a prayer, why can’t it allow monuments? It’s so hard to draw that line.”
Bizarrely, the Supreme Court precedent most mentioned was Marsh v. Chambers, a 1983 case in which the court upheld opening the Nebraska legislature with prayers because it was a “tradition.”
Virtually ignored was Stone v. Graham, the court’s firm 1980 case removing Ten Commandments plaques from Kentucky public schools.
The court held there that: “The Ten Commandments is undeniably a sacred text in the Jewish and Christian faiths, and no legislative recitation of a supposed secular purpose can blind us to that fact.”
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