Kennedy pivotal in Ten Commandments debate

WASHINGTON - The day after banning the death penalty for convicted murderers under the age of 18, the justices of the Supreme Court, minus ailing Chief Justice William Rehnquist, heard arguments in two cases, one from Texas, the other from Kentucky which will decide whether the Ten Commandments can be displayed on state or county property.

The atmosphere at the court Wednesday morning was electric, with such luminaries as White House official Tim Goeglein, in charge of outreach to religious groups, in attendance.

The court and especially Justice Anthony Kennedy, who wrote Tuesday’s death penalty decision, reminded the nation just how powerful the justices are by decreeing an end to juvenile executions.

Kennedy, the substitute for Reagan nominee Robert Bork after the Senate defeated Bork in 1986, has caused nightmares for conservatives, writing the decision to strike down state sodomy laws and joining in other liberal-leaning decisions.

Kennedy defends religion
But in Wednesday’s argument, Kennedy assumed the role of defender of religion.

Kennedy rebuffed arguments presented by Erwin Chemerinsky, who was presenting the case for Thomas Van Orden, the plaintiff seeking to ban the Texas display.

The justice suggested that for the courts to tell a state that it could not allow the Ten Commandments on state land would wrongly cater to “an obsessive concern with references to religion.” He said that banning displays of the Ten Commandments on state property might “show hostility to religion.”

Kennedy chided Chemerinsky, saying, “I think you’re telling us the state can not accommodate religion,” adding that the plaintiff was essentially “asking religious people to surrender their beliefs.”

Kennedy offered a solution for those offended by the sight of the Commandments on state property: “If an atheist walks by, he can avert his eyes.” Moments later Justice Antonin Scalia endorsed Kennedy’s idea, “Turn your eyes away, if it’s such a big deal to you.”

At stake in the Texas case: a six-foot high, three-foot wide monument of the Ten Commandments, near the State Capitol and the Texas Supreme Court in Austin. The monument was donated to the state by the Fraternal Order of Eagles and dedicated in 1961.

Assertive Scalia
Scalia took the most assertive stance, saying the monument should be seen as “a symbol of the fact that government derives its authority from God” and such a symbol on state grounds was quite “appropriate,” he said.

Scalia later told Chemerinsky that the American people understood that a display of the Ten Commandments stands for the proposition that “our laws are derived from God.”

When Chemerinsky objected that the Texas display sent a state-endorsed religious message to visitors to the Capitol, Scalia replied, “It’s a profoundly religious message, but it’s a profoundly religious message believed in by a vast majority of the American people.”

The exact version of the Ten Commandments — Protestant, Jewish or otherwise — was unimportant, Scalia said, opining that “probably 90 percent of the American people believe in the Ten Commandments and 85 percent couldn’t tell you what the ten are.”

Also voicing skepticism of Chemerinsky’s argument, Justice Stephen Breyer said his approach was to “look at the divisive qualities of individual displays on a case-by-case basis. I don’t find much divisiveness here.”

Breyer approvingly cited the words of Justice Arthur Goldberg, who warned in his concurrence to the 1962 decision which banned prayer in public schools that government neutrality toward religion should never go so far as to become “a brooding and pervasive devotion to the secular and a passive, or even active, hostility to the religious.”

Answering Breyer, Chemerinsky insisted that the Texas monument was “enormously divisive” because many people objected to it.

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