Kennedy pivotal in Ten Commandments debate

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What about the Muslim?
At another point in his argument Chemerinsky asked the justices to consider a Muslim Texan and a Buddhist Texan who would feel that “it’s not his or her government” when visiting the state Capitol or the Texas Supreme Court and seeing the Commandments.

While rhetorically pounding away at Chemerinsky, Scalia also displayed scant patience with the arguments presented by Texas Attorney General Greg Abbott.

The Texan used the mantra “a museum-like setting” at least a half dozen times, arguing that the Ten Commandments monument was innocuously placed among many other monuments on the Capitol grounds, including the figure of a Confederate soldier, a monument to Texans who died at Pearl Harbor and a pioneer mother cradling a baby in one arm.

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Abbott defended the monument by pointing out it was “one of the smallest monuments” on the capitol grounds and had historic value because it “has stood for more than 40 years without controversy.”

Given the court’s previous rulings banning overtly religious displays such as Christmas nativity scenes, Abbot pretty much was forced to make the argument that the monument was not primarily a religious display, and forced to resort to apologetic measurement in order to defend the monument as neither too big nor too overt.

Scalia impatiently told Abbott that if he and the state of Texas were going to “water it down” by claiming the monument “sends a secular message,” not a religious one, then “I can’t agree with you.”

Later he complained to Abbot, “I would consider it a Pyrrhic victory if you win on the grounds you’re arguing.”

Kennedy seemed to agree with Scalia on this point, telling Abbott “You’re asking us to ignore the religious purpose that is the most manifest value of these symbols.”

Kennedy and Scalia appeared to be persuaded by Chemerinksy’s brief in which he noted that “supporters of Ten Commandments monuments are forced to defend them as secular ... This denigrates religion by denying the essential and profoundly religious nature of the Ten Commandments.”

O'Connor's historic leaning
But, one key swing vote in this case, Justice Sandra Day O’Connor, seemed receptive to the historic or antiquarian argument, asking Chemerinsky whether the Ten Commandments monument would pass constitutional muster if it were “packaged in a museum-like setting.”

When Chemerinsky replied, “This isn’t a museum-like setting, your honor,” O’Connor patiently inquired, “Is it a park-like setting?”

At another point she suggested that “the state’s interest in preserving old objects” might help overcome any constitutional objection to the monument.

The companion Kentucky case, McCreary County v. ACLU, would appear problematic for O’Connor since it does not involve “preserving old objects,” but rather a government-sponsored display of the Commandments erected within the past five years.

To both Abbott and Chemerinsky, Justice John Paul Stevens suggested another solution: as was done in La Crosse, Wisc., sell the property on which the monument stands to the Fraternal Order of Eagles and attach to the monument a written disclaimer saying the state of Texas does not endorse the religious message of the Ten Commandments.

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