Van Orden v. Perry - Oral Argument

Argument of Erwin Chemerinsky

Justice Stevens: We'll now hear argument in Van Orden against Perry.

Mr. Chemerinsky.

Mr. Chemerinsky: Good morning, Justice Stevens, and may it please the Court:

On the grounds of the Texas State Capitol, there is one evident religious symbol that conveys a powerful religious message that there is a theistic God and that God has commuted rules for behavior.

Of course, the government may put religious symbols on its property, including the Ten Commandments, but must do so in a way that does not endorse religion or a particular religion, but does not have the purpose of advancing religion, but does not favor any particular religion.

Justice Scalia: Mr. Chemerinsky, I suppose that opening statement suggests that you think that Thanksgiving proclamations are also unconstitutional, which were recommended by the very first Congress, the same Congress that proposed the First Amendment.

Mr. Chemerinsky: No, Your Honor, I would--

Justice Scalia: They also refer to one God, to a theistic ruler of the universe.

Mr. Chemerinsky: --No, Your Honor, I think the Thanksgiving proclamations would be constitutional.

I think it's analogous to the legislative prayers that this Court upheld in Chambers v. Marsh.

I think it's very different than this Ten Commandments monument.

Justice Scalia: All right.

But then you have to narrow your opening statement and say that certainly the State can acknowledge the existence of a unitary God without offending the Establishment Clause.

Mr. Chemerinsky: Yes, Your Honor, but it all depends on how it is done.

Here the way in which it is done is the most powerful and profound religious message that this Court has ever considered on government property.

Here you have a monument that proclaims not only there is a God, but God has dictated rules of behavior for those who follow him or her.

Justice Kennedy: I don't know whether that's any more profound or ultrareligious, super religious than the prayer that the chaplain gives every day in the House.

Mr. Chemerinsky: Your Honor, there is a difference between a prayer that a chaplain gives... in Chambers v. Marsh, this Court emphasized that the prayer by the chaplain was a nonsectarian prayer.

This is very much sectarian.

This proclaims that there is a God.

It proclaims--

Justice Kennedy: Well, I mean, I haven't read the prayer.

I would be surprised if I went through all the prayers and there was no mention, direct or indirect, of the Ten Commandments or a couple of them.

Mr. Chemerinsky: --Your Honor, I would be surprised because here, if you look at these commandments, it's that God has claimed that he is the only God, prohibiting idolatry, prohibiting graven images, prohibiting taking the name of the Lord and God in vain.

Requiring observing of the sabbath.

This is God dictating to God's follower's rules for behavior.

Justice Breyer: Is there any other... I mean, you can continue if you want, but one difference which I've written down is you say that the difference between this and the prayer is that this is more profoundly religious.

Is there any other difference, in your opinion?

Mr. Chemerinsky: No.

I think the key difference is--

Justice Breyer: That's the difference?

So if I happen to read these prayers in the Congress and I came to the conclusion that in terms of a religious message, I actually thought the prayers had the more religious message, then I should vote against you.

Mr. Chemerinsky: --No, Your Honor.

There are, of course, other differences.

As I said to Justice Scalia earlier, with regard to legislative prayer in Chambers versus Marsh, this Court said that there was a history going back to the very first Congress that allowed there to be those kinds of religious invocations.

Ten Commandments monuments standing by themselves, as they do here, certainly are not of that historic origin.

Justice O'Connor: How about if they're packaged in a museum like setting and there is some interest on the part of the State in preserving something.

Mr. Chemerinsky: Yes, Your Honor.

Justice O'Connor: And displaying a whole variety of things?

Mr. Chemerinsky: Of course, there can be Ten Commandments or any religious works as part of a museum setting.

This isn't a museum setting, Your Honor.

Every monument on the Texas--

Justice O'Connor: Is this a kind of a park?

What do we regard this space as?

What is it?

Is it a park like setting?

Mr. Chemerinsky: --It is a park like setting.

It is the acres of the State Capitol grounds.

Every monument on the State Capitol grounds is there because the State legislature wanted to convey a particular message.

It is a felony in Texas, an impeachable offense to put anything on the Capitol grounds without the approval of the legislature.

Most of the monuments are there to honor war veterans.

This is the only religious message anywhere on the Capitol grounds.

And by itself--

Justice O'Connor: Well, would it be all right, in your view, if they put several others up for different religions?

Then is it going to be okay?

Mr. Chemerinsky: --If the clear purpose and message was to honor the diversity of religions in Texas, it would then be permissible.

If it were a series of displays like that frieze, the fifteen different--

Justice O'Connor: You don't object to that?

Mr. Chemerinsky: --Quite the contrary, I think it's a--

Justice O'Connor: Or the depiction on the door of the Court?

Mr. Chemerinsky: --Quite the contrary.

This is exactly how the State may display the Ten Commandments.

Justice Scalia: But the prayers in Congress doesn't do that and our Thanksgiving proclamations don't do that.

They invoke a God, a unitary God, and that's contrary to the dictates of some religions that believe that there are a lot of gods.

Mr. Chemerinsky: Yes, Your Honor, there is--

Justice Scalia: We don't pray to gods, the prayers are always to God.

You know, I don't see why the one is good and the other is bad.

It's no answer to say, well, you know, the former has been around for a long time.

Well, it has but it suggests what the framers and what our society for several hundred years has believed the Establishment Clause means.

And it does not... it is not too sectarian if it invokes a unitary God.

Now, you're saying it becomes too sectarian when it invokes the Ten Commandments.

Mr. Chemerinsky: --No, Your Honor.

I'm saying several things.

As I said earlier, first, this Court in Chambers v. Marsh said that there was a unique history to legislative prayers.

There isn't a similar history here.

Justice Ginsburg: Mr. Chemerinsky, too, doesn't the venue count?

After all, we have had the question of prayer in schools, and the Court has said that that was not all right.

Prayer in the legislature was distinguished.

So it's not just prayer anywhere that the government wants to have it is okay.

Mr. Chemerinsky: Of course, Justice Ginsburg, the venue counts.

And here the venue is very important.

It is the corner between the Texas State Capitol and the Texas Supreme Court.

And in that way, this monument standing alone does convey the government's endorsement for religion.

Justice O'Connor: Okay.

But if the legislature itself can have its sessions opened with a prayer, can the legislature itself want to have the Ten Commandments posted within the legislative halls?

Mr. Chemerinsky: Your Honor, I think there is a very different message that's conveyed.

Justice O'Connor: Can it do that?

Mr. Chemerinsky: No, Your Honor, it can't post the Ten Commandments by itself in its legislative halls because that would then be the government endorsing expression for support for that message.

It cannot be, Your Honor, that just because there is a legislative prayer, that any religious message anywhere on government property would then be permissible.

As Justice Kennedy has said in his opinion for--

Justice O'Connor: But it's so hard to draw that line.

If the legislature can open its own sessions attended by the public with a prayer, you say it cannot, in the same building, display the Ten Commandments.

Mr. Chemerinsky: --That's right, because the message from the government is quite different.

The message with legislative prayers, as this Court found in Chambers v. Marsh, is a recognition of a long historical practice.

But when it comes to the Ten Commandments, it really is different than even a legislative prayer.

This declares not only there is a God, but that God has proclaimed rules for behavior.

The Ten Commandments come from sacred texts.

As Justice Kennedy said in his opinion of County of Allegheny, certainly a city council could not put atop the city hall building a large Latin cross, even if that city council begins every day with a prayer.

It cannot be, though, just because some religious messages are alllowed, like a prayer, that everything then becomes permissible.

Justice Kennedy: Well, you know, in the First Amendment speech area, we're very, very strict.

A moment's delay in publication is a constitutional crisis.

And I'm not sure that we should carry that over to this area, where there is this obsessive concern with any mention of religion.

That seems to me to show a hostility to religion.

I just don't see a balanced dialogue in our cases or in these kinds of arguments.

Mr. Chemerinsky: Your Honor, I don't believe there should be an obsessive concern with religion.

If the Ten Commandments are displayed as part of an overall display of law givers, like that frieze, it's permissible.

But when you put sacred texts somewhere on government property, then the message is that the government is endorsing--

Justice Kennedy: This is a classic avert your eyes.

If an atheist walked by, he can avert his eyes, he can think about something else.

Mr. Chemerinsky: --I don't think so, Your Honor.

This Court has said the key is that the government can't endorse religion, in a way that makes some feel like insiders and some like outsiders.

Imagine somebody who is Muslim or Buddhist or Hindu--

Justice Stevens: May I ask you this question.

Supposing... I recently read a case from the Seventh Circuit on what they did in Lacrosse, Wisconsin.

And as we all know, this organization has donated Ten Commandments monuments all over the country.

And what they did there is they sold the parcel back to the Eagles, their name, and put up a sign which read, this property is not owned or maintained by the City of Lacrosse, nor does the city endorse the religious expression thereon.

Now, my question to you is, if there were a similar disclaimer on this monument, would that be an adequate remedy, in your view?

Mr. Chemerinsky: --It would be a harder case, but I don't think it would be an adequate remedy.

And the reason is the city cannot put a religious symbol standing alone on government property just through disclaimer.

That's exactly what County of Allegheny was.

There the nativity scene in the courthouse had a plaque saying it was donated by others, but that can't excuse it because otherwise the city could put the large Latin cross just with a disclaimer.

Justice Stevens: But if the test is whether the reasonable observer would think that the government is endorsing the religious message, wouldn't the disclaimer make it clear to the reasonable observer the government was not endorsing the message?

Mr. Chemerinsky: I think the disclaimer would make it a harder case, but I think when you're dealing with the ground in a Texas State Capitol and the Texas Supreme Court, that placement, when you're dealing with the Ten Commandments, sacred texts, I still think that the message the reasonable observer would be that this is the government endorsing religion.

Justice O'Connor: At some point, would the State's interest in preserving old objects overcome the objection constitutionally?

Mr. Chemerinsky: Yes, at some point, it could where it was clear to the reasonable observer that it was there because it was an old object.

Justice O'Connor: How did this monument get there?

Was it in... is it true that it was put in as a result of promoting a movie about the Ten Commandments?

Mr. Chemerinsky: The record is unclear as to that.

There are certainly many indications in the popular press that Cecil B. DeMille together with his movie, The Ten Commandments, worked with the Friends of Eagles to have these monuments put around the country.

But there is nothing in the legislative history that links this particular monument to that.

Justice Ginsburg: Isn't the display on the tablets on the top before you get to the text, before you get to, I am the Lord, thy God.

I thought that those were replicas of what was in the film.

Mr. Chemerinsky: I don't know that, Your Honor.

I've tried to find out what that text is.

It is not in Hebrew.

It is not in a script that anyone was able to recognize.

But it is important to notice that if you look at the entire monument, in addition to the Ten Commandments, there is also a Latin symbol of Christ, there is also Jewish Stars of David.

And as I was saying in response to Justice Kennedy's question, imagine the Muslim or the Buddhist who walks into the State Supreme Court to have his or her case heard.

That person will see this monument and realize it's not his or her government.

Justice Scalia: I thought Muslims accept the Ten Commandments.

Mr. Chemerinsky: No, Your Honor, the Muslims do not accept the sacred nature of the Ten Commandments, nor do Hindus, or those who believe in many gods, nor of course, do atheists.

And for that matter, Your Honor, if a Jewish individual would walk by this Ten Commandments, and see that the first commandment isn't the Jewish version, I am the Lord, thy God, took you out of Egypt, out of slavery, would realize it's not his or her government either.

Justice Scalia: You know, I think probably 90 percent of the American people believe in the Ten Commandments, and I'll bet you that 85 percent of them couldn't tell you what the ten are.

[Laughter]

And when somebody goes by that monument, I don't think they're studying each one of the commandments.

It's a symbol of the fact that government comes... derives its authority from God.

And that is, it seems to me, an appropriate symbol to be on State grounds.

Mr. Chemerinsky: I disagree, Your Honor.

For the State to put that symbol between its State Capitol and the State Supreme Court is to convey a profound religious message.

If you're just saying, now, this isn't there for its secular reason.

If someone were to read this monument, one sees that it emphasizes its religious content.

Justice Scalia: It is a profound religious message, but it's a profound religious message believed in by the vast majority of the American people, just as belief in monotheism is shared by a vast majority of the American people.

And our traditions show that there is nothing wrong with the government reflecting that.

I mean, we're a tolerant society religiously, but just as the majority has to be tolerant of minority views in matters of religion, it seems to me the minority has to be tolerant of the majority's ability to express its belief that government comes from God, which is what this is about.

As Justice Kennedy said, turn your eyes away if it's such a big deal to you.

Mr. Chemerinsky: I disagree, Your Honor.

Because this Court has said that above all, the government can't make some feel like they're insiders and some like outsiders.

Even if they're the majority religion--

Justice Kennedy: Well, suppose a non Christian, say a Muslim, comes before a judge who has very strong Christian beliefs, a very religious person.

Does he feel like an outsider?

And to require that we pretend that there is no religious motivation, no deep religious conviction on the part of many of our public officials seems to me to be a hostility toward religion.

Mr. Chemerinsky: --No, Your Honor.

Imagine that judge put the Ten Commandments right above his or her bench.

That would make some individuals feel like outsiders.

Of course, many judges have religious beliefs, but they can't have the religious beliefs above them.

And Your Honor, that's not hostility to religion.

As this Court said in County of Allegheny, excluding religious symbols like the nativity scene, when displayed by itself, is not hostility to religion.

Last year in Locke v. Davie, this Court said that to deny funding through the State of Washington for scholarships was not hostility to religion.

Enforcing the Establishment Clause is not about hostility to religion.

It is about making sure that every person who walks into that courtroom can feel that it's his or her government.

Justice Breyer: That's an important point to me, but I don't see any way to get there in these difficult cases without making a practical judgment about whether that's really so.

And the reason I say that, I start with Goldberg's opinion with Harlan in Schempp.

And I know there are a lot of others, but I don't know if we've found a satisfactory test.

And the point that they make is the government should be noninvolved with the religious, and it can't favor one over the other.

But at the same time, we are a religious nation, where most people do believe in God and most of our institutions flow from the religious nature of our people.

The City on the Hill, proclaim liberty throughout the land.

All of those are religious.

So how can the government, without what they call the pervasive and brooding commitment to secularism, which they think would be wrong, become necessarily involved because of our traditions, but not go too far?

Now, I come to the conclusion very tentatively, there is no way to do it other than look at the divisive quality of the individual display case by case.

And when I do that, I don't find much divisiveness here.

Now, I'm exposing the whole thing not because I'm accepting it, but I would love to hear what you think.

Mr. Chemerinsky: Yes, Your Honor, I think that the test that this Court has formulated do draw those lines.

With regard to your point about divisiveness, the Ten Commandments is enormously divisive right now.

I don't think we can ignore the social reality.

The chief justice of the Alabama Supreme Court resigned, there are crowds outside today.

I got hate messages this week, not because people care about the Ten Commandments as a secular document, but people care about the Ten Commandments because it's a profound religious message.

And many want that religious message on government property.

And I'm saying the government can put the Ten Commandments there as part of an overall display of law givers, because, Justice O'Connor, it's an overall display about diversity of religion.

But when the Ten Commandments sits by itself it is, to use your word right now, enormously divisive.

And that's why, from that criteria, it does violate the Establishment Clause.

Justice Scalia: What about the opening of this Court's session today, in a manner that has been used since John Marshall, is that divisive because there are a lot of people who don't believe in God.

Mr. Chemerinsky: Because You Honor, I think that you have to distinguish between minimal religious content and maximum religious content.

Justice Ginsburg: Mr. Chemerinsky, on that point, how much of the Ten Commandments... I mean, once we get to thou shalt not kill or murder, then there are tenets to govern a society, but how much are strictly about the obligation that man owes to God?

Mr. Chemerinsky: The first of the two tablets, the first five commandments, Your Honor, and of course religions belief this was written in God's own hand and given to Moses.

It's believed that the first five commandments that you were referring to are God's prescriptions for religious behavior.

The latter five, the others that you're referring to, were God's commands for secular behavior.

All of these are God's commands to God's people.

And that's what makes a difference than the minimal religious content of God save this Honorable Court that Justice Scalia was referring to.

The core of Texas's argument seems to be that it's there for secular purposes.

But of course, if one looks at this monument, one sees that it's emphasizing the religious content and there is nothing that would lend the reasonable observer to see the secular content.

It says in large letters, I am the Lord, thy God.

Justice Ginsburg: Well, suppose, Mr. Chemerinsky, it was like Moses on that frieze where there are commandments showing, but there are only the sixth through tenth commandment.

Would that be all right?

Mr. Chemerinsky: Your Honor, if it was Moses on that frieze together with fourteen other symbols, absolutely okay, because it would clear to the reasonable observer--

Justice Ginsburg: But if we just had the Moses with the tablet that has the instructions for how people will conduct themselves in a civilized society versus worshipping.

Mr. Chemerinsky: --I think that would still be unconstitutional between the Texas State Capitol and the Texas Supreme Court because it would still be the State of Texas expressing the message that there is a God and that God has dictated these rules for behavior.

Justice Souter: Okay, what if you go one step further and there was simply a tablet without any embellishment about source saying, you know, thou shalt not kill, thou shalt not covet, et cetera, basically just the last five commandments, pure and simple.

Would you have any objection on Establishment Clause grounds?

Mr. Chemerinsky: If the tablets were by themselves in that way, between the Texas Supreme Court and the Texas State Capitol, it would be a harder case, but I believe it would still be unconstitutional because those tablets do convey a message that God--

Justice Souter: No, I'm just talking about when I... I don't know if I used the word tablet.

I'm just talking about a piece of stone or a poster that says thou shalt not kill, thou shalt not covet, thou shalt not bear false witness, et cetera.

Would there be any Establishment Clause objection simply because though it does not say so, those were quotations from the last six commandments.

Mr. Chemerinsky: --No, Your Honor.

If all it said was thou shalt not kill and thou shalt not steal, I don't think that that would be a problem because those are a reflection of law.

Justice Scalia: Who are you kidding?

I mean, everybody knows that comes from the Ten Commandments.

And what that message says is that these commands that are engraved on the human heart come from God.

Why put it that way?

You know, instead of that, just quote the State statute against murder.

That's not what they're doing.

They're saying these basic principles of human behavior that we're governed by come from God.

And that message would be conveyed so long as you use the terminology of the Ten Commandments.

That's what the Ten Commandments stand for.

Mr. Chemerinsky: But Your Honor, this Court has emphasized that content and context matter enormously.

And what I'm trying to do is to distinguish the situation where in Texas, it was clearly tablets with the words, I am the Lord, thy God, with five commandments for religious behavior and five for secular behavior.

From Justice Souter's question, there are five others and especially those that are reflected in State law, like thou shalt not kill and thou shalt not steal.

I think that the message is different there.

It is the words, I am the Lord, thy God.

Justice Kennedy: I think you're telling us the State cannot accommodate religion.

The only way they can do it is to put the Ten Commandments up and insist that it's always secular, whether it's predominantly for a secular purpose.

It seems to me that's hypocritical and it's asking religious people to surrender their beliefs and that is not accommodation.

Mr. Chemerinsky: No, Your Honor.

I do think that it degrades religion to have to have the Ten Commandments defended for their secular purpose.

I do think, though, that what's required of the government, when it puts religious symbols on government property, is to not be endorsing religion.

That's why a nativity scene by itself in the County of Allegheny case was unconstitutional.

On the other hand, that's why the nativity scene as part of a unified display in Lynch v. Donnelly was permissible.

That's why, if the Ten Commandments are part of an overall display like this frieze, it's permissible.

As part of an overall display about religious tolerance, and that's what the reasonable observer would see, it is permissible.

But where it is the Ten Commandments themselves, placed as they are here, then it really is about the government endorsing religion, then it is the purpose of advancing religion and then it does violate the Establishment Clause.

Justice Kennedy: So the word accommodate should not be within our jurisprudence?

Mr. Chemerinsky: Accommodate should very much be in the jurisprudence.

And any time there is a Free Exercise Clause claim, then there has to be careful attention to accommodating religion.

But there is no Free Exercise Clause claim in this case, Your Honor, so this isn't a case about accommodating anybody's religious beliefs.

This is about the State expressing support for religion with sacred and solemn religious texts on government property.

And my position is--

Justice Scalia: Can the State express its support for religion generally?

Mr. Chemerinsky: --Your Honor, it all depends--

Justice Scalia: Suppose it didn't have the Ten Commandments, it just had a big thing that says religion is good.

It said religion is the foundation of our institutions.

Suppose there were something like that.

Would that be bad?

Mr. Chemerinsky: --I don't think that would be a problem under the Establishment Clause because it's minimal--

Justice Scalia: But there are atheists who disagree with that intensely.

Mr. Chemerinsky: --But Your Honor, I'm not arguing for a heckler's veto by atheists.

What I am saying is that when the government puts sacred and solemn texts taken directly from the Bible at the core of its State government, it has to then do something to convey the message that it's not there for religious purposes, that it's there for secular purposes.

Justice Scalia: Doesn't it matter whether that text has acquired an independent meaning of its own?

As I say, I don't think most people know what the text of the Ten Commandments are, but they do know that it stands for the fact that our laws are derived from God.

That's what it stands for.

Why isn't that symbolism sufficient to enable the State of Texas to use it?

Mr. Chemerinsky: The Ten Commandments monument by itself conveys the message that the Ten Commandments are the source of law and it's that message the State can't convey.

May I save the rest of the time for rebuttal?

Justice Stevens: Yes, you may save your time.

Mr. Chemerinsky: Thank you.

Justice Stevens: General Abbott, we'll hear from you, please.

Argument of Greg Abbott

Mr. Abbott: Justice Stevens, and may it please the Court:

Every court that has reviewed the specific facts of this case has agreed that the Texas monument is constitutional under this Court's well settled precedents in Lynch and Allegheny.

This Court should agree that the Texas monument should not be torn down from its historical place for three reasons.

First, the Ten Commandments is an historically recognized symbol of law.

Second, this monument is one of the smallest of the 17 monuments on the Capitol grounds, and like most of the other monuments, was a gift to the State of Texas and is clearly recognized as such on the monument itself.

And third, this monument has stood for more than 40 years without controversy on a national historic landmark.

In fact, even the--

Justice Stevens: May I ask you this question?

Under your analysis of the reason this is justifiable.

Would it equally be permissible to have a crucifix of the same size in the same location on the Capitol grounds?

Mr. Abbott: --Justice Stevens, I think that would pose a much greater problem.

Justice Stevens: That's not my question.

Do you think it would be permissible... it seems to me your reasoning that you've given us would support that result.

And maybe that's the correct result.

I'm wondering what your view is.

Mr. Abbott: I seriously question whether or not a crucifix would be constitutionally acceptable in that same location, and for the very same reasons which I'm articulating why the Ten Commandments would be acceptable in this location.

The crucifix is not like the Ten Commandments in that it's not an historically recognized symbol of law.

It doesn't send a secular message to all the people, regardless of whether they are believers or not believers of the important role the Ten Commandments have played in the development of law.

Justice Scalia: It's not a secular message.

I mean, if you're watering it down to say that the only reason it's okay is it sends nothing but a secular message, I can't agree with you.

I think the message it sends is that law is... and our institutions come from God.

And if you don't think it conveys that message, I just think you're kidding yourself.

Mr. Abbott: Well, Justice Scalia, the Ten Commandments send both a religious message and a secular message.

When people--

Justice O'Connor: But the district court, I think in this very case, found that commemorating the Ten Commandments' role in the development of secular law was not one of the State's purposes in accepting the monument.

Don't we accept that finding as the case comes to us?

That hasn't been challenged.

We don't have any cross appeal.

I assume we accept that finding of the district court.

Mr. Abbott: --The Court obviously is correct to accept that finding.

As you know, from the district court's finding, the secular purpose that was accepted by the district court was to honor the Paternal Order of Eagles.

But also there was an ongoing--

Justice O'Connor: But you're arguing for something contrary to the district court's finding.

Mr. Abbott: --I'm actually, Justice O'Connor, arguing for purposes that are in addition to that district court's finding because there was an ongoing purpose to retain this now historical monument that has stood for more than 40 years without controversy on a national and historic landmark.

Justice Kennedy: So in another case, if a government official feels that the Ten Commandments have been very, very important in his or her life as a spiritual or religious matter and wants other people to know how important the Ten Commandments are, he cannot accept on behalf of the city the Ten Commandments. And so you can have no Ten Commandments in city A with the Ten Commandments in city B.

General, that doesn't make a lot of sense to me.

And again, you're just doing with purpose what you did in response to Justice Scalia's question.

You're asking us to ignore the religious purpose that is the most manifest value of these symbols.

Mr. Abbott: Well, with regard to both purpose and effect in this particular setting, I don't think that religion was the driving force.

I know that all of the evidence shows that religion was not a driving force in any respect.

Justice O'Connor: I suppose that every monument that's on the State Capitol grounds in Texas in a sense conveys a message of State endorsement, State endorsement of the role of servicemen in fighting earlier wars or in support of the Boy Scouts or whatever it might be, doesn't it?

I mean, by placing them there with the legislative approval, is that not really some kind of a message of endorsement for each one?

Mr. Abbott: If I may clarify an important fact and that is clearly the state of Texas, by displaying 17 monuments in a museum like setting on Capitol grounds, is trying to acknowledge and commemorate certain events.

It's important for the Court to remember, though, that the State of Texas has specifically endorsed nine of those monuments by putting the State seal or the Lone Star seal for the State of Texas on those nine monuments.

This monument does not have that kind of endorsement on there.

Justice Souter: Isn't it all the case, as has been pointed out, that no monument is going to be on the grounds of the Texas State Capitol without the approval of the legislature?

You don't dispute that, do you?

Mr. Abbott: Not at all.

That is very true.

Justice Souter: And you don't dispute that anyone going on those grounds would assume that the State government approved it or it wouldn't be there?

Mr. Abbott: Justice Souter, of course the presumption would be that people on the Capitol grounds would assume the State of Texas wanted those monuments on the Capitol grounds.

Justice Kennedy: Well, I'm not sure that that endorsement... in England, there is a square where they have King Charles on one hand... on one end and he's looking at Oliver Cromwell, who beheaded him, on the other.

I don't know if you have to endorse one or the other.

Mr. Abbott: Well, Justice Kennedy, I believe that there is a very meaningful difference between this Court's standards of an endorsement and what a State or the nation may do with regard to commemoration.

As an easy example, on the National Mall, there is, of course, the Lincoln Memorial and in the Lincoln Memorial, there is text from the King James version of the Bible.

The nation commemorates and acknowledges Lincoln and what he has said.

But by that display, the United States is not trying to endorse the King James version of the Bible or a particular religious message in that.

Instead what the state--

Justice Souter: But you have to contend with the fact that the district court found that this sort of commemoration of the commandments involved was not the objective in placing the monument there, so you're left basically with a religious text.

And if anybody has any doubt about that, the religious text is surrounded by some religious symbols, the Chi Rho, the Star of David.

So it seems to me that it's hard to find, if we accept the district court findings, 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.

Mr. Abbott: --All other factors, though, Justice Souter, as a person who stands in front of that monument clearly recognizes, centered in a specialized scroll is an indication that this was a monument that was dedicated and presented to the people and the youth of the State of Texas by the Fraternal Order of Eagles.

There is no stamp of approval on this by the State of Texas on that monument.

Justice Souter: But you're not trying to withdraw the... I took it to be the concession that of course anyone would reasonably assume that the State of Texas approved this message, and thought it was appropriate to devote state property to its promulgation.

Mr. Abbott: Clearly the State of Texas approved the monument being on the grounds--

Justice Souter: But then the fact that the Eagles also approve it doesn't really get us very far, does it?

Mr. Abbott: --Well, where I believe it gets you, as this Court has recognized, there is a very meaningful difference between acknowledging something and endorsing something.

For example, the creche in Lynch or the menorah in Allegheny.

Justice Souter: Let me ask you this.

If the Eagles' presentation statement weren't on there, would that make a difference to Establishment Clause analysis?

Mr. Abbott: I think the Eagles' disclaimer on there helps our case but if it were not on there, I think the monument could still stand just as the creche did in Lynch or the menorah in Allegheny.

The city of Pawtucket was not endorsing the creche in the display, it was acknowledged as part of the overall holiday celebration.

Justice Souter: What is the... that's one of the problems with the argument, it seems to me, that by putting the Ten Commandments monument on grounds that have lots of other monuments, that the religious message is somehow either diluted or changed.

Contrast the situation in Texas with what we've got here.

You've got Moses up there with at least the last five commandments showing.

But Moses is in the company of a group of individuals who are nothing but law givers.

You've got Menes and Hammurabi and John Marshall and the rest of them.

There is an obvious theme.

Anybody who looks at the identity... or knows the identity of these figures is saying they're getting at law givers.

But if you look at the grounds of the Texas State Capitol, you see wars, pioneer women, children and so on.

There is no one common theme.

The only theme seems to be these are objects or symbols that are worthy of some kind of respect.

And one of them is religious.

Being mixed into a group that has no common theme does not eliminate the religious... the obvious religious message from this monument.

Isn't that correct?

Mr. Abbott: Well, just as this Court may display in the courtroom itself, Moses with the Ten Commandments amongst law givers, doesn't mean that that is the only way the Ten Commandments--

Justice Souter: Maybe it doesn't, but I'm trying to find a rationale for the argument that's being made, and that I thought you were alluding to.

The argument is that by mixing this in with a grab bag of other symbols, you have somehow diluted or changed the focus from a religious message to something else.

And I can understand that in the Moses case in the frieze because there is a clear common theme.

On the Texas grounds, at least insofar as I can tell, there is no common theme.

There are a series of objects that say, these are worthy of veneration.

One of them is religious.

There is nothing that removes the religious message from its prominence in the display the way the religious message is removed from prominence in the Moses display, isn't that correct?

Mr. Abbott: --Your Honor, if I may explain with two points.

One, there is a common theme on the Texas Capitol grounds, just as there are on most Capitol grounds and on the National Mall.

And the common theme is to recognize historical influences in our country and in our State.

Justice Souter: But what do you do with the district court finding?

Mr. Abbott: Well, the district court finding obviously chose to decide that the secular purpose for the display was to honor the Fraternal Order of Eagles for their commitment to combatting juvenile delinquency.

But that is different... the purpose why the district court found why the display was constitutional is different than the message that is being sent to the reasonable observer.

Justice Souter: You had a second point and I don't want to miss your second point.

Mr. Abbott: The second point is that there are other displays in this Court.

As a person walks into this courtroom or exits the courtroom, they don't see the Ten Commandments in a display with a bunch of law givers.

Instead, they see the Ten Commandments alone with an eagle above it.

Justice Ginsburg: They see blank tablets.

They don't see any writing.

This is the only one that has script on it.

It has numbers and in fact that's confusing because one of them, the people think is the Ten Commandments is the Bill of Rights.

[Laughter]

Mr. Abbott: Justice Ginsburg, clearly the Ten Commandments that are reflected on the doorway into and out of this courtroom don't have words on them like the tablets do in the State of Texas.

Justice Scalia: But we know what they are, don't we?

Mr. Abbott: We do and that's the point.

Even more importantly, the reasonable observer knows what--

Justice Stevens: But do we know which version of the Ten Commandments it stands for?

There are three different versions at least.

Mr. Abbott: --I happen to agree with the Petitioner.

There is more than three versions of the Ten Commandments.

And the purpose, if you go back to what the Eagles were trying to achieve here, was to come up with a version of the Ten Commandments that wasn't reflective of any particular religion.

Justice Scalia: And it doesn't matter what the version is, does it?

If it just stands for the fact that laws... the foundation of our laws is God.

If that's all it stands for, who cares what the text is.

Justice Stevens: General Abbott, would the Texas purpose be equally served if the monument had on it the kind of disclaimer that the city in Wisconsin put on its monument?

Mr. Abbott: Justice Stevens, I apologize, I'm not familiar with that disclaimer.

Justice Stevens: It reads this way.

What they did is they sold the parcel of land that had the Eagles' donation on it back to the Eagles and then they put a fence around it and then they put this sign up,

"This property is not owned or maintained by the City of Lacrosse, nor does the City endorse the religious expression thereon. "

Maybe as long as it's still on the property, it couldn't be the same.

But suppose you had a comparable disclaimer.

Would that defeat any of the purposes on which you relied to justify having the statue there?

Mr. Abbott: A disclaimer like that would surely ensure that this display is constitutional.

However, it's our contention--

Justice Stevens: And would it undermine the message that you legitimately seek to convey?

Mr. Abbott: --I don't believe it would.

Justice Scalia: Why don't you do it and we wouldn't have this case?

I really would consider it something of a Pyrrhic victory if you win on the ground that you're arguing.

So that in all future cases, we're going to have to examine displays of the Ten Commandments to see whether there was ever any intent to say that our laws are ultimately dependent upon God.

Is that what you want us to do case by case?

Mr. Abbott: Well, this Court obviously has decided Establishment Clause cases on a case by case basis, but in this particular instance, the Ten Commandments displayed in a museum like setting on the Capitol grounds arrayed among 17 other monuments, the message that is received by the viewer who is trekking through the Capitol grounds looking at monuments is clearly one not of the State of Texas.

Justice Breyer: I've got to get one question before you leave because you're the one who knows the record.

And what I've had a hard time finding in the record is what I think there must be some material that the State or somebody in a tourist office or a guide or somebody tells people what the 17 different monuments are.

And all I've found is the general brochure which doesn't tell them what they are.

And I found something on the Internet.

Well, which is in the record.

But aside from this page from the Internet in the record and that, is there anything else in this record that if somebody wanders around, they're on the State grounds, they say, what is this, what are these things anyway?

There must be something to tells them.

And where is it?

Mr. Abbott: The state provides a walking tour guide.

Justice Breyer: And the brochure doesn't tell what they are.

This thing, it says grounds?

Mr. Abbott: Your Honor, Justice Breyer, if I could refer you to page 205 of the joint appendix, it provides a description of each of the monuments on the walking tour.

And if I could also refer the Court to page 117 of the joint appendix, it shows the actual walking tour where a person would go along the process of seeing the monuments.

But clearly as they walk through the Capitol grounds, what any observer, not just the reasonable observer, what any observer would notice is that before they could even get to this particular monument, they will have passed in full view of countless other monuments and historical markers clearly indicating to them that they are not there for the purpose of seeing just the Ten Commandments but they are in a museum like setting cast amongst many different kinds of monuments.

And so they appreciate the setting before they even arrive at the Ten Commandments monument.

Also when they arrive at the Ten Commandments monument, they will notice it is one of the smallest of the monuments on the Texas Capitol grounds.

It does have the disclaimer on it indicating that it was donated by the Fraternal Order of Eagles.

It does not have the State seal on it like many of the other monuments, so it's not--

Justice Ginsburg: Is it like how many other monuments?

This is not peculiar to Texas.

The Order of the Eagles have given how many monuments just like this one, identical to this one?

Mr. Abbott: --Justice Ginsburg, it is actually not clear from the record.

There have been some accounts of hundreds, maybe even into the thousands that the Fraternal Order of Eagles have given out.

And I cannot tell you for a fact that they are all identical.

Justice Ginsburg: When you said that every court that has considered this case has said it's compatible with the Establishment Clause, did you mean just this Texas case or other cases involving an Eagles Ten Commandments?

Mr. Abbott: Justice Ginsburg, my reference was to the fact that every case that has considered the specific... every court that has considered the specific facts of this case, meaning the Texas case--

Justice Ginsburg: So you didn't mean this particular depiction of the Ten Commandments?

Mr. Abbott: --No, Your Honor.

What I meant is that both the district court and the Fifth Circuit Court of Appeals specifically reviewed the facts of this case and were all in complete agreement that the facts of this case render this monument constitutional under this Court's well settled precedents in Lynch and Allegheny.

One other thing I would like to draw the Court's attention to that will give you a very well understanding of what the monument looks like and its setting is the videotape that is Exhibit 44, it's obviously not part of the joint appendix, but it demonstrates how this particular monument is set in a museum like setting amongst many other monuments and gives you the perspective of what the typical viewer would appreciate as they walk around the Capitol grounds.

Justice Ginsburg: Kind of an eclectic museum.

One message that you get is that the State is honoring the donor of the various--

Justice Stevens: General Abbott, I want to thank you for your argument and also for demonstrating that it's not necessary to stand at the lectern in order to a fine job.

Thank you.

Mr. Abbott: Thank you, Your Honor.

Justice Stevens: Mr. Clement.

Argument of Paul D. Clement

Mr. Clement: Justice Stevens, and may it please the Court:

The Ten Commandments have undeniable religious significance, but they also have secular significance as a code of law and as a well recognized historical symbol of the law.

When a State decides to display a Ten Commandments display along with more than a dozen other monuments on its Capitol grounds in order to honor the donor, it is not endorsing the religious text of the Ten Commandments.

And in the same way, when a state has that monument as part of such a collection, the Establishment Clause should not be interpreted to force them to send a message of hostility to religion by singling out that one monument for removal solely because of its religious content.

Justice Stevens: Can I ask you to address one thing that troubles me about the case?

As I understand it, it's the Protestant version basically of the Ten Commandments we have before us, which has significant differences from the Catholic version and the Jewish version.

And I understand it was the result of consultation and so forth.

But I noticed in your brief, you list the States in which the Ten Commandments displays are listed, there is none for Rhode Island, which I often think of as primarily a Catholic state, and the only one from Massachusetts is a frieze on the north wall of the public library which apparently didn't have the text of the commandments in it.

Is there any significance to the fact that this kind of display may be more popular in areas of the country where the Protestant religion is dominant as opposed to other versions of Christian religions?

Mr. Clement: Justice Stevens, I don't think so.

I mean, we didn't purport to do an exhaustive survey, but I think there is a well represented group of displays throughout the country including, I think, in States that probably have relatively high Catholic populations.

But I think we would steer this Court away from attributing too much significance to the fact that if a State is going to display the Ten Commandments at all, it will necessarily have to display a version that reflects one or another sect's preferences.

In the Marsh case, for example, this Court upheld legislative prayer.

It understood that they would necessarily have to choose a chaplain and that chaplain would necessarily be of one denomination or another.

And this Court didn't doom the whole practice of legislative prayer because of the necessity of picking a chaplain of one denomination or another.

In fact, in the Marsh case itself, this court upheld Nebraska's practice, even though they had chosen the same Presbyterian minister for 16 straight years.

And so I don't think this Court in other Establishment Clause contexts has steered away from putting the States and municipalities in a catch 22.

And given that this Court has suggested even in Stone against Graham that the Ten Commandments can be displayed, can be used in certain settings, it can't be that once the State in practice picks a particular version, it's all of a sudden guilty of a sectarian preference.

Justice Stevens: Of course, the other thing that's notable about your listing is most of the examples are examples of displays of the event itself rather than the text.

And there is an argument made I think by Professor Laycock that when you display the entire text, it's kind of a different sort of symbol than when you just have a symbolic presentation.

Mr. Clement: Well, Justice Stevens, I think that quite a few... both types of displays and I think the very fact the Fraternal Order of Eagles put a lot of displays out suggests that a bunch of them are textual displays.

I'm not sure, though, that a display that actually has Moses receiving the Ten Commandments from God is any less religious.

I would suggest that's actually more religious than one that just displays the monument standing alone.

If the monuments are standing alone, you can I think appreciate the fact that maybe they're being displayed for their secular significance as well as their religious significance.

When Moses is there, it's hard to avoid the implication that they are the revealed law of God, as opposed to also a secular code.

So in that sense, I'm not sure that the variations in the display take away from the fact that there is religious content--

Justice Stevens: A symbolic display is less objectionable when quoting the text as this monument does?

Mr. Clement: --Well, Justice Stevens, I would say... my point is not that there are not other ways to display it.

Certainly I think, as we point out in our brief, blank tablets or tablets with Roman numerals are less objectionable... certainly, I think they're beyond objection... than a textual display.

My point was that I'm not quite sure how one would balance sort of four commandments and Moses versus all Ten Commandments in text.

I think it's a close call.

Justice Stevens: Well, except the four commandments and Moses would avoid the differences between the three different versions of the Ten Commandments, whereas when you quote one, you must select one over the other two.

Mr. Clement: Well, I guess I'm not sure that's true.

I mean, some of the displays that are out there in courthouses have Moses receiving the commandments and have text.

And I guess, my point, though, would be, again--

Justice Stevens: Most of them don't.

Mr. Clement: --To be sure, to be sure.

But I would hope the constitutional line wouldn't be that you can't have text.

I mean, the Ten Commandments have a role in our society and had an influence on the development of the law as text.

I mean, they weren't influential with ten Roman numbers.

They were influential as text.

Justice Ginsburg: General Clement, there is a question I have about the government's position.

And does place matter at all?

I mean, here we're talking about the grounds surrounding a State Capitol.

What about every school room, if that's the choice of the school board?

Is it the same or do you make... or every courtroom up to the court to decide for itself?

Mr. Clement: Justice Ginsburg, I certainly think location and context matters.

I think in almost every Establishment Clause context, the setting and context matters a great deal.

The school case, for example, as you suggest, I mean, unless this Court is going to revisit Stone against Graham, it's certainly true that the school context at least raises much more difficult questions.

In terms of where it can be displayed in the courthouse, I think there are certainly permissible displays in the courthouse, but it may be something all together different to have a display in a way that it actually looks like a religious sanctuary within the walls of the courthouse.

Justice Ginsburg: It looks just like this monument.

Let's take this monument and put it in the rotunda of the court because the judges of that court choose to have it there.

Is that all right?

Mr. Clement: Justice Ginsburg, I think putting it in the rotunda of the court as a stand alone monument, giving it sort of pride of place, if you will, raises a much more difficult question, to be sure, and may well cross the constitutional line.

As I was alluding to, the one case I'm familiar with, which is the case of the Alabama Supreme Court, there it was displayed in a way that the district court literally found it was like a religious sanctuary within the walls of the court.

Justice Kennedy: And do you think that it should cross the constitutional line under the interpretational theory of the First Amendment you wish us to adopt?

Mr. Clement: I think the display that I have in mind in the Alabama Supreme Court probably does cross the constitutional line even under our view.

I think that a display of the Ten Commandments in some appropriate way in the courthouse certainly wouldn't cross the line that this Court... that we would have this Court draw.

I mean, we think, for example, it cannot be that the very fact that moving it closer to the courthouse itself is a constitutional problem because as you yourself have pointed out, Justice Kennedy, the legislative prayers that were approved in Marsh v. Chambers were at the absolute epicenter of the government.

And still those were a permissible acknowledgment of religion.

So I think while context matters, I don't think solely the fact that it's moved closer to the seat of government does have a dispositive impact.

And again, I would say in response to Justice Stevens' question, I do think it is important to remember that there is going to have to be a choice among the various documents if they are going to be displayed at all.

And I don't think that the Constitution puts the municipalities and the States in the bind of being able to display the Ten Commandments in theory, but in fact, not being able to pick any one version--

Justice Stevens: What would your comment be on requiring a disclaimer of some kind?

Mr. Clement: --Well, Justice Stevens, two points to make about that.

One is certainly a disclaimer would make this an easier case.

And I would point out that there is a disclaimer of sorts on the monument already because it clearly states that it was a gift from the Fraternal Order of Eagles.

Justice Stevens: It is kind of ambiguous.

Mr. Clement: It is, Justice Stevens, and I'm troubled frankly by the suggestion that they would have to go as far as you suggested they would go under the City of Lacrosse case.

The idea that in order to have the Ten Commandments monument on the Capitol grounds, the State of Texas has to cordon that monument off, unlike any other of the 17 monuments, suggests a hostility to religion.

I think the idea that there has to be a fence away from the Ten Commandments to make clear that the State has nothing to do with the Ten Commandments is bending over too far in the other direction.

The State can have, as this Court has acknowledged many times, permissible acknowledgments of religion.

And I don't think in this case that the State of Texas has gone too far.

One other point I think that is important to put on the table, and it is consistent with the analysis of both the district court and the Fifth Circuit, is that whatever the original purpose is for Texas accepting the monument and displaying it in the first instance, they now have an additional secular purpose in retaining the monument.

And I would point this Court to Judge Becker's analysis in the Chester County case for the Third Circuit.

In that case, he had a display that was admittedly smaller, but it was actually a much more overtly sectarian version of the Ten Commandments.

It had the Ten Commandments plus the summary of the Ten Commandments from the New Testament.

And nonetheless, Judge Becker said that in that case, the monument had been there since 1920 and Chester County had a legitimate secular purpose in maintaining that document and maintaining the plaque on the courthouse.

And I think he correctly understood that in these cases of displays that have stood for 40 years or longer, that the State is in something of a dilemma.

Thank you, Your Honor.

Justice Stevens: Mr. Chereminsky, you have four minutes left.

Rebuttal of Erwin Chemerinsky

Mr. Chemerinsky: Thank you.

This case comes down to two questions.

First, is the Ten Commandments a highly religious message.

And second, can the government place a single religious message on government property at the seat of its government.

As to the first question, Stone v. Graham resolves this because this Court said that the Ten Commandments is an inherently religious message no matter what disclaimer accompanies it.

The Ten Commandments is not on the Texas State Capitol grounds simply to recognize the role of religion in government.

It is not simply an acknowledgment.

It is sacred text taken directly from the Bible.

It's not there about the history of religion in Texas.

There is nothing to tell the reasonable observer that it is there for historical purposes.

What about all the other religions that have played a role in Texas history?

The Mojave religion, even Madeleine Murray O'Hare.

Is Texas saying they would accept statues for all of these individuals there as part of the history of Texas?

The second question is, can the government place a single religious message by itself on government property, especially at the seat of government.

The County of Allegheny case resolves that.

This is much like the nativity scene at the seat of the county government.

What's important and hasn't gotten enough emphasis this morning, this is the sole religious message anywhere on the Texas State Capitol grounds.

This isn't a museum.

Every item that's there is there because the Texas legislature chose to put it there.

Most are there to honor veterans of particular wars.

Texas put this there precisely to express the religious message.

Your Honors, what's left of the Establishment Clause if any item can be displayed with the most profound religious contents?

Do we then say the observer can just avert his or her eyes?

The observer could have averted his or her eyes in the County of Allegheny case.

But this Court was clear in saying that a single religious message, a single religious symbol on government property is inherently an establishment of religion.

For this reason, the Texas monument violates the Establishment Clause.

Thank you.

Justice Stevens: Thank you, Mr. Chereminsky.

The case is submitted.

We will now hear argument in the--