WASHINGTON - Supreme Court Justice Antonin Scalia on Wednesday challenged people seeking to ban displays of the Ten Commandments on government property, noting legislative proclamations invoking God's name are permissible.
"I don't see why the one is good and the other is bad," Scalia said from the bench as the high court waded through oral arguments embracing the legal thicket of church-vs.-state issues.
In a case surrounding a Ten Commandments monument outside the Texas capitol, the critical question for the justices was whether the structure amounts to an unconstitutional government endorsement of religion.
Erwin Chemerinsky, a lawyer representing a man who seeks its removal, told the justices the display is a "religious symbol." The prominence of the display on the capitol grounds and the fact that so many of the commandments deal with God "does promote religion," he maintained.
In the high court's first confrontation with the Ten Commandments issue in a quarter-century, a case from Kentucky also was being argued. Lawyerly invocations of legal theories were heard in an ornate courtroom that, among other things, in sight of a wall carving of Moses holding the tablets bearing the commandments.
Monuments carrying the Ten Commandments are common in town squares, courthouses and other government-owned land around the country. Lawyers challenging these displays argue that they violate the First Amendment ban on any law "respecting an establishment of religion," or simply represent a secular tribute to America's legal heritage.
The question has sparked dozens of heated legal battles, including one in Alabama by Roy Moore. He lost his job as chief justice a year ago after defying a federal order to remove a 5,300-pound Ten Commandments monument he had installed in the state courthouse.
More than 50 groups have filed "friend-of-the-court" briefs weighing in on the issue.
About two dozen demonstrators gathered in front of the Supreme Court in the icy cold for rallies following a candlelight vigil by supporters of the displays.
"I don't think government should be in the business of morality," said David Condo, 40, of Beltsville, Md., as protesters wrapped in parkas, scarves and ear muffs marched nearby.
While the cases strictly involve Ten Commandments displays, a broad ruling could define the proper place of religion in public life - from use of religious music in a school concert to students' recitation of "under God" in the Pledge of Allegiance. A decision is expected by late June.
The Bush administration, which sided with a California school district last year to keep "God" in the Pledge, is now joining Texas and Kentucky officials to back the Ten Commandments displays.
"Countless monuments, medallions, plaques, sculptures, seals, frescoes, and friezes - including, of course, the Supreme Court's own courtroom frieze - commemorate the Decalogue. Nothing in the Constitution requires these historic artifacts to be chiseled away or erased," writes Texas Attorney General Greg Abbott in his court filing.
Chemerinsky, representing a homeless man suing to have the Texas display removed, countered in his filing: "The government's symbolic endorsement of religion is most obvious from the content of the monument itself. In large letters, the monument proclaims 'I AM the LORD thy God.'"
Ten Commandments displays are supported by a majority of Americans, according to an AP-Ipsos poll. The poll taken in late February found that 76 percent support it and 23 percent oppose it.
In the Texas case, Thomas Van Orden lost his lawsuit to have a 6-foot granite monument removed from the state Capitol grounds.
The Fraternal Order of Eagles donated the exhibit to the state in 1961, and it was installed about 75 feet from the Capitol in Austin. The group gave thousands of similar monuments to American towns during the 1950s and '60s, and those have been the subject of multiple court fights.
Two Kentucky counties, meanwhile, hung framed copies of the Ten Commandments in their courthouses and added other documents, such as the Magna Carta and the Declaration of Independence, after the American Civil Liberties Union challenged the display.
While one lower court found the Texas display to be predominantly nonreligious because it was one of 17 monuments in a 22-acre park, another court struck down the Kentucky displays as lacking a "secular purpose." Kentucky's modification of the display was a "sham" for the religious intent behind it, the Cincinnati-based 6th U.S. Circuit Court of Appeals ruled.
The last time the Supreme Court weighed in on the issue was when it struck down a Kentucky law requiring Ten Commandments displays in public classrooms. Since then, more than two dozen courts have ruled in conflicting ways on displays in various public contexts.
The Supreme Court frieze, for instance, depicts Moses and the tablets as well as 17 other figures including Hammurabi, Confucius, Napoleon and Chief Justice John Marshall. Because it includes secular figures in a way that doesn't endorse religion, the display would be constitutional, Justice John Paul Stevens suggested in a 1989 ruling.
The cases are Van Orden v. Perry, 03-1500, and McCreary County v. ACLU, 03-1693.