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IN THE SUPREME COURT OF THE UNITED STATES
-----------------------------x THOMAS VAN ORDEN, Petitioner v. RICK PERRY, IN HIS OFFICIAL CAPACITY AS GOVERNOR OF TEXAS AND CHAIRMAN, STATE PRESERVATION BOARD, ET AL. : : : : : : : No. 03-1500

-----------------------------x Washington, D.C. Wednesday, March 2, 2005 The above-entitled matter came on for oral argument before the Supreme Court of the United States at 10:06 a.m. APPEARANCES: ERWIN CHEMERINSKY, ESQ., Durham, N.C.; on behalf of the Petitioner. GREG ABBOTT, ESQ., Attorney General, Austin, Tex.; on behalf of Respondents. PAUL D. CLEMENT, ESQ., Acting Solicitor General, Department of Justice, Washington, D.C.; on behalf of United States, as amicus curiae, supporting Respondents.

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ORAL ARGUMENT OF

C O N T E N T S
PAGE

ERWIN CHEMERINSKY, ESQ.
On behalf of the Petitioner GREG ABBOTT, ESQ.
On behalf of the Respondents PAUL D. CLEMENT, ESQ.
On behalf of the United States REBUTTAL ARGUMENT OF
ERWIN CHEMERINSKY, ESQ. On behalf of the Petitioner 55
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P R O C E E D I N G S (10:06 a.m.) JUSTICE STEVENS: in Van Orden against Perry. Mr. Chemerinsky. ORAL ARGUMENT OF ERWIN CHEMERINSKY ON BEHALF OF PETITIONER MR. CHEMERINSKY: Good morning, Justice We'll now hear argument

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 committed 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.

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MR. CHEMERINSKY: - I'm sorry. JUSTICE SCALIA:

No, Your Honor, I would

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 Here the way in which

all depends on how it is done.

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 for behavior for those who follow him or her. JUSTICE KENNEDY: I don't know whether

that's any more profound or ultra-religious,

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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. there is a God. This proclaims that

It proclaims -Well, I mean, I haven't

JUSTICE KENNEDY: read the prayer.

So 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. sabbath. Requiring observing of the

This is God dictating to God's followers

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

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this is more profoundly religious. other difference, in your opinion? MR. CHEMERINSKY: difference is -JUSTICE BREYER: No.

Is there any

I think the key

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: JUSTICE O'CONNOR: Yes, Your Honor. And displaying a whole

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variety of things? MR. CHEMERINSKY: Of course, there can be

Ten Commandments or any religious works as part of a museum setting. Honor. This isn't a museum setting, Your

Every monument on the Texas -JUSTICE O'CONNOR: Is this a kind of a What is it?

park?

What do we regard this space as?

Is it a park-like setting? MR. CHEMERINSKY: setting. grounds. It is a park-like

It is the acres of the State Capitol 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 And by itself --

anywhere on the Capitol grounds. JUSTICE O'CONNOR:

Well, would it be all

right, in your view, if they put several others up for different religions? okay? MR. CHEMERINSKY: If the clear purpose and Then is it going to be

message was to honor the diversity of religions in

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Texas, it would then be permissible.

If it were a

series of displays like that frieze, the fifteen different -JUSTICE O'CONNOR: that? MR. CHEMERINSKY: think it's a -JUSTICE O'CONNOR: door of the Court? MR. CHEMERINSKY: Quite the contrary. Or the depiction on the Quite the contrary, I You don't object to

This is exactly how the State may display the Ten Commandments. JUSTICE SCALIA: But the prayers in

Congress don'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: is -JUSTICE SCALIA: We don't pray to gods, You know, I don't see It's no Yes, Your Honor, there

the prayers are always to God.

why the one is good and the other is bad.

answer to say, well, you know, the former has been around for a long time. Well, it has but it suggests

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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: saying several things. No, Your Honor. I'm

As I said earlier, first,

this Court in Chambers v. Marsh said that there was a unique history to legislative prayers. similar history here. JUSTICE GINSBURG: doesn't the venue count? Mr. Chemerinsky, too, There isn't a

After all, we have had the

question of prayer in schools, and the Court has said that that was not all right. legislature was distinguished. Prayer in the So it's not just

prayer anywhere that the government wants to have it is okay. MR. CHEMERINSKY: Ginsburg, the venue counts. very important. Of course, Justice And here the venue is

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

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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: MR. CHEMERINSKY: Can it do that? 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. said in his opinion for -JUSTICE O'CONNOR: draw that line. But it's so hard to As Justice Kennedy has

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.

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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 The Ten

that God has proclaimed rules for behavior. 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 there just because some religious messages are allowed, 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. me to show a hostility to religion. That seems to I just don't see

a balanced dialogue in our cases or in these kinds of arguments.

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question. or Hindu -Honor. your eyes.

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

If an atheist walked by, he can avert his

eyes, he can think about something else. MR. CHEMERINSKY: I don't think so, Your

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

JUSTICE STEVENS:

May I ask you this

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

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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

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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: get there? How did this monument

Was it in -- is it true that it was put

in as a result of promoting a movie about the Ten Commandments? MR. CHEMERINSKY: to that. The record is unclear as

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

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that those were replicas of what was in the film. MR. CHEMERINSKY: Honor. I don't know that, Your It

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

is not in Hebrew.

It is not in a script that anyone But it is important to notice

was able to recognize.

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: the Ten Commandments. MR. CHEMERINSKY: No, Your Honor, the I thought Muslims accept

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

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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.) JUSTICE SCALIA: 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, If

now, this isn't there for its secular reason.

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

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nothing wrong with the government reflecting that. 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.

I

Because this Court has said that above all, the government can't make some feel like they're insiders and some like outsiders. majority religion -JUSTICE KENNEDY: Well, suppose a Even if they're the

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

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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 It is about making sure

about hostility to religion.

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

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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 All of those are religious.

throughout the land.

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

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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: But 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

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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. people. All of these are God's commands to God's And that's what makes it different 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.

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Chemerinsky, it was like Moses on that frieze where there are commandments showing, but there are only the sixth through tenth commandment. all right? MR. CHEMERINSKY: Your Honor, if it was Would that be

like 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 worshiping the Lord. 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?

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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. - last five commandments.

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, of course, 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.

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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. the Ten Commandments stand for.
MR. CHEMERINSKY: But Your Honor, this
That's what

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. there. I think that the message is different

It is the words, I am the Lord, thy God. JUSTICE KENNEDY: I think you're telling The only

us that the State cannot accommodate religion.

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.

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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. If it's 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 And any time there is

much be in the jurisprudence.

a Free Exercise Clause claim, then there has to be

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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. my position is -JUSTICE SCALIA: Can the State express its And

support for religion generally? MR. CHEMERINSKY: all depend JUSTICE SCALIA: Suppose it didn't have Your Honor, it would

the Ten Commandments, it just had a big thing that says religion is good. It said religion is the Suppose there were

foundation of our institutions. something like that.

Would that be bad? I don't think that would

MR. CHEMERINSKY: be a problem it's minimal -JUSTICE SCALIA:

under the Establishment Clause because

But there are atheists

who disagree with that intensely. MR. CHEMERINSKY: But Your Honor, I'm not What I am

arguing for a heckler's veto by atheists.

saying is that when the government puts sacred and solemn texts taken directly from the Bible at the

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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. of the time for rebuttal? JUSTICE STEVENS: time. MR. CHEMERINSKY: JUSTICE STEVENS: hear for you, please. ORAL ARGUMENT BY GENERAL GREG ABBOTT ON BEHALF OF RESPONDENTS GEN. ABBOTT: Justice Stevens, and may it Thank you. General Abbott, we'll Yes, you may save your May I save the rest

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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 -May I ask you this

JUSTICE STEVENS: 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? GEN. 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

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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.
GEN. 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 or not they are believers or not believers of the important role the Ten Commandments have played in the development of law. JUSTICE SCALIA: message. It's not a secular

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. GEN. ABBOTT: Well, Justice Scalia, the

Ten Commandments send both a religious message and a

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secular message.

When people -But the district court,

JUSTICE O'CONNOR:

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. Now, will you accept that finding as the case comes to us? That hasn't been challenged. We

don't have any cross appeal. finding of the district court. GEN. ABBOTT:

I assume we accept that

The Court obviously is As you know, from

correct to accept that finding.

the district court's finding, the secular purpose that was accepted by the district court was to honor the Fraternal Order of Eagles. ongoing -JUSTICE O'CONNOR: But you're arguing for But also there was an

something contrary to the district court's finding. GEN. 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.

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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, but the Ten Commandments in city B. 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 General, that doesn't make a lot of sense to

purpose that is the most manifest value of these symbols. GEN. 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

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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? GEN. 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 the 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? do you? GEN. ABBOTT: true. JUSTICE SOUTER: And you don't dispute Not at all. That is very You don't dispute that,

that anyone going on those grounds would assume that the State government approved it or it wouldn't be

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there? GEN. 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. GEN. 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 But by

acknowledges Lincoln and what he has said.

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

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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. GEN. ABBOTT: Sir, 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

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State of Texas approved this message, and thought it was appropriate to devote state property to its promulgation. GEN. ABBOTT: Clearly the State of Texas

approved of 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? GEN. 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? GEN. ABBOTT: I think that 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

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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 There is an

John Marshall and the rest of them. 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. common theme. There is no one

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. GEN. ABBOTT: Isn't that correct?

Well, just as this Court may

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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? GEN. ABBOTT: with two points. Your Honor, if I may explain

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

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our country and in our State. JUSTICE SOUTER: the district court finding? GEN. ABBOTT: Well, the district court But what do you do with

finding obviously chose to decide that the secular purpose for the display was to honor the Fraternal Order of Eagles for their commitment to combating 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. GEN. ABBOTT: The second point is that As a person

there are other displays in this Court.

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 don't see any writing. that has script on it. They see blank tablets. This is the only one

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.

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(Laughter.) GEN. 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: are, don't we? GEN. ABBOTT: We do and that's the point. But we know what they

Even more importantly, the reasonable observer knows what -JUSTICE STEVENS: But do we know which There

version of the Ten Commandments it stands for? are three different versions at least. GEN. ABBOTT: Petitioner.

I happen to agree with the

There is more than three versions of the And the purpose, if you go back to

Ten Commandments.

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 If it just stands for

what the version is, does it?

the fact that laws -- the foundation of our laws is God. If that's all it stands for, who cares what the

text is.

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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?
GEN. 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? GEN. 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? GEN. ABBOTT: I don't believe it would. Well, why don't you do it and I really would consider

JUSTICE SCALIA: we wouldn't have this case?

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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. case? GEN. ABBOTT: Well, this Court obviously Is that what you want us to do case by

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

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something on the Internet. record.

Well, which is in the

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? tells them. There must be something that

And where is it? The state provides a walking

GEN. ABBOTT: tour guide.

JUSTICE BREYER: tell what they are.

And the brochure doesn't

This thing, it says grounds? Your Honor, Justice Breyer,

GEN. ABBOTT:

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

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for the purpose of seeing just the Ten Commandments but they are in a museum-like setting cast among 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: other monuments? Is it like how many The

This is not peculiar to Texas.

Order of the Eagles have given how many monuments just like this one, identical to this one? GEN. ABBOTT: Justice Ginsburg, it is There have been

actually not clear from the record.

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

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you mean just this Texas case or other cases involving an Eagles Ten Commandments? GEN. 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? GEN. 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

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grounds. JUSTICE GINSBURG: museum. Kind of an eclectic

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. GEN. ABBOTT: Thank you.

Thank you, Your Honor. Mr. Clement.

JUSTICE STEVENS:

ORAL ARGUMENT OF PAUL D. CLEMENT ON BEHALF OF THE UNITED STATES AS AMICUS CURIAE, SUPPORTING RESPONDENTS MR. CLEMENT: 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 Justice Stevens, and may it

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

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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: Mr. Clement, can I ask you to address As I

one thing that troubles me about the case?

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

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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. I mean, 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

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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 was 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 there are quite a few of both types of displays and I think the very fact that the Fraternal Order of Eagles put a lot of these 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.

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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 --
JUSTICE STEVENS: You think just a symbolic

display is less objectionable than 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. I mean, certainly I think, as we point

out in our brief, blank tablets or tablets with Roman numerals are less objectionable -- certainly, I don't 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. close call. JUSTICE STEVENS: Well, except the four I think it's a

Commandments and Moses would avoid the differences between the three different versions of the Ten

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Commandments, whereas when you quote one, you must
select one over the other two.
MR. CLEMENT: that's true. Well, I guess I'm not sure

I mean, some of the displays that are

out there in courthouses have Moses receiving the
Commandments and have text. though, would be, again --
JUSTICE STEVENS: MR. CLEMENT: Most of them don't.
But
And I guess, my point,

To be sure, to be sure.

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, you know, they weren't influential with ten Roman numbers. They were influential as text. General Clement, there

JUSTICE GINSBURG:

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 Is it the same or do you

choice of the school board?

make -- or every courtroom up to the court to decide for itself? MR. CLEMENT: Well, Justice Ginsburg, I I

certainly think location and context matters.

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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 a 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: monument. It looks just like this

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. MR. CLEMENT: Is that all right? 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

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the district court literally found it was like a religious sanctuary within the walls of the courthouse. 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

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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 One is certainly a And I

points to make about that.

disclaimer would make this an easier case.

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: MR. CLEMENT: It is kind of ambiguous.

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

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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

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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: have four minutes left. REBUTTAL ARGUMENT OF ERWIN CHEMERINSKY ON BEHALF OF PETITIONER MR. CHEMERINSKY: comes down to two questions. Thank you. This case Mr. Chemerinsky, you

First, is the Ten And second,

Commandments a highly religious message.

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. acknowledgment. It is not simply an

It is sacred text taken directly

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from the Bible.

It's not there about the history of There is nothing that would tell the

religion in Texas.

reasonable observer that it is there for historical purposes. It isn't there for history. What about all the other religions that have played a role in Texas history? The Muhammad Is Texas

religion, even Madeleine Murray O'Hare.

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. that. The County of Allegheny case resolves

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. wars. Most of them honor veterans of particular 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

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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. JUSTICE STEVENS: Mr. Chemerinsky. Thank you.

Thank you,

The case is submitted.

(Whereupon, at 11:07 a.m., the
above-entitled case was submitted.)

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