By Charles Lane
Washington Post Staff Writer
Thursday, March 3, 2005; Page A03

The subject at the Supreme Court yesterday was the Ten Commandments on government property, and Moses was the star of the show.

A stone image of the patriarch, holding a Hebrew-inscribed tablet, occupies a prominent place in the justices' own courtroom, alongside Confucius, John Marshall and others in a frieze dedicated to history's great lawgivers.

As lawyers argued for and against disputed displays of the Decalogue in Texas and Kentucky, they and the justices repeatedly referred to that frieze.

What if, instead of a six-foot stone monument on the state Capitol grounds bearing the words of the Ten Commandments -- beginning with "I am the Lord thy God" -- Texas posted a version such as the one Moses holds in the frieze, in which only the last five are visible, Justice Ruth Bader Ginsburg asked.

"That is still unconstitutional. It would still be the state of Texas expressing the message that there is a God," replied Erwin Chemerinsky, a Duke University law professor representing an opponent of the Texas monument. The court's frieze is constitutional, Chemerinsky said, because it places the Commandments in a secular, historical context.

So does the Texas monument, countered Greg Abbott, the attorney general of Texas. He told the court that it is part of a "parklike" area dotted with monuments to veterans, pioneers and other "historical influences" that have shaped Texas.

The Texas and Kentucky cases, argued separately over two hours, represent the court's first foray since 1980 into an issue that most recently boiled over in 2003 with the failed effort of then-Alabama Chief Justice Roy S. Moore to install a massive stone copy of the Ten Commandments at the state Supreme Court.

Opponents of displaying the Ten Commandments on public property say it amounts to a governmental imposition of monotheism. Proponents say it is often nothing more than a recognition of the role Judeo-Christian norms played in Western Civilization and the founding of the United States.

The court banned the mandatory display of the Commandments in public schools in 1980. Its broader doctrine on publicly sponsored religion permits limited exercises or displays that serve a secular purpose, such as acknowledging the historical role of religion in American life, without "endorsing" particular beliefs.

Accordingly, the court has approved of a prayer to open the session of a state legislature, upheld a city-sponsored Nativity scene alongside other Christmas symbols such as Santa Claus, struck down an invocation at a public high school graduation -- and ducked a controversy over the words "under God" in the Pledge of Allegiance.

But, as yesterday's debate showed, that body of law has grown tangled and difficult to apply.

Matthew D. Staver, representing two rural Kentucky counties that display the Commandments in their courthouses, noted the "historical nature" of those exhibits, which include the Commandments among other documents such as the Magna Carta and the lyrics to the "Star-Spangled Banner."

But David A. Friedman of the American Civil Liberties Union's Kentucky chapter pointed out that the displays had at one time featured only religiously oriented texts, and were changed after the ACLU's lawsuit began. He also said they were posted in response to a resolution by the county legislatures declaring support for Moore and referring to Jesus Christ as "the prince of ethics."

This, Friedman said, showed that the counties' claims of a "secular purpose" for the displays are "a sham."

Friedman was banking on past Supreme Court decisions that have spoken of the need for a "secular purpose" in government-sponsored religious display, but there were indications yesterday that the justices are finding that unworkable.

The Bush administration, which supports Texas and the Kentucky counties, encouraged those doubts. In responses to questions from two justices, David H. Souter and Sandra Day O'Connor, Acting Solicitor General Paul D. Clement urged the court to abandon its efforts to judge the intent behind various religious displays and focus instead on their effects.

"The focus on purpose is not so productive," he said.

Still, in a remark that may have disappointed some administration supporters, Clement conceded that Moore's monument to the Commandments "may well cross the constitutional line."

Justice Antonin Scalia saw a different problem in the court's precedents, noting that they effectively force governments to adopt nonreligious pretexts for what should be unabashed religious displays.

The Commandments, he told Chemerinsky, are "a symbol that government authority comes from God, and that's appropriate." When Chemerinsky objected that "it is a profoundly religious message," Scalia responded: "It is a profoundly religious message, but it's shared by the vast majority of the people. . . . It seems to me the minority has to be tolerant of the majority's view."

Justice Anthony M. Kennedy seemed to agree, chiding Chemerinsky for "an obsessive concern with any expression of religion."

Several times, Justice John Paul Stevens asked attorneys for the various parties whether the Texas issue could not be settled by simply selling the land under the monument to a private group and erecting a sign declaring that the state did not intend to endorse religion.

"That's bending too far in the other direction," Clement said.

"It's so hard to draw that line," O'Connor observed, possibly speaking for many on the court and in the audience.

The cases are Van Orden v. Perry, No. 03-1500, and McCreary County v. ACLU of Kentucky, No. 03-1693. Decisions are expected by July.