Ten Commandments marker to stay in Phoenix
By Howard Fischer
CAPITOL MEDIA SERVICES
Arizona Daily Star, AZ
June 28 2005
PHOENIX – A 6-foot-tall monument of the Ten Commandments will remain
in a public park across from the Arizona state Capitol.
The decision Monday by Tim Nelson, chief legal adviser to Gov. Janet
Napolitano, followed a ruling earlier in the day by the U.S. Supreme
Court allowing a virtually identical monument to remain on the grounds
of the state Capitol in Texas.
The high court said in a 5-4 ruling that such monuments are simply
“acknowledgements of the role played by the Ten Commandments in our
nation’s heritage.” Taking that side were William Rehnquist, Antonin
Scalia, Anthony Kennedy, Clarence Thomas and Stephen Breyer.
“Our situation is very analogous to the case in Texas,” said Nelson.
“The monument here does not constitute the establishment of a religion
by the state.”
The American Civil Liberties Union of Arizona mounted a challenge
two years ago, trying to force removal of the monument in Phoenix.
Eleanor Eisenberg, the group’s director, said she has not yet studied
Monday’s high court ruling but that it appears to undermine the
ACLU’s quest.
That ruling actually was one of two issued Monday by the court on
the Ten Commandments and the separation of church and state.
In a separate 5-4 decision, the court said Ten Commandments displays in
two Kentucky courthouses had to go because they promoted a religious
message. On that side were Justices David Souter, John Paul Stevens,
Sandra Day O’Connor, Ruth Bader Ginsburg and Breyer.
But the justices – who have a frieze of Moses holding the Commandments
on the wall of their own courtroom – said these questions need to be
decided case by case.
Souter, who wrote the majority decision in the Kentucky case, said
the First Amendment “mandates government neutrality between religion
and religion, and between religion and non-religion.” He said the
Kentucky displays fell on the side of the line where government was
advancing religion.
By contrast, Chief Justice Rehnquist, who wrote the majority decision
in the Texas case, said the display there – and in Arizona – is
different. The court also noted the Texas display is one of 21
historical markers and 17 monuments.
“Texas has treated her Capitol grounds monuments as representing the
several strands in the state’s political and legal history,” Rehnquist
wrote. “The inclusion of the Ten Commandments monument in this group
has a dual significance, partaking of both religion and government.”
That’s exactly the situation in Phoenix, where the monument, located
in Wesley Bolin Park, stands with various others. These include one
to Armenians who the display says were martyred in Turkey early in
the last century, and another to Jewish war veterans.
Stevens, in his dissent in the Texas case, said his colleagues are
ignoring both the wording on the monuments and how they ended up
placed at various state capitols.
He said the first Commandment, larger than the others, says “I AM the
LORD thy God” in letters larger than the rest on the Texas monument.
The same language and typefaces exist on the Arizona monument.
“It commands present worship of Him and no other deity,” Stevens
wrote. “It directs us to be guided by His teaching in the current
and future conduct of all of our affairs.”
Stevens also noted that all the monuments were produced by the
Fraternal Order of Eagles in conjunction with Cecil B. DeMille,
who at the time was producing his movie “The Ten Commandments.”
The two rulings drew mixed reaction from the Center for Arizona Policy,
which had filed its own brief in January urging the high court to
let the Phoenix monument remain.
Peter Gentala, the organization’s legal counsel, said he was pleased
with that ruling. But Gentala said the Kentucky decision continues
the situation where courts will have to divine whether such displays
are designed to promote religion rather than simply acknowledge the
Ten Commandments as a part of national heritage.
Gentala’s legal brief was supported by a spectrum of politicians,
including Democrat Napolitano, Republican Secretary of State Jan
Brewer and 38 of Arizona’s 90 legislators.
Monday’s rulings were the court’s first major statement on the Ten
Commandments since 1980, when the justices barred their display in
public schools.
Legal experts said the rulings will bring additional litigation as
displays are challenged by both sides case by case.
Thousands of Ten Commandment displays around the nation will be
validated if their primary purpose is to honor the nation’s legal,
rather than religious, traditions, legal experts said. Location also
will be considered, with wide-open lots more acceptable than schools.
“What the rulings say is when a government overtly endorses a
particular religious viewpoint of tradition, it’s unconstitutional,”
said Marci Hamilton, a church-state expert at Cardozo School of Law.
“Displays are OK if you don’t have an in-your-face declaration that
the government stands behind Christian tradition.”