Justice David H. Souter asked whether a tablet containing only the last five commandments, the injunctions against killing, stealing and so on, might be constitutional because, unlike the first five, they did not necessarily imply religious belief.
That would be a harder case, Mr. Chemerinsky replied, but such a tablet would still be unconstitutional because it would still convey the Ten Commandments' message.
What about a "piece of stone" simply carved with the various "thou shalt nots," Justice Souter asked.
That would be acceptable as a "reflection of law" rather than religion, Mr. Chemerinsky replied.
"Who are you kidding?" Justice Scalia broke in, adding that "everyone knows" that the reference would be to the Ten Commandments.
"Context matters enormously," Mr. Chemerinsky said.
Greg Abbott, the Texas attorney general, described the Ten Commandments as a "recognized symbol of law" and defended the state's display as having the secular purpose of "recognizing historic influences" on the legal system.
The attorney general's argument distressed Justice Scalia. "You're watering it down to say the only message is a secular message," the justice said. "I can't agree with you. 'Our laws come from God.' If you don't believe it sends that message, you're kidding yourself."
Later, Justice Scalia told Mr. Abbott: "I would consider it a Pyrrhic victory for you to win on the grounds you're arguing."
MSNBC highlights Justice Kennedy's role:
[Justice] Kennedy rebuffed arguments presented by Erwin Chemerinsky, who was presenting the case for Thomas Van Orden, the plaintiff seeking to ban the Texas display.
The justice suggested that for the courts to tell a state that it could not allow the Ten Commandments on state land would wrongly cater to “an obsessive concern with references to religion.” He said that banning displays of the Ten Commandments on state property might “show hostility to religion.”
Kennedy chided Chemerinsky, saying, “I think you’re telling us the state can not accommodate religion,” adding that the plaintiff was essentially “asking religious people to surrender their beliefs.”
And Justice O'Connor? She does tend to be the deciding vote in these cases. CNN.com has quotes her:
"If legislatures open their sessions, that the public can attend, with a prayer, why can't it allow monuments? It's so hard to draw that line."
Why, yes, it is -- especially when you analyze the Establishment Clause looking at a multitude of factors, judging things based on the whole context. But that has been the way of Justice O'Connor. Could it be that she's frustrated by her own efforts at finding a middle way?