The first task given to Erwin Chemerinsky, the plaintiff's lawyer, is to distinguish a Ten Commandments monument from a prayer given before a legislative session (which the Court has held does not violate the Establishment Clause).
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. This proclaims that there is a God. It proclaims --
JUSTICE KENNEDY: Well, I mean, I haven't read the prayer. 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. Requiring observing of the sabbath. This is God dictating to God's follower's rules for behavior.
What if I read those legislative prayers and find something more religious than the Ten Commandments? Does that mean you lose? Justice Breyer cleverly inquires. Of course, Chemerinsky says no: another difference is that legislative prayers go back to the earliest days, and there is no similar tradition for Ten Commandments monuments.
Justice O'Connor asks about the placement of a monument in something like a museum setting. Clearly you would want to permit a government-owned museum to display religious paintings, and the Ten Commandments monument in this case is in a "park-like" setting on the grounds of the Texas Capitol. The problem with the monument, Chemerinsky argues, is that it's the only religious monument in the area.
Much of the argument is about government's freedom to express religious beliefs. Justice Kennedy takes the lead, worrying about an "obsessive" or "hostile" ferreting out of all religious expression. Then Justice Breyer breaks in to say that he thinks government should be "noninvolved with the religions":
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 throughout the land. All of those are religious. 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?
Despite Breyer's uneasiness about the linedrawing in the case law, Chemerinsky argues that doctrine works well enough. Chemerinsky sticks to his position that you need only apply the existing doctrine, make the appropriate distinctions, and this display will fall on the unconstitutional side of the line.
Texas Attorney General Greg Abbott is questioned by Justice Stevens: what if there were just a crucifix on the state capitol grounds? Abbot concedes that would be different: the Ten Commandments express a message about the origin of law. Justice O'Connor slams him with the fact that district court found that the legislature did not have this as a purpose for erecting the monument. Justice Kennedy complains: "You're asking us to ignore the religious purpose that is the most manifest value of these symbols."
Reading the whole transcript, I got the impression at that the Justices were leaning toward a reconfiguration of the doctrine, permitting the majority to express its religious beliefs through government. It seemed to frustrate the Justices that the lawyers hewed close to the existing doctrine and restricted themselves to making careful efforts to characterize the details of this particular case. It will be interesting to see if the Court says anything distinctively new that reaches beyond the particular facts surrounding the Texas monument.
UPDATE: I have yet to read the transcript in the companion case (McCreary) that involves a copy of the Ten Commandments displayed in a courthouse and along with other documents. Maybe later!