Court splits on Commandments

The fate of Fargo's Ten Commandments monument is still unknown after the U.S. Supreme Court on Monday sent mixed messages over displays in Texas and Kentucky.

The high court ruled the framed Ten Commandments displays in two Kentucky county courthouses were unconstitutional, while a monument on Texas Capitol grounds was deemed acceptable. Both were decided on a 5-4 vote.

Justices said the constitutionality of a display depends on whether there was a religious purpose behind it.

Representatives on both sides of the lawsuit to remove Fargo's Ten Commandments monument said Monday the rulings may strengthen their cases, though for different reasons.

The Fargo Ten Commandments monument is identical to the one in Texas. Both were donated by the Fraternal Order of Eagles.

The fact that the Supreme Court said the structure was displayed legally gives hope that Fargo's monument also will be allowed to stay outside City Hall, said Fargo Assistant City Attorney Patty Roscoe.

Roscoe said the Fargo monument, like the one in Texas, has historical significance. The granite structure was intended to commemorate downtown's urban renewal, she said.

The difference between the Texas and Fargo monuments is that the Texas Capitol contains 17 monuments and 21 historical markers.

Fargo's monument stands alone. Roscoe said to her knowledge, no one has requested to place another monument there.

Still, the fact that nothing surrounds the Fargo display bolsters the argument that it has a religious purpose, said Margaret Moore Jackson, assistant law professor at the University of North Dakota law school.

Moore Jackson oversees the Civil Rights Project of the UND Clinical Education Program, which represents the Fargo plaintiffs.

Unlike Roscoe, she believes more parallels can be drawn to the Kentucky case.

Initially, the Ten Commandments hung alone in the Kentucky courthouses. Officials later added government documents to the display. But Monday's opinion said the original religious purpose behind the display was enough for it to be found unconstitutional.

Moore Jackson claimed Fargo city officials endorsed religion when they placed the monument on public land by itself.

The Fargo lawsuit was filed against the city in 2002 by five Fargo men - Wesley Twombley, Davis Cope, Lewis Lubka, William Truemann and former Fargo Mayor Jon Lindgren.

U.S. District Court Judge Ralph Erickson heard arguments in March and took the matter under advisement. He said Monday he would look at the Supreme Court rulings, but couldn't say when he will decide.

John Helgeland, a North Dakota State University religion professor, said the Supreme Court's diverged rulings don't make a lot of sense. While there may be a particular intent when a monument is installed, the meaning attached to it will change with time, he said.

"Intentions are pretty slippery things," Helgeland said. "You don't read a person's intention on the monument. What you see in the monument is that the city of Fargo supports the Ten Commandments because that's on the city's property."

But Helgeland thinks the Texas ruling might protect Fargo's Ten Commandments display. The monoliths in Fargo and in Austin, Texas, were distributed across the country to promote Cecil B. DeMille's movie "The Ten Commandments," he said.

The debate over Ten Commandments displays is part of an ongoing religious culture war in America, between the religious right and those championing a division between government and religion, Helgeland said.

Several local clergy were pleased the justices affirmed a display on public property, but were discouraged by the divided opinion.

"They were talking about what is the context for placing the Ten Commandments, what is the purpose. That seems to be awfully subjective," said the Rev. Chuck Traylor, executive presbyter of the Northern Plains Presbytery of the Presbyterian Church.

Separating the religious significance of the Ten Commandments from its historical importance would be nearly impossible, Traylor said.

The Rev. Gregory Schlesselmann, vicar general of the Diocese of Fargo, said the Ten Commandments are "ethical norms that every human does well to abide by." He cited, for example, "Thou shall not kill."

Their value as guiding principles and their role in the country's heritage are reasons public displays should be allowed, he said.

"We obviously cannot have a civilized society if some people consider it wrong to murder and some people consider it OK," Schlesselmann said.

A Ten Commandments monument also is on display in Moorhead outside the Clay County Courthouse, though it has not been legally challenged.

The Supreme Court said the key to whether a display is constitutional hinges on whether there is a religious purpose behind it. But the justices acknowledged that question would often be controversial.

"The divisiveness of religion in current public life is inescapable," wrote Justice David H. Souter.

He said it was important to understand the Constitution's Establishment Clause, which requires the government to stay neutral on religious belief. Questions of such belief, he said are "reserved for the conscience of the individual."

In both cases, Breyer voted with the majority. In the Kentucky case barring the courthouse displays, that left him with the court's more liberal bloc, where he normally votes. In the Texas case, he wound up making a majority with the more conservative justices.

Justice Sandra Day O'Connor, often a swing vote, joined the liberals in both decisions.

In sharply worded opinions, Justice Antonin Scalia said a "dictatorship of a shifting Supreme Court majority" was denying the Ten Commandments' religious meaning. Religion is part of America's traditions, from a president's invocation of "God bless America" in speeches to the national motto "In God we trust," he wrote.

"Nothing stands behind the court's assertion that governmental affirmation of the society's belief in God is unconstitutional except the court's own say-so," Scalia wrote.

Readers can reach Forum reporter Mary Jo Almquist at (701) 241-5531 and Sherri Richards at (701) 241-5525 The Associated Press contributed to this article