JAY SEKULOW LIVE! 03.02.05 Gene: The Supreme Court hears oral arguments on the Ten Commandments cases. Welcome everyone. You re listening to JAY SEKULOW LIVE! This is Gene Kapp in the studio. Jay Sekulow will be joining us live from the steps of the Supreme Court in just a moment as oral arguments wrap up. Joining me now, though, from Washington, DC, is ACLJ Senior Counsel Stuart Roth, who was inside the Court this morning for the first of the two arguments. Stuart, the Justices heard about the case involving the display of a Fraternal Order of Eagles monument at the Texas state capital first, how did that argument go? Stuart: Well, Gene, this was the case that perhaps we thought would be the more difficult one. We had a Ten Commandments statute, so to speak, standing in the courtyard of the courthouse. We thought because physically it was isolated from a lot of other texts that we may have a problem with this case, but the argument went unbelievably well. In fact, Justice Breyer, who we usually don t have on our side and I think our listeners understand that, made some really key statements. He said we must make practical decisions on case-by-case basis in cases like this because we are a Nation that believes in God. He looks at the divisive nature of this display, and he said he s found no divisiveness here. Now for Justice Breyer, that was a surprise. Gene: Wow! Stuart: I was sitting right next to Jay, and we were really very encouraged by those comments. Gene: You and Jay were both in the Court. Jay will be joining us in just a moment by cell phone from the steps of the Supreme Court; but Stuart, how intense was the questioning from the Justices? Stuart: Well, in this first case, it was very intense. Of course, you have individual Justices, who we understand have concerns about these types of displays, such as Justices Souter and Ginsburg, but Justice Scalia was very, very strong. In fact, he said it s not sectarian just because it involves a unitary God; and he recognized that the Ten Commandments were religious, but it did not violate the Establishment Clause. He made some very strong statements, and Justice Kennedy, who is oftentimes a swing vote, said of the side that s in opposition to the display, You are saying that the state cannot accommodate religion, you re asking too much. So those are revealing comments by both Justices Breyer and Kennedy, which I think is very encouraging. Gene: This whole issue boils down to whether or not people believe the public display of the Ten Commandments is constitutional. This morning on MSNBC, Jay sat down with Barry Lynn of Americans United For the Separation of Church and State and they debated the issue this morning before the argument. Let s listen to a clip: Page 1 of 10
Well, two reasons. Number one, I think universally, the Ten Commandments are recognized as a universal symbol of law. They are displayed in courthouses, not just in Texas, but almost in all 50 states. So I think it is put there for a particular reason, and that is to show a symbol of law. I think also the Court, in this particular series of cases, these two cases, the Court has granted review on the question which you just asked, and that is whether these tests, these religious tests, the reasonable observer, is really a valid test when it comes to displays and symbols. I think the Court is going to get into that quite a bit today. Barry: Jay, you got to get serious about this. Of course, this is not some kind of a general representation in Texas when it was put there in the 1960s or when a person down in Kentucky, a county executive, put it on the wall in the year 2000. This is not some kind of generalized carving about religious history; this is an effort by the so-called religious right to promote religion in public squares. Barry, arguing that this was the religious right; you need to get your history correct. The Fraternal Order of Eagles, far from an organization of the religious right, put those monuments and thousands like them in the Texas courthouse area, in the Texas capital grounds, placed there by the Fraternal Order of Eagles. It s not an organization affiliated with religious right. And this isn t a posting of the Sermon on the Mount here; we re talking about the Ten Commandments--a sacred text within the Jewish tradition and within the Christian tradition as well. Gene: That exchange this morning on MSNBC TV between Jay Sekulow and Barry Lynn of Americans United For the Separation of Church and State. Stuart s in the studio with us. We are waiting for Jay Sekulow to join us live via cell phone from the steps of the Supreme Court. Stuart, as we head into a break here, how do you think this is going to turn out? Stuart: Well, I think it s going to turn out very well. In listening to that exchange between Jay and Barry Lynn (and I was there this morning), it reminds me of something Justice Kennedy said this morning. He said the obsessive concern with religion indicates hostility. Barry Lynn really exemplifies that because some individuals and organizations have this obsessive Gene: Hold on Stuart we ll have much more when we come back from the break. [Ten Commandments Brief Offer Spot] Gene: This is involving the public display of the Ten Commandments. Stuart, you were in the Court for the first argument, the case out of Texas, the display involving the Fraternal Order of Eagles monument. You were talking before the break about some of the interesting line of questioning from the Justices. Page 2 of 10
Stuart: Yes, especially Justice Kennedy and Justice Breyer. As I was saying before the break, Gene, Justice Kennedy put his head in his hand like he often does and was kind of shaking his head, and he said, you know this obsessive concern with religion indicates hostility of course, they were talking to really the attorneys who basically wanted to take the Commandments down. That s what really we feel he was protecting to the Court to all of us sitting there that this is, once again, just an obsessive compulsive --- of some individuals and groups who work to purge acknowledgement of God and longstanding traditions from the public specter. Gene: Stuart, when you look at the situation and the arguments that took place in Court today, the dynamics were a bit different. There was an empty chair there. Chief Justice Rehnquist was not present today. He s still working from his home recovering from cancer; but how did that play out today? Stuart: Well, it always sad to go to the Court and look straight ahead and not see the man who basically has been there leading the Court for so many years, whom you respect and who is a great man and basically is very sympathetic to our side on a lot of these cases involving the Establishment Clause and the Ten Commandments. So, the dynamic is that the other Justices really have to pick up the pace. We had a lot of debate between Justices Scalia and Kennedy and Breyer that was very favorable to us. Justice O Connor was fairly quiet; we re not exactly sure where she is. She asked a couple of questions, but the questions, Gene, were not revealing. Then we have Justices Souter and Ginsburg who I think are settling into probably siding with taking down the display. But really those were the only two dissenting voices we heard during the first case. Gene: Okay, let s take a closer look at Justice O Connor, because as we ve talked about many times on this broadcast, Stuart, she is considered to be a swing vote on this issue and many others. You said her line of questioning today did not necessarily reflect where she stood on the issue, is that true? Stuart: Absolutely. Sometimes Justice O Connor is very quiet and you have to wonder where she is. Now if she is with Justice Kennedy, we re in real good shape because Justice Kennedy could ---- that this display, in this case the monument in Texas, was constitutional. And Justice Breyer talk about a pleasant surprise, Gene, and for those who just joined us, he said that he looks at these cases on a case-by-case basis and he looks at the divisive nature of the display. He said, in this case, he saw no divisiveness. Now that s Justice Breyer-- Gene: Wow. Stuart: That s a pretty encouraging sign from the Court this morning. Gene: Hey, Stuart, we just got word that Jay is joining us now on a cell phone live from the steps of the Supreme Court. How did it go, Jay? Page 3 of 10
Well, it literally just finished. I think it s very clear that the Court is not inclined to remove the Ten Commandments. Now I say that, there was some concern expressed at the end of the second case the case out of Kentucky with regard to the display that was in the Kentucky courthouse and some of the statements that were made by legislators. But I will tell you this, I would be absolutely stunned if the Court were to issue a decision which in some way would eviscerate or remove the posting of Ten Commandments displays in the historical context. I think the Court was very clear. I just heard what Stuart said, and Justice Breyer is the one who said he just doesn t see the divisiveness of this. Justice Kennedy said let s not go outside the record in these cases, so I think that Mat Staver did a very good job. The Attorney General of Texas, Greg Abbott, did a great job. We had the privilege of helping them both, and they did a really great job. I m very optimistic on how these are going to come out. Gene: Jay, I want to get your impression. What was the atmosphere like with the absence of the Chief Justice Rehnquist? Very different. The argument was just--in fact, in the second case, Stuart had to go to get into the studio, but for the first 20 minutes, Stuart, of the argument, of the lawyer representing the ACLU in Kentucky, there were no questions, which was very interesting. There finally were a few towards the end. But I think at the end of the day, here, what you have here is a Court that just--the questioning was not as tense, certainly, even a year or two ago; but there were a lot of questions given, and I think the lawyers did a very good job. Gene: Jay, when you look at the arguments today, and we were just talking before you joined us on the phone that Justice O Connor questioned, but it was difficult to tell where she stood on the issue based on her questions. Do you concur? Well, in the first case. I think she was pretty clearly in favor of the historic display of these monuments. She had some concerns at the end of the second case with regard to the specific, some resolutions that were put into play here by some of the legislators; but I think overall, she is not going to order the sandblasting and removal of Ten Commandments monuments. Gene: Stuart, what do you think about how this might play out in terms of listening to what Jay said here in terms of how the questioning emanated from the Justices? What are your thoughts? Stuart: I think it was hotly debated in lieu of the fact that Chief Justice Rehnquist was not there. Other Justices picked up the pace; and, as I said about the first case that I sat through, Justices Breyer and Kennedy were really vigorously questioning, in addition to Justice Scalia. One of the things Justice Kennedy said that is so important was that if you are saying that the state cannot accommodate religion, you re asking too much. That was addressed to the individuals who were advocating taking down the monument in front of Page 4 of 10
the courthouse. Justice Kennedy and Justice O Connor, they say, often go step in step, so that would be a good sign in addition to Jay s take on Justice O Connor. Gene: Jay, I want to ask you this. Did it come up during oral argument at all today about the frieze inside the Supreme Court? Yes, in all the arguments, in both cases it came up frequently. There were more references to Moses and the Ten Commandments today in the Supreme Court than probably in its history. It was overwhelming in that regard. So, it was very significant. But there was something else that was important. In the brief we submitted to the Court, we had photographed some various Ten Commandments displays in courthouses and government buildings throughout the country, and I will tell you something that was very, very helpful. Another thing, and I don t know if Stuart mentioned it, we closed our brief with a quote from Justice Goldberg. That quote, exactly verbatim, was used by Justice Breyer extensively in both cases. Stuart, it came up again at the end of the second case; so I think that was very, very helpful. Stuart: He said basically that we were nation that believes in God, and we are. So while Justice Scalia really hit the nail on the head when he said although the majority has to be tolerant of the minority, in this country, the minority also has to be tolerant of the majority. That was a good interchange, actually, and I think a very helpful interchange. I think the fact that Justice Goldberg in the school prayer cases made the statement in reference about the fact that religion played such a significant role in the development of western thought and legal process, I think that bodes very well for us at the end of the day here, so I m optimistic. I would be stunned if in these opinions there is the order of removal of the Ten Commandments monuments generally; I just don t see that development. Gene: Jay, here s the quote I m reading from the conclusion of our brief on Page 26. If you get your collectors edition copy of our brief today free of charge, you ll see exactly what an important quote this is. Justice Goldberg in the 1963 case said, Neither government nor this Court can or should ignore the significance of the fact that many of our legal, political and personal values derive historically from religious teachings. Very important, Jay, correct? It was indeed, and I think at the end of the day, that s probably what s going to carry it. I think the Court in the Texas case, it was pretty clear that the Court is going to uphold the display as constitutional. In the Kentucky case, what seemed to trouble the Court was the what s called the taint and that was some of the previous displays and some statements; but I don t know if even if the opinion in that particular case comes out, I m not expecting a general removal of these Foundations of Law displays. I think we re in great shape. Gene: Jay, did all of the Justices present participate in the questioning? Page 5 of 10
Justice Thomas did not. The first hour of the case was very active. The second hour started off with medium questioning. When the lawyer for the ACLU of Kentucky came up, it was almost as if the case stopped. It was literally. I looked at my watch and it was 17 minutes until the first question was asked. Part of that was they had been sitting for almost two hours, so that s what happens in those cases, but it sort of picked up a little bit at the end. So, a lot there. Hey, guys, I have to get off for a second, but I ll call you back in a few minutes and try to get in the next segment of the program. Gene: Sounds great, Jay. JAY SEKULOW LIVE! live from the steps of the Supreme Court of the United States where oral arguments have just concluded in two very important cases involving the public display of the Ten Commandments. Stuart, we re going to head into a break shortly and, hopefully, Jay will be able to rejoin us by cell phone on the other side of the break; but I want to ask you this question, Stuart. When you look at the two different cases one out of Texas and one out of Kentucky with two different sets of facts will the Supreme Court come somewhere down in between or are they going to be able to put some legal ground forward here that will be sufficient in both cases. Stuart: Gene, the jurisprudence in this area is so confusing it even confuses the Justices, so I think both cases. I was really glad to hear Jay s take on the second case. I think both cases we can definitely win. I think we are going to win on the same grounds that the context of the display of the Ten Commandments in both of these cases is a context that is constitutional in that it does not present an endorsement of religion, as our Founding Fathers intended. Gene: At the American Center for Law and Justice, we are on the front lines of these Ten Commandments cases. You can check out more online at our website, www.aclj.org. A reminder too: This is the final day to get your free collectors edition copy of our brief filed at the Supreme Court of the United States in support of the Ten Commandments. This will make a tremendous resource for your home library. Get your free copy of our brief, full of information, easy to read, easy to understand, along with fantastic pictures of the Ten Commandments on display in courthouses across America. All you have to do is pick up the phone right now and call toll-free 1.877.989.2255. [Ten Commandments Brief Offer Spot; ACLJ This Week Spot] Gene: You re listening to JAY SEKULOW LIVE! Welcome back to the broadcast, everyone. Gene Kapp along with Jay Sekulow, Chief Counsel of the American Center for Law and Justice. If you re just joining us, oral arguments have now concluded at the Supreme Court of the United States in Washington, DC, involving the two cases involving the public display of the Ten Commandments. Jay Sekulow is on the steps of the Supreme Court to reconnect shortly with us by cell phone. Joining us live in the studio is Senior Counsel Stuart Roth, who was inside the Court today for one of those two arguments. Stuart, what I thought was interesting from Jay s comments in the previous segment was that he seems pretty optimistic based on the arguments in both the Kentucky and the Page 6 of 10
Texas cases that the Supreme Court will be looking for a way to find these public displays of the Ten Commandments constitutional. Stuart: Gene, we were pleasantly surprised because sometimes at the beginning of these cases, you can really get a sense for which way it s going to go. We ve been on both ends of these cases the winning side and the losing side so there are a lot of people who gathered before we went into Court Jay, myself and other attorneys who are involved in this practice, and attorneys from the Justice Department and we were all waiting to see what the initial dialogue was going to be between the Court, and it was positive. Until I left half way through the second case, it was positive. I think they realize that the Ten Commandments, although their origin is religious, are about values. In America, it s about values and it does not endorse a specific religion. Gene: Tremendous media attention to this story, no question about it; also, a lot of public attention. Stuart, you were telling me during the break that there was a line forming outside the Supreme Court this morning early, a public line for people to wait to get a seat to see this argument, correct? Stuart: Gene, there was a lot of excitement. It was a standing-room-only type of crowd; it was very cold in Washington today with a biting wind. One student I spoke to spent the night outside in the cold trying to get a seat and, fortunately, she got in. There is a lot of interest in this case because the Ten Commandments, let s face it, is a very big issue. It s a very important issue for many people in this country, and it s a symbol of this country s morals and values. Gene: You look at the latest Associated Press news poll out there saying 76% of Americans say the Ten Commandments displays ought to be allowed, Stuart. That s not surprising to you, is it? Stuart: No, it s not surprising because I think most people look at the Ten Commandments as something that is important to the values and morals of this nation. Most people don t look at it as endorsing Christianity or Judaism or any specific denomination or sect. They look at it for the general purpose that the country was founded on these principles, and these principles have value and are very worthwhile to American society. Gene: We want to give folks a programming note too. Obviously, we re talking about this issue on the broadcast today. Jay will be joining us, hopefully, again via cell phone live from the steps of the Supreme Court of the United States. Jay will be doing a lot of media this afternoon and evening, Stuart. We have him plugged into CNN Crossfire that will be on this afternoon. He will do the O Reilly Factor tonight on FOX News as well with the topic, of course, being the Ten Commandments. Right now, I suspect he s probably being peppered by a number of reporters on the steps of the Supreme Court getting his take on how things went. What do you think, Stuart? Page 7 of 10
Stuart: Absolutely. To all our listeners and members, I encourage them to catch Jay today on TV. He ll be on all the programs Gene stated, and they ll be listed on our website. It s important because Jay has a unique perspective on these cases. He s argued twelve cases in front of the Supreme Court of the United States, so I don t think there s anybody better to speak about these issues and give his take on what s happening today. Gene: Jay s joining us live by cell phone now from the steps of the Supreme Court. Jay, what can you tell us? I think the general consensus here is that at the end of the day, the Ten Commandments monuments aren t being removed. The only question is in the Kentucky case whether the resolution that was passed had anything to do with it at the end of the day. Is that going to play enough of a factor. But in the Texas case, the Fraternal Order of Eagles monuments, they are not ordering those removed. I didn t see any sympathy for that. The Kentucky case was closer, but at the end of the day, even if they were to say this particular monument had too many problems because of some history, they re not going to order the general removal of Foundations of Law displays. Gene: Jay, did the argument surface at all, and I m sure it did, but how did the Justices respond to the argument that these Ten Commandments monuments and displays really endorsed a specific religion? Of course, that was the big subject of the discussion and a big part of the argument, but I think there was the clear distinction that these are religious texts no one could deny that; it s ridiculous. I mean, Justice Scalia made that point, and that s right. But to also deny that they have a secular impact is also ridiculous. They have. They have had an impact on the development of law since the Common Law really since King Alfred. The idea that you would remove this as irrelevant, I think misses history. So, at the end of the day, I think we carried the day. We ll find out soon enough in 90 days. One thing good about arguing a case in March, by the end of June, the decisions are out. Gene: At the beginning of the broadcast, we played a clip of an exchange between you and Barry Lynn this morning on MSNBC TV that was aired over the Ten Commandments issue. Stuart and I were talking about the many media opportunities you have today. There are going to be a lot. Let me say one thing that a friend of mine just mentioned and it s very relevant here. Justice Stevens, a little bit different than earlier in the year when the Chief was out and he said that the Chief would be participating in the cases; today he said that the Chief reserves the right to participate. Now, they are going to vote today or Friday. The Chief has to be sitting at the time the opinion is actually rendered, though; so it s not just the vote today. There are a lot of other dynamics that play in all of this. Gene: Jay, he s an important vote for the constitutionality of the Ten Commandments. Page 8 of 10
He s a vote that we need and a vote that we would have. He s been very clear on this position before both in Stone v. Graham and in the dissent from denial of review in Elkhart, so I feel pretty good there. Gene: Jay, I know you re swamped there with reporters, I want to ask you before you have to leave, what s the sense from the media pool that you ve been able to gather? Did they come away with the same impression you did? I ve spoken to some of my friends in the media; I haven t spoken to all. I will find out soon. I think the general consensus is that Nina: You re right. Nina Totenberg just said I was right, so I ll take that as-- In Texas, we carry the day; Kentucky is going to be a little bit dicier; but I don t think even in that case they re going to order the removal every time under every circumstance. We ll find out soon enough. I ve gotta go. Gene: Thanks for being with us! Jay, joining us live from the steps of the Supreme Court of the United States. Stuart, when you look at this issue and the importance of this issue, and we need to put it in perspective here because these two cases were argued, but there are a myriad of cases now pending at various court levels. We have two pending before the Supreme Court of the United States. There are a host of others at various court systems throughout the country. There is a lot riding on the outcome of these decisions. Stuart: Absolutely! One of the things that you pointed out and read from Page 26 of our brief from Justice Goldberg that [CINDY--QUOTE?] neither government nor this Court can or should ignore the significance or the fact that many of our legal, political and personal values derived historically from religious teachings. That was from a 1963 case. What is really nice about that, Gene, is that we heard Justice Breyer endorsing that principal. So, that is excellent in terms of jurisprudence going forward on these issues for our outstanding litigation on the Ten Commandments and for the cases that were argued today. I think that s very important. That quote really sums it all up. There is an importance there. Gene: Yes, Stuart, we never tried to get a vote count and predict how the Justices will vote specifically before they cast their vote and make it public, but you get a sense and in talking with Jay and listening to what he had to say that at the end of the day, there should be some language here there should be an opinion or a decision that clears the way for a constitutional display of the Ten Commandments. What do you think? Stuart: Gene, there s no doubt about it. I think the first case is definitely a winner. The second case, which I left half-way through, I know exactly what Jay s thinking but I think there s going to be enough language in there regardless of which way it goes that basically the Court will give us a road map on how to basically display the Ten Commandments in a Page 9 of 10
constitutional manner, such as that was attempted in Kentucky. The Texas case looks very good; and I really think the Kentucky case is going to end up being very, very productive. Gene: There you have it! Big developments today at the Supreme Court of the United States where oral arguments took place on two cases: one out of Texas, one out of Kentucky involving the public display of the Ten Commandments. Stuart Roth, Senior Counsel of the ACLJ, thanks so much for being with us today. Stuart: It was great being with you, Gene. Gene: Jay Sekulow, of course, joined us a couple of times live from the steps of the Supreme Court. He will be back in the studio tomorrow. Look forward to more of his insight and analysis on the Ten Commandments issue. Also, tomorrow, a very important update on the case involving Terri Schiavo and her life and death struggle in the State of Florida. As we leave you today, one final reminder: If you have not yet requested your free collectors edition copy of our brief filed at the Supreme Court of the United States in support of the Ten Commandments, you need to do so. All you have to do is pick up the phone right now and call toll-free 1.877.989.2255. That will do it for our broadcast today. Thank you so much for being with us. We will talk to you next time on JAY SEKULOW LIVE! Page 10 of 10