WASHINGTON -- Greg Abbott, the attorney general of Texas, probably wasn't surprised last week when a justice of the U.S. Supreme Court scoffed at his argument that a 6-foot-high Ten Commandments monument on the state Capitol grounds reflected the Decalogue's "important secular impact on our law and culture."

		Michael McGough is an editor at large in the PG's National Bureau (mmcgough@ nationalpress.com).

What might have surprised him was the identity of the scoffer: Justice Antonin Scalia, considered a sure vote to uphold the constitutionality of the Texas monument and Ten Commandment displays in two Kentucky courthouses.

"It's not a secular message," an exasperated Scalia told Abbott, adding, "I mean, if you're watering it down to say that the only reason it's OK is it sends nothing but a secular message, I can't agree with you. I think the message it sends is that law [and] our institutions come from God. And if you don't think it conveys that message, I just think you're kidding yourself."

Scalia continued to channel the little boy who said the emperor had no clothes when he questioned David A. Friedman of the Kentucky American Civil Liberties Union about the third version of a Ten Commandments display in courthouses in Pulaski and McCreary counties, one that surrounded the Decalogue with other "foundations of American law" like the Declaration of Independence, the Magna Carta and the Bill of Rights.

Scalia mocked the notion that the Ten Commandments were a first draft of the Declaration of Independence. "If that's what it means, it's idiotic. I don't think anybody is going to interpret it that way. You can't get the Declaration of Independence out of the Ten Commandments."

So what is the message behind displays of the Ten Commandments in courthouses and at state Capitols? For Scalia, the answer was as obvious as the emperor's nakedness. The officials who put up the displays were saying that "these basic principles that we're governed by come from God."

Scalia isn't unique in that interpretation. Last year, as the court was considering the constitutionality of schoolchildren pledging allegiance to "one nation under God" (a decision it eventually avoided on prodedural grounds), the Christian Legal Society submitted a brief stating: "Considered in its context, the phrase 'under God' in the Pledge of Allegiance represents not an endorsement of monotheism, but rather a proposition from the Declaration of Independence that is both theological and political, namely, that all individuals are endowed by their Creator with certain inalienable rights."

Scalia would find that connection uncontroversial, even if it offended atheists or Hindus. "We're a tolerant society religiously," he said during the Texas argument, "but just as the majority has to be tolerant of minority views in matters of religion, it seems to me the minority has to be tolerant of the majority's ability to express its belief that government comes from God, which is what this is about."

That would be too much, however, for Sandra Day O'Connor, the likely swing vote in these cases who has said in previous cases that government must not endorse religion in a way that makes nonbelievers feel like "political outsiders." But O'Connor might approve the Ten Commandments displays under what might be called the "grandfather clause" approach to the First Amendment. This approach served as the basis for a 1983 decision upholding the constitutionality of paid chaplains for state legislatures, a practice, the court noted, that was accepted by "the men who wrote the First Amendment religion clauses."

Of course, there is another approach to testing the constitutionality of such displays: the strict separation favored by the more liberal members of the court such as Justice David H. Souter, who rejected the notion that the Texas monument could be sanitized by being included in a grab bag of other monuments on the Capitol grounds. Ironically, the Souter and Scalia approaches converge in the sense that both resist the notion that what Souter called "litigation dressing" can obscure a fundamentally religious message.

But if Scalia and Souter deserve points for candor, O'Connor is entitled to more respect than she has received from legal commentators for her attempts to find a middle ground. O'Connor's critics say that by splitting hairs between government actions that "acknowledge" the role of religion and those that "endorse" religion, she invites endless litigation over whether a particular display falls on the right side of the line. True enough, but consider the alternative: Given a constitutional inch, some religious zealots would take a mile.

In fact, former Alabama Chief Justice Roy Moore took a mile without being given an inch, installing a 5,300-pound Ten Commandments monument in the rotunda of the state judicial building and refusing to comply with a federal court's order to remove it. Asked about the constitutionality of a Moore-like monument, acting U.S. Solicitor General Paul D. Clement suggested that such a display "may well cross the constitutional line."

When the court rules on the Ten Commandments monuments, there will be debate about whether the line was drawn properly. But would it be better if the court drew no lines at all?

Those who think so should read a short article that was published Saturday in The Washington Post next to excerpts from the oral arguments in the Ten Commandments cases. It reported that the football coach at the Air Force Academy, a public institution, might continue to preside over postgame prayers despite controversy over the religious content of his coaching. Last fall, the story went on, academy officials had asked the coach to remove a locker-room banner proclaiming: "I am a Christian first and last ... I am a member of Team Jesus Christ."

If you think that doesn't raise First Amendment problems, to quote Justice Scalia, you're kidding yourself.