America Conor O'CleryThere is a frieze on the US Supreme Court in Washington depicting great lawgivers of history, among them Moses, the judge of the Israelites in 1300 BC. Moses is depicted holding two overlapping tablets written in Hebrew.
Commandments six through ten are partially visible. The nine justices who ruled on Monday whether the Ten Commandments should be displayed in two Kansas courthouses or in the grounds of the Texas state house had this image right above their heads.
The question facing them touched on the heart of the debate in America on the place of (Christian) religion in society. Should displays of religious language be permitted in public places? The 2m granite monument carrying the Ten Commandments in Texas could stay as a tribute to the nation's legal and religious history, they decided.
The Kansas courthouse displays could not. They were framed and hung on the courtroom walls specifically to promote religion, and therefore were an overt government sponsorship of religion and crossed the line in separation of church and state.
The ruling played right into the culture wars that have been swirling around the Supreme Court in recent years, and threaten to escalate into a battle of epic proportions now that moderate judge Sandra Day O'Connor has announced her resignation. O'Connor joined the liberals in both decisions on the Ten Commandments, which were 5-4 votes, and the furious reaction on the evangelical right shows just how important will be the choice of her successor.
Christian conservatives have simmered with resentment for a quarter of a century over the 1980 decision of the Supreme Court to ban the display of the Ten Commandments in schools. James Dobson, head of "Focus on the Family" and one of the most powerful evangelical voices in the US, told his radio audience on Tuesday that the judgments meant it was "OK to keep a Ten Commandments monument on state-owned land, so long as you don't consider what's written on the stone tablets to be anything more than empty words from a bygone era".
Christian groups plan however to use the decision on the Texas monument as justification for putting up displays of the Ten Commandments in scores of state parks across the country. In Indiana, governor Mitch Daniels has already said he would welcome the Ten Commandments back to the grounds of the Indiana Statehouse.
A monument similar to the one in Texas stood near the Indiana Statehouse for more than 30 years but was removed in 1991 after being damaged by vandals and a judge stopped the erection of a replacement monument in 2000 saying it would be seen as a government endorsement of religion.
These actions will be challenged by supporters of the separation of church and state and the whole Ten Commandments issue will inevitably come to the Supreme Court for another ruling. But if the Kansas display is the subject of a new challenge and a conservative is in place instead of Sandra Day O'Connor, it is conceivable that the decision will go the other way and that it will be ruled constitutional to display the Ten Commandments in a courthouse, or any other public building.
This is only one of many contentious issues that will feature in the heated-up culture wars. Before O'Connor announced her retirement, Dobson had called on his followers across America to prepare themselves for the "mother of all battles" to fill the vacancy on the nine-member bench.
"All people of faith, those 'values voters' who made the difference in the last election, must be prepared to make their voices heard to make sure that a future Supreme Court line-up doesn't completely eradicate even our rights as individuals to acknowledge God publicly," he said.
He will be only one of a coalition of conservative groups putting enormous pressure on president Bush in the coming days to appoint not only a conservative judge but one with a proven track record on issues like abortion.
They have in mind what happened when president Ronald Reagan appointed conservative judge, Anthony Kennedy, to the Supreme Court in 1987, in place of Robert Bork, the conservative icon who had been blocked in the Senate. At the start judge Kennedy took his place on the right wing of the bench, but for more than a decade now Kennedy has infuriated the right, writing decisions in cases that struck down prayer at public school graduations, upheld abortion rights, gave constitutional protections to pornography and gay sex and banned the death penalty for juveniles.
Many evangelists want him impeached. Dobson terms him "the most dangerous man in America". Kennedy is the poster boy for what the right sees as the emergence of "activist judges". Bork, now a law lecturer and a champion of the right, said judge Kennedy's opinions reflected a court that enacted a political agenda rather than stuck to the constitution and could now properly be called a "cultural institution" rather than a "legal institution". (Kennedy's record outside the culture wars remained conservative and he was on the 5-4 majority that stopped a Florida recount in 2000, giving the White House to Bush.)
Bork also forecast yesterday "one hell of a battle" to put in place a judge to succeed O'Connor who would "stick to the actual constitution". The war rooms have already been staffed and geared up for battle. C. Boyden Gray, a former legal counsel to the senior president Bush, set up the Committee for Justice three years ago to co-ordinate strategy and run advertising and information campaigns for presidential nominees.
An organisation called Progress for America has amassed an $18 million budget to advocate for the appointment of a conservative judge. Progress for America spent $45 million on Bush's re-election campaign and will expect to have its voice heard in the White House. It is warning followers that liberals will unleash a disinformation and smear campaign against any conservative nominee.
They learned a hard lesson when - 30 minutes after his nomination by Ronald Reagan - senator Edward Kennedy alleged that Bork's America would be a land of back-street abortions and segregated lunch counters, charges which stuck in the public mind.
They also remember the bitter fight for the nomination of ultra-right Clarence Thomas who accused Democratic senators of a "high-tech lynching" when they produced law lecturer Anita Hill to charge him with sexual harassment.
Progress for America led a successful fight recently to promote an up or down Senate vote for Priscilla Owen and Janice Rogers Brown, two federal judges opposed by Democrats as out of the mainstream. Liberals have made similar preparations for the coming mother of all nomination battles.
Ralph Neas, director of People for the American Way, told the Washington Post: "Those who frame the debate and define the issues first have a tremendous advantage." He has arranged with other liberal groups like MARAL Pro-Choice America to conduct a conference call from his Washington war room within minutes of the announcement of a replacement for O'Connor.
The left will want to apply an immediate litmus test to the nominee - that is whether or not he or she supports Roe v Wade, the 1973 ruling that legalised abortion and that O'Connor and Kennedy upheld - with some qualifications - in 1992. Liberals maintain that if the Democratic senators had not stopped Bork, his vote would have blown Roe v Wade out of the water when it was challenged.
As to whom the president might appoint to succeed O'Connor - it might be worth noting that while almost every commentator forecast that Chief Justice Rehnquist would resign after the end-of-term decisions on Monday, only the conservative neo-con, William Kristol, got it right.
Kristol wrote last week: "There will be a Supreme Court resignation within the next week. But it will be Justice O'Connor, not Chief Justice Rehnquist."
He went on to say: "President Bush will appoint Attorney General Alberto Gonzales to replace O'Connor.
"Bush certainly wants to put Gonzales onthe Supreme Court. Presidents usually find a way to do what they want to do."