I just received the following message from the Amreican Atheists on this topic:
APPEALS COURT UPHOLDS COMMANDMENTS DISPLAY: JUDGE SAYS CLAIMS OF
WALL OF SEPARATION BETWEEN CHURCH & STATE "TIRESOME"
A contentious issue remains unsettled, and will likely be part of future political campaigns and debates...
*
In the latest skirmish over the role of religion in the public square,
the U.S. 6th Circuit Court of Appeals ruled last week that a Kentucky
courthouse display featuring a copy of the Ten Commandments alongside
other historical documents did not violate the First Amendment.
The ruling by a three-judge panel was unanimous, and affirmed a lower
court decision that the Commandments presentation in Mercer County
passed constitutional muster.
This comes following two rulings by the U.S. Supreme Court this past
summer that similar displays of the Decalogue in McCreary and Pulaski
counties violated the separation of church and state.
Adding to the confusion was another finding that a granite monument to
Ten Commandments in front of the state capitol in Austin, TX that had
been in place for four decades was permissible.
Writing for the panel in the latest Kentucky case, Judge Richard
Suhrheinrich blasted the American Civil Liberties Union which had
brought the suit, and criticized "tiresome" legal arguments about the
"wall of separation" between government and religion. He added that
ACLU, and presumably other groups and individuals challenging such
displays, did not represent a "reasonable person," and said that there
was no evidence that county officials had a religious purpose in mind
by allowing the display.
"Our concern is that of a reasonable person," wrote Suhrheinrich.
"And the ACLU, an organization whose mission is 'to ensure that ...
the government (is kept) out of the religion business,' does not
embody the reasonable person."
He also criticized "repeated references to the 'separation of church
and state,'" opining that "This extra-constitutional construct has
grown tiresome. The First Amendment does not demand a wall of
separation between church and state. Our nation's history is replete
with governmental acknowledgment and in some cases, accommodation of
religion."
The Mercer County display was titled "Foundations of American Law and
Government," and along with the Commandments included renditions of
the Mayflower Compact, Declaration of Independence, Magna Carta, Star
Spangled Banner, the National Motto, Preamble of the state
Constitution, the U.S. Constitution's Bill of Rights and a picture of
Lady Justice. Supporters argued that by blending historic documents
along with the Decalogue, the presentation was "secularized" and did
not serve to establish religion.
But David Friedman of the Kentucky ACLU disagreed, and said that there
may be an appeal to seek review by the full 6th Circuit or the Supreme
Court of the United States. He told the Louisville Courier-Journal
newspaper that the Mercer County display was "thinly disguised" as a
historical presentation.
"I don't think anyone understanding the context -- (with the
Commandments display) put up in the midst of the McCreary County
litigation -- seriously thinks anyone was trying to teach history.
They were looking for a way to get the Ten Commandments on the wall."
Mr. Friedman added that public officials should not be permitted to
promote religion and post religious slogans on public property simply
because they do not explicitly announce an explicit religious intent.
Another attorney in the case, Scott Greenwood, said that the 6th
Circuit ruling "creates a situation where a court of appeals is
essentially ignoring a Supreme Court decision." He described the
panel's ruling as "a slap in the face." The 6th Circuit finding did
appear to be a rebuke to the June SCOTUS decision that barred
identical displays in Pulaski and McCreary counties, just 50 miles
from the Mercer County courthouse.
But contradiction seems to be rampant in the Kentucky case. Judge
Suhrheinrich wrote that the Commandments "are part of an otherwise
secular exhibit," and that that the display of the Decalogue in such a
fashion "is not an endorsement of religion." Attorney Francis Manion
of the American Center for Law and Justice (ACLJ) who argued the case
on behalf of Mercer County told the Cincinnati Enquirer newspaper that
the ruling "lays to rest the idea that the Ten Commandments are so
religious and sacred that there can be no purpose for displaying them
that is not religious."
Facts & Findings
The three-judge panel emphasized intent as the crucial difference
between the Mercer County Commandments case and the displays struck
down by the Supreme Court in nearby Pulaski and McCreary. In other
words, the Ten Commandments were not supposedly included in the Mercer
County courthouse in order to promote religion. Indeed, a
"commentary" was added to the display stating that the Commandments
"have profoundly influenced the formation of Western legal thought and
the formation of our country" and "provide the moral background of the
Declaration of Independence and the foundation of our legal
tradition."
* Legal and historic scholars disagree over these claims, noting that
the American legal system is not based on any Mosaic code as much as
it is rooted in English common law. Courts have ruled, however, that
there is a "secular" component in the commandments and, as plaintiffs
in the cases acknowledge, the Decalogue "did have an influence upon
the development of United States law and it can be constitutional to
display the Ten Commandments in an appropriate context." Studying the
Commandments as part of a history curriculum, for instance, may be
permissible.
* Was it reasonable to believe that the inclusion of the Commandments
in the Mercer County courthouse involved no religious intent? The
framed Decalogue plaque was donated by local resident Carroll Rousey
who told reporters that he was "not trying to push any religion on
anybody by posting the Ten Commandments" (Christian Broadcasting
Network story produced by Charlene Israel). The National Liberty
Journal, however, a publication of Jerry Falwell's ministry described
Mr. Rousey's effort to promote Commandments display:
"Ever since December 2000 -- when he says he returned to serving the
Lord -- Carroll Rousey has been placing copies of the Ten Commandments
throughout Kentucky. The 64-year-old retired businessman and farmer
placed copies of the biblical tenets in more than 700 businesses in
ten counties and in the homes of about 1,500 local citizens."
* Crucial in the 6th Circuit panel's ruling was the notion that
especially when presented as part of an "otherwise secular exhibit"
the Commandments do not offend the prohibition on religious
establishment, and thus can be "an acknowledgment of religion's role
in American history."
Edwin Kagin, Legal Director for American Atheists, told AANEWS that
the Kentucky decision "was a poor piece of legal reasoning and is at
great variance with a number of other 6th Circuit and Supreme Court
holdings."
"The remark about the wall of separation being a 'tiresome' claim was
really out of place, especially since the issue at hand was the
propriety of the lower court granting a summary judgment," Mr. Kagin
added.
Matthew Staver, a member of the legal team defending Mercer County and
head of the religious litigation group Liberty Counsel praised the
ruling, however.
"This decision begins to turn the tide against the ACLU, which has
been on a search-and-destroy mission to remove all vestiges of our
religious history from public view."
Staver added that "history is crystal clear that each one of the Ten
Commandments played an important role in the founding of our system of
law and government. Federal courts are finally beginning to
rightfully reject extreme notions of 'separation of church and
state.' "
For further information:
www.atheists.org/church/hangemall.html("Hang 'em all -- completely!" by Frank Zindler
www.americanatheist.org/columns/ontar5-28-01.html("Post the Commandments, spare not the rod!" by Conrad Goeringer)
