Supreme Court to Hear Cases
on Displaying Ten Commandments
By DAVID STOUT, NYTimes on the Web, October 12, 2004
WASHINGTON, Oct. 12 — The Supreme Court put itself today in the center of an emotional and politically charged issue as it agreed to hear cases from Texas and Kentucky on the constitutionality of displaying the Ten Commandments on government land and buildings.
The justices will try to resolve a conflict between two federal appeals courts that cover seven states, from the Canadian border to the Deep South, with widely differing social and political histories.
In the Texas case, the United States Court of Appeals for the Fifth Circuit upheld the constitutionality of a Ten Commandments monument on the grounds of the State Capitol, in Austin.
A three-judge panel of the court ruled unanimously on Nov. 12, 2003, that the monument, erected in 1961, commemorated Texas history and that it was not intended to favor one religion over another, in violation of the Constitution.
In the Kentucky case, the Court of Appeals for the Sixth Circuit reached a different conclusion, ruling on Dec. 18, 2003, that officials were wrong in hanging framed copies of the Ten Commandments in courthouses in McCreary and Pulaski Counties.
Conflicts between the circuit courts often propel cases to the Supreme Court.
In 1980, the Supreme Court struck down a Kentucky law requiring the posting of the Ten Commandments in public school classrooms.
More recently, there has been an increase in legal battles on issues related to the Ten Commandments, so it was not particularly surprising that the justices took the cases from Texas and Kentucky.
They are, respectively, Van Orden v. Perry, 03-1500, and McCreary County v. the American Civil Liberties Union, 03-1693.
The Fifth Circuit, based in New Orleans, has jurisdiction over Texas, Louisiana and Mississippi; the Sixth Circuit, based in Cincinnati, has jurisdiction over Kentucky, Tennessee, Ohio and Michigan.
The Texas case involves a six-foot red granite monument donated by the Fraternal Order of Eagles in 1961.
The organization donated many such monuments to American communities several decades ago — and many of them have spawned legal battles over the place of religion in American life.
The Texas plaintiff, Thomas Van Orden, asked a federal district court to order the state to remove the monument.
The district court refused, finding that the monument was not in violation of the First Amendment.
"History matters here," the Fifth Circuit declared, in an opinion by Judge Patrick E. Higginbotham.
"For 42 years, the monument has stood in Austin without the filing of any legal complaint.
This quiescence is remarkable for Travis County, the seat of state government and the home of the University of Texas, whose campus is a stone's throw away from the Capitol Grounds.
This court is well aware that Travis County is not lacking in persons willing and able to seek judicial relief from perceived interference with constitutional rights."
The court found that the Texas legislators who accepted the monument in 1961 had a purpose more secular than religious, and that the Ten Commandments monument was as appropriate as, say, a monument at the Capitol to the dead of the Alamo.
In the Kentucky case, the district court concluded that the displays in the county courthouses did violate the First Amendment, and it ordered them removed.
The Sixth Circuit upheld the district court, in a 2-to-1 ruling written by Judge Eric L. Clay.
"When distilled to their essence, the courthouse displays demonstrate that defendants intend to convey the bald assertion that the Ten Commandments formed the foundation of American legal tradition," Judge Clay wrote.
"The displays do not present a passive symbol of religion like a creche, which, when accompanied by secular reminders of the holiday season, has come to be associated more with the public celebration of Christmas, rather than that holiday's religious origins," he went on.
"Defendants had to exercise special care to present the Ten Commandments objectively and as an integral part of a non-religious message.
As discussed above, defendants failed in this endeavor."
The dissenter, Judge James L. Ryan, noted that the Ten Commandments were displayed with the Bill of Rights, the Declaration of Independence and other documents of great historic importance.
"The influence of religion upon American law and government is a fact of American history and politics that has been widely recognized by scholars, jurists, legislators, presidents and, not least, the Founders themselves," Judge Ryan wrote.
However the Supreme Court resolves the conflict between the Fifth and Sixth Circuits, there will probably be more cases involving the intersections of history and personal belief.
The justices declined recently to consider an appeal from Alabama's former chief justice, Roy Moore, who was unseated after defying a federal order to dismantle a Ten Commandments monument in the rotunda of the State Supreme Court.
Three years ago, the United States Supreme Court declined to rule on the constitutionality of a Ten Commandments display in front of the municipal building in Elkhart, Ind.
In declining to take that case, the Supreme Court refused to review a decision by the Court of Appeals for the Seventh Circuit in Chicago holding that the monument, also donated by the Eagles, was an unconstitutional establishment of religion.
Now that the court has taken the Texas and Kentucky cases, the Rev. Barry W. Lynn of Americans United for Separation of Church and State said today he hopes the justices will declare government displays of religious documents and symbols unconstitutional.
"It's clear that the Ten Commandments is a religious document," he said in an interview with The Associated Press.
"Its display is appropriate in houses of worship but not at the seat of government."
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