[Xmas timetable: Finished Wrapping Presents.]
Am. Civil Liberties Union v. Mercer County. A Ten Commandments display akin to the one struck down in the McCreary County case was upheld by the Sixth Circuit, even though it also was displayed in a Kentucky Courthouse and authorized by the same general sentiment the Supreme Court was wary about. Key facts:
On October 9, 2001, Carroll Rousey, a Mercer County resident, requested permission to hang a display entitled "Foundations of American Law and Government" in the County Courthouse. The display was to include the Mayflower Compact; the Declaration of Independence; the Ten Commandments; the Magna Carta (in two frames); the Star-Spangled Banner; the National Motto "In God We Trust" and the Preamble to the Kentucky Constitution (one frame); the Bill of Rights; and Lady Justice.
After learning that the Kentucky General Assembly had recently passed a resolution authorizing the inclusion of the Ten Commandments in displays of formative, historical documents on government property, the Mercer County Fiscal Court voted to allow Mr. Rousey to hang the display as described. Mr. Rousey paid for, framed, and hung the display on the courthouse walls himself.
Included in the display is a commentary page that contains an explanation for each of the nine items. The following is the explanation for the Ten Commandments: The Ten Commandments have profoundly influenced the formation of Western legal thought and the formation of our country. That influence is clearly seen in the Declaration of Independence, which declared that "We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty, and the pursuit of Happiness." The Ten Commandments provide the moral background of the Declaration of Independence and the foundation of our legal tradition.
The saving grace for the judges (one only concurred in result, without opinion) was that the background was not as problematic as the facts spelled out by the Supreme Court -- the SC did focus on intent/purpose. In effect, the SC decided that even if the display would be constitutional on its own, all that came before suggested that it was in effect a sham effort, the religious intent clear. Less blatant background here, but the clear overall concern the majority opinion had with such displays really caution against such fine line drawing.
The line drawing is surely not neutral, suggesting why the third judge only concurred in judgment (maybe not, but see below). The opinion had multiple comments of an annoyingly partial quality that put a thumb on the scales. [Topic headings are mine, rest are words of opinion.]
Interesting Choice of Law Review Citation: The Establishment Clause represents one of our most cherished safeguards. It is also one of the most heavily litigated. See Karen T. White, The Court-Created Conflict of the First Amendment: Marginalizing Religion and Undermining the Law. Suggestion that SC Was Wrong: The language of "predominant purpose" signaled a departure from the Court" earlier "secular purpose" inquiries. Id. at 2757 (Scalia, J., dissenting) ("[T]he [McCreary County majority] replaces Lemon's requirement that the government have 'a secular . . . purpose' with the heightened requirement that the secular purpose 'predominate' over any purpose to advance religion." [The majority opinion defends itself against Scalia's criticism and also the term was used that way in the past -- as often is the case, the Supreme Court (even Scalia) emphasizes words differently depending on the situation.] ...
This discussion [McCreary County discussion turning dubious eye on Ten Commandments displays in general, and the attempt to selectively put it in among our basic legal documents specifically ... given the resolution, a central matter in this very case.] is entirely unhelpful. [The opinion also noted how the ruling was "divided" ... reminding us it was 5-4.]Usual boilerplate: First, the ACLU makes repeated reference to "the separation of church and state." 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. [Conservative talking points alert! Our nation's history is also replete, btw, with limits on free speech, suggesting no quick First Amendment motto should be taken totally literally.]
The most egregious statement above is that "The Ten Commandments provide the moral background of the Declaration of Independence and the foundation of our legal tradition." No it does not. I was not aware, for instance, that the Ten Commandments was a political document. Likewise, where does it cite that the God selectively favored (again, there are many versions of the Decalogue) supplies us natural rights? The totally bogus/makeweight nature of this "secular" purpose is telling.
The SC did upheld Ten Commandment displays generally (wrongly -- but perhaps necessarily, at least as to older displays), but it puts a fine line on McCreary to allow this one. The private action in this case is somewhat different than the governmental gymnastics involved in that case, but it is private action authorized and furthered by state action as well. It has a "the government was reprimanded, but the net result is the same" feel that is too often seen in cases of this genre.
[As Justice Souter once noted, "[b]y allowing government to encourage what it can not do on its own, the proposed per se rule would tempt a public body to contract out its establishment of religion, by encouraging the private enterprise of the religious to exhibit what the government could not display itself." The net result here is to obtain the display struck down by the Supreme Court by other means. His opinion was a concurrence, but it was one joined in sentiment on this point by five justices, admittedly including O'Connor.]
And, in such a way the local governments ... not "The Court" ... are the ones that marginalize religion and undermine the law ... the Constitution, not the Torah. It begs credibility to suggest that the selected "foundations" are neutral or in any way comprehensive unless one's attempt is to focus on deistic foundations. After all, how exactly is the Star-Spangled Banner a basic foundation of law or government? Perhaps, the Preamble of the Kentucky Constitution (in contrast to our national one) can give one a hint:
We, the people of the Commonwealth of Kentucky, grateful to Almighty God for the civil, political and religious liberties we enjoy, and invoking the continuance of these blessings, do ordain and establish this Constitution.
But, let us not note the pig in the room. That would be rude.