Appeals court OKs Neb. city's 10 Commandments monument
By Michael Foust — BP News


PLATTSMOUTH, Neb— In the first major Ten Commandments decision since the U.S. Supreme Court had its say, a federal appeals court Aug. 19 upheld the constitutionality of a large granite Decalogue monument that has stood in the city of Plattsmouth, Neb., for 40 years.

The 11-2 decision by the full Eighth Circuit Court of Appeals comes nearly two months after the Supreme Court issued a split decision in two separate cases, allowing a Texas Ten Commandments monument to stand but ordering the removal of a Kentucky Ten Commandments courtroom plaque. The ruling by the Eighth Circuit reversed an earlier 2-1 decision by one of the court's three-judge panels.

The full Eighth Circuit relied heavily on the Texas decision, Van Orden v. Perry. Like the Texas monument, the Plattsmouth, Neb., monument was donated by the Fraternal Order of Eagles. It resides on the corner of a city park, roughly 10 blocks from Plattsmouth city hall. Approximately five feet tall and three feet wide, the monument was donated to the city in 1965.

"Like the monument at issue in Van Orden, the Ten Commandments monument installed in Memorial Park by the City of Plattsmouth is a passive acknowledgment of the roles of God and religion in our Nation's history," Judge Pasco M. Bowman, an appointee of President Reagan, wrote for the majority. "Moreover, as was the case in Van Orden, decades passed during which the Ten Commandments monument stood in Plattsmouth's Memorial Park without objection."

The lawsuit was brought by the American Civil Liberties Union of Nebraska on behalf of John Doe, an anonymous local citizen who is an atheist. In addition to the three-judge panel, a lower court also had ruled against the monument.

But the full circuit said "similar references to and representations of" the Ten Commandments on government property "are replete throughout our country."

"Buildings housing the Library of Congress, the National Archives, the Department of Justice, the Court of Appeals and District Court for the District of Columbia, and the United States House of Representatives all include depictions of the Ten Commandments," Bowman wrote. "... Indeed, in the United States Supreme Court's own Courtroom, a frieze depicts Moses holding tablets that represent the Ten Commandments, and the Ten Commandments decorate the metal gates and doors around the Courtroom."

Judge Kermit E. Bye wrote the dissent and was joined by Judge Morris Sheppard Arnold. Bye is an appointee of President Clinton, Arnold of the first President Bush.

Bye asserted that, unlike the Texas example, the Plattsmouth monument rests alone and is not surrounded by other monuments.

"It is not enough that Plattsmouth's monument has stood for more than thirty-five years in Memorial park," Bye wrote. "Without the contextualizing presence of other messages or some indicia of historical significance, there is nothing to free the display from its singular purpose of advancing its religious message. Because no such broader application is apparent -- or for that matter offered -- the monument violates the Establishment Clause."

Bye was part of the three-judge panel majority that earlier ruled against the display. Arnold was not. In that earlier ruling, Bye said that Doe "comes into frequent unwelcome contact with the monument," which "alienates" him and "makes him feel like a second-class citizen." If the monument were not there, "he would use the park more often."

The American Center for Law and Justice, a Christian conservative legal group, represented the city of Plattsmouth.

"The decision of the court of appeals is a perfect and sound application of the law set by the nation’s highest court earlier this year in Van Orden v. Perry," ACLJ attorney Francis Manion, who argued the case, said in a news release. "Like the Supreme Court, the court of appeals recognizes that a public display of the Ten Commandments can have historical and legal significance and does not violate the Constitution in any way."

The Eighth Circuit covers Nebraska, North Dakota, South Dakota, Minnesota, Iowa, Missouri and Arkansas.

The case is ACLU Nebraska Foundation v. City of Plattsmouth.



Published, September 2005


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