Appeals court upholds Ten Commandments display, judge rebukes ACLU as 'tiresome'
By Tom Strode — BP News


WASHINGTON — A federal appeals court has upheld a Ten Commandments display identical to one ruled unconstitutional by the U.S. Supreme Court earlier this year, rebuking the American Civil Liberties Union in the process.

The Sixth Circuit Court of Appeals, based in Cincinnati, affirmed Dec. 20 a federal judge’s decision that a courthouse display in Mercer County, Ky., of nine documents, including the Ten Commandments, is constitutional. In a unanimous opinion by a three-judge panel, the court agreed with the lower court that the inclusion of the Decalogue does not violate the Constitution’s establishment clause because the display has a secular purpose. The panel also ruled the display does not endorse religion.

The Mercer County display that the Sixth Circuit upheld does not differ from the final version of displays in Kentucky’s McCreary and Pulaski counties, which the Supreme Court invalidated in June, upholding an earlier decision from the Sixth Circuit. In a 5-4 decision, the high court ruled the history of the courthouse displays in McCreary and Pulaski counties should be weighed. In both cases, the Ten Commandments stood alone before other documents were twice added. The final version still had a “predominantly religious purpose,” Associate Justice David Souter wrote.

In Mercer County, however, the Ten Commandments and the other documents — including the Declaration of Independence, Bill of Rights and Magna Carta — were displayed together in frames of equal size from the start. A Mercer County resident, Carroll Rousey, received permission from a county court to put up the display and paid for and hung it himself in 2001.

In contrast to the exhibits in McCreary and Pulaski counties, the Mercer County display “lacks a similar sectarian pedigree,” Judge Richard Suhrheinrich wrote for the Sixth Circuit panel in ACLU v. Mercer County. “A reasonable observer would not view this display as an attempt by Mercer County to establish religion. Instead, he would view it for what it is: an acknowledgment of history.”

Not only is the Mercer County display different from the ones previously rejected by the Supreme Court, but it also survives the Lemon test, the panel said. That test has largely guided the justices’ decision-making in such cases since it was outlined in the 1971 Lemon v. Kurtzman opinion. According to the Lemon standard, government does not establish religion if its action has a secular purpose, does not promote or inhibit religion and does not create an excessive entanglement with religion.

In his opinion, Suhrheinrich pointedly wrote about what he described as the ACLU’s flawed arguments.

He called “the separation of church and state,” which the ACLU referred to repeatedly, an “extra-constitutional construct [that] 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.... Thus, state recognition of religion that falls short of endorsement is constitutionally permissible.”

“If the reasonable observer perceived all government references to the Deity as endorsements, then many of our nation’s cherished traditions would be unconstitutional, including the Declaration of Independence and the national motto [“In God we trust”],” Suhrheinrich wrote.

The ACLU “does not embody the reasonable person,” he said.

The American Center for Law and Justice and the Liberty Counsel, two religious liberty organizations that assisted Mercer County, hailed the decision.

In a written release, ACLJ Chief Counsel Jay Sekulow called it a “big victory for the people of Mercer County and Kentucky generally. For too long they have been lectured like children by those in the ACLU and elsewhere who claim to know what the people’s Constitution really means.”

Liberty Counsel President Mathew Staver said in a written statement that the 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 heritage from public view. Federal courts are beginning to rightfully reject extreme notions of ‘separation of church and state.’”

In March, a split, three-judge panel of the Seventh Circuit upheld the constitutionality of an Elkhart County, Ind., display identical to the one in Mercer County.

On the same June day that the Supreme Court ruled against the displays in McCreary and Pulaski counties, the justices decided a stand-alone monument of the Decalogue on the state capitol grounds in Austin, Texas, is constitutional.



Published, January 2006


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