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9th Circuit finds Ten Commandments monument constitutional

By David L. Hudson Jr.
First Amendment scholar

A Ten Commandments monument can stay on the grounds of the Everett, Wash., Old City Hall  because it does not violate the establishment clause, a 9th U.S. Circuit Court of Appeals panel ruled March 26.

The case involved a six-foot-tall granite monument inscribed with the Ten Commandments that was donated to the city by a local chapter of the Fraternal Order of Eagles in 1959. It was one of more than 100 such monuments produced by the Eagles as part of an effort spearheaded by Minnesota Judge E.J. Ruegemer, a leader of the group’s Youth Guidance Committee and a juvenile court jurist. The monument stands outside Everett’s former city hall, which now houses the police department.

Self-described agnostic Jesse Card, with help from Americans United for Separation of Church and State, challenged the monument as a violation of the First Amendment clause prohibiting any official establishment of religion. In September 2005, a federal district judge rejected Card’s lawsuit, finding that the case was controlled by Van Orden v. Perry, a June 2005 decision by the U.S. Supreme Court that upheld by a single vote a similar monument in a Texas public park. The trial court wrote that “the context of the monument at issue in this case is remarkably similar to that presented to the Supreme Court in Van Orden.”

On appeal, the three-judge panel of the 9th Circuit affirmed the lower court, agreeing that Van Orden v. Perry was the controlling precedent in Card v. City of Everett.

The decision in Card v. City of Everett required the federal judges to interpret the Supreme Court’s latest words on the Ten Commandments, delivered in the last two decisions issued by the Court when William H. Rehnquist presided as chief justice — Van Orden and McCreary County v. ACLU of Kentucky (2005). McCreary County invalidated Ten Commandments displays in two Kentucky county courthouses.

In both cases, four justices voted to uphold the Texas and Kentucky displays and four voted to strike them down. The decisive vote in each case was Justice Stephen Breyer, who emphasized the importance of the context of the displays.

In Van Orden, Chief Justice Rehnquist wrote the plurality opinion, finding that the Court’s primary test for examining establishment-clause cases — the Lemon test from the Court’s 1971 decision Lemon v. Kurtzman — was “not useful for dealing with this sort of passive monument.” However, in McCreary County, Justice David Souter in his plurality opinion applied Lemon and the Court’s initial Ten Commandments decision 25 years earlier in Stone v. Graham (1980), to find an establishment-clause violation.

The 9th Circuit panel first examined Stone v. Graham, a per curiam decision in which the Court invalidated a Kentucky law requiring the posting of the Ten Commandments in public classrooms. The 9th Circuit interpreted Stone as “stand[ing] for the narrower proposition that government displays of the Ten Commandments can never satisfy the Lemon Test.” This view appeared to contradict at least Rehnquist’s opinion in Van Orden v. Perry, in which he emphasized the “classroom context” of the Stone case.

The 9th Circuit also read McCreary County for the proposition that “Lemon is still alive.” Even though it applied Stone beyond the classroom context and even though it found Lemon an active precedent, the 9th Circuit still sided with the city. Why? Because it read Van Orden “as carving out an exception for certain Ten Commandments displays.” Van Orden involved a 1961 Ten Commandments monument that was surrounded by 17 other monuments and 21 historical markers. The Everett monument was surrounded by far fewer monuments — three war memorial monoliths and a plaque about Old City Hall.

“We do not read Van Orden as establishing a quota system for monuments or a requirement for a particular density of monuments in a given area,” Judge Kim McLane Wardlaw wrote for a unanimous court. “We see more similarities than differences here: Like the display in Texas, the Everett Eagles monument is the only facially religious monument, while the balance of the monuments are memorials to wars or to citizen service, and the lack of additional City monuments may be only a testament to a disparity in resources between the City of Everett and the State of Texas.”

Judge Wardlaw also focused on the “historic lack of complaints” regarding the Everett monument, noting that the first complaint against it arose in the 1990s — when the monument had been in place for more than 30 years.

She concluded that “a limited exception to the Lemon test exists in contexts closely analogous to those in Van Orden.”

Judge Ferdinand F. Fernandez wrote a short concurring opinion, applauding “Judge Wardlaw’s scholarly and heroic attempt to create a new world of useful principle out of the Supreme Court’s dark materials.” He added that the establishment-clause area “has not become more fathomable” and wished “that courts would required neutrality in the area of religion and nothing more or less.”

“A passive monument acknowledging our nation’s heritage cannot be interpreted as an establishment of religion,” said Steve Fitschen of the National Legal Foundation, who wrote an amicus brief in support of the City of Everett before the 9th Circuit, in a news release. “To make that accusation, one must harbor both hostility to the nation’s history and a deep misunderstanding of the First Amendment.”

On the other side was Rob Boston, assistant director of communications for Americans United for Separation of Church and State. “The 9th Circuit’s ruling is a very curious decision,” he said. “They seem to be saying that the monument is okay because nobody complained about it until recently. But from our perspective if was unconstitutional 50 years ago, it should be unconstitutional today. Constitutional violations don’t get grandfathered in over time."

Federal court OKs Washington city's commandments display
Judge says monument outside Everett police station 'poses no threat' to residents' religious freedoms. 09.14.05


High court agrees to consider religious-monument dispute

Utah city has asked justices to overturn 10th Circuit decision that sided with group trying to get its 'Seven Aphorisms' displayed in municipal park. 03.31.08

Ky. county barred from posting Ten Commandments
Federal judge upholds preliminary injunction issued in 2002, says Grayson County Courthouse display has 'effect of endorsing religion.' 04.05.08

Okla. House OKs adding commandments monument to Capitol
On National Day of Prayer, lawmakers endorse measure 83-2, sending it to Senate for final passage. 05.08.09

Public forums at heart of 2 cases
By Tony Mauro After backing Texas' commandments display, justices to consider Summum aphorisms for Utah park; other case involves unions’ political payroll deductions. 04.01.08

Ten Commandments, other displays & mottos

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