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Disputes over the display of the Ten Commandments on public property continue to percolate in the lower courts and create controversies in local communities.
A three-judge panel of the 6th U.S. Circuit Court of Appeals ruled 2-1 in ACLU of Kentucky v. Grayson County on Jan. 15 that a Ten Commandments display in a Kentucky county courthouse did not violate the establishment clause — the part of the First Amendment that blocks government from endorsing or promoting religion.
The differences between the majority and the dissenting judge highlight competing visions of the first 10 words of the First Amendment — "Ten Tortured Words," as author Stephen Mansfield has called them in a book title.
In deciding that the Kentucky display had no religious purpous, the 6th Circuit majority focused on the fact that the Ten Commandments were not displayed in isolation but in conjunction with nine other historical documents, including the Mayflower Compact, the Declaration of Independence, the Magna Carta and others. The majority also said the so-called “Foundations Display” was on the second floor of the county courthouse, where was “relatively little foot traffic.”
Dissenting Judge Karen Nelson Moore blasted her colleagues’ decision as “misguided at best.” She said county officials had a clear religious purpose in displaying the Ten Commandments and that the inclusion of the other documents was merely subterfuge to mask that intent.
The differences among the jurists in the Grayson County case are also reflected on the U.S. Supreme Court. In June 2005, in the last days of the Rehnquist Court, the justices divided sharply over a pair of Ten Commandments cases, Van Orden v. Perry and McCreary County v. ACLU of Kentucky.
In Van Orden, the Court ruled 5-4 that a Ten Commandments display that had stood in a Texas public park for 40 years did not violate the establishment clause. In McCreary County, the Court ruled 5-4 that much newer displays in two Kentucky county courthouses — originally featuring the Ten Commandments in isolation, then later including other documents — did violate the establishment clause.
In both decisions Justice Stephen Breyer voted with the majority, making him the ultimate swing vote on this issue.
Much speculation is afoot over how the current Court headed by Chief Justice G. Roberts Jr. would rule in a similar case. Justice Samuel Alito Jr. has replaced Justice Sandra Day O’Connor, who voted to invalidate the Ten Commandments displays in both Van Orden and McCreary County. Alito could vote with Roberts and Justices Antonin Scalia, Clarence Thomas and Anthony Kennedy to form a group of five justices who might recalibrate the meaning of the establishment clause.
If public-interest law firms keep litigating and appealing Ten Commandments cases, and lower court judges keep issuing deeply divided opinions such as the 6th Circuit did in Grayson County, the high court might take another case involving the Decalogue to try to resolve the disagreements.
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