The Sixth Circuit Court of Appeals recently held that a display of the Ten Commandments along with other historical documents was constitutional setting up a possible showdown at the Supreme Court over the issue of religious displays and the so-called "wall of separation between church and state" (Hat tip: Captain’s Quarters):
A federal appeals court has upheld a display of the Ten Commandments alongside other historical documents in the Mercer County, Ky., courthouse.
The judge who wrote the opinion blasted the American Civil Liberties Union, which challenged the display, in language that echoed the type of criticism often directed at the organization.
Judge Richard Suhrheinrich’s ruling said the ACLU brought "tiresome" arguments about the "wall of separation" between church and state, and it said the organization does not represent a "reasonable person."
The decision was issued by a three-judge panel of the 6th U.S. Circuit Court of Appeals, based in Cincinnati. It upheld a lower-court decision that allowed Mercer County to continue displaying the Ten Commandments along with the Declaration of Independence, the Bill of Rights, the words to "The Star-Spangled Banner" and other documents.
All of the items were posted at the same time in 2001.
The most striking aspect of the ruling is not only the outcome of the case but the threefold criticism of the ACLU’s arguments. First, the Court blasts the ACLU’s reference to separation of church and state. The Court states that:
This extra-constitutional construct has grown tiresome. The First Amendment does not demand a wall of separation between church and state.
The phrase "separation of church and state" was actually taken from a letter written by Thomas Jefferson to a Baptist church to affirm the First Amendment principle that the government would not establish a religion. The phrase actually does not appear in the First Amendment. The second flaw cited by the Court is that the Ten Commandments are strictly religious:
Second, the ACLU focuses on the religiousness of the Ten Commandments. No reasonable person would dispute their sectarian nature, but they also have a secular nature that the ACLU does not address. That they are religious merely begs the question whether this display is religious; it does not answer it. “[T]he stablishment Clause inquiry cannot be distilled into a fixed, per se rule.” Pinette, 515 U.S. at 778 (O’Connor J., concurring); see Lee v. Weisman, 505 U.S. 577, 597-98 (1992). Although treating the subject matter categorically would make our review eminently simpler, we are called upon to examine Mercer County’s actions in light of context. “Simply having religious content or promoting a message consistent with a religious doctrine does not run afoul of the Establishment Clause.” Van Orden, 125 S. Ct. at 2863 (plurality opinion). Moreover, “[f]ocus exclusively on the religious component of any activity would inevitably lead to its invalidation under the Establishment Clause.” Lynch, 465 U.S. at 680. The Constitution requires an analysis beyond the four-corners of the Ten Commandments. In short, “proving” that the Ten Commandments themselves are religious does not prove an Establishment Clause violation.
In other words, the context of the display is as important as the content. Because the Mercer County display included other historical documents alongside the Ten Commandments it was deemed constitutional. However, it is reasonable to expect that a Ten Commandments display, on its own, may be considered unconstitutional depending on where the display resides.
It’s also important to consider what the purpose of a display might be. In Mercer County, the purpose was to recognize a number of historical documents that were part of the foundations of our country. The Ten Commandments contain the principles upon which our legal system is based. Within this context, it’s appropriate to display it alongside the other documents contained in the Mercer County exhibit.
Finally, the Court dealt with perhaps the most important aspect of the ACLU’s argument against such displays:
Third, the ACLU erroneously–though perhaps intentionally–equates recognition with endorsement. To endorse is necessarily to recognize, but the converse does not follow. Cf. Mercer County, 219 F. Supp. 2d at 789 (“Endorsement of religion is a normative concept; whereas acknowledgment of religion is not necessarily a value-laden concept.”). Because nothing in the display, its history, or its implementation supports the notion that Mercer County has selectively endorsed the sectarian elements of the first four Commandments, we fail to see why the reasonable person would interpret the presence of the Ten Commandments as part of the larger “Foundations” display as a governmental endorsement of religion.
We will not presume endorsement from the mere display of the Ten Commandments. 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. Fortunately, the reasonable person is not a hyper-sensitive plaintiff. See Washegesic ex rel. Pensinger v. Bloomingdale Pub. Sch., 33 F.3d 679, 684 (6th Cir. 1994) (Guy, J., concurring) (describing the “eggshell” plaintiff as unknown to the Establishment Clause). Instead, he appreciates the role religion has played in our governmental institutions, and finds it historically appropriate and traditionally acceptable for a state to include religious influences, even in the form of sacred texts, in honoring American legal traditions.
The Court has exposed the fallacy of the ACLU’s and other lawsuits that have been filed to stop any type of religious activity. The mere acknowledgement of religion is not the same as establishment. Acknowledgement is a recognition of the existence and even influence of religion. Establishment means that by law a religion or church is established as the only legal religious entity that may exist.
With this ruling, The Sixth Circuit has provided the Supreme Court with the perfect opportunity to clarify the law with regards to such displays as the Ten Commandments. As the battle to confirm Judge Alito heats up, it is reasonable to expect this to be one of the many cases that he will be asked about in his confirmation hearings.