Last week the 6th Circuit Court of Appeals issued a 2-1 decision in ACLU of Kentucky v. Grayson County, Kentucky , overturning a district court’s holding that a Ten Commandments display in a county courthouse violated the Establishment Clause. The Appeals Court’s decision is the latest in a string of judicial opinions effecting a major shift in American church-state jurisprudence.
The majority in Grayson focused on the context of the Ten Commandments display, emphasizing that it appeared alongside eight other documents, purportedly installed in the courthouse to illustrate the documents’ historical legal importance. Alongside the Ten Commandments, the display included the Magna Carta, the Declaration of Independence, the Bill of Rights and the Star Spangled Banner, among other documents. The majority concluded that the ACLU had failed to prove that the county had a primarily religious purpose in approving the display, and that an objective observer would not view the display as a government endorsement of religion.
In her lone dissent, Judge Karen Nelson Moore stated that the County’s asserted purpose for posting the display – "that the Display was posted for educational or historical reasons – is a sham and should be rejected." She concluded that the county’s purpose in erecting the display was religious, and that in the context of the record of its adoption by the county, the display unmistakably sent a message of endorsement of religion. Judge Moore cited the minutes from a Grayson County Fiscal Court meeting, in which a local reverend, Chester Shartzer, asked the county to place "the Ten Commandments" in county buildings; Reverend Shartzer’s statement that "the Civil Liberties [sic] will look more favorable [sic] toward [hanging the Ten Commandments] if they were hanging in a grouping with other historical documents"; and "an extensive commentary by the Reverend Shartzer about the need for the Display," the contents of which the Fiscal Court failed to record. According to Judge Moore, this record shows that the additional eight documents in the display are mere window dressing, placed to convey the illusion that the county’s predominant purpose in erecting the Ten Commandments display was secular.
Does anyone believe, at this time and in the context of American culture wars over religious symbolism, that religious individuals and organizations are not promoting government endorsement of religion by pushing for Ten Commandments displays in government buildings? In a nation where a powerful Religious Right attempts to bury America’s secular heritage by citing an imagined privileged historical status for Christianity, where an influential Justice of the U.S. Supreme Court says that the Ten Commandments are "a symbol of the fact that government derives its authority from God," and where another Justice reminisces fondly about seeing "a flag and a crucifix in each classroom," can anyone believe that courthouse displays admonishing us to worship the Judeo-Christian God and to keep the Sabbath holy are meant as a mere secular "acknowledgment of history"? Two out of three judges deciding this case think so. Increasingly, other federal judges are agreeing with them.
Welcome to the world of church-state jurisprudence in the post-Bush era. Yes, we have a new president and a new Congress. Eight years of lifetime judicial appointments by George W. Bush, however, have left us a lopsided, rightward-lurching federal judiciary that has little patience for Establishment Clause challenges. A little less than five years ago, the U.S. Supreme Court handed a victory to defenders of church-state separation in McCreary County v. ACLU of Kentucky , a case challenging a courthouse display that was virtually identical to that challenged in the Grayson case. Unfortunately, that Supreme Court was very different from the Supreme Court George W. Bush left us. Stunningly, the 6th Circuit’s ruling in Grayson marks the second time the court has approved a courthouse Ten Commandments display virtually identical to the one the Supreme Court ruled unconsitutional.
The plaintiffs in the Grayson case are deciding whether to appeal the ruling to the Supreme Court. If they do, they will almost surely lose, now that the arch-conservative Justice Samuel Alito, Jr. has replaced the retired Justice Sandra Day O’Connor. Liberty Counsel, the attorneys for Grayson County, surely hope for the current Supreme Court to accept such an appeal. Shortly after the 6th Circuit issued its decision, Liberty Counsel circulated a press release urging supporters to "Pray that the Lord continues to bless Liberty Counsel as we continue to battle the ACLU in other cases."