While surfing the net tonight I came across news – that I missed the first time – that a 3 judge panel of the U.S. 6th Circuit Court ruled on Tuesday December 20th that a 10 Commandments display in Mercer County Kentucky was not unconstitutional.
The case brought by the ACLU, concerned the Commandments viewed alongside nine other documents, including the Bill of Rights and Declaration of Independence at the Mercer County courthouse in Harrodsburg.
The court used the recent precedent of McCreary County, Ky., v. American Civil Liberties Union of Kentucky that was decided by the US Supreme Court this past June.
It found that since the Mercer County display didn’t have the sectarian history that the McCreary County one did, it was legal. Basically Mercer County passed one resolution and created the display to include the 9 other historical documents and the font size was no different for any of them, the judges noted, and there was no attempt to put the religious document at a higher level.
Of course those of us who support separation of church and state could point out (and we have) that the 10 Commandments are not part of this country’s legal history. In case you haven’t heard here some info:
Thus, were the first four commandments enacted into law today, they would constitute plain constitutional violations. It is an exceedingly strange, and strained, argument that argues the primacy of the Ten Commandments as the true American source of law when the first four simply cannot be enacted into law, because they would conflict with our Constitution. The first four prove that the Commandments are religious rules, not civil law. So as a starting point, only the latter six could possibly be nominees as possible sources of our governing laws.
That leaves us with only two commandments that are somewhat accurately echoed in current law: the rule against murder, and the rule against stealing. And even the rule against murder is not exactly the same as the Commandment: We recognize exceptions, such as self-defense, that the Commandment simply does not.
Moreover, it is impossible to attribute the continuing force of these laws solely to their Ten Commandments’ origin. And that origin is not unique: There is no civilized country that has not settled upon these two principles.
The Ten Commandments and American Law
The article mentions that other historical legal documents led to our current legal system. These include the Magna Carta and British common law.
The author of the article quoted above, Marci Hamilton, also noted:
Interestingly, over the centuries, many Christians have claimed that the Ten Commandments did not govern their conduct, because they were given dispensation from the Commandments through Christ–a claim that severely undermines the notion that the Ten Commandments were always considered by Christians to be the supreme and foundational law.
Court cases involving the display of the Decalogue never seem to focus on the non-historical value of it to our legal history. If they did then religious theocrats would lose every time. Instead judges use precedent and legal tests in church vs. state cases.
One common legal test is called the Lemon Test, named for the case where it was first used Lemon v. Kurtzman, 403 U.S. 602, 612-13 (1971):
Under Lemon, government action does not run afoul of the Establishment Clause if it (1) has a secular purpose; (2) does not have the primary or principal effect of either advancing or inhibiting religion; and (3) does not foster an excessive governmental entanglement with religion.9 Lemon v. Kurtzman, 403 U.S. 602, 612-13 (1971). The first and second prongs have since been reformulated. After McCreary County, the first is now the predominant purpose test. McCreary County, 125 S. Ct. at 2733; id. at 2757 (Scalia, J., dissenting) (“[T]he [McCreary County majority] replaces Lemon’s requirement that the government have ‘a secular . . . purpose’ with the heightened requirement that the secular purpose ‘predominate’ over any purpose to advance religion.” (quoting Lemon, 403 U.S. at 612)). The second, the so-called “endorsement” test, asks whether the government action has the purpose or effect of endorsing religion.10 Adland v. Russ, 307 F.3d 471, 479 (6th Cir. 2002); Granzeier v. Middleton, 173 F.3d 568, 573 (6th Cir. 1999).
ACLU of Kentucky, et al. v. Mercer County, Kentucky, et al. (2005) p. 10
In summary, a government action (law, regulation, policy) is judged to see if it pass the 3 “prongs” of the test. An action can be unconstitutional even if it fails just one “prong” as the Dover, PA Intelligent Design case did.
The questions asked are: What was the intent? Does it advance or prohibit a religion? Does it cause excessive entanglement?
As noted in the quote above, the Lemon Test has been modified where the first “prong” now looks at the “predominate” purpose. That means what purpose was “to be the greater or greatest in importance”. The courts view is that this is a heightened requirement but what it is is a watered down “prong”.
If a government says they want to post the Decalogue to restore religious spirit then that would fail the “prong” but if they say the positing is to honor our history then it would seem to pass. Previously any religious purpose would be cause for it being illegal. Now we get actions that happen to have a religious purpose but it isn’t the primary purpose so courts have said it is ok.
People call it “accommodating”, that is changing the rules to fit the situation and we see a slow chipping away of the wall of separation of church and state. As more and more actions are squeezed under the modified Lemon Test the more government sponsored religious acknowledgement we will be forced to endure.
The 10 Commandments are a direct quote from the Bible but that isn’t enough to cause a government posting it to cross the constitution on its face. That’s why future cases should attack the historical argument in addition to finding a predominate religious purpose. If the historical basis is destroyed then all that is left is its religious purpose and that is the only reason theocrats have for posting it in the first place. Historical context in these cases is always a sham.
Such an argument would solve these cases in our favor.
The ACLU took some lumps in the decision handed down in the Mercer case on December 20th. The judge giving the decision, Judge Richard Suhrheinrich, was not kind at all. He said:
Our concern is that of the reasonable person. And the ACLU, an organization whose mission is “to ensure that . . . the government [is kept] out of the religion business,” does not embody the reasonable person.
The ACLU’s argument contains three fundamental flaws. First, the ACLU makes repeated reference to “the separation of church and state.” This extra-constitutional construct has grown tiresome. The First Amendment does not demand a wall of separation between church and state.
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.
Third, the ACLU erroneously–though perhaps intentionally–equates recognition with endorsement. To endorse is necessarily to recognize, but the converse does not follow.
ACLU of Kentucky, et al. v. Mercer County, Kentucky, et al. pp 13-14
Now I could do as my religious conservative friends do and scream about judicial activism etc…. but I won’t. The judges in this case are simply wrong. They used false premises to reach a false conclusion.
The ACLU could never meet the “reasonable person” requirement that Judge Suhrheinrich suggests because it is an organization and not a person. It wasn’t the ACLU complaining about the display, it was the person(s) it was representing. The courts complaint is simply unfair and biased. If their “standard” was common then the ACLU would never be able to defend people’s rights and our history would be altered for the worse.
The court is correct that a reasonable person would see the Mercer display and not automatically see it as a religious display. They would assume it was a historical display. That’s why if the ACLU had attacked the historical claim then it would show such a reasonable person to share a wrong assumption. Is it the purpose of government to advance a falsehood?
As for the court’s claim that endorsement doesn’t equal recognition all one has to do is point out that one sect is being recognized over all others. Where are examples of other religious laws in the display, like the Talmud or Shia? Logically, for it not to be an endorsement of Christianity then all religious laws have to be displayed.
The panel of judges in this case also make the false assumption that there is no “separation of church and state.” Previous courts, including the US Supreme Court in the McCreary County, Ky case and others used to decide this case, create a definite line between church and state. Their rulings always decide if that line is crossed. There is a line even if you don’t call it a wall. If there was in fact no “separation of church and state” then the line wouldn’t exist and there would be no need for the court to decide these types of cases.
Finally, it seems this court requires that a government action involving religion must fail all three “prongs” of the Lemon Test. Previous cases, including the recent Dover case, never had that requirement. The simple reason is that an action could pass muster under one or more the “prongs” and still be unconstitutional because it would fail one of the remaining “prongs.” The usual requirement is that an action must pass all three parts of the test and not the reverse.
The Mercer decision is just another example of accommodating religion in government for no other reason than to help Christians feel good about themselves. I hope the ACLU appeals because the court made some serious errors in applying previous case law in their decision.