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Judge: 10 Commandments Arguments 'Tiresome'
A recent decision by a federal court of appeals has set the stage for yet another Supreme Court showdown over public displays of the Ten Commandments. On December 20, a three-judge panel from the Sixth Circuit Court of Appeals in Cincinnati upheld a public display of the Ten Commandments in a Kentucky courthouse. The Mercer County display in question is nearly identical to displays the Supreme Court previously ruled unconstitutional in two other Kentucky counties in June 2005. The Sixth Circuit explained the conflicting result by ruling that the displays had different purposes.
Story Continues Below In declaring the previous displays unconstitutional, the Supreme Court pointed out that county officials spoke openly of their religious intentions in posting the Ten Commandments. The judges in the Mercer County case said there was no such evidence of a religious purpose in Mercer County. They noted that the Ten Commandments display was no more prominent than displays of nearby copies of the Declaration of Independence, the Bill of Rights and the "Star-Spangled Banner." The opinion was particularly harsh on the American Civil Liberties Union, calling its arguments "tiresome" and claiming it does not represent a "reasonable person." The opinion, written by Judge Richard Suhrheinrich, explained that the "reasonable person" remark is particularly important because the legal standard requires the court to determine whether a "reasonable person" would believe a display endorses religion, not whether it offends someone in the community. The plaintiff, represented by the ACLU, has the option to seek review by the full Sixth Circuit or to appeal the case to the Supreme Court.
Though the Court routinely rejects over 98 percent of appeals, it often cites conflicting appellate court decisions when agreeing to hear a case. The Mercer County case could be interpreted to create just such a conflict. The changing composition of the Supreme Court could lead to a different result from the 2005 decision. Both Chief Justice John Roberts and yet-to-be-appointed Justice Samuel Alito are believed sympathetic to the legal argument behind the Mercer County decision. Alito was best known for his decisions regarding the separation of church and state prior to his nomination for the Supreme Court. In fifteen years as an appellate judge, Alito consistently held that the Establishment Clause of the First Amendment does not prohibit government acknowledgment of religion. Chief Justice Roberts is less predictable because he lacks the extensive paper trail created by Alito's long tenure as an appellate judge. Alito's confirmation to the High Court, with nomination proceedings scheduled in January, is particularly important because he would replace retiring Associate Justice Sandra Day O'Connor. O'Connor has often been the swing vote in Establishment Clause cases. She has consistently sided with the Court's liberal wing on the issue. Roberts, by contrast, is thought to hold opinions very similar to his predecessor, former Chief Justice William Rehnquist.
Editor's note:
Read more on this subject in related Hot Topics: Inside Cover Stories
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