The Supreme Court may give us a hint after it hears argument in two cases presenting the same tough question: Is it constitutionally permissible for an agency of government, such as a public park or a county courthouse, to display the Ten Commandments
On this issue, the lower federal courts are sharply divided. In Van Orden v. Perry, the 5th Circuit said yes, it's OK. In McCreary County v. ACLU, the 6th Circuit said no, it's not. The two cases will be argued before the high court on March 2. A third case, DeWeese v. ACLU, involves a courthouse in southwestern Ohio. It is actively pending on a petition for review — and it raises a question of "standing" that deserves attention.
The Van Orden case involves a massive stone monument, engraved with the Troublesome Ten, that stands on a walkway adjoining the Texas state capitol. A panel of the 5th Circuit found that the monument did not violate the First Amendment. In the case from McCreary County, Ky., a panel of the 6th Circuit condemned a courthouse display of a framed copy of the Ten Commandments. The high court's opinion in this case will be based upon an almost identical set of facts in the DeWeese case from Richland County, Ohio.
The facts in the pending case from Ohio are not in dispute. In July 2000, James DeWeese, judge of the County Court of Common Pleas, posted a framed copy of the Ten Commandments on a side wall of his courtroom in Mansfield. Across from Moses he hung a similarly framed copy of the Bill of Rights. Elsewhere in the courtroom, visitors could find a portrait of Abraham Lincoln and a depiction of Ohio's seal with the state motto: "With God All Things Are Possible." In a lobby just outside the courtroom, visitors may inspect a display of 29 reproductions of historical documents.
The American Civil Liberties Union
got wind of the judge's artwork. Somehow it enlisted the services of an Ohio lawyer, Bernard Davis
, who "from time to time" practices law in Judge DeWeese's courtroom. There he is forced to come into "direct, unwelcome contact with the Ten Commandments display." This obnoxious experience so offended his sensibilities that he fled for relief to the ACLU (or the ACLU fled to him). He executed an affidavit attesting the unbearable damage he must endure.
No other affidavits or depositions appear in the Supreme Court record. No other members of the ACLU are named. No one testified. District Judge Kathleen McDonald O'Malley simply granted summary judgment to the ACLU. Last July a panel of the 6th Circuit summarily affirmed. U.S. District Judge Joseph M. Hood, sitting by designation in the 6th Circuit, brushed aside the county judge's defense as "contrived at best." The Bill of Rights poster "does nothing to negate the endorsement effect of the Ten Commandments poster."
Circuit Judge Alice M. Batchelder filed a powerful dissenting opinion. She began by questioning the role of the ACLU's paper plaintiff. His alleged "injury," in her view, was not sufficient to give him standing to sue.
Turning to the facts of the case, Judge Batchelder observed that the offending poster is a far cry from the granite monuments that have triggered other cases. "The text is so small that it cannot be read from the jury box, the witness stand, or the bench."
The ACLU had complained that DeWeese did not have a "purely secular purpose" in hanging the Mosaic text. Judge Batchelder dismissed the objection: "It is patently unnecessary for DeWeese to have had a purely secular purpose. He merely needed not to have a purely religious purpose." There was nothing in the record to suggest that the county judge was attempting "to instruct individuals that our legal system is based on moral absolutes from divine law handed down by God through the Ten Commandments."
Judge DeWeese had protested that he was not proselytizing anyone. He thought the framed commandments might foster debate "between the philosophical position of moral absolutism (as set forth in the Ten Commandments) and moral relativism in order to address what he perceives to be a moral crisis in this country." Such a purpose, said Judge Hood, violates the Establishment Clause.
Judge Batchelder had the last word: "A great many state educational institutions will be shocked, I suspect, to learn that fostering debate between philosophical positions is now unconstitutional in the 6th Circuit."
Last word? In this constitutional debate, the last word will never come.
(Readers are invited to send dated citations of usage to Mr. Kilpatrick. His e-mail address is email@example.com