cross-posted from Dembloggers and A Faerie’s Farthing

On Christmas Eve, Harmonium called our attention to this horrific ruling by a Cincinatti appellate court.  It’s a really important story with Alito implications, so it needs lots of air time, imo.

I really can’t believe I just read this.  But read it I did.  In a legal opinion regarding the display of the Ten Commandments at a courthouse, an Ohio judge recently opined that there is no wall of separation between church and state.  

A Cincinnati appeals court ruled Tuesday that a Kentucky courthouse can display the Ten Commandments alongside other historical documents, even though the U.S. Supreme Court recently barred a similar display 50 miles away.

The decision from the U.S. 6th Circuit Court of Appeals means the display in Mercer County is permitted as long as the religious document is not given significance over the other documents, which include the Bill of Rights and the Declaration of Independence.

…Manion said the Supreme Court rulings in the other Kentucky cases left an opening for such displays as long as those who erect them don’t make religion a focal point.

In the other counties, the court noted, the displays were put up as pastors and others applauded the effort to bring religion into public places. The judges concluded that did not happen in Mercer County, thus making the display there permissible.

“The Ten Commandments are part of an otherwise secular exhibit,” Judge Richard Suhrheinrich wrote for the panel.

…we conclude that the Mercer County display lacks a religious purpose and further conclude that it does not endorse religion.

It lacks a religious purpose, but is part of an “otherwise secular” exhibit.  Do those of the wingnutosphere never think about the things they say?  I can’t wait to see what happens when Hindus, Muslims, Pagans, and Jews petition to have their religions acknowledged in such a display.  That will tell us whether or not it’s an endorsement of religion.

As you enter the Mercer County Courthouse from the front, on the left wall are framed displays of the national anthem, the preamble to the Kentucky Constitution, the Ten Commandments, the Mayflower Compact and the Declaration of Independence.

On the right wall is Lady Justice, an explanation of the Foundation for American Law and Government, the Bill of Rights of the U.S. Constitution and two frames containing the Magna Carta.

One of these things is not like the others; one of these things just doesn’t belong.  The wingnuts themselves aren’t even trying to pretend there’s no signifigance in displaying the Ten Commandments alongside the documents which form the foundation of our legal system.  In the full text of the ruling, we are informed that the display also contains a commentary page providing an explanation for each of the items featured.  Here is the explanation for the Ten Commandments:

The Ten Commandments have profoundly influenced the formation of Western legal thought and the formation of our country. That influence is clearly seen in the Declaration of Independence, which declared that “We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty, and the pursuit of Happiness.” The Ten Commandments provide the moral background of the Declaration of Independence and the foundation of our legal tradition.

Never mind that most of our founding fathers ascribed to no specific religion; never mind the Treaty with Tripoli, which explicitly states “As the Government of the United States of America is not, in any sense, founded on the Christian religion.”  I think God himself could tell the dominionists that America was not established as a Christian nation and they’d probably still persist in these delusions.  Needless to say, they’re ecstatic over this ruling.  The same groups who want to see Biblical edicts codified into law are almost as gleeful over this as they were after Alito’s nomination.  Which makes this development really scary – would the Supreme Court continue to rule against such practices if he is seated?

Opponents, however, said the ruling is a rebuke to the Supreme Court decision in June that barred almost identical displays at courthouses in Pulaski and McCreary counties in southeastern Kentucky.

…In those cases, a 5-4 Supreme Court majority found that the displays in McCreary and Pulaski counties violated the Constitution because they were erected with a clear religious purpose.

“This creates a situation where a court of appeals is essentially ignoring a Supreme Court decision,” said Scott Greenwood, an attorney for the American Civil Liberties Union, which challenged the displays. “It’s a slap in the face.”

Greenwood said the display in Mercer County is virtually identical to the other displays and was put up with the same purpose: to promote religion.

…ACLU attorney David Friedman said he is disappointed with the ruling.

…”It endorses religion by trying to wrap the Ten Commandments in the flag,” Friedman said.

And that’s the bottom line.  I don’t care what technical hairs they split over the Ten Commandments not having any prominence over the other pieces in the display; the very fact that they are being presented as equal to legal documents is problematic enough.  Neither do I buy this nonsense about it being a “historical” display.  Yes; these documents are all of historic importance, but they are specifically relevant to our nation’s legal history.  If the display included information about the town’s development or history about the courthouse being built, they might have a point.  But it doesn’t and neither do they.  They have placed their religious doctrine in a display with items of legal provenance at the county offices of law and justice.  They know full well what this means; this “opening” means everything to them.

“Courts across the country are closely split on these issues,” Friedman said. “This panel is more tolerant of government conduct that endorses religion.”

But those who have defended counties in their quest to post the Old Testament edicts said Tuesday’s decision is a sign that judicial opinion on the separation of church and state is moving to the right.

It gives a road map to cities and counties that want to display the Ten Commandments,” said Francis A. Manion, of the American Center for Law and Justice, which represented Mercer County in the case. Manion also represents other counties in Kentucky facing similar lawsuits.

That’s the same American Center for Law and Justice founded by Pat Robertson.  Their other distinctions include representomg Terri Schiavo’s parents and protecting the free speech rights of “pro-life” demonstrators.  They also have quite the quarrel with the ACLU as outlined by Jay Sekulow:

I spent this past weekend reviewing a number of issues involving the American Civil Liberties Union (ACLU).  It has been clear for a long time that the ACLU is out of step not only with the American people, but oftentimes with common sense.  

…On the religious liberty front, the ACLU’s assault on the Ten Commandments and other forms of expressions of faith in the public square has been unrelenting.  

…I have instructed our ACLJ regional offices and our affiliates throughout the country to aggressively pursue cases involving the ACLU.  We are prepared to defend cities, counties, members of Congress and others who are placed in the legal crosshairs by the ACLU and their lawyers.


If one didn’t know any better – maybe we don’t – one might think that Judge Suhrheinrich’s legal opinion was ghost written by Mr. Sekulow himself.

Suhrheinrich took several swipes at the ACLU at the end of the ruling. Throughout the ruling, he wrote that a reasonable person might see the McCreary and Pulaski displays as a religious documents while a reasonable person would see the Mercer County display as secular.

“And the ACLU … does not embody the reasonable person,” he wrote.

Friedman’s reply: “Judge Suhrheinrich thought it was appropriate to put in the opinion, so he did.”

Gratuitous disparagement of the case’s plaintiff…classy.  If that doesn’t qualify him as a judicial activist, maybe this will:

The appeals judges also said the ACLU misinterpreted the Constitution’s ban on establishing a religion to mean there can be no acknowledgement of religion by government.

“The ACLU makes repeated reference to the ‘separation of church and state,'” Suhrheinrich wrote. “This extra-constitutional construct has grown tiresome. The First Amendment does not demand a wall of separation between church and state.

Ok, sure; technically, it is an “extra-constitutional construct,” but I would certainly expect a federal judge to appreciate the significance of its source.  Originating as it did with Thomas Jefferson – who played a large role in the creation of the Bill of Rights – has got to count for something.  To most constitutional scholars, it does; for those with an agenda, it doesn’t.  And so we end up with federal judges pretending that “de jure” is a prerequisite for “de facto” and ignoring the very necessary, practical and invaluable wall between legislative and spiritual affairs.  

Believing with you that religion is a matter which lies solely between man & his god, that he owes account to none other for his faith or his worship, that the legitimate powers of government reach actions only, and not opinions, I contemplate with sovereign reverence that act of the whole American people which declared that their legislature should make no law respecting an establishment of religion, or prohibiting the free exercise thereof, thus building a wall of separation between church and state.

(signed) Thomas Jefferson

Maybe they’re just testy because he equated “religion” with “opinion.”  The Wingnut<sup>TM</sup&gt Brigade never has had a sense of humor; there’s nothing they enjoy more than taking themselves far too seriously.  After all, if the only tool you have is a persecution complex, you tend to see every problem as a lion.

Full text of the ruling, if you’re interested

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