The U.S. Court of Appeals for the Sixth Circuit’s decision upholding Mercer County’s display of the Ten Commandments in their “Foundations of American Law and Government” display is a significant case development.  I have provided below an analysis of the opinion which shows the stinging rebuke the ACLU has received in their church-state separation analysis: 

The Sixth Circuit Court of Appeals rejected the ACLU’s arguments on three bases.   The court noted that in the McCreary County Ten Commandments case decided by the Supreme Court on June 30, 2005, the high court had applied the Lemon test.  The court also noted that in the Supreme Court’s decision in the Van Orden case out of Texas, decided the very same day, they disregarded Lemon.  

The following is a verbatim quote from the Sixth Circuit’s opinion, dismissing the ACLU’s arguments:

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.  Our Nation’s history is replete with governmental acknowledgment and in some cases, accommodation of religion. “There is an unbroken history of official acknowledgment by all three branches of government of the role of religion in American life from at least 1789.” After all, “[w]e are a religious people whose institutions presuppose a Supreme Being.” Thus, state recognition of religion that falls short of endorsement is constitutionally permissible.

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. . . . “Simply having religious content or promoting a message consistent with a religious doctrine does not run afoul of the Establishment Clause.” . . . In short, “proving” that the Ten Commandments themselves are religious does not prove an Establishment Clause violation.

Third, the ACLU erroneously–though perhaps intentionally–equates recognition with endorsement. To endorse is necessarily to recognize, but the converse does not follow. Because nothing in the display, its history, or its implementation supports the notion that Mercer County has selectively endorsed the sectarian elements of the first four Commandments, we fail to see why the reasonable person would interpret the presence of the Ten Commandments as part of the larger “Foundations” display as a governmental endorsement of religion.

We will not presume endorsement from the mere display of the Ten Commandments. If the reasonable observer perceived all government references to the Deity as endorsements, then many of our Nation’s cherished traditions would be unconstitutional, including the Declaration of Independence and the national motto. Fortunately, the reasonable person is not a hyper-sensitive plaintiff.  Instead, he appreciates the role religion has played in our governmental institutions, and finds it historically appropriate and traditionally acceptable for a state to include religious influences, even in the form of sacred texts, in honoring American legal traditions.  (Citations omitted.)

The court then ruled unanimously in our favor.  It is quite possible that this case will be brought up by the ACLU in a Petition for Certiorari to the Supreme Court.  I will keep you posted.