Louisville Courier-Journal - Ten Commandments Display in Kentucky is Upheld

December 21, 2005
By Peter Smith, The Courier-Journal

A federal appeals court has upheld a display of the Ten Commandments alongside other historical documents in the Mercer County, Ky., courthouse.

The judge who wrote the opinion blasted the American Civil Liberties Union, which challenged the display, in language that echoed the type of criticism often directed at the organization.

Judge Richard Suhrheinrich's ruling said the ACLU brought "tiresome" arguments about the "wall of separation" between church and state, and it said the organization does not represent a "reasonable person."

The decision was issued by a three-judge panel of the 6th U.S. Circuit Court of Appeals, based in Cincinnati. It upheld a lower-court decision that allowed Mercer County to continue displaying the Ten Commandments along with the Declaration of Independence, the Bill of Rights, the words to "The Star-Spangled Banner" and other documents.

All of the items were posted at the same time in 2001.

Identical displays were ruled unconstitutional in Kentucky's McCreary and Pulaski counties by the U.S. Supreme Court earlier this year. The high court said officials there spoke of their religious intentions, and they also put up the displays only after previous ones -- a stand-alone exhibit of the Ten Commandments and another display of religious-themed documents -- were challenged.

In the Mercer County case, the appeals court said there was no evidence that the county had a religious purpose in posting its display. And the Ten Commandments document is not more prominent than the others, the court said.

"It's a big win for the people of Mercer County who've been told for a long time they don't know what they're doing when it comes to this type of issue," said Bardstown lawyer Francis Manion of the conservative American Center for Law and Justice, which represented the county.

David Friedman of the ACLU of Kentucky said he's disappointed and will consult with the plaintiff about whether to seek review by the full 6th Circuit or the Supreme Court.

He said the Mercer County display is "thinly disguised" as historical.

"I don't think anyone understanding the context -- (with the display) put up in midst of the McCreary County litigation -- seriously thinks anyone was trying to teach history," Friedman said. "They were looking for a way to get the Ten Commandments on the wall."

But he acknowledged the ruling's impact in the 6th Circuit, which includes Kentucky, Ohio, Tennessee and Michigan. "At this point in this circuit, it means that this particular display is lawful without proof of (religious) intent," he said.

He also said officials should not be allowed to post religious documents just because they don't state religious intentions.

"You ought to have a bright-line rule that simply forbids government from doing these sorts of things, rather than getting into an unappealing choice of court saying, 'Government, you're a liar,' or 'We'll believe you simply because you said it,' " he said.

The opinion by Suhrheinrich was joined by Judge Alice Batchelder. Judge Walter Rice concurred with the ruling but didn't join in the written opinion.

Suhrheinrich wrote that a court has to decide whether a "reasonable person" would find that a government display endorses religion, not whether someone finds it offensive. He said the ACLU "does not embody the reasonable person."

He criticized the organization for arguing that the First Amendment mandates a "wall of separation between church and state."

"Our nation's history is full of governmental acknowledgment and in some cases accommodation of religion," the judge wrote.

Friedman declined to respond to those criticisms, saying only that he disagrees with the court's legal reasoning.

But one supporter of the ACLU called the ruling's language inappropriate.

"It's unfortunate that a federal court would go out of its way to speak disparagingly of any group before it," said Sam Marcosson, a University of Louisville law professor who has cooperated with the ACLU in an unrelated case.

He said it's one thing to criticize a group's position as "wrong-headed" but another to launch a personal attack.

The lawyer representing Mercer County said the ruling was welcome.

"For too long (Kentuckians) have been lectured like children by those in the ACLU and elsewhere who claim to know what the people's Constitution really means," Manion said in a statement. "The court recognizes that the Constitution does not require that we strip the public square of all vestiges of our religious heritage and traditions."

Two state representatives -- Rick Nelson, D-Middlesboro, and Stan Lee, R-Lexington -- have filed bills for the next session of the General Assembly that are intended to expand public displays of the Ten Commandments. They said yesterday's ruling can only help.

Nelson said, "It's a common-sense ruling" that reflects "what a lot of people have said all along."