Louisville Courier-Journal - Ten Commandments Display in Kentucky Upheld by Appeals Court

April 25, 2006
By Peter Smith
The Louisville Courier-Journal

A federal court yesterday upheld a Ten Commandments display at the Mercer County, Ky., courthouse -- even though the display is identical to one that the U.S. Supreme Court ruled unconstitutional in two other Kentucky counties last year.

The decision by the 6th U.S. Circuit Court of Appeals, based in Cincinnati, upheld a December ruling by a three-judge panel on the court that validated the display.

That ruling served as a basis for a new Kentucky law allowing religious texts to be posted as part of historical displays on public property.

But in a sharp dissent, five of the 14 judges on the appeals court accused their colleagues yesterday of misreading Supreme Court precedent.

The dissent, written by Judge R. Guy Cole Jr., said the majority turned a "blind eye" to the religious motivations of Mercer officials in posting the display.

Attorney David Friedman of the American Civil Liberties Union of Kentucky, which challenged the display, said he was "disappointed" with the ruling but was pleased to get support from the dissenting judges. He said it is "much too early" to say whether the organization will appeal to the Supreme Court.

The Mercer display includes framed copies of the Ten Commandments along with copies of various historical documents. It is identical to displays in McCreary and Pulaski counties, which were ruled unconstitutional by the Supreme Court in June.

But the appeals court panel ruled in December that the Mercer display could remain because it had a different history.

The other two counties had first displayed the copies of the Ten Commandments on their own. Then, after a court challenge, they displayed the commandments with religiously themed historical documents before settling on a third display involving other historical documents with fewer religious references.

This history, plus the public comments and actions by McCreary and Pulaski officials, indicated a religious motivation all along, the high court ruled.

In contrast, Mercer County only posted a display identical to the third version of the displays in McCreary and Pulaski counties, and the appeals court ruled that its officials had secular, not religious, motivations.

Judge Richard Suhrheinrich wrote in the majority opinion in December that a "reasonable person" would say Mercer County had a secular motivation -- and that the ACLU "does not embody the reasonable person."

Cole, however, wrote that it would be "nave" to think the Mercer officials lacked religious motivation just because they didn't voice any. Cole said the context shows the county put up its display in solidarity with "its fellow counties' embattled and religiously motivated display."

Cole said the majority misread the Supreme Court's ruling last year on McCreary and Pulaski counties. The court said that proving the officials' religious motivation was "sufficient" to rule the displays unconstitutional but that it's not "necessary" if the religious intent can be proved otherwise, Cole wrote.

Cole noted that the Supreme Court was suspicious of the counties' actual displays, not just the motivations behind them.

The high court had questioned why -- even in the third version of the displays -- the officials omitted the U.S. Constitution, which doesn't refer to God, but included the Declaration of Independence and the Magna Carta, which do.

Cole cited the Supreme Court's statement that governmental actions favoring religion tell non-believers they "are outsiders."

Cole said it "defies reason" to picture a nonreligious person in Mercer County who "passes by the Ten Commandments display in his state courthouse, reads the opening words, 'Thou shall have no other gods before me,' and thinks, 'Thank goodness I don't live near my uncle in McCreary County, where I'd be a second-class citizen.' "

But attorney Francis Manion, who argued on behalf of Mercer County, said the court was right.

"You have a clear majority saying yes, you can display the Ten Commandments if you're doing it for other than a predominantly religious reason," said Manion, of the American Center for Law and Justice.

The appeals court's decision sets precedent for Kentucky, Michigan, Ohio and Tennessee.