St. Louis Daily Record - 8th Circuit Ruling Allows Ten Commandments Monument to Remain in Nebraska City Park

August 25, 2005
by Donna Walter

A monument of the Ten Commandments will be allowed to remain in a city park in Plattsmouth, Neb., according to the latest ruling by the 8th U.S. Circuit Court of Appeals.

Like the earlier panel decision, handed down in February 2004, Friday's decision by the court en banc was a divided decision, with two judges dissenting.

The monument, donated to the city by the Fraternal Order of the Eagles, has been sitting in a corner of the 45-acre park since 1965. There are no paths to the monument, located 200 yards from a public parking lot. The writing on the 5-by-3-foot monument faces the street and cannot be read by passing motorists. The commandments, a nonsectarian version, are surrounded by carvings of two small tablets, a floral design, an eye inside a pyramid similar to what appears on the back of a dollar bill, an eagle clutching the American flag, two stars of David, the intertwined Greek letters chi and rho, which stand for Christ, and a scroll bearing the inscription "PRESENTED TO THE CITY OF PLATTSMOUTH, NEBRASKA BY FRATERNAL ORDER OF EAGLES PLATTSMOUTH AERIE NO. 365 1965."

The panel decision affirmed the decision of the U.S. District Court in Nebraska to grant summary judgment on the basis that the monument violated the Establishment Clause of the U.S. Constitution. The 8th Circuit majority held the city's purpose for installing and maintaining the monument was "solely religious" and that the monument's effect was "an impermissible endorsement of religion."

Upon reconsideration, the majority of the en banc court came to the opposite conclusion.

The majority based this decision on the U.S. Supreme Court's decision in Van Orden vs. Perry, which allowed the display of an Eagle's Ten Commandments monument on the grounds of the Texas Capitol.

What makes this case different from the Van Orden case is that the monument in Plattsmouth stands alone, while the monument in Texas stands among a number of other historical monuments. That distinction is the stated reason for the American Civil Liberties Union's objection to the Plattsmouth monument, and it's what makes this decision significant in the eyes of the lawyer for the American Center for Law and Justice-Midwest.

Sue Ellen Wall of Lincoln, Neb., cooperating attorney with the ACLU, said, "The plaque in Plattsmouth stands alone with no other evidences of any sort of acknowledgments or memorials celebrating the birth of the law, or whatever you want to call it, unlike the Texas Capitol grounds, which is apparently just awash in such things. And we felt fairly strongly that constituted a greater establishment because of its solitary appearance there."

But the Supreme Court didn't base its Van Orden decision on that monument's surroundings, said Francis Manion, senior counsel for the American Center, located in New Hope, Ky. The deciding vote in that case came from Justice Stephen G. Breyer, who based his decision on the fact that the Texas monument had been in place for 40 years without a legal challenge, said Manion.

Although the 8th Circuit majority noted the 35-year history of the Plattsmouth monument, it relied more on the four-justice plurality in the Van Orden case, he continued.

"The acknowledgement of religion in the nation's religious heritage does not violate the Constitution in any way," Manion said. "It's not coercive. Nobody's required to read these monuments. Nobody's certainly required to obey what's written on them. You're certainly permitted to go by and shout obscenities at the monument and give it the finger or whatever you want to do, and nothing will happen to you. You can stand on a soapbox in front of City Hall and say, 'I don't believe in any of the Ten Commandments,' and nobody can arrest you, and you won't lose your right to vote, and you won't get charged a penalty, and your taxes will be the same as everybody else's, [and] your civil rights will not be infringed in the least. And as long as that's the case, there's nothing wrong with the government simply acknowledging what is for probably the majority of Americans part of their heritage."

But for Wall, the history of these monuments and the fact that they have been in place for decades doesn't matter. "Plattsmouth is . . . in some ways a sleepy little river town, and it's been pretty homogeneous over the years. And the world is changing these days, and all of a sudden it's not as homogeneous as it used to be," she said. "Our judge here that upheld our position talked about the culture wars. I guess I think it's a little more than just culture wars, but I do think it's a phenomenon that reflects the change in the society and people's ability to accept that change and adjust to the differences."

"Like the Ten Commandments monument at issue in Van Orden, the Plattsmouth monument makes passive - and permissible - use of the text of the Ten Commandments to acknowledge the role of religion in our Nation's heritage," wrote Senior Circuit Judge Pasco Bowman for the majority. "Similar references to and representations of the Ten Commandments on government property are replete throughout our country. Buildings housing the Library of Congress, the National Archives, the Department of Justice, the Court of Appeals and District Court for the District of Columbia, and the United States House of Representatives all include depictions of the Ten Commandments. . . . Indeed, in the United States Supreme Court's own Courtroom, a frieze depicts Moses holding tablets that represent the Ten Commandments, and the Ten Commandments decorate the metal gates and doors around the Courtroom."

After listing numerous Supreme Court decisions that acknowledged the role religion has played in U.S. history, Bowman, quoting Van Orden, stated, "Given this 'rich American tradition of religious acknowledgments,' we cannot conclude that the City's display of a Ten Commandments monument violates the Establishment Clause - particularly in light of the Supreme Court's decision in Van Orden."

The monument has both religious and governmental significance, said the majority.

Bowman was the dissenting judge in the earlier panel decision.

Circuit Judge Kermit E. Bye, who wrote the earlier panel's majority opinion, argued in his dissent that nothing in the monument's surroundings "suggests its religious message might not be its raison d'etre."

"The monument shares its environs with trees and recreational equipment but none of this mise-en-scene reflects an intent to merely complement an otherwise secular setting by drawing upon one of the Ten Commandments' secular applications. Rather, the monument's stark religious message stands alone with nothing to suggest a broader historical or secular context," he continued.

Bye distinguished the Plattsmouth monument from the Ten Commandments displays listed by the majority based on the times when they appeared. The United States was thought of as a Christian nation for nearly a century after its founding, he wrote, citing Justice Stevens' dissent in Van Orden, but today the nation is more pluralistic, and reading the Establishment Clause to allow such displays can no longer be tolerated.

In addition, he distinguished the Plattsmouth monument from others on the basis of their trappings. The frieze in the Supreme Court's courtroom includes 17 other lawgivers, including secular lawgivers, and the Texas monument is surrounded by 17 other monuments and 21 historical markers, but the Plattsmouth monument "rests alone among the park's trees and recreational equipment in an area well-suited for reflection and meditation," Bye said.

That the monument has been in the park since 1965 is not sufficient for it to overcome an Establishment Clause challenge, according to Bye, because the monument stands alone outside the context of any historical or secular significance. Van Orden allows Ten Commandments displays only when placed in larger displays with secular or historical messages, Bye held.

"The monument does much more than acknowledge religion; it is a command from the Judeo-Christian God on how he requires his followers to live," he wrote. "To say a monument inscribed with the Ten Commandments and various religious and patriotic symbols is nothing more than an 'acknowledgment of the role of religion' diminishes their sanctity to believers and belies the words themselves."

Wall described her client, who went by John Doe for this case, as an active atheist.

"Our client was a person who - I always thought it was interesting - who understood the implications of the Ten Commandments symbolically from the biblical context that if you don't believe these and follow these commandments, the Bible says, you will perish and burn in hell forever. He, it seems to me, knew that and took it rather more seriously as some sort of imprecation than the so-called Christians who supported the commandments staying there," she said.

The 8th Circuit panel relied on Lemon vs. Kurtzman, a 1971 Supreme Court decision to strike down the Plattsmouth monument. The en banc court, citing Supreme Court precedent, didn't use the Lemon test, but it added in a footnote that the Plattsmouth display would have passed the Lemon test for the reasons Bowman stated in his dissent in the panel decision.

Under the Lemon test of analyzing whether government activity violates the Establishment Clause, such activity is allowed "only if (1) it has a secular purpose; (2) its principal or primary effect neither advances nor inhibits religion; and (3) it does not foster an excessive entanglement with religion," according to the en banc majority's opinion.

Lemon's usefulness is now up in the air, according to Manion.

"We used to think until June 27 that it was dead," he said. "Everybody involved in those two Ten Commandments cases at the Supreme Court thought Lemon is going. They're going to get rid of it. They've been criticizing it among themselves for 25 years. Academics have criticized it. The public has criticized it to the extent that they know about it. The court itself seems to rely on it less and less. And then, lo and behold, it shows up in Justice Souter's opinion in the McCreary County case. And so now Lemon is back, I guess.

"But then when you read Van Orden, five minutes after they revive Lemon, they rebury it because it doesn't figure at all in Van Orden. The four justices say 'we're not relying on Lemon,' and Justice Breyer, who provides the deciding vote, says 'I'm not relying on Lemon,' so who knows? We're just left trying to figure this stuff out," he added.

At the same time the Supreme Court handed down Van Orden, it handed down a decision in another Ten Commandments case, McCreary County et al. vs. American Civil Liberties Union of Ky., which struck down displays of the Ten Commandments in the courthouses in McCreary County and Pulaski County.

What Manion thinks would pass muster even under McCreary County are displays that include ethical codes from a number of different religions, but he acknowledged that people aren't always willing to do that.

"There's a very good argument to be made - and Lord knows I've made it enough times - that the Ten Commandments have a unique role in our culture," Manion said. "The Code of Hammurabi did not play a role in Judeo-Christian culture. Sorry, ACLU, it didn't. Nobody knew about it until 1900. The Hindu codes, the Islamic codes, it's difficult to make the case that they have historically been influential in America, whereas the Ten Commandments have historically been influential. . . . And one of the ways we know they've been influential is they show up everywhere - in courthouses, in state capitols, in government buildings."

It doesn't appear as if the issue of displaying the Ten Commandments in public places is going to die any time soon. Wall said the issue will die when more pressing issues arise. Manion said the issue will die only when the Supreme Court says this is not the type of issue the First Amendment was designed to guard against.

But neither attorney expects this case to make it to the Supreme Court. The decision to seek a writ of certiorari is up the ACLU board, said Wall, and it needs to analyze its chances of success to determine whether it wants to use its resources for an appeal to the high court.

Considering the two Ten Commandments decisions handed down in June, the Supreme Court isn't likely to accept another such case for several years, the attorneys said. In fact, Manion pointed out, it's been 24 years since the last Ten Commandments decision from the Supreme Court.

Judge Morris Sheppard Arnold joined Bye in his dissent. Judge Richard S. Arnold, who agreed with Bye in the panel decision, died while this case was pending before the en banc court.

The case was also heard before Chief Judge James B. Loken and Circuit Judges Roger L. Wollman, Diana E. Murphy, William Jay Riley, Michael J. Melloy, Lavenski R. Smith, Steven M. Colloton, Raymond W. Gruender and Duane Benton.

ACLU Nebraska Foundation, John Doe, plaintiffs-appellees, vs. City of Plattsmouth, Neb., defendant-appellant; State of Nebraska, amicus on behalf of appellant; Americans United for Separation of Church and State, amicus on behalf of appellee; Foundation for Moral Law Inc., Wallbuilders Inc., The National Legal Foundation, amici on behalf of appellant; No. 02-2444; handed down Aug. 19.