Heretics

In a December 20, 2005 opinion handed down by the U.S. Court of Appeals, 6th Circuit, on the case ACLU v. Mercer County, KY, the Court determined a County Courthouse display that included the Ten Commandments constitutional. Interestingly, the written opinion also slapped the ACLU's face.

Following are some excerpts from the 14 page opinion:

"The ACLU seeks to enjoin the County from displaying an exhibit in its courthouse that includes a copy of the Ten Commandments."

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

On October 9, 2001, Carroll Rousey, a Mercer County resident, requested permission to hang a display entitled “Foundations of American Law and Government” in the County Courthouse. The display was to include the Mayflower Compact; the Declaration of Independence; the Ten Commandments1; the Magna Carta (in two frames); the Star-Spangled Banner; the National Motto “In God We Trust” and the Preamble to the Kentucky Constitution (one frame); the Bill of Rights; and Lady Justice.

He stated that the purpose for erecting the “Foundations” display was that “all of the documents, including the Ten Commandments, have played a role in the formation of our system of law and government. . . . [The] display is not intended [to], nor does it, endorse or promote religion. It simply acknowledges our
history.”

(In contrast to an earlier decision to find a McCreary County, KY, display unconstitutional) The Mercer County display, on the other hand, lacks a similar sectarian pedigree. Here, there was only one display, one authorizing measure, and one implementation, all of which demonstrate a secular purpose.

Instead, it is supported by context, including the explanatory document and the eight other objectively historical and secular documents. A reasonable observer
would not view this display as an attempt by Mercer County to establish religion. Instead, he would view it for what it is: an acknowledgment of history.

Mercer County authorized the posting of nine documents in its courthouse in an attempt to recognize American legal history. It is of course not unusual for a government to educate the public in this manner; in fact, it is commonplace. As a general matter, then, an historical display in a courthouse would not set off alarms in the objective observer. Thus, to be problematic, there must be something more to signal a predominantly religious purpose. But the Mercer County display, in
this context, does not contain any overtly sectarian messages. While several of the documents refer to the Deity, it would be unreasonable, ipso facto, to interpret those as evidencing a religious purpose. By including the Ten Commandments in a display of American legal documents, the County is merely acknowledging the Commandments’ historical influence. We generally defer to the government’s rational judgment of what is historically relevant.

The Supreme Court has said repeatedly that the Ten Commandments have historical importance.

Rather, the inquiry here is whether the reasonable person would conclude that Mercer County’s display has the effect of endorsing religion.

These nine documents, along with the explanatory text, send the “unmistakable message” of the County’s acknowledgment of legal history.

And the ACLU, an organization whose mission is “to ensure that . . . the government [is kept] out of the religion business,”16 does not embody the reasonable person.

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.

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.

Third, the ACLU erroneously–though perhaps intentionally–equates recognition with endorsement. To endorse is necessarily to recognize, but the converse does not follow.

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. See Washegesic ex rel. Pensinger v. Bloomingdale Pub. Sch., 33 F.3d 679, 684 (6th Cir.
1994) (Guy, J., concurring) (describing the “eggshell” plaintiff as unknown to the Establishment Clause). 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.

I believe the ACLU once actually did defend American civil liberties. It, however, has long since become the moonbat spearhead.

It is good to see a judge state, "This extra-constitutional construct has grown tiresome."