Issue #95

by Art Kelly

The Louisville Courier-Journal reported that a panel of the 6th Circuit Court of Appeals has ruled that displays of the Ten Commandments at the court houses in McCreary County and Pulaski County in Kentucky are unconstitutional.

In a 2-1 decision, the panel granted a motion from the American Civil Liberties Union (ACLU) for a permanent injunction against displaying the Ten Commandments.

In June 2005, in Van Orden v Perry, the U.S. Supreme Court ruled 5-4 that a monument to the Ten Commandments on the grounds of the Texas State Capitol was constitutional. At the same time, in McCreary County v ACLU of Kentucky, the Court ruled 5-4 that a display on the Ten Commandments in the county court house was unconstitutional.

The difference in the outcome was that Justice Stephen Breyer voted for the Texas display and against the McCreary County display.

The Supreme Court found that McCreary County intended the display for religious purpose, even though the Ten Commandments were part of a comprehensive exhibition "The Foundations of American Law and Government," which included the Star Spangled Banner's lyrics and the Declaration of Independence, accompanied by statements about their historical and legal significance.

The latest case is an another attempt by McCreary and Pulaski counties to show a secular purpose for the display of the Ten Commandments, along side the Mayflower Compact, the Magna Carta, and other historical documents.

But the majority ruling of the appeals court stated, “The counties in this case have still not presented a valid secular purpose.”

However, identical displays of the Ten Commandments and the other documents have been upheld by the 6th Circuit Court of Appeals in two other Kentucky counties--Mercer and Grayson--because the history of those displays indicated that the county officials had secular motives to promote history and education.

Mathew Staver, who represented the counties and is also the founder of Liberty Counsel and Dean of the School of Law at Liberty University, pointed out that if the display itself is permissible, “motive is irrelevant.”

The dissenting opinion of the panel was rendered by Judge James Ryan, who wrote:

“I cannot be too critical of my panel colleagues who feel stare decisis bound by the Supreme Court majority’s persistent hostility to religion and its refusal to acknowledge the historical evidence that religion, religious symbols, and the support of religious devotion were the very essence of the values the Constitution’s authors and the ratifying legislators thought they were preserving in the language of the First Amendment.”

Staver said he will ask the full 6th Court of Appeals to consider the case. He indicated he was prepared to take it to the Supreme Court if necessary.

“This battle is far from over,” Staver said. “The Ten Commandments are part of the fabric of our country and helped shape our laws. They are as much at home in a display about the foundations of law as stars and stripes are in the American flag. The Founding Fathers would be outraged that we are even debating the constitutionality of the Ten Commandments.”