Monday, June 13, 2005


Are the Ten Commandments coming to a wall near you?

The case of McCreary v. ACLU was argued before the Supreme Court in March, and a decision in the case is expected any day. This case was brought by the ACLU after McCreary County, Kentucky, decided to post the Ten Commandments on the wall of the courthouse.

After the ACLU sued, the county tried to mask the religious purpose of the display by posting other documents along with the Commandments. The district judge and the 6th Circuit Court of Appeals ruled against the county.

Meanwhile, according to Tony Mauro in Legal Times, since the time of the argument before the Supremes, the 7th Circuit Court of Appeals has settled a case in Indiana with similar features in favor of the county. There was, however, one crucial difference—

A display almost identical to those in Kentucky was put up in the administration building of the Indiana county -- but with none of the pro-religious verbiage or history that tainted the Kentucky displays.

Justice Kennedy posed a hypothetical question during oral arguments that the 7th Circuit decision would seem to make more critical. He asked, according to Mauro, "whether it would make sense to strike down the Kentucky displays because of their history of religious motivation, while upholding the exact same display in another county that had 'sincere' secular intentions."

The attorney for McCreary County, Mathew Staver, thinks the court may use this case as an opportunity to do away with the "Lemon test," which currently establishes the rules concerning government-religious entanglement.

Both briefs, Staver contends, give more ammunition to a Court majority already poised to overturn Lemon, which critics say imposes too high a barrier against government accommodation of religion. In the Kentucky case, Staver asserts, the Lemon test requires courts to engage in a pointless inquiry into the intentions of government officials to see if they had a "secular purpose." The other parts of the test ask whether a government action has the effect of advancing religion or creates excessive government entanglement with religion.

Well, I decided to attempt to apply the Shullman test to the oral arguments [pdf], to see if we can guess the outcome of the case.

My result: ACLU by a mile. That doesn't mean, of course, that the court will not take this opportunity to enunciate a new church-state doctrine with respect to the Establishment Clause.

Related post
Supreme Court prognostication (updated) (5/13/05)

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