New tolerance for Ten Commandments display
on Aug 19, 2005 at 5:38 pm
(This is one of a series of posts on the impact that Supreme Court decisions have on later lower court rulings.)
If a display of the Ten Commandments is put up on city property, it stands there alone, and the government had no historical or other non-religious reason for putting it there, is it unconstitutional as an official embrace of religion? The answer would seem to depend upon how one reads Justice Stephen G. Breyer’s decisive vote and concurring opinion in the Court’s widely splintered, 5-4 decision on June 27 in Van Orden v. Perry. The answer, though, is no, according to a new decision by the Eighth Circuit — apparently the first ruling at that level to apply the Van Orden precedent to another Commandments display.
In a 10-2 en banc decision on Friday, the Circuit Court upheld the display of a stone tablet of the Ten Commandments, the only monument in a 45-acre city-owned and maintained park in the small Nebraska town of Plattsmouth (ACLU Nebraska Foundation, et al., v. City of Plattsmouth, Circuit docket 02-2444). The monument is, in fact, identical to the one that a 5-4 Supreme Court upheld in the Van Orden case, and it was donated by the same source, the Fraternal Order of Eagles.
Scores of these monuments were displayed across the country as gifts of the Eagles, and those displays have produced in recent years an array of conflicting results in lower court rulings, before the Supreme Court stepped in to resolve the issue in Van Orden, involving the Commandments monument on the grounds of the Texas state capitol in Austin. Only one thing, however, was definitively resolved by Van Orden — context means everything in judging such government displays of the Commandments.
It appears that the identical nature of the monument and of its donor, and the fact that both displays had stood for years before being challenged in court, may be where the similarity in context ends between the Texas and Nebraska displays.
On the Texas capitol grounds, the Ten Commandments tablet is exhibited among 21 historical markers and 17 other monuments. Justice Breyer, in his separate (and presumably controlling) opinion, accepted that the state of Texas sought to communicate a religious message, but also to communicate a secular message, part of a broad display reflecting Texas’ history and its cultural heritage. Given its setting, Breyer said, the non-religious message appeared to predominate.
In the city park in Plattsmouth, there is no other monument, no other historical marker. There are a few plaques naming donors of recreational equipment. A panel of the Third Circuit, in a decision striking down the monument (a decision that was set aside for en banc review), concluded in February 2004 that there was no evidence the city had a non-religious purpose in accepting the display from the Eagles.
The panel found no “intent to merely complement an otherwise secular setting by drawing on one of the Ten Commandments’ secular applications.” The panel commented: “Rather, the monument’s religious purpose stands naked in the middle of the park with no evident purpose but to endorse and advance its religious message. Indeed, Plattsmouth concedes that it ‘does not assert that it displays the monument in order to show the secular role and influence of the Ten Commandments’…”(emphasis in original in Plattsmouth’s brief. “Accordingly, we conclude Plattsmouth’s purpose in installing the mmonument was solely religious.” Even today, the panel found, the city has no secular purpose for retaining the monument.
That panel decision was reached by a 2-1 vote. The dissenter was Circuit Judge Pasco M. Bowman II. In the en banc decision released Friday, Bowman was the author of the majority opinion upholding the Plattsmouth monument. It bypasses the issue of the city’s purpose in accepting and putting up the Commandments tablet. “Because no contemporaneous City records exist, there is little evidence in the record regarding the process by which the monument was accepted and installed,” the Court says. In discussing context, the majority notes that the monument “is located in a relatively siolated corner of Memorial Park, more than ten blocks distant from Plattsmouth City Hall.” That, it adds, tends to offset the fact that, unlike the Texas display, the Plattsmouth display does not stand among other monuments and markers.
Saying its decision was controlled by the Supreme Court’s ruling in Van Orden, the Circuit Court said the Plattsmouth display “makes passive — and permissible — use of the text of the Ten Commandments to acknowledge the role of religion in our Nation’s heritage…[It] is a passive acknowledgment of the roles of God and religion in our Nation’s history….We cannot conclude that Plattsmouth’s display…is different in any constitutionally significant way from Texas’s display of a similar monument in Van Orden.”
Circuit Judge Kermit E. Bye, who wrote the panel decision, wrote the dissent from the en banc decision (joined by Circuit Judge Morris Sheppard Arnold). Repeating the panel’s conclusion, the dissenters say that nothing around the monument in the Plattsmouth park “suggests its religious message might not be its raison d-etre….Rather, the monument’s stark religious message stands alone with nothing to suggest a broader historical or secular context.” The dissenters argued that the Van Orden decision holds, “at most,” that a Commandments display, “incorporated into a larger display of 38 monuments and historical markers, will survive constitutional attack because it reflects a broad range of secular and religious ideals. Van Orden did not extend constituitonal protection to Ten Commandments displays with no secular or historical message.”
Only the Supreme Court could say which reading of Van Orden was the correct one. But no one should expect the Court to be willing to return to this heated controversy anytime soon.
(Thanks to Howard Bashman of How Appealing blog, who pays close attention to Ten Commandments cases, for the tip to this new decision.)
