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<DIV><SPAN class=518184015-18112005><FONT color=#0000ff face=Arial>What was the
difference between the Kentucky and Texas cases?</FONT></SPAN></DIV></DIV>
<DIV> </DIV>
<DIV>
<DIV>The biggest difference is how the Supreme Court decided them. The reasons
WHY they were decided differently, I can best answer with quotes from the
decisions. I am a persistent advocate that concerned citizens should read the
actual decisions for ourselves, rather than letting lawyers and advocacy groups,
plus the media, "interpret" them for us.</DIV>
<DIV> </DIV>One case was McCreary v. ACLU of Kentucky. The other case was
Van Orden v. Perry.</DIV>
<DIV> </DIV>
<DIV>Van Orden is a law student in Texas, who uses the library at the Texas
state capitol. Perry is the governor of Texas. McCreary is a county official in
one of the two counties sued.</DIV>
<DIV> </DIV>
<DIV>The two counties in Kentucky had created a long paper trail which made it
more than obvious that there intention was to make Judeo-Christian religion the
officially endorsed faith of the county government. The Supreme Court ruled the
displays at issue must be removed. It also said that of course they could come
up with a new approach that would "pass constitutional muster" as the legal
phrase goes.</DIV>
<DIV> </DIV>
<DIV>The Texas case is best summarized in the opening words of the court's
decision:</DIV>
<DIV> </DIV>
<DIV>"Among the 21 historical markers and 17 monuments surrounding the Texas
State Capitol is a 6-foot-high monolith inscribed with the Ten Commandments. The
legislative record illustrates that, after accepting the monument from the
Fraternal Order of Eagles--a national social, civic, and patriotic
organization--the State selected a site for it based on the recommendation of
the state organization that maintains the capitol grounds. Petitioner, an Austin
resident who encounters the monument during his frequent visits to those
grounds, brought this 42 U. S. C. §1983 suit seeking a declaration
that the monument's placement violates the First Amendment's Establishment
Clause and an injunction requiring its removal. Holding that the monument did
not contravene the Clause, the District Court found that the State had a valid
secular purpose in recognizing and commending the Eagles for their efforts to
reduce juvenile delinquency, and that a reasonable observer, mindful of history,
purpose, and context, would not conclude that this passive monument conveyed the
message that the State endorsed religion. The Fifth Circuit affirmed.
<P><EM>Held:</EM> The judgment is affirmed."</P>
<P>The five-justice majority actually followed two slightly different reasons
for affirming the lower court judgments. I can do no better than to quote the
court's own summary of each:</P>
<P>"<EM>The Chief Justice</EM>, joined by <EM>Justice Scalia, Justice
Kennedy</EM>, and <EM>Justice Thomas</EM>, concluded that the Establishment
Clause allows the display of a monument inscribed with the Ten Commandments on
the Texas State Capitol grounds. Reconciling the strong role played by religion
and religious traditions throughout our Nation's history, see <EM>School Dist.
of Abington Township </EM>v. <EM>Schempp,</EM> <A
href="http://caselaw.lp.findlaw.com/cgi-bin/getcase.pl?navby=case&court=US&vol=374&invol=203&pageno=212">374
U. S. 203, 212-213</A>, with the principle that governmental intervention
in religious matters can itself endanger religious freedom requires that the
Court neither abdicate its responsibility to maintain a division between church
and state nor evince a hostility to religion, <EM>e.g., Zorach</EM> v.
<EM>Clauson</EM>, <A
href="http://caselaw.lp.findlaw.com/cgi-bin/getcase.pl?navby=case&court=US&vol=343&invol=306">343
U. S. 306</A>, 313-314. While the Court has sometimes pointed to
<EM>Lemon</EM> v. <EM>Kurtzman</EM>, <A
href="http://caselaw.lp.findlaw.com/cgi-bin/getcase.pl?navby=case&court=US&vol=403&invol=602">403
U. S. 602</A>, for the governing test, <EM>Lemon</EM> is not useful in
dealing with the sort of passive monument that Texas has erected on its capitol
grounds. Instead, the analysis should be driven by both the monument's nature
and the Nation's history. From at least 1789, there has been an unbroken history
of official acknowledgment by all three branches of government of religion's
role in American life. <EM>Lynch </EM>v.<EM> Donnelly, </EM><A
href="http://caselaw.lp.findlaw.com/cgi-bin/getcase.pl?navby=case&court=US&vol=465&invol=668&pageno=674">465
U. S. 668, 674</A>. Texas' display of the Commandments on government
property is typical of such acknowledgments. Representations of the Commandments
appear throughout this Court and its grounds, as well as the Nation's Capital.
Moreover, the Court's opinions, like its building, have recognized the role the
Decalogue plays in America's heritage. See, <EM>e.g.</EM>, <EM>McGowan</EM> v.
<EM>Maryland,</EM> <A
href="http://caselaw.lp.findlaw.com/cgi-bin/getcase.pl?navby=case&court=US&vol=366&invol=420&pageno=442">366
U. S. 420, 442</A>, 462. While the Commandments are religious, they have an
undeniable historical meaning. Simply having religious content or promoting a
message consistent with a religious doctrine does not run afoul of the
Establishment Clause. See, <EM>e.g., Lynch</EM> v. <EM>Donnelly, supra</EM>, at
680, 687. There are, of course, limits to the government's display of religious
messages or symbols. For example, this Court held unconstitutional a Kentucky
statute requiring the posting of the Ten Commandments in every public
schoolroom. <EM>Stone</EM> v. <EM>Graham,</EM> <A
href="http://caselaw.lp.findlaw.com/cgi-bin/getcase.pl?navby=case&court=US&vol=449&invol=39">449
U. S. 39</A>, 41-42. However, neither <EM>Stone</EM> itself nor subsequent
opinions have indicated that <EM>Stone</EM>'s holding would extend beyond the
context of public schools to a legislative chamber, see <EM>Marsh</EM> v.<EM>
Chambers, </EM><A
href="http://caselaw.lp.findlaw.com/cgi-bin/getcase.pl?navby=case&court=US&vol=463&invol=783">463
U. S. 783</A>, or to capitol grounds. Texas' placement of the Commandments
monument on its capitol grounds is a far more passive use of those texts than
was the case in <EM>Stone,</EM> where the text confronted elementary school
students every day. Indeed, petitioner here apparently walked by the monument
for years before bringing this suit. <EM>Schempp, supra,</EM> and <EM>Lee</EM>
v. <EM>Weisman</EM>, <A
href="http://caselaw.lp.findlaw.com/cgi-bin/getcase.pl?navby=case&court=US&vol=505&invol=577">505
U. S. 577</A>, distinguished. Texas has treated her capitol grounds
monuments as representing several strands in the State's political and legal
history. The inclusion of the Commandments monument in this group has a dual
significance, partaking of both religion and government, that cannot be said to
violate the Establishment Clause. Pp. 3-12. </P>
<P> <EM>Justice Breyer</EM> concluded that this is
a difficult borderline case where none of the Court's various tests for
evaluating Establishment Clause questions can substitute for the exercise of
legal judgment. See, <EM>e.g., School Dist. of Abington Township </EM>v.
<EM>Schempp,</EM> <A
href="http://caselaw.lp.findlaw.com/cgi-bin/getcase.pl?navby=case&court=US&vol=374&invol=203&pageno=305">374
U. S. 203, 305</A> (Goldberg, J., concurring). That judgment is not a
personal judgment. Rather, as in all constitutional cases, it must reflect and
remain faithful to the underlying purposes of the First Amendment's Religion
Clauses--to assure the fullest possible scope of religious liberty and tolerance
for all, to avoid the religious divisiveness that promotes social conflict, and
to maintain the separation of church and state. No exact formula can dictate a
resolution to fact-intensive cases such as this. Despite the Commandments'
religious message, an inquiry into the context in which the text of the
Commandments is used demonstrates that the Commandments also convey a secular
moral message about proper standards of social conduct and a message about the
historic relation between those standards and the law. The circumstances
surrounding the monument's placement on the capitol grounds and its physical
setting provide a strong, but not conclusive, indication that the Commandments'
text as used on this monument conveys a predominantly secular message. The
determinative factor here, however, is that 40 years passed in which the
monument's presence, legally speaking, went unchallenged (until the single legal
objection raised by petitioner). Those 40 years<STRONG> </STRONG>suggest more
strongly than can any set of formulaic tests that few individuals, whatever
their belief systems, are likely to have understood the monument as amounting,
in any significantly detrimental way, to a government effort to establish
religion. See <EM>ibid. </EM>The public visiting the capitol grounds is more
likely to have considered the religious aspect of the tablets' message as part
of what is a broader moral and historical message reflective of a cultural
heritage. For these reasons, the Texas display falls on the permissible side of
the constitutional line. Pp. 1-8. "</P>
<P> </P>
<P>In the <EM>McCreary</EM> case, the court summarized the issues as:</P>
<P>"<SPAN
style="FONT-FAMILY: 'Times New Roman'; FONT-SIZE: 12pt; mso-fareast-font-family: 'Times New Roman'; mso-ansi-language: EN-US; mso-fareast-language: EN-US; mso-bidi-language: AR-SA">Executives
of two counties posted a version of the Ten Commandments on the walls of their
courthouses. After suits were filed charging violations of the Establishment
Clause, the legislative body of each county adopted a resolution calling for a
more extensive exhibit meant to show that the Commandments are
Kentucky's<STRONG> </STRONG>"precedent legal code," Def. Exh. 1 in Memorandum in
Support of Defendants' Motion to Dismiss in Civ. A. No. 99-507, p. 1 (ED
Ky.) (hereinafter Def. Exh. 1). The result in each instance was a modified
display of the Commandments surrounded by texts containing religious references
as their sole common element. After changing counsel, the counties revised the
exhibits again by eliminating some<STRONG> </STRONG>documents, expanding the
text set out in another, and adding some new ones.</P>
<P><SPAN
style="FONT-FAMILY: 'Times New Roman'; FONT-SIZE: 12pt; mso-fareast-font-family: 'Times New Roman'; mso-ansi-language: EN-US; mso-fareast-language: EN-US; mso-bidi-language: AR-SA"> The
issues are whether a determination of the counties' purpose is a sound basis for
ruling on the Establishment Clause complaints, and whether evaluation of the
counties' claim of secular purpose for the ultimate displays may take their
evolution into account. We hold that the counties' manifest objective may be
dispositive of the constitutional enquiry, and that the development of the
presentation should be considered when determining its
purpose.</SPAN>"</SPAN></P>
<P><SPAN
style="FONT-FAMILY: 'Times New Roman'; FONT-SIZE: 12pt; mso-fareast-font-family: 'Times New Roman'; mso-ansi-language: EN-US; mso-fareast-language: EN-US; mso-bidi-language: AR-SA">A
federal district court had ruled:</SPAN></P>
<P><SPAN
style="FONT-FAMILY: 'Times New Roman'; FONT-SIZE: 12pt; mso-fareast-font-family: 'Times New Roman'; mso-ansi-language: EN-US; mso-fareast-language: EN-US; mso-bidi-language: AR-SA">"<SPAN
style="FONT-FAMILY: 'Times New Roman'; FONT-SIZE: 12pt; mso-fareast-font-family: 'Times New Roman'; mso-ansi-language: EN-US; mso-fareast-language: EN-US; mso-bidi-language: AR-SA">that
the original display lacked any secular purpose because the Commandments are a
distinctly religious document, and that the second version lacked such a purpose
because the Counties narrowly tailored their selection of foundational documents
to those specifically referring to Christianity. After changing counsel, the
Counties revised the exhibits again."</SPAN></SPAN></P>
<P><SPAN
style="FONT-FAMILY: 'Times New Roman'; FONT-SIZE: 12pt; mso-fareast-font-family: 'Times New Roman'; mso-ansi-language: EN-US; mso-fareast-language: EN-US; mso-bidi-language: AR-SA"><SPAN
style="FONT-FAMILY: 'Times New Roman'; FONT-SIZE: 12pt; mso-fareast-font-family: 'Times New Roman'; mso-ansi-language: EN-US; mso-fareast-language: EN-US; mso-bidi-language: AR-SA">"<SPAN
style="FONT-FAMILY: 'Times New Roman'; FONT-SIZE: 12pt; mso-fareast-font-family: 'Times New Roman'; mso-ansi-language: EN-US; mso-fareast-language: EN-US; mso-bidi-language: AR-SA">When
the government acts with the ostensible and predominant purpose of advancing
religion, it violates the central Establishment Clause value of official
religious neutrality, there being no neutrality when the government's ostensible
object is to take sides. <EM>Corporation of Presiding Bishop of Church of Jesus
Christ of Latter-day Saints</EM> v. <EM>Amos,</EM> <A
href="http://caselaw.lp.findlaw.com/cgi-bin/getcase.pl?navby=case&court=US&vol=483&invol=327&pageno=335">483
U. S. 327, 335</A>. A purpose to favor one faith over another, or adherence
to religion generally, clashes with the "understanding ... that liberty and
social stability demand a ... tolerance that respects the religious views of all
citizens." <EM>Zelman</EM> v. <EM>Simmons-Harris,</EM> <A
href="http://caselaw.lp.findlaw.com/cgi-bin/getcase.pl?navby=case&court=US&vol=536&invol=639&pageno=718">536
U. S. 639, 718</A>. Pp. 11-12."</SPAN></SPAN></SPAN></P>
<P>Both cases are available online. findlaw.com is a good source. The Kentucky
case was decided on narrower grounds, and the reasoning is more complex. Mostly
that is because of the arguments the two counties presented, and the long
history of the case. . Four justices would have ordered both displays removed,
four justices would have allowed both to stay, and the key vote was Justice
Breyer. He voted to allow the Texas display, and prohibit the Kentucky
display.</P>
<P>If the "Ten Commandments Day" had been proposed as a celebration of the one
decision, and denouncing the other, it would have had a plausible basis,
although I agree with both decisions. Of course an honest appraisal of each case
would not have supported the alarmed language the named organizers have chosen
to use. By making it sound as if the court has simply quashed all public display
of the Ten Commandments, the campaign is telling a bold faced lie.</P>
<P>By the way, the court's decisions only affect government displays. Any
church, synagogue, mosque, individual, family, business, remains free to display
any religious text or symbols they want. That isn't establishment, it is free
exercise. It might be good for business, it might be bad for business, but its
not <EM>establishment</EM>, because its not being done by government.</P>
<P>Siarlys</P></DIV>
<DIV> </DIV>
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