6th Circuit Overturns Rogue ACLU Judge's Injunction Against Courthouse Display of Ten Commandments

The federal 6th Circuit Court of Appeals appears to have a problem with frisky federal district judges flouting its precedents, not unlike the segregationist district judges who defied Brown v. Board of Education for more than a decade.

Although the 6th Circuit (Kentucky, Michigan, Ohio and Tennessee) held in 2005 that it is Constitutionally permissible to display the Ten Commandments on public premises, a district judge entered the American Civil Liberties Union's requested order to permanently enjoin Grayson County from displaying the Ten Commandments on the second floor of its courthouse.

The ACLU is on a losing streak with these cases, according to Liberty Counsel's Matthew Staver, and it has never requested certiorari from the U.S. Supreme Court to settle the matter. Why not? Staver suggests they know they would lose, and that precedent would then be binding nationwide.

There is something else at work here: the ACLU is bringing its suits against cash-strapped rural counties that can't afford to pay buttoned-down Constitutional litigators to fight these guerrilla wars against the ACLU, which is larglely staffed by "volunteer" attorneys from large law firms that discharge their pro bono obligations by dispatching its associates to the ACLU.

To meet the bar association's pro bono obligation by sending your underlings to the ACLU to haze some earnest but underfunded rural Christians is a pretty nauseating example of "malicious compliance," don't you think? Congratulations, Dewey,Stickham & Howe, you're really "giving back." I guess acting as guardian ad litem for a foster child just wouldn't give quite the adrenaline rush you're looking for. Oh, and no headlines. You wouldn't want to waste your associates on THAT kind of pro bono.

This particular case had a happy ending, but the ACLU almost certainly intimidates at least a dozen small, precarious county governments for every Grayson or Mercer County that gets on the horn to nonprofit defenders like Staver or Jay Sekulow. This is the same strategy the ACLU uses to suppress Christian speech at sporting events and graduation ceremonies. If anybody fights them all the way through the federal courts, the ACLU & similar totalitarians have a losing case. But most people don't want to fight, or they don't know they can fight, so they just fold. This is the genius of the ACLU.

Display with Ten Commandments Ruled Constitutional by Court of Appeals

(LifeSiteNews.com) - On Thursday the Sixth Circuit Court of Appeals ruled in favor of a display including the Ten Commandments in Leitchfield, KY, on the second floor of Grayson County's courthouse.

The display, entitled "Foundations of American Law and Government," includes the Ten Commandments, Magna Carta, Mayflower Compact, Declaration of Independence, Bill of Rights, Preamble to the Kentucky Constitution, Star-Spangled Banner, National Motto, and a picture of Lady Justice, with an explanation of the significance of each. The display is intended to showcase a sampling of documents that played a significant role in the development of the legal and governmental system of the United States.

The majority wrote in their decision that they found that "the evidence in the record does not demonstrate that Grayson County acted with an impermissible purpose or that the inclusion of the Ten Commandments in the Foundations Display has the impermissible effect of endorsing religion."

Mathew Staver, Founder of Liberty Counsel and Dean of Liberty University School of Law, presented the winning oral argument on behalf of Grayson County in April 2009. The case began in 2002 when the ACLU filed a lawsuit against Grayson County, and a federal judge ruled against the display.

In 2005, the same Sixth Circuit Court of Appeals upheld the same Ten Commandments display in Mercer County, KY. The Sixth Circuit governs Kentucky, Ohio, Tennessee and Michigan. Notwithstanding this identical and controlling precedent, the federal judge entered a permanent injunction against the Grayson County display. Thursday's decision, however, reversed and upheld the display.

"The Ten Commandments are as much at home in a display about the foundation of law as stars and stripes are to the American flag," said Staver. "The Ten Commandments are part of the fabric of our country and helped shape the law.

"It defies common sense to remove a recognized symbol of law from a court of law. The ACLU might not like our history and might run from it, but the fact remains that the Ten Commandments shaped our laws and may be displayed in a court of law."
Staver said that he doesn't believe the ACLU will ask the Supreme Court to review the case. "The ACLU has been running from the Supreme Court since 2005," he said, "and has taken loss after loss on the Ten Commandments."

Since 2005, when Staver argued in favor of the same Foundations Display for McCreary and Pulaski Counties, four federal courts of appeal have upheld the Ten Commandments. Three of these four involve the same Foundations Display. Since 2005, every federal court of appeals which has addressed Ten Commandments displays has upheld them. The ACLU has not won a Ten Commandments case at the court of appeals level since 2005.

Chalk One Up For the Good Guys

Counsel for a cynical anti-Christian group probably knew they were in trouble when the small Utah town they were bullying, Pleasant Grove City, fought back by putting the varsity on the court - conservative Constitutional litigator Jay Sekulow, chief counsel of the American Center for Law and Justice.

Sekulow argued the case before the Supreme Court in November after "mooting" it before the legal profession's equivalent of focus groups at Regent University and elsewhere. In a rare unanimous decision, the Court held that the small Utah town could harbor a monument to the Ten Commandments in its town square without violating the Establishment Clause of the U.S. Constitution, and that it does not thereby obligate itself to provide equal prominence to insipid, sarcastic monuments of the sort proposed by the Summa bullies.

Washington Post - City Can Reject Religious Display; Supreme Court Backs Utah Officials
February 26, 2009
By Robert Barnes, Washington Post Staff Writer

The Supreme Court yesterday unanimously agreed that permanent monuments in public parks are a form of government speech and that a small town in Utah was within its rights to reject an offer from a little-known religious group to have its "Seven Aphorisms" placed next to the Ten Commandments.

In a decision closely watched by government officials across the nation, the justices said officials in Pleasant Grove, Utah, did not violate the First Amendment rights of the Summum religious order by rejecting its monument.

Permanent monuments in city parks, Justice Samuel A. Alito Jr. wrote for the court, are erected "for the purpose of presenting the image of the City that it wishes to project to all who frequent the park," and thus governments can decide for themselves which to erect, which to accept from others and which to turn down.

"It's a landmark decision that clears the way for government to express its views and its history through the selection of monuments -- including religious monuments and displays," said Jay A. Sekulow of the conservative American Center for Law and Justice, which argued the case for Pleasant Grove.

Summum had contended -- and an appeals court had agreed -- that the city park was a forum for public speech. The First Amendment's free-speech clause meant that city leaders could not accept a version of speech with which they agreed and reject one with which they did not, the group's lawyers said.

But Alito said the analogy was wrong.

"A public park, over the years, can provide a soapbox for a very large number of orators -- often, for all who want to speak -- but it is hard to imagine how a public park could be opened up for the installation of permanent monuments by every person or group wishing to engage in that form of expression," he wrote.

The unified decision stood in contrast to the court's splits when it has considered public displays of the Ten Commandments in the context of the First Amendment's establishment clause, which prohibits government endorsement of religion.

In 2005, the court allowed such a display on the grounds of the Texas Capitol because of its historic placement among other monuments. But it disallowed the Ten Commandments in a Kentucky courthouse because the court said the display was meant to convey a religious message.

Alito and Chief Justice John G. Roberts Jr. have joined the court since those decisions, and the justices announced this week that they will hear a new establishment clause challenge in a case involving an eight-foot cross that has stood for more than 70 years in the Mojave National Preserve in California.

Pleasant Grove's 2.5-acre Pioneer Park has about 15 permanent displays, most of them donated by civic groups, including a granary, a wishing well, the city's first fire station and the Ten Commandments monument, which was donated by the Fraternal Order of Eagles in 1971.

In 2003, Summum, a Salt Lake City-based religion formed in 1975, sought permission to put its monument to the Seven Aphorisms there as well. Summum's name is drawn from a Latin term meaning "the sum of all," and the group's philosophy combines elements of Gnostic Christianity with Egyptian themes.

It teaches that the aphorisms --"Nothing rests; everything moves; everything vibrates," says the Principle of Vibration -- were on the stone tablets dictated by God to Moses along with the Ten Commandments but were revealed to only a small group of people.

When the city refused Summum's offer, the group successfully appealed to the U.S. Court of Appeals for the 10th Circuit.

In his opinion reversing that decision, Alito warned that "this does not mean that there are no restraints on government speech," noting that it must "comport with the Establishment Clause." And he said governments must not use the cover of government speech as "a subterfuge for favoring certain private speakers over others based on viewpoint."

But he said governments that, for instance, erect memorials to war dead need not "provide equal treatment for a donated monument questioning the cause for which the veterans fought."

And he said monuments may not always be clear on what the government's message is. The "Imagine" memorial to John Lennon in New York's Central Park may cause some to wonder about the contributions Lennon might have made if he had not been murdered, Alito wrote, and others to contemplate the song's lyrics, which Alito provided in a footnote.

While the decision about Pleasant Grove was unanimous, six justices weighed in to elaborate in concurring opinions.

Justice David H. Souter said he agreed with the decision. But he said that if a government accepts a monument with "some religious character, the specter of violating the Establishment Clause will behoove it to take care to avoid the appearance of a flat-out establishment of religion."

Brian Barnard, a lawyer for Summum, said that would be the church's next legal fight. But he acknowledged that a decision that said Pleasant Grove officials violated the establishment clause by adopting the Ten Commandments as government speech could just as likely lead the city to remove the current monument rather than add the aphorisms. That has been the case in other Utah jurisdictions where the group has brought lawsuits.

Justice Antonin Scalia, joined in a concurring opinion by Justice Clarence Thomas, suggested that Summum would not be successful in pursuing an establishment clause argument and said the case was similar to the one involving the Texas Capitol.

He said Pleasant Grove need not worry about breaching the "so-called" wall of separation between church and state.

"The city can safely exhale," Scalia wrote. "Its residents and visitors can now return to enjoying Pioneer Park's wishing well, its historic granary -- and, yes, even its Ten Commandments monument -- without fear that they are complicit in an establishment of religion."

The case is Pleasant Grove City v. Summum.

Pleasant Grove City v. Summum: It Was Contentious, as Expected

The Supreme Court's decision on Pleasant Grove City v. Summum is too close to call, and it may come down to the wavering Justice Anthony Kennedy once again, to judge by this Bloomberg News Service account of oral arguments Nov. 12.

A transcript of the arguments in .pdf form is linked in the Legal Documents blogroll at left, under "Pleasant Grove City v. Summum." Here is the Bloomberg account.

Bloomberg - Religious Displays in Parks Divide U.S. Supreme Court Justices
November 12, 2008
By Greg Stohr, Bloomberg

U.S. Supreme Court justices clashed over a Utah town's decision to allow a Ten Commandments monument in a public park, as they weighed a bid by [Summum] to erect its own display.

The justices today heard arguments on a federal appeals court ruling that said the town of Pleasant Grove must give equal access to Summum, [ wants to display its "seven aphorisms."

That prospect had several justices voicing concern about a free-for-all in public parks and museums. Among them were Chief Justice John Roberts, who asked whether the government would have to balance the message conveyed by the Statute of Liberty.

"Do we have to have a Statue of Despotism?" Roberts asked. "Or do we have to put any president who wants to be on Mount Rushmore?"

On the other side were justices who said they worried about giving the government unfettered discretion over the messages displayed on public property. Justice John Paul Stevens asked whether the government could "decide not to put up the names of any homosexual soldiers" on the Vietnam Memorial in Washington.

The Supreme Court in 2005 said governments can post the Ten Commandments on public property as part of a broader display of historical or moral symbols. That case centered on the Constitution's establishment clause and the limits it places on government support for religion in the public square.

In the latest case, Summum opted not to invoke the establishment clause to seek removal of the Ten Commandments display. The group instead pointed to the Constitution's free-speech guarantee, saying the town must give equal access to other religions and viewpoints in the park.

'Public Forum'

A federal appeals court in Denver said Pleasant Grove had created a "public forum" in the park and generally would have to give all groups an equal right to erect monuments.

Pleasant Grove contends that its monument is exempt from the equal-access requirement because the display is a form of government speech, not private expression. The Fraternal Order of Eagles gave the city the Ten Commandments monument in 1971.

Summum's lawyers say the monument doesn't qualify as government speech because the town never formally adopted the message on the monument as its own.

Though not directly at issue in the case, the establishment clause question lurked close to the surface in today's argument. Roberts said a declaration that the Pleasant Grove monument was government speech would make it harder for the city to argue that it wasn't favoring one religion over another.

"You're really just picking your poison, aren't you?" he asked the town's lawyer, Jay Sekulow.

Establishment Clause

Justice David Souter said a high court ruling forcing the city to adopt the Ten Commandments message as its own would be fatal to the town's defense under the establishment clause.

"Isn't that what is driving this?" he asked Summum's lawyer, Pamela Harris.

Harris said the city was trying to avoid having to formally subscribe to the particular version of the Ten Commandments on the park monument. She said the town "wants to have it both ways."

Sekulow likened the city's role to that of a "museum curator" who selects which exhibits to display. Bush administration lawyer Daryl Joseffer made similar arguments in support of the city.

They drew their strongest support from Justice Antonin Scalia. "You can't run a museum if you have to accept everything, right?" Scalia said.

Ginsburg Comments

Ruth Bader Ginsburg joined Souter in suggesting the Ten Commandments display violated the establishment clause. She later said she wasn't aware of "any tradition" of allowing groups to erect monuments on free-speech grounds.

Several justices signaled they were torn by the case and were looking for a way to limit any unintended consequences from the court's ruling.

"Do we have to decide this case that it's all or nothing?" Justice Anthony Kennedy asked.

The Ten Commandments depict the rules that Jews and Christians believe God handed down to Moses on Mount Sinai. Summum, a Salt Lake City-based church founded in 1975, says its aphorisms came from an earlier set of tablets that Moses brought down from the mountain and then destroyed in anger.

The Summum aphorisms include "the principle of psychokinesis" and "the principle of correspondence."

The court will issue a ruling by July.

Pray for Jay, November 12

Constitutional litigator Jay Sekulow will argue Pleasant Grove City v. Summum before the U.S. Supreme Court tomorrow.

Sekulow, Chief Counsel of the American Center for Law & Justice (ACLJ), will argue on behalf of Pleasant Grove City, Utah. The case centers on a distinction between government speech and private speech.

A three-judge federal appeals court panel ruled in favor of a group called Summum to erect its own monument of "Seven Aphorisms" in a city park in Pleasant Grove, the site of a long-standing display of the Ten Commandments donated to the city decades ago. When the full appeals court convened en banc to rehear the case, it split 6-6 and decided not to try again. This left the three-judge panel's decision undisturbed.

The ACLJ asked the Supreme Court to take the case and overturn the lower court decision that private parties have a First Amendment right to put up the monuments of their choosing in a city park, unless the city takes away all other donated monuments. Sekulow argues that the appellate panel's ruling runs counter to well-established precedent that the government has to be neutral toward private speech, but it does not have to be neutral in its own speech.

"In short, accepting a Statue of Liberty does not compel a government to accept a Statue of Tyranny." Unless reversed, the Tenth Circuit ruling will "force local governments to remove long-standing and well established patriotic, religious and historical displays."

Sekulow rehearsed his arguments under the pressure of a "moot court" at Regent University's School of Law Friday afternoon. The Supreme Court will hear oral arguments tomorrow, November 12.