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PHILADELPHIA — As any lawyer knows, the term “split in the circuits” describes a situation in which at least two federal appeals courts have handed down conflicting decisions, creating the strong possibility that the U.S. Supreme Court will take the issue up to resolve the confusion. At first glance, that’s what seems to have happened over the past few weeks when first the Third Circuit U.S. Court of Appeals and then the Eleventh Circuit tackled the question of whether the Ten Commandments may be displayed in or on a courthouse. In Freethought Society of Greater Philadelphia v. Chester County, the Third Circuit ruled June 26 that the courthouse in Chester County, Pa., may keep a bronze plaque of the Ten Commandments that was mounted on its east wall 83 years ago. Just five days later, the Eleventh Circuit ruled in Glassroth v. Moore that Chief Justice Roy Moore of the Alabama Supreme Court must remove a 2 1/2-ton monument to the Ten Commandments he personally installed as the centerpiece of the rotunda in the Alabama State Judicial Building. Now lawyers are wondering whether the U.S. Supreme Court will take up either one or both of the cases, setting the stage for what could be one of the most important Establishment Clause decisions in years. But for the justices, the first question just might be whether there’s truly a “circuit split.” And the answer to that question just might be no. In fact, the two decisions are a study in contrasts and, at least according to the three-judge panel in the second case, are not inconsistent. The Chester County plaque was mounted in 1920 and hangs on an outside wall beside an entrance that is no longer in use. U.S. District Judge Stewart Dalzell of the Eastern District of Pennsylvania ordered that the plaque be removed, finding that there was a strongly religious motive when it was first mounted, and that to this day, the “necessary effect on those who see it is to endorse or advance the unique importance of this predominantly religious text for mainline Protestantism.” But the Third Circuit reversed, finding that Dalzell erred by focusing on the original decision to install the plaque instead of the more recent decision by today’s county officials in refusing to take it down. Senior Third Circuit Judge Edward Becker found that Chester County’s elected commissioners were motivated only by respect for the plaque’s historical importance and not by any desire to promote its religious message. As a result, Becker concluded that a “reasonable” person who sees the plaque today — in its historical context — would not read it as an “endorsement of religion.” By contrast, all of the events in the Alabama case were of recent vintage, and the motivation was admittedly religious. As the Eleventh Circuit described it: “Chief Justice Moore testified candidly that his purpose in placing the monument in the Judicial Building was to acknowledge the law and sovereignty of the God of the Holy Scriptures.” In a speech he delivered at the unveiling of the monument, Moore described his purpose as being to remind all who enter the building that “we must invoke the favor and guidance of Almighty God.” When the court battles over the monument began, Moore — who was elected to his post after campaigning as “the Ten Commandments judge” — made it clear that he would not obey any federal court ruling against him unless it came from the U.S. Supreme Court. Moore argued that, as chief justice, he is “not a ministerial officer; nor is he answerable to a higher judicial authority in the performance of his duties as administrative head of the state judicial system.” The Eleventh Circuit minced no words in rejecting Moore’s particular brand of federalism. Writing for a unanimous court, Eleventh Circuit Judge Edward Earl Carnes conceded that state courts — when they are deciding cases — are not bound to follow the decisions of federal district courts and courts of appeal. But Carnes found that the court battle over the Ten Commandments monument has nothing to do with any case pending before the Alabama courts. “At issue here is the conduct of a party, who concedes he acted not judicially but as the administrative head of a state government department, and in that capacity his conduct is subject to as much scrutiny as that of any head of any government department,” Carnes wrote. Considering the tenor of the Alabama litigation so far, it’s a sure bet that Moore will be continuing the fight by asking the U.S. Supreme to take the case. If he does, there is one paragraph in the Eleventh Circuit decision that is certain to capture the attention of the justices. In it, Carnes stated that the court’s ruling was consistent with decisions from every other federal circuit in recent years that has addressed Establishment Clause cases involving the Ten Commandments. “The Third Circuit issued an opinion just days before this one holding that the inaction of county commissioners with respect to a plaque that had been on the outside wall of a historically significant courthouse for more than 80 years did not violate the Establishment Clause,” Carnes wrote. “That case is readily distinguishable from this one because the plaque had been there more than eight decades and no government entity or official has done anything in modern times to highlight or celebrate its existence, or even to maintain it; the plaque is not located in a prominent place but instead is away from the main entrance of the courthouse near a permanently closed door where visitors have no reason to go; and the text of the plaque is not visible to passersby on the sidewalk, who can see only the title ‘The Commandments,’” Carnes wrote. Looking forward, the next step in both cases is likely to be requests to the Third and Eleventh Circuits for rearguments before the full court. No matter how that step is resolved, the two cases are likely to be knocking on the U.S. Supreme Court’s door about the same time. Whether the justices decide to take up one or both cases will depend on a host of factors. But it’s safe to say that if the high court sees no true “split” in the circuits and is not disturbed by either outcome, it will most likely do what it does with the vast majority of the thousands of petitions that arrive each year by turning them down with no comment. In the Eleventh Circuit case, the justices may have an added incentive to keep silent because Moore has questioned the very authority of the circuit court. By turning the case away, the justices would set the stage for an endgame in which the Eleventh Circuit would take whatever steps were necessary to enforce its order. In the closing paragraphs of the July 1 decision, Carnes said Moore’s view of the power of the federal courts is “the same position taken by those Southern governors who attempted to defy federal court orders during an earlier era,” citing decisions against former Alabama Gov. George Wallace and others who refused to follow federal desegregation decrees. Carnes warned that Moore would suffer the same fate. “Any notion of high government officials being above the law did not save those governors from having to obey federal court orders, and it will not save this chief justice from having to comply with the court order in this case,” Carnes wrote.

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