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staff reporter It’s ok for a Pennsylvania courthouse to have the Ten Commandments on public display. It’s not OK for an Alabama courthouse to have the Ten Commandments on public display. Those two rulings, issued respectively by the 3d U.S. Circuit Court of Appeals on June 26 and the 11th Circuit on July 1, appear about as far apart as, well, heaven and hell. Yet First Amendment scholars agree that both decisions probably reflect a common understanding of the U.S. Supreme Court’s establishment clause jurisprudence, which tends to push courts into fact-based, “it depends” inquiries instead of laying down categorical Thou Shalts and Thou Shalt Nots. Mixed messages Though the two decisions may be doctrinally consistent, some scholars, such as Frederick M. Gedicks of Brigham Young University’s J. Reuben Clark Law School, worry about the message being sent to the public about the coherence of the law. “There’s something very strange about allowing the Ten Commandments in one public place and not in another because of fortuitous circumstances,” Gedicks said. In Freethought Society v. Chester County, No. 02-1765, a 3d Circuit panel ruled that the commissioners of Chester County, Pa., did not engage in the unconstitutional establishment of religion when, in 2001, they declined to remove a plaque containing the Ten Commandments from the county courthouse, where it had been displayed on an outer wall since 1920. The court noted that while there was some evidence that the plaque, which measures 50 by 39 inches, was originally meant to promote religion, the commissioners in 2001 were motivated by a desire to preserve a piece of their history. In Glassroth v. Moore, No. 02-16708, the 11th Circuit ordered Roy S. Moore, chief justice of the Alabama Supreme Court, to remove a 2 1/2-ton monument on which the Ten Commandments are inscribed from the court’s rotunda. The 11th Circuit made much of the fact that Moore, who won his post after campaigning as the “Ten Commandments Judge,” installed the monument in 2001 with the express purpose of giving a governmental imprimatur to religion. At an unveiling ceremony, Moore declared that the monument “marked the restoration of the moral foundation of law to our people and the return to the knowledge of God in our land.” Douglas Laycock of the University of Texas School of Law said that he is “absolutely certain” that the members of the 3d Circuit panel would have done just as their 11th Circuit brethren did if presented with the facts in Glassroth. Erwin Chemerinsky of the University of Southern California Law School agreed that the facts set the cases apart, adding that details such as whether a display is small or large, inside or outside and new or old “can make all the difference in judging whether a government has given symbolic endorsement to religion.” Laura S. Underkuffler of Duke University Law School said that the U.S. Supreme Court has carved out an exception for historical practices. Though sharing some of Gedicks’ misgivings about seemingly inconsistent outcomes, she believes the exception was “born of historical necessity.” She explained that many religious symbols were adopted by governments in an earlier era when national leaders would not hesitate to declare America a Christian nation, something that would not sit well in modern pluralistic society. Even the generation that ratified the establishment clause was comfortable with practices such as opening sessions of Congress with a prayer, she added. The Supreme Court’s fact-based jurisprudence makes room for historical holdovers while still guarding against new efforts to enshrine a particular religious view, she said. That solution is not ideal, she added, because “a historical practice may convey a very contemporary message.” Other scholars are less tolerant of historical holdovers. ” ‘Thou shalt have no other god before me’ is a religious statement and doesn’t belong in any courthouse,” said Laycock. He argued that the fact-based approach, exemplified by the divergent outcomes here, “ leaves endless room for further litigation.” Young’s e-mail address is [email protected].

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