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The fraternal order of Eagles, a national service organization, conceived a plan in the 1950s to fight juvenile delinquency by distributing paper copies of the Ten Commandments. At the suggestion of Cecil B. DeMille, who was promoting his movie of the same name, the Eagles turned to a more permanent medium and distributed scores of granite monuments to towns and cities across the country, according to a 2000 opinion by the 7th U.S. Circuit Court of Appeals, Books v. City of Elkhart, Ind., 235 F.3d 292. Decades later, the monuments have sparked lawsuits against the local governments that agreed to display them on public property. Inevitably, those cases made their way to the circuit courts and, just as inevitably it seems, they have been a source of circuit disagreement. The most recent decision was last month’s ACLU Nebraska Foundation v. City of Plattsmouth, No. 02-2444, in which a divided 8th Circuit panel told a Nebraska town that having a Ten Commandments monument in a public park amounts to the unconstitutional establishment of religion. Three 7th Circuit panels reached the same conclusion-in 1995, in the 2000 Books decision and again in 2001-as did the 6th Circuit in 2002. Until recently, the 10th Circuit was the only federal appeals court to uphold the public display of one of the Eagles monuments, and that was in 1973. But any temptation to discern in recent history a modern anti-monument consensus could not survive last November’s decision by the 5th Circuit. In Van Orden v. Perry, 351 F.3d 173, the court ruled that the state of Texas need not remove an Eagles monument from the grounds of the State Capitol. . . . 10, 11, 12? Under Supreme Court precedent, context counts for a lot when deciding whether a public display with religious connotations will be permitted. Varying circumstances may be enough to reconcile two seemingly opposed decisions handed down last year: the 3d Circuit’s approval of an 81-year-old, fairly inconspicuous, brass Ten Commandments plaque affixed to a stone courthouse wall, and the 11th Circuit’s rejection of the massive stone monument recently brought into the Alabama Supreme Court building by Roy Moore, the now former chief justice. By contrast, the Eagles monuments are almost identical. Each bears the heading, “The Ten Commandments,” followed by 12 sentences from the Old Testament. As several courts have explained, various religions have different views as to what statements belong among the Ten Commandments and how they should be grouped, and the Eagles sought to avoid any sectarian controversy. The monuments also depict two tablets with Hebrew script, an eagle bearing a U.S. flag, an “all-seeing eye” similar to what appears on the dollar bill, two six-pointed stars and the Christian symbol of the superimposed Greek letters chi and rho. So how is it that the circuit courts are at loggerheads over the selfsame monument? Context is still part of the answer. For instance, the 5th Circuit emphasized that the Texas monument was only one of 17 monuments on the capitol grounds, while the 8th Circuit noted that the Plattsmouth, Neb., monument sat alone. But context explains only so much. The 8th Circuit, for instance, said, “Plattsmouth’s monument is thirty-five years old, which does not a historical artifact make,” while the 5th Circuit emphasized the historical significance of the 42-year-old Texas monument. On a more fundamental point, the 5th Circuit described the Ten Commandments themselves as having both secular and religious elements, whereas the 8th Circuit pointed to the “religious tenor” of even arguably secular elements: “It is one thing for Plattsmouth to say one should not steal; it is quite another for Plattsmouth to say there is a God who said, ‘Thou shalt not steal.’ “ Young’s e-mail address is [email protected].

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