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WASHINGTON — The U.S. Supreme Court on Tuesday added fresh hot-button issues to its docket, from Ten Commandments displays and prisoners’ religious freedom to property rights, drawing unusual attention to itself just three weeks before Election Day. One of the cases, Cutter v. Wilkinson, involving claims made by self-described Satanists and Wiccans in an Ohio prison, could turn into a major look at when legislatures may, under the First Amendment, pass laws that give special accommodation of any kind to religious practices. “This is a big day for the religion clauses of the First Amendment,” said Anthony Picarello, president of the Becket Fund for Religious Liberty. At stake in Cutter, he said, could be laws that, for example, give protection to the clergy-penitent privilege in criminal cases or religious exemptions to various liquor laws. But the Ten Commandments cases, like last year’s challenge to the words “under God” in the Pledge of Allegiance, are likely to draw the most public attention and controversy. “This is a critical opportunity for the high court to clarify one of the most confusing areas of church-state law,” said Jay Sekulow, chief counsel of the American Center for Law and Justice, which has defended Ten Commandments displays in courts nationwide. “Religious symbols belong in houses of worship, not courthouses, city halls and public schools,” countered the Rev. Barry Lynn, executive director of Americans United for Separation of Church and State. The cases granted today will be argued early next year. In Van Orden v. Perry, the focal point is a Ten Commandments monument that has stood on the grounds of the Texas Capitol in Austin since 1961. The 6-foot-high monument, one of hundreds given nationwide by the Fraternal Order of Eagles, includes religious and patriotic symbols along with what the appeals court described as a “nonsectarian version” of the Ten Commandments. Austin resident Thomas Van Orden sued, claiming the monument violates the First Amendment’s establishment clause. A unanimous three-judge panel of the Fifth Circuit U.S. Court of Appeals found that the Ten Commandments “have both a religious and secular message,” noting that the Texas Legislature accepted the monument as a gift from the Eagles’ group to honor the Boy Scouts of America. “We are not persuaded that a reasonable viewer touring the Capitol and its grounds, informed of its history and its placement, would conclude that the State is endorsing the religious rather than the secular message of the Decalogue,” Judge Patrick Higginbotham wrote for the court. In his petition to the Supreme Court on behalf of Van Orden, Duke University School of Law professor Erwin Chemerinsky said circuit courts are hopelessly divided on the issue, with three circuits allowing Ten Commandments displays to remain and four finding them unconstitutional. The other Ten Commandments case the high court accepted Tuesday is McCreary County v. ACLU of Kentucky. The county is defending Ten Commandments displays in county courthouses. After they were first challenged, the displays were changed to add other elements including excerpts of the Declaration of Independence and presidential proclamations and quotes regarding prayer and the Bible. But the Sixth Circuit U.S. Court of Appeals found the displays had “no secular purpose” and that the Ten Commandments were “blatantly religious.” In a brief to the high court on behalf of defenders of the Kentucky displays, Mathew Staver of the Florida-based Liberty Counsel said, “The Sixth Circuit’s opinion fell into the trap of assuming that the reasonable observer was either ignorant or bent on a mission to eradicate religious symbols.” The cases may force the high court to take another look at its controversial establishment clause cases, which have left governments uncertain about what kinds of religious displays — such as Christmas cr è eches — are acceptable, and what secular elements must be included to dilute their religious impact. The justices have considered the Ten Commandments issue only once and in a cursory way. In its 1980 ruling in Stone v. Graham, the high court struck down a Kentucky law that required posting the Ten Commandments in all public school classrooms. Since then, more than two dozen lower courts have ruled in conflicting ways on a range of Ten Commandments displays. The prison case may turn into an even broader look at government accommodation of religion. Cutter v. Wilkinson was brought by several Ohio inmates under the Religious Land Use and Institutionalized Persons Act of 2000 (RLUIPA). The law gave new protections for religious practitioners against government restrictions and was passed after its broader predecessor, the Religious Freedom Restoration Act, was struck down by the Court in 1997. The inmates, all practitioners of unconventional religions, wanted to receive religious literature and conduct ceremonies “in the same way that mainstream religions are allowed to do,” said their attorney, Ohio State University College of Law professor David Goldberger. The state asked a judge to declare the RLUIPA unconstitutional, but it was upheld. The Sixth Circuit reversed, finding that, in fact, the law violated the establishment clause because it “favors religious rights over other fundamental rights.” Under the Sixth Circuit’s theory, says Goldberger, “there are very few religious accommodations that would survive.” Government-paid chaplains for the military and in prisons would be unlikely to pass constitutional muster, he suggested, as would government monitoring of the kosher slaughter of animals. In another controversial case acted on Tuesday, the Supreme Court granted review in Lingle v. Chevron, which raises important property rights issues. The oil company challenged a Hawaii law aimed at keeping gasoline costs low. The law, among other things, capped the amount of rent that oil companies could charge to dealers at their service stations. The district court agreed with Chevron that the law amounted to an unconstitutional “taking” of property barred by the Fifth Amendment. The Ninth Circuit U.S. Court of Appeals agreed, finding that the law did not “substantially advance a legitimate state interest.” Hawaii appealed to the Supreme Court in a brief authored by former Solicitor General Seth Waxman, now a partner at Wilmer Cutler Pickering Hale and Dorr. The Fifth Amendment should not be a vehicle for challengers to “second-guess the reasonableness of legislative policy judgments.” The case is the second this term that will deal with property rights. In Kelo v. City of New London, which the court agreed last week to hear, the issue is whether eminent domain violates the Fifth Amendment when government takes private property for a private, rather than public, use. Tony Mauro is the U.S. Supreme Court correspondent for Legal Times, a Recorder affiliate based in Washington, D.C. His e-mail address is [email protected].

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