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When President George W. Bush recently concluded his State of the Union message with the routine request that God bless America, no one asked whether the president’s true purpose in calling on the Almighty before an international broadcast audience of millions was religious. Given what is known of the president’s own conscientious convictions, it would have been a personal affront to the chief executive to suggest that he was engaging in mere “ceremonial deism.” But when governmental authorities in two Kentucky counties with a total population of only 73,297 wanted to display privately donated framed copies of the Ten Commandments in county courthouses, they were told by their lawyers that they had to satisfy federal judges that their “actual purposes” were not religious. The history of McCreary County v. American Civil Liberties Union of Kentucky, which is one of two Ten Commandments display rulings that the Supreme Court will be hearing on March 2, demonstrates how difficult such a task is when the historic text begins with the words, “I am the Lord thy God.” Suits were first brought in 1999 in federal courts against the Kentucky officials because they were posting the Ten Commandments alone. On the advice of lawyers, the officials scrambled to collect other documents that would muffle the ecclesiastical message of the Biblical text while validating the role of religion in the history of the United States. They then surrounded courthouse postings of the Decalogue with fragments that demonstrated governmental respect for the Bible and for God � such as the Declaration of Independence’s reference to a “Creator,” the Mayflower Compact, a 1983 declaration by President Ronald Reagan declaring it to be the “year of the Bible,” and Abraham Lincoln’s designation of a “National Day of Prayer and Humiliation” and his statement as president that “The Bible is the best gift God has ever given to man.” SACRED AND SECULAR The District Court found that these adjoining displays were “narrowly tailored . . . to incorporate only those texts with specific references to Christianity . . . and chosen solely for their religious references.” The court therefore enjoined their display. The Kentucky officials first appealed this ruling. Then they hired new lawyers who withdrew the appeal and advised them to replace the surrounding religious historical documents with copies of the full text of more neutral texts such as “The Star Spangled Banner,” the Declaration of Independence, the Magna Carta, and the Bill of Rights. An accompanying sign explained that the “display contains documents that played a significant role in the foundation of our system of law and government.” The text of the Ten Commandments posted in courthouses as part of this “Foundations of American Law and Government Display” does not include “I am the Lord thy God.” It begins the Decalogue with “Thou shalt have no other gods before me.” In district court hearings, the Kentucky officials testified that the purpose of the display was “educational in nature” rather than religious. The district judge concluded, however, that the Supreme Court’s 1980 per curiam opinion in Stone v. Graham had determined that the Ten Commandments is “a sacred text which has a religious purpose.” It reasoned that government officials cannot constitutionally be believed if they profess a “supposed secular purpose” in demonstrating that the Decalogue is “the fundamental legal code of Western Civilization.” The U.S. Court of Appeals for the 6th Circuit, by a 2-1 vote, rejected that rationale, but it found that the Kentucky officials had failed “to integrate the Ten Commandments with a secular subject matter.” The McCreary and Pulaski counties’ displays were constitutionally deficient, wrote Judge Eric Clay, because they did not “buttress” the claim that “the Ten Commandments inspired the drafting of the Declaration of Independence.” Government officials may not, according to this view, communicate the religious message of the Ten Commandments. Government publication of the Decalogue is constitutionally permissible only if the publishing officials can prove, with historical documentation attributed to the founding fathers, that the Biblical text had a secular impact by inspiring, say, the Declaration of Independence. And to pass the “secular purpose” test, which is the first prong of the famous three-pronged constitutional litmus test of Lemon v. Kurtzman (1971), government officials must also swear that in promoting such displays their hearts were free of constitutionally disqualifying blemishes such as religious motivations. The 5th Circuit imposed no similar requirement in Van Orden v. Perry, the other Ten Commandments case before the Supreme Court. This case concerns a display on the grounds of the Texas State Capitol Building. A “nonsectarian version” of the text appears on a six-foot-high monument that stands, in the company of four other monuments, between the Capitol and the Texas Supreme Court Building. The 5th Circuit held that a reasonable observer would not conclude from the Ten Commandments display, in context, “that the State is endorsing the religious rather than the secular message of the Decalogue.” The court did not require Texas state officials to disclaim or eradicate the religious message of the biblical text. JUDICIAL NONSENSE The 6th Circuit ruling in the Kentucky case has to be the high point of establishment clause nonsense: Government may display a text that has, for thousands of years, had major religious significance only if it decisively and deliberately obliterates the element that has accorded historic significance to the text. The constitutional prohibition against establishing religion turns into an affirmative duty to erase God if any official use is made of classic religious verses. The concept is, of course, offensive to those who believe the text of the Ten Commandments to be sacred. Any religious text or display is demeaned if it is viewed as nothing more than a secular exhibition. I represented Chabad � the Jewish Hasidic movement that promotes the display of Chanukah menorahs in public forums � in County of Allegheny v. ACLU, a 1989 Supreme Court case that is profusely discussed and analyzed in the briefs by parties and amici in the Ten Commandments cases. I went to great pains to emphasize in my brief and during oral argument that the Chanukah menorah is a Jewish religious symbol. Justice Harry Blackmun’s opinion for six justices acknowledged several times that the menorah is a “religious symbol,” but concluded that an 18-foot-high Jewish religious symbol placed next to a 45-foot-high Christmas tree in an official display does not violate the establishment clause. After the Court approved the Chanukah menorah’s inclusion in Pittsburgh’s holiday display, opponents of the ruling � including the B’nai Brith Anti-Defamation League and the American Jewish Congress (which surprisingly continues, to this day, to aggressively oppose menorah displays on public property) � asserted incorrectly that Chabad had won in the Supreme Court only because it trivialized the menorah by describing it as a secular symbol. In fact, Chabad portrayed the menorah as a religious symbol when I argued in the Supreme Court for its inclusion in Pittsburgh’s official holiday display. The same is true when I won for Chabad, before en banc courts in the 6th and 11th circuits, the right to erect privately sponsored menorahs � standing alone, unaccompanied by Christmas trees or Santa Clauses or reindeer � in public forums in Grand Rapids, Mich., and Atlanta. So it is not surprising that the brief for the Kentucky officials in the McCreary County case spends five pages asking the Supreme Court to jettison the purpose prong of the Lemon test when the constitutionality of a religious display is at issue. The approach of the Supreme Court majority in County of Allegheny � evaluating the overall impact of governmental displays that have religious components � is inconsistent with a strict application of the purpose prong. Under Lemon, the Kentucky officials would be acting unconstitutionally if they were motivated by the religious nature of the Ten Commandments, even if the total effect of the display is secular. REVISITING LEMON The Kentucky officials’ brief does not say it this way, but it is ironic that the test formulated by the 6th Circuit panel would permit them to display the Ten Commandments only by violating at least two of those Commandments: They would have to swear falsely that their subjective motivation was not religiously infected, and they would have to assure the court that God’s name had been invoked “in vain” � that is, only for the secular purpose of inspiring the Declaration of Independence. There must, indeed, be a reformulation of the purpose prong. The fact that government officials consider religious interests in displaying a religious text or symbol should not disqualify the display. To be sure, there are extreme cases, when a religious symbol like a monument of the Ten Commandments is erected as a religious shrine on government property. This was true of the monument installed by Alabama’s chief justice in the 11th Circuit case of Glassroth v. Moore (2003). In that case, the religious purpose and the primary religious effect overshadowed all other considerations, and the display was the equivalent of an official state-endorsed and state-sponsored church or synagogue. But neither Kentucky nor Texas has used the Ten Commandments in such a manner in the cases before the Court. And that less-extreme governmental acknowledgement of the Ten Commandments should not lead to the compulsory erasure of God from the public sphere. Nathan Lewin, a partner in the Washington, D.C., law firm of Lewin & Lewin, represented Chabad in County of Allegheny v. ACLU and has argued 26 other cases before the Supreme Court. He has filed an amicus brief in the Supreme Court on behalf of the National Jewish Commission on Law and Public Affairs in Van Orden v. Perry . The opinions expressed here are his own.

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