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Every morning the Supreme Court is in session, lawyer Mathew Staver is in his Orlando, Fla., office, he says, “refreshing my screen” to see if a decision has come down in his closely watched effort to keep Ten Commandments displays on the walls of two Kentucky courthouses, and in public spaces nationwide. So far, three months after Staver argued before the Court in the case of McCreary County v. ACLU, nothing has popped up on his computer, leading Staver to wonder if something unusual is brewing behind the scenes�including, possibly, a major shift by the Court on church-state doctrine. “They may well be getting ready to significantly modify or repudiate the Lemon test,” said Staver wishfully, referring to the controversial three-part test the Court articulated in 1971′s Lemon v. Kurtzman, and has used with varying degrees of enthusiasm ever since to evaluate whether government actions violate the First Amendment’s Establishment Clause. Staver is president and general counsel of Liberty Counsel, a non-profit advocacy group that has defended Ten Commandments displays in more than a dozen court cases. His adversary, Kentucky ACLU lawyer David Friedman, dismisses such talk and says the three-month delay is no big deal. “They’re going to do what they are going to do,” says Friedman. Staver, he says, “is trying to raise money” by trying to keep the case in the news. Indeed, three months is not outlandish time to wait for a decision given the Court’s usual habit of handing down decisions in some of its most controversial cases in the final weeks of its term, no matter when those cases were argued. Nonetheless, half of the cases argued in the same late February-early March sitting of the high court have already been decided–but not McCreary County or its companion case Van Orden v. Perry, involving a Ten Commandments monument on the state capitol grounds in Austin, Texas. At least part of the explanation may lie in Staver’s own unusual post-argument litigation strategy, which the Court has gone along with. Since arguing the case March 2 Staver has, with the justices’ consent, filed two supplemental briefs with the Court, which could slow its deliberations. Both briefs raise points that may help resolve doubts expressed by justices during oral argument about the religious motivation behind the Kentucky courthouse Ten Commandments displays�and whether that motivation is relevant to deciding if the display is constitutional. � Court rules allow parties to file such briefs to inform justices of subsequent developments in the record, as well as other pertinent lower court rulings. But it rarely happens once, much less twice, and sometimes annoys adversaries. Duke Law School professor Erwin Chemerinsky, who argued against the Ten Commandment displays in the Texas case, said supplemental briefs like Staver’s “can so easily become an attempt to reargue the case.” Staver’s first brief may not be a reargument, but it does significantly tidy up a part of the record that disturbed several justices at oral argument. Justices spent an unusual amount of time questioning lawyers about the twists and turns in the history of the Kentucky Ten Commandments displays. At first, framed copies of the Ten Commandments appeared alone on the walls of courthouses of McCreary and Pulaski counties in 1999. When the ACLU challenged the displays, the counties modified the displays to include other historical documents that contained religious references. County legislators also passed a resolution defending the displays and proclaiming the Ten Commandments’ preeminence as a source for Kentucky law. When a federal district judge enjoined the displays, they were modified again to include more historical documents without religious overtones. But as several justices realized during the argument, the explicitly pro-religion resolution passed in the second phase of the displays was still on the books, undercutting the counties’ contention that the displays had a secular purpose. “How long do we look to that particular resolution?” Justice Sandra Day O’Connor asked at one point. “It is the last expression of the governing body’s intent?” asked Justice John Paul Stevens. Staver told the justices that any religious purpose expressed by the counties “has been buried and has been abandoned,” and that the counties should not be forever penalized for what he acknowledged was a misstep. County officials who were in the Supreme Court audience that day, according to Staver, went back to Kentucky and within eight days passed resolutions explicitly repealing the earlier resolution. That new development is what Staver’s first post-argument brief reported to the justices. �”Petitioners wish to leave no doubt in this Court’s mind that they have abandoned and repudiated the 1999 resolution,” Staver told the Court on March 18. The second post-argument brief was prompted by a related issue raised at argument. Justice Anthony Kennedy asked hypothetically whether it would make sense to strike down the Kentucky displays because of their history of religious motivation, while upholding the exact same display in another county that had “sincere” secular intentions. “I just don’t understand that,” Kennedy said. On March 25, the U.S. Court of Appeals for the 7th Circuit decided Books v. Elkhart County, which appeared to fit Kennedy’s hypothetical exactly. A display almost identical to those in Kentucky was put up in the administration building of the Indiana county � but with none of the pro-religious verbiage or history that tainted the Kentucky displays. The 7th Circuit upheld the display and said it met the Lemon test, though Judge Frank Easterbrook wrote separately that a new test should be devised because “a majority of sitting justices has disavowed [ Lemon] though never at the same time.” Staver’s brief alerts the high court to the decision in the 7th Circuit case, in which his group represented supporters of the display. Staver suggested his clients in Kentucky deserve the same treatment. “Prior history alone should not doom an otherwise constitutional display,” he told justices. Both briefs, Staver contends, give more ammunition to a Court majority already poised to overturn Lemon, which critics say imposes too high a barrier against government accommodation of religion. �In the Kentucky case, Staver asserts, the Lemon test requires courts to engage in a pointless inquiry into the intentions of government officials to see if they had a “secular purpose.” The other parts of the test ask whether a government action has the effect of advancing religion or creates excessive government entanglement with religion. But Friedman counters that the new briefs cannot erase the religious motivation behind the courthouse display. “It is unlikely that a justice who was thinking of voting for our side will change his or her mind because of this new information,” says Friedman, a partner in the Louisville firm of Fernandez Friedman Grossman Kohn & Son. “It doesn’t change the vote or the analysis.” Tony Mauro can be contacted at [email protected].

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