X

Thank you for sharing!

Your article was successfully shared with the contacts you provided.
For more than 80 years, visitors to Pennsylvania’s Chester County Courthouse who entered through the east doors on High Street have seen a bronze plaque of the Ten Commandments. But if the Free Thought Society of Greater Philadelphia and the American Civil Liberties Union get their way, those days will soon be over. In a federal lawsuit that goes to trial today, ACLU Legal Director Stefan Presser will be setting out to convince U.S. District Judge Stewart Dalzell of the Eastern District of Pennsylvania that the plaque violates the Establishment Clause of the First Amendment because it “impermissibly advances religion.” But attorney Thomas C. Abrahamsen of the Chester County Solicitor’s Office will be arguing that the plaque should be allowed to stay since it has the “secular purpose” of being a “symbol of law giving.” In briefs filed last week, Presser and Abrahamsen both argue that the law is on their side. Presser argues that the U.S. Supreme Court declared in 1980 in Stone v. Graham that the Ten Commandments are a “sacred religious text.” Since then, Presser notes, governmental displays of the Ten Commandments have been declared unconstitutional in 12 of the 16 cases filed in federal court. But Abrahamsen argues that more recent decisions from the Supreme Court evidence a trend toward tolerating religious content as long as it does not reach the level of “entangling” government with religion or by endorsing or disapproving of religion. “Because the Ten Commandments has been recognized to represent the cornerstone of our law and because of its ubiquity in society, it is a tolerable acknowledgment of religion in addition to its secular aspects,” Abrahamsen wrote. The trial is expected to last three days and promises to be a battle of religious experts. But first, the lawyers will be battling over which experts will be allowed to take the witness stand and what they will be allowed to say. Presser has filed a motion to preclude Abrahamsen from presenting some of the testimony from Rev. Peter Lillback because significant portions of his expert report focused on legal arguments and early American history. “Plaintiffs clearly do not challenge Dr. Lillback’s expertise regarding church matters. They do however, object to any testimony which this witness might offer regarding either the law or early American history,” Presser wrote in his motion in limine. Abrahamsen, too, filed a motion in limine and took aim at two of Presser’s proposed witnesses — Rabbi Leonard Gordon of the Germantown Jewish Center in suburban Philadelphia and religion professor Khalid Blankinship of Philadelphia’s Temple University — seeking to have both barred from testifying at all. Under Federal Rule of Evidence 702, Abrahamsen argues, neither of Presser’s witnesses will offer the court any help in its fact-finding duty because “the constitutional test has nothing to do with whether one or some number of the members of the community might be offended by the plaque.” Abrahamsen also complains that Presser’s witnesses “delve into very esoteric theological minutiae to make their point.” Since the legal test of whether the plaque is constitutional hinges on the views of a “reasonable observer,” Abrahamsen argues that such experts are irrelevant. “In today’s society, does the ‘reasonable person’ have such an intimate knowledge of any Bible much less the various translations of the Bible and the Ten Commandments?” Abrahamsen wrote. Rabbi Gordon’s 11-page expert report closes with three conclusions. Referring to the text of the plaque as “the Decalogue,” Gordon opined that “an average person seeing the Decalogue in a government facility would understand the government to be supporting a specifically religious message.” Jews and Christians have different versions of the Decalogue, he said, and “by placing one version in a public space, the government is deciding an issue that has vexed theologians, philosophers and legalists for over 2,000 years.” And an “educated Jew,” Gordon said, would find the plaque’s rubrics — “The Commandments” and “Summary” — to be “an explicit contradiction of core ideas in his or her tradition.” Blankinship, who was born in the United States but converted to Islam in the 1970s while studying in the Middle East, closed his expert report with sections on how Muslims, Christians, Jews and members of other religions would react to the plaque. The plaque, he says, uses the King James translation of the Bible “which is not acceptable to all Christians.” Also “left out,” Blankinship says, are Hindus, Buddhists, Taoists, Confucianists, Shintoists and Wiccans, as well as members of non-Christian American Indian traditions. Presser argues in his pretrial brief that because the plaque “facially discriminates between religions,” it should be subject to the toughest test the courts employ — the strict scrutiny test, under which Chester County would have to show a “compelling governmental interest” in keeping the plaque on the courthouse wall. The wording of the plaque, Presser argues, creates a “denominational preference” because there are at least five different versions of the Ten Commandments, and the differences in the wording relate to “deep theological disputes.” Presser argues that the plaque fails the three-prong test articulated by the Supreme Court in its 1971 decision in Lemon v. Kurtzman. As proof, Presser says he intends to show that the dedication of the plaque in 1920 was explicitly religious since it was donated to the county by the Council of Religious Education of the Federated Churches of West Chester. A program from the dedication ceremony, Presser says, shows that attendees recited “We dedicate to God this tablet of the Ten Commandments … in holy fear of him who is ruler over us all and the father of us all.” But Abrahamsen argues that the Supreme Court has moved away from applying the Lemon test in recent years and that the county can show that it satisfies the more current view the court holds on Establishment Clause disputes. “Chester County has established a secular purpose for the plaque in that it is a symbol of law giving which is essential for civilization,” Abrahamsen wrote. Abrahamsen argues that in his concurring opinion in Allegheny v. ACLU, Justice John Paul Stevens noted that Moses was one of the great law-givers. In erecting the plaque, he says, Chester County “did not intend to convey a message of endorsement or disapproval of religion, and thus passes the purpose prong of the Lemon test.” Directly challenging the testimony of the lead plaintiffs in the case, Abrahamsen argues that “the fact that the asserted secular purpose may overlap somewhat with what some may see as a religious objective does not render it unconstitutional.” Instead, he argues, the plaque “does not convey to the reasonable observer an endorsement of religion. Rather, in its context with other memorials and considering its secular purpose, it would not be so understood … “ Urging Dalzell to focus on how an ordinary citizen would interpret the plaque, Abrahamsen argues that it “would be viewed by the reasonable observer as in a setting akin to the typical museum setting which does not neutralize the religious content of a religious painting, but negates any message of endorsement of the content.”

This content has been archived. It is available through our partners, LexisNexis® and Bloomberg Law.

To view this content, please continue to their sites.

Not a Lexis Advance® Subscriber?
Subscribe Now

Not a Bloomberg Law Subscriber?
Subscribe Now

Why am I seeing this?

LexisNexis® and Bloomberg Law are third party online distributors of the broad collection of current and archived versions of ALM's legal news publications. LexisNexis® and Bloomberg Law customers are able to access and use ALM's content, including content from the National Law Journal, The American Lawyer, Legaltech News, The New York Law Journal, and Corporate Counsel, as well as other sources of legal information.

For questions call 1-877-256-2472 or contact us at [email protected]

 
 

ALM Legal Publication Newsletters

Sign Up Today and Never Miss Another Story.

As part of your digital membership, you can sign up for an unlimited number of a wide range of complimentary newsletters. Visit your My Account page to make your selections. Get the timely legal news and critical analysis you cannot afford to miss. Tailored just for you. In your inbox. Every day.

Copyright © 2021 ALM Media Properties, LLC. All Rights Reserved.