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In giving the boot to a Ten Commandments display in Alabama’s state judicial building, a federal judge said Nov. 18 that the 5,280-pound granite monument “crossed the Establishment Clause line between the permissible and the impermissible.” Whether the monument violates the First Amendment’s rule against state-established religion will soon be a question for the 11th U.S. Circuit Court of Appeals in Atlanta. When it gets there, the Alabama case — along with two more brewing in Georgia — will highlight a court that has found minute distinctions between what does and does not cross the line separating church from state. That’s not unusual in litigation over religion, where rulings sometimes resemble the late U.S. Supreme Court Justice Potter Stewart defining obscenity: “I know it when I see it.” Indeed, while no one appears to have challenged it, the high court’s building in Washington features marble depictions of Moses and the Ten Commandments — along with other historical lawgivers such as Caesar Augustus, Confucius, Hammurabi, Mohammed, William Blackstone, Napoleon Bonaparte and Chief Justice John Marshall. The high court established a key precedent on the Ten Commandments in 1980, striking down a Kentucky requirement that the Ten Commandments be placed in all public school classrooms. Last year, however, three justices argued in dissenting from a denial of certiorari that a Ten Commandments display in front of the Elkhart, Ind., City Hall probably did not violate the Establishment Clause. The case of the Alabama monument was much clearer, according to last week’s decision by Judge Myron H. Thompson of the U.S. District Court for the Middle District of Alabama. “This case is not as difficult as those in which the evidence reflected that the Ten Commandments display at issue had an arguably secular, historical purpose,” Thompson wrote. Glassroth v. Moore, No. 01-T-1268-N (M.D.Ala. Nov. 18, 2002). COMMANDMENTS IN A COURTROOM The case stemmed from efforts by Roy S. Moore, as a state court judge, to display the Ten Commandments in his courtroom. Moore’s effort brought him legal challenges — and notoriety. He won the 2000 race for Alabama Supreme Court chief justice by running as the “Ten Commandments Judge.” Upon taking office, Moore began designing a Ten Commandments monument, unveiling it in August 2001 in the colonnaded rotunda of the judicial building. In justifying the monument at the unveiling ceremony, Moore decried that “many judges and other government officials deny any higher law and forbid the teaching to our children that they are created in the image of an Almighty God while they purport that it is government — and not God — who gave us our rights. “Not only have they turned away from those absolute standards that serve as the moral foundation of law and which form the basis of morality, but also they have divorced our Constitution and Bill of Rights from these principles.” From a legal perspective, Moore did argue that the monument had a historical purpose, according to one of his lawyers, D. Stephen Melchior of Cheyenne, Wyo.: “The monument depicts the moral foundation of the law.” No taxpayer money financed the monument, although it was unclear from Thompson’s decision exactly who did. Moore’s legal defense fund has collected at least $170,000 from Coral Ridge Ministries, an evangelical outreach media organization that videotaped the monument’s installation and unveiling, according to Thompson. 36-CUBIC-FOOT MONUMENT Occupying about 36 cubic feet, the monument is capped by two tablets that suggest an open Bible. Engraved on the tablets are the Ten Commandments as excerpted from Exodus in the King James Bible, starting with “I am the Lord thy God” and “Thou shalt have no other Gods before me.” On each side of the monument, Moore added 14 quotations, such as the motto on U.S. currency, “In God We Trust” and a reference in the Declaration of Independence to “Laws of nature and of nature’s God.” Later, Moore added on the rotunda’s walls a plaque containing quotations from the Rev. Dr. Martin Luther King Jr. and Frederick Douglass speaking about just and unjust laws, and another plaque containing the Bill of Rights to the U.S. Constitution. But Moore rejected requests to add monuments containing King’s “I Have a Dream” speech or a sculpture depicting an atom — an atheist symbol — because they were inconsistent with the rotunda’s theme of the moral foundation of the law, according to Thompson. THREE LAWYERS SUE JUDGE Three Alabama lawyers sued Moore, arguing the display violated the Establishment Clause, offended them and made each feel like an “outsider.” The lawyers were represented by Americans United for the Separation of Church and State, the Southern Poverty Law Center and the American Civil Liberties Union. At trial last month, Moore testified extensively about his reasons for the monument, never shying from religious explanations. As Thompson summarized them, Moore explained that “the Judeo-Christian God reigned over both the church and the state in this country, and that both owed allegiance to that God.” Relying on the Supreme Court’s 1971 Establishment Clause test in Lemon v. Kurtzman, 403 U.S. 602, Thompson held that the monument had a religious purpose and that the monument’s primary effect advanced religion. Thompson called the monument “dramatically different” from other Ten Commandment displays, including those at the U.S. Supreme Court, which “are situated in a secular context and the secular nature of the display is apparent and dominant.” Among others, U.S. Supreme Court Justice Anthony M. Kennedy has argued that the Lemon tests are too stringent on religion, suggesting that only proselytization or coercion should be disallowed. As an example, Kennedy suggested in a 1989 case that “an obtrusive year-round religious display” such as a cross installed on top of city hall would violate the Establishment Clause. But in Moore’s Ten Commandments case, Thompson concluded, “Justice Kennedy’s proselytization test is met here.” COMMANDMENTS AUTHOR Melchior, Moore’s lawyer, credited Thompson for acknowledging in his decision that the Ten Commandments were vital to the development of the law, but he criticized the judge for dismissing who authored them. “You acknowledge they’re important, but you can’t acknowledge [their] creator,” Melchior said. Melchior said if he were to draw a caricature of Thompson, it would show the judge covering his eyes and saying, “I can’t acknowledge it because it might offend somebody.” Melchior predicted success when Moore’s appeal is heard by the 11th Circuit. Jay A. Sekulow of the American Center for Law and Justice, a public interest group founded by the Rev. Pat Robertson, said the 11th Circuit “has been pretty good” to some of his causes advocating religious expression in schools. In 2000, the full 11th Circuit voted 10-2 to uphold a policy allowing Florida high school seniors to select a graduation speaker who, in most cases, led a prayer. Later that year, the U.S. Supreme Court struck down a Texas policy permitting students to vote on the delivery of a “statement or invocation” at football games. In light of the Texas decision, the high court told the 11th Circuit to rethink its holding in the Florida case, but the 11th Circuit voted 8-4 to reinstate its original decision. The majority found the Texas policy “fundamentally different” from the Florida policy; the dissenters, including two judges who switched sides from 2000, dismissed the majority as making “a distinction without a difference.” Adler v. Duval County, 250 F.3d 1330 (2001). Sekulow calls Moore’s historical argument legitimate, although he is not using a similar tactic in representing an Ohio state judge whose poster of the Ten Commandments was ordered removed from his courtroom by a federal judge. That case is pending in the 6th Circuit. One of the winning lawyers in the Florida 11th Circuit case, Matthew D. Staver of Orlando, Fla.-based Liberty Counsel, said Moore’s case is difficult because his monument is not surrounded by other secular documents depicting the development of American law. “I’d prefer other litigation,” said Staver, suggesting that a loss by Moore at the 11th Circuit risks creating a bad precedent for later litigants pushing on behalf of religious expression. Likewise, the Rev. Barry Lynn, who heads the Americans United for the Separation of Church and State, sees the Moore case as establishing a great precedent for his side. The facts, he said, “frame so clearly what it is about the Ten Commandments that promote religion.” GEORGIA LITIGATION Georgia courts have had their share of Ten Commandments controversy. In 1993, U.S. District Senior Judge Marvin H. Shoob declared that a display in a Cobb County courthouse — featuring the Ten Commandments and the so-called “Great Commandment” by Jesus — was unconstitutional. Shoob stayed his order for four months to allow Cobb County to develop “an educational display” on the development of the law, citing as an example the U.S. Supreme Court’s depictions. Harvey v. Cobb County, 811 F.Supp. 669 (1993). But the county just decided to take its display down, according to Fred D. Bentley Jr., the county attorney at the time. Meanwhile, the ACLU of Georgia is suing to remove two Ten Commandments displays. In one case, the group sued Richmond County because the seal of its Superior Court clerk resembles the Ten Commandments, showing two rounded tablets listing Roman numerals I through X. But in June, U.S. District Judge Dudley H. Bowen Jr. in Augusta, Ga., upheld the seal. He noted that the seal was created in the 1870s, when it possibly reassured illiterate citizens they were receiving an official document. “Except to an obsessive iconoclast, the Clerk’s seal is inoffensive as it is ancient,” Bowen wrote. King v. Richmond County, No. CV100-100, (S.D. Ga. June 28, 2002). The ACLU has appealed to the 11th Circuit. The other case, over Ten Commandments displays in the Habersham County, Ga., courthouse and a public natatorium, shows the broad reach of Shoob’s 1993 decision. After the ACLU filed suit, county officials posted other historical documents next to the Ten Commandments, including the Magna Carta and the Bill of Rights, according one of the county’s attorneys, Donald A. Cronin. The additional documents, he said, “gives it a nonreligious and less religious” context. That case, Turner v. Habersham County, No. 2:02-CV-0039-WCO) is pending before U.S. District Senior Judge William C. O’Kelley.

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