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Quite a few jaws dropped when attorney Alfred W. Putnam of Philadelphia-based Drinker Biddle & Reath filed an amicus brief with the 3rd U.S. Circuit Court of Appeals that compared the American Civil Liberties Union and some of its clients to the Taliban. Now the ACLU has filed a response brief that is clearly designed to ensure that Putnam’s argument not only fails, but also backfires. The briefs were filed in Freethought Society of Greater Philadelphia v. Chester County, an appeal in which Chester County, Pa., is urging the 3rd Circuit to overturn a March 2002 decision by U.S. District Judge Stewart Dalzell of the Eastern District of Pennsylvania that said the county must remove a bronze plaque of the Ten Commandments that has hung on the eastern wall of its courthouse for more than 80 years. Putnam, in an amicus brief filed in October on behalf of the Chester County Historic Preservation Network, compared the forced removal of the plaque to the Taliban’s decision to destroy ancient Buddha statues. He argued that the ACLU and its clients were asking for too much — and that Dalzell went too far when he granted their request — because the law does not require governments to destroy historic monuments to avoid violating the Establishment Clause of the First Amendment. “It is possible to preserve and respect the works of one’s ancestors without ‘endorsing’ them. We do it every day. It is true that the Taliban does not understand this. But we are not the Taliban. And our Constitution does not require that we behave as if we were,” Putnam wrote. Now a team of lawyers for the Freethought Society has filed a 62-page brief that targets Putnam’s brief in the opening paragraphs of its argument. Attorney Stefan Presser of the ACLU, along with appeals specialist Peter Goldberger of Ardmore and University of Pennsylvania law professor Seth Kreimer, argue that Putnam’s entire premise is flawed since the Freethought Society’s lawsuit doesn’t seek “destruction” of the plaque. Instead, they argue, the suit asked only for a ruling that the county’s display of a sectarian text on the walls of the county courthouse was unconstitutional. The Constitution, they argue, is “the document which comes as close as any to being sacred in our nation’s history.” Putnam’s argument — and his comparison of the ACLU and its clients to the Taliban — was “tragic,” they argue, “especially at a time when our nation has only recently been subjected to the scourge of religious fanaticism.” In contrast to the Taliban’s “despicable, extra-judicial destruction of religious statues deemed world heritage artifacts,” they said, the Freethought Society and its members, Sally Flynn and Margaret Downey, engaged in “peaceful utilization of our national courts.” It was “equally sad,” they said, that Putnam compared Dalzell “to those who donned Mao’s Red Guard robes, when in fact he acted in the noblest tradition of our nation’s federal judges, who are commanded to protect the rights of those who do not ascribe to religious views held by a majority of Americans.” In addition to refuting Putnam’s argument, Presser, Goldberger and Kreimer set out to harness the Taliban comparison to their own advantage. “Indeed, it is the mandate of the Constitution’s framers that government may not establish religion, thereby ensuring religious liberty, which has largely spared our nation from the scourge of Taliban-like fanaticism,” they wrote. Most of the Freethought Society’s appellate brief is devoted to challenging the arguments made by the county’s lawyer, William M. McSwain of Dechert, that Dalzell erred in ordering that the display of the Ten Commandments plaque is unconstitutional and that it must therefore be removed. In March, Dalzell held a non-jury trial and concluded that the plaque’s strong religious message violates the First Amendment’s prohibition against state establishment of religion. “The tablet’s necessary effect on those who see it is to endorse or advance the unique importance of this predominantly religious text for mainline Protestantism,” Dalzell wrote in his 25-page opinion. Dalzell rejected the county’s argument that the plaque serves a valid “secular purpose” of being a “symbol of law giving.” Instead, Dalzell found that the plaque’s history shows it had a strongly religious purpose when it was first placed on the outside wall of the courthouse in 1920. Chester County received the plaque as a gift from the Council of Religious Education of the Federated Churches of West Chester, an organization Dalzell described as “a group of mainline Protestant churches that promoted Bible study and religious education.” In the trial, Presser set out to prove that county and court officials had strong religious motives when they accepted the plaque as a gift from the council of churches. Presser introduced as evidence a program book from the dedication ceremony that included the text of a dedication in which audience members participated by reciting responses in unison. The ceremony leader opened the dedication by saying: “Because we believe that the Ten Commandments are basic to righteousness and justice in government, industry, commerce, the administration of law, and in society.” The audience responded, “We dedicate to God this tablet of the Ten Commandments.” Dalzell found that Presser had proven that the plaque’s history showed that its purpose was not secular. “The program of the Dec. 11, 1920, ceremony dedicating the plaque … confirms the marriage of church and county that took place that day,” Dalzell wrote. Soon after the ruling, Dalzell ruled that the plaque could remain on the courthouse wall through the appeal, but that the county must cover it with a drape in the interim. In its appellate brief, the Freethought Society argues that Dalzell’s rulings were legally solid and that all of the county’s appellate arguments are seriously flawed. Presser, Goldberger and Kreimer argue that Dalzell was “following the reasoning of no fewer than two circuit and 11 district courts who had enjoined similar displays.” And that strong weight of authority has grown only stronger, they argue, because, since the county filed its appellate brief, “yet another circuit and district court have enjoined similar displays in thorough and thoughtful opinions.” They urged the 3rd Circuit to reject McSwain’s argument — similar to Putnam’s — that the county’s interest in preserving the plaque as a historical artifact was a sufficiently secular motive. “This argument makes it clear that the county has never come to grips with the depth of the text’s essentially religious nature,” they wrote. “Indeed, it is hard to fathom how the Decalogue [the Ten Commandments] and the Gospel of Matthew, which have been deemed sacred by religious adherents for several thousand years, should suddenly be secularized by the benign neglect of the county since their placement on its courthouse.” The county, they argue, offered two “secular explanations” for why a “reasonable viewer” would believe that the plaque’s display has “largely lost [its] religious significance over time.” At trial, they noted, the county commissioners argued that the purpose of the display was to symbolize both civilization and the working together of faith and reason “to create and maintain the American experiment.” On appeal, they argue, the county improperly added a second argument — that the purpose was “simply to preserve a bit of Chester County’s history.” Both arguments should be rejected, they argue, because Dalzell correctly focused on the county’s religious motive at the time the plaque was first hung. “If this case is briefed for the Supreme Court, even more creative lawyers will undoubtedly come up with additional purposes supporting the county’s decision to display the Decalogue. It is precisely to prevent such legal prestidigitation that the Supreme Court has focused the purpose inquiry on the government’s original motivation,” they wrote. As for the county’s second argument — that its current motive is not a religious one but merely to preserve an object of Chester County history — the Freethought Society argues that the argument was waived since it was never raised before Dalzell. Presser, Goldberger and Kreimer also argue that accepting such an argument would be dangerous. “This supposed purpose, if accepted by the court, would eviscerate the Establishment Clause. Under the guise of preservation, any religious display, no matter how sectarian, would thereby pass constitutional muster simply because of its age, a concept explicitly rejected by federal courts,” they wrote.

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