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A panel from the 11th U.S. Circuit Court of Appeals on Wednesday sounded skeptical of an argument that an image of the Ten Commandments on the seal of Richmond County, Ga., Superior Court is unconstitutional. The three judges sharply challenged points made by Robert L. Tsai, a lawyer for the American Civil Liberties Union who maintained that the Richmond court’s seal, which shows two rounded tablets containing the Roman numerals I through X, violated the First Amendment’s ban against state-endorsed religion. Tsai ran into trouble early in his 15-minute presentation when he cited ACLU v. Rabun County, a 1983 decision in which the 11th Circuit ruled that a 35-foot cross placed in a state park ran afoul of the Establishment Clause. The Richmond County case was different, said Senior Judge Phyllis A. Kravitch, who was on the panel that decided Rabun County. While a cross is a purely religious symbol, she added, “all our laws are derived from the Ten Commandments.” Tsai answered that the Ten Commandments provided “just one piece” of the development of the law. He continued that there was no reason for the court to draw a line between the Ten Commandments and a cross, because both are religious symbols. “I think there is, counselor,” responded Chief Judge J.L. Edmondson. He said the cross “does not have nearly the same level” of secular content as the Ten Commandments, which are “tied to legal history.” Edmondson, Kravitch and the third member of the panel, visiting Senior Judge John R. Gibson of the 8th Circuit, also emphasized that the Richmond County seal does not depict the actual words of the Ten Commandments as reported in the biblical book of Exodus. But Tsai responded that just because the Ten Commandments depicted on Richmond County’s seal lacked the words of the commandments “doesn’t make it any less religious.” SURVIVING CHALLENGES Wednesday’s 40-minute oral argument was the first of two the 11th Circuit will hear this year testing where the First Amendment’s Establishment Clause allows depictions of the Ten Commandments in the legal system. In June, lawyers for Alabama Supreme Court Justice Roy S. Moore will try to convince the 11th Circuit to allow Moore to keep a 5,280-pound granite monument showing the full text of the Ten Commandments in the rotunda of Alabama’s judicial building. Last year a federal judge agreed with the Southern Poverty Law Center, Americans United for Separation of Church and State and the ACLU that Moore’s monument was unconstitutional. The Richmond County dispute started in 1998, when Georgia ACLU lawyers contacted Elaine C. Johnson, the court clerk, and asked her to remove the symbol. She refused, noting that the seal had been on court documents since the 1800s. The problem simmered until May 2000, when a trio of ACLU members — an Augusta, Ga., attorney, E. Ronald Garnett; a Unitarian pastor, Rev. Daniel King; and one of King’s congregants, Shirley Fencl — sued Richmond County and Johnson in federal court. They claimed the seal — stamped on 24,000 documents a year — violated the Establishment Clause and a similar church-state separation clause in the Georgia constitution. But last year, Chief Judge Dudley H. Bowen Jr. of the U.S. District Court in Augusta disagreed. Bowen invoked the so-called Lemon test, named for the 1971 U.S. Supreme Court ruling that set three criteria government actions must meet to survive Establishment Clause challenges. According to Lemon, government actions are constitutional if they have a secular purpose, have a principal effect neither advancing nor inhibiting religion and do not foster an “excessive entanglement” with religion. Lemon v. Kurtzman, 403 U.S. 688 (1971). Bowen noted that in the 1870s, when the earliest-known use of the seal has been identified, at least 35 percent of Georgians were illiterate, suggesting the county clerk needed a symbol that graphically depicted the law. “Further, only the most imaginative mind could conjure circumstances where under the Clerk’s seal could be said to significantly benefit religion,” Bowen added. “Except to an obsessive iconoclast, the Clerk’s seal is as inoffensive as it is ancient.” As for the seal’s primary effect, Bowen concluded that because the Ten Commandments played a role in the secular development of law, a reasonable observer would not consider a seal depicting the tablets as a primary government endorsement of religion. Similarly, Bowen dismissed any argument that the seal as used by Richmond County represented any excessive entanglement with government and religion. King v. Richmond County, No. CV100-100, (S.D. Ga. June 28, 2002). CONTEXT IS KEY On Wednesday, Augusta lawyer James W. Ellison, representing Richmond County, got an easier reception from the judges than did Tsai. But Kravitch nonetheless pressed Ellison with points Tsai had made earlier. “How do you get around the language of Stone,” Kravitch asked. She was referring to the 1980 U.S. Supreme Court decision of Stone v. Graham, which struck down a Kentucky statute requiring the posting of a copy of the Ten Commandments in public school classrooms. The high court decision said, “The Ten Commandments are undeniably a sacred text in the Jewish and Christian faiths, and no legislative recitation of a supposed secular purpose can blind us to that fact.” Ellison said he did not disagree with the holding in Stone, but he added that the court should look at the context in which the Ten Commandments are used. Ellison also dismissed Tsai’s point that the seal is pervasive because it appears on 24,000 legal documents a year. “This is limited to one instance and one instance only — a legal setting,” Ellison added. NO DECISION In one of the 11th Circuit’s most recent Establishment Clause cases, the court split 8-4 to uphold a policy allowing Florida high school seniors to select a graduation speaker who, in most cases, led a prayer. Edmondson, who was appointed to the court in 1986, joined the majority; Kravitch, who was appointed in 1979, joined the dissenters. In 1993, U.S. District Senior Judge Marvin H. Shoob of the Northern District of Georgia declared that a display in a Cobb County courthouse — featuring the Ten Commandments and the so-called “Great Commandment” by Jesus — was unconstitutional. The county appealed the ruling, but the 11th Circuit affirmed without an opinion. Harvey v. Cobb County, 15 F.3d 1097 (11th Cir. 1994). Thus, the Richmond County and Alabama cases will set a precedent for the court. J. Richard Cohen, a Southern Poverty Law Center lawyer who represents plaintiffs challenging the Ten Commandments monument, said he didn’t expect the Richmond County case to have a significant bearing on the Alabama case. “Our case is much more different,” he added, pointing to language in Bowen’s decision upholding the Richmond County seal as helpful to his cause. In the decision, Bowen wrote that the Richmond County seal is “far more limited and less conspicuous than government displays found to endorse religion,” noting that the seal was not in a courtroom or on a government building, vehicle, water tower or street sign. Moore’s lawyer, D. Stephen Melchior of Cheyenne, Wyo., could not be reached to discuss the Richmond County case. He has argued that Moore’s Ten Commandments monument is constitutional because it represents “the moral foundation of the law.” The Alabama case, Moore v. Glassroth, is set to be argued in Montgomery, Ala., on June 2.

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