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A packed courtroom is expected this afternoon when four lawyers square off before a three-judge panel of the 3rd U.S. Circuit Court of Appeals to argue about whether U.S. District Judge Stewart Dalzell was right when he ordered Chester County, Pa., to remove a bronze plaque of the Ten Commandments that has hung on the east wall of its courthouse for more than 80 years. But those four lawyers also have quite a few friends who have filed a slew of amicus briefs on both sides, including one brief from the team of lawyers who argued that an identical plaque should be removed from the walls of the Allegheny County courthouse in Pittsburgh. Chief U.S. District Judge Donetta Ambrose of the Western District of Pennsylvania held a non-jury trial in the Pittsburgh case, Modrovich v. Allegheny County, but placed the case in civil suspense pending the outcome of Chester County’s appeal. In the Chester County case, Freethought Society of Greater Philadelphia v. Chester County, Dalzell, of the Eastern District of Pennsylvania, ruled that “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 rejected the county’s argument that the plaque serves a valid “secular purpose” of being a “symbol of law giving,” finding instead that its 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, plaintiff’s attorney Stefan Presser, the legal director of the American Civil Liberties Union of Pennsylvania, argued that county and court officials had strong religious motives when they accepted the plaque as a gift from the council of churches. In today’s oral arguments, Chester County will have three lawyers arguing on its side. Attorneys William M. McSwain of Dechert and William M. Janssen of Saul Ewing will share 25 of the county’s 30 minutes. The remaining five minutes will go to Alfred W. Putnam Jr. of Drinker Biddle & Reath who filed an amicus brief on behalf of the Chester County Historic Preservation Network. Presser will argue alone for the plaintiffs but will be joined at counsel table by appeals specialist Peter Goldberger who assisted Presser with the 3rd Circuit brief. The lawyers will argue before a panel consisting of 3rd Circuit Chief Judge Edward R. Becker, Judge Maryanne Trump Barry and visiting 8th Circuit Senior Judge Myron H. Bright, an 84-year-old resident of Fargo, N.D., who was appointed to the federal bench in 1968 by President Johnson. The hour scheduled for today’s arguments is already twice as long as the 3rd Circuit ordinarily grants, and lawyers said they would not be surprised if it runs much longer, because Becker has a reputation for ignoring the red light as long as the judges have questions. But the panel will have much more than the arguments and the three main briefs to consider when they decide the case, because the lawsuit has generated a pile of amicus briefs on both sides. Pennsylvania Attorney General Mike Fisher, in a brief joined by Senior Deputy Attorney General Calvin R. Koons and Chief Deputy Attorney General John G. Knorr III, is urging the court to reverse Dalzell, arguing that he employed the wrong test and ignored the historical significance of the plaque. Dalzell also erred, Fisher said, by ignoring the fact that the plaque is displayed on an exterior wall, adjacent to an entrance that is now permanently closed. “Without a doubt, the Ten Commandments have religious significance, but this context prevents it from being an endorsement of religion,” Fisher wrote. The Ten Commandments, Fisher argues, is “not only a biblical text, but a statement of historical law displayed on the wall of a building in which laws are administered.” As a result, he says, its “primary function” is an endorsement of law, not religion. The County Commissioners Association of Pennsylvania is also urging the 3rd Circuit to reverse Dalzell. In its amicus brief, attorneys Robert L. Knupp and Mark A. Mateya of Knupp, Kodak & Imblum in Harrisburg, Pa., argue that Dalzell “did not take into account the far-reaching effects” of his ruling. “It is unsettling for Pennsylvania’s county governments, who now must view their historical displays which include any religious connotations, as potential targets of litigation,” they wrote. If the court allows Dalzell’s ruling to stand, they argue, it “will very likely cause each county to reallocate already scarce resources to prepare for its own onslaught of similar first amendment litigation.” The brief says plaques and monuments with religious overtones are “part of the fabric and history of our culture” and that “to ask Pennsylvania’s 67 counties to withdraw and erase any biblical or religious reference is to ask us to deny our heritage, and more importantly, to deny our history.” The commissioners contend that other counties in Pennsylvania have similar plaques. One county courthouse has the Ten Commandments hanging above a witness stand, and in another, it is above the courthouse door. “Removing these plaques and monuments, thereby sanitizing these public buildings of all religious references simply because someone doesn’t like them, is not an enforcement of the First Amendment. It is a step towards Secular Humanism’s refusal to acknowledge any Deity,” Knupp and Mateya wrote. Since the U.S. Supreme Court has deemed secular humanism to be a religion, they argue, such a ruling “would effectively choose one religion over another.” Also urging reversal is attorney Francis J. Manion of the American Center for Law & Justice, who says Dalzell’s decision is “a radical departure from this circuit’s precedents on the elements and scope of the endorsement test.” Manion argues that the “history and ubiquity” of a challenged practice is an element of the endorsement test, but that Dalzell erred by applying the “Lemon test,” a test that Manion says has been “tacitly abandoned” by the Supreme Court in religious display cases. Citing the Supreme Court’s decision in County of Allegheny v. ACLU, Manion argues that a “reasonable observer” of the Chester County plaque who has knowledge of its history and of the ubiquity of the Ten Commandments would not read it as a state endorsement of religion. In Dalzell’s opinion, Manion said, the judge counted the number of religious words on the plaque. Instead, he said, Dalzell “should have been counting the scores of references to the Decalogue in the opinions of American courts and the dozens of [displays of the Ten] Commandments in our courts and public buildings.” In a brief supporting the plaintiffs, Americans United for Separation of Church and State and the Anti-Defamation League, whose lawyers represented the plaintiffs in the Pittsburgh case, argue that they have uncovered even more evidence of the religious motive behind the plaque’s installation. Attorneys Ayesha N. Khan and Alex J. Luchenitser of Americans United and attorneys Steven M. Freeman and Steven C. Shienberg of the Anti-Defamation League argue that the plaque “is one of a plethora of similar plaques and placards erected in Pennsylvania and elsewhere … during the 1910s and 1920s as part of a religious campaign spearheaded by a reactionary religious group.” In a 62-page appendix to their brief, they argue that both the Chester County and Allegheny County plaques were the result of a campaign by the International Reform Bureau, a group they say described itself as “the first Christian lobby.” The brief says IRB was founded by the Rev. Wilbur F. Crafts, who wanted to post the Ten Commandments in or on the front of every courthouse, as well as on churches, schools, mills, factories and camps. Quoting an IRB magazine, they argue that the group insisted that “every courthouse should show its cornerstone in a tablet containing God’s law.” Urging the 3rd Circuit to reject the county’s historical arguments, the brief says the plaque “has no historical significance that is independent of its religious roots.” Courts, they say, have held that the Ten Commandments “can be displayed on government property in connection with the law only as part of a greater, comprehensive display of influences on American law.” But since there are “numerous sources for American law, most of which are secular,” they argue, “displaying the Ten Commandments alone, as the county does here, sends a religious message to a reasonable observer.” But Putnam, who filed the amicus brief for the Chester County Historic Preservation Network along with Drinker attorneys Kirke D. Weaver and D. Alicia Hickok, argues that the IRB was “mischaracterized” in his opponents’ brief. Putnam won permission to file a reply amicus brief in which he set out to paint what he says is a more accurate picture of the IRB. “Evidence of the International Reform Bureau’s interest in the Ten Commandments turned up in Pittsburgh — and not in West Chester — for a variety of perfectly understandable reasons,” Putnam wrote. “The dedication of the Allegheny County plaque attracted more attention in 1918 than the dedication of the Chester County plaque attracted two years later. Pittsburgh was a bigger city, of course, and it was also the home (at least briefly) of Dr. Wilbur F. Crafts, who was the principal organizer of the IRB. Indeed, it was the IRB — along with a number of individual donors — that was the sponsor of the Pittsburgh plaque,” Putnam wrote. But Putnam says scrutiny of the event shows that when the Pittsburgh plaque was unveiled, Crafts gave a speech explaining the role the Ten Commandments had played in the history of the law of the world and how “changes had been made in them by the different religions and creeds but … the essential foundations of the laws never had been altered.” Crafts then traced the development of the law through the Codes of Justinian, Charlemagne and King Alfred, Putnam noted, “all of which, he said, relied on the Commandments.” Putnam argues that the IRB “was, first and foremost, a group of prohibitionists,” and that his opponents are wrong to describe the group as “reactionary.” “It was, in fact, a group of social activists determined to use the powers of government to improve the condition of mankind. Its multiple enthusiasms read like a list of the ‘progressive’ causes of the day,” Putnam wrote. Some of those causes — internationalism, labor legislation, opposition to public funding of religious schools — “remain progressive enthusiasms today,” Putnam states, while others, such as prohibition of alcohol, anti-gambling legislation and Sunday closing laws “are no longer part of the modern progressive’s program.”

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