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In the first of two cases deciding how far the government may go in its use of religious symbols, a federal appeals panel has ruled that a local court seal depicting the Ten Commandments does not cross the constitutional barrier between church and state. The decision, released late Friday by the 11th U.S. Circuit Court of Appeals, upheld the Richmond County Superior Court’s use of a 1-inch seal depicting the Ten Commandments with two rounded tablets containing the Roman numerals I through X. The Richmond County, Ga., case could affect an argument set for Wednesday in which another 11th Circuit panel will weigh the constitutionality of a 5,280-pound monument of the Ten Commandments in the Alabama Judicial Building. Chief Judge J.L. Edmondson sits on both panels. The cases grew out of challenges by local chapters of the American Civil Liberties Union, and other groups, alleging that the displays violated the First Amendment’s prohibition against state-established religion. But the cases are different, an important fact in light of U.S. Supreme Court precedent requiring judges to view Establishment Clause challenges on a case-by-case basis. Three members of the Georgia ACLU — an Augusta attorney, E. Ronald Garnett; a Unitarian pastor, the Rev. Daniel King; and one of King’s congregants, Shirley Fencl — brought the Richmond County case against the court seal in 2000. RULING FOR THE DEFENSE Last year, Chief Judge Dudley H. Bowen Jr. of the U.S. District Court in Augusta ruled for the defendants, the county and Elaine Johnson, the court clerk. Bowen wrote 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. He noted that in the 1870s, when the earliest-known use of the seal was identified, at least 35 percent of Georgians were illiterate, suggesting the county clerk needed a symbol that graphically depicted the law. Edmondson, Senior Judge Phyllis A. Kravitch and visiting 8th Circuit Senior Judge John R. Gibson affirmed Bowen’s decision at the 11th Circuit. Kravitch wrote for the panel that despite the Ten Commandments’ obvious religious connotations, the Richmond County court seal passed constitutional scrutiny because it used the Ten Commandments in a secular context — authenticating 24,000 legal documents filed in the Augusta courthouse each year. Kravitch noted that much public and private law grew out of the final six commandments, which deal with honoring one’s parents and prohibiting murder, adultery, stealing, lying and coveting. Moreover, she added, the Richmond County seal shows a sword placed behind the tablets. The sword, according to Kravitch, is “among the most recognizable symbols of the legal system.” Finally, Kravitch concluded that the seal’s size — about 1 inch in diameter — made it “discreet,” as opposed to other, larger Ten Commandments images held to violate the First Amendment’s prohibition against state-established religion. Kravitch contrasted the Richmond County case with others in which courts struck down the use of large monuments to the Ten Commandments on public grounds. Those cases, she wrote, “involved displays that were large or ‘in your face’ and occupied a place of prominence or special honor, often dominating the other objects surrounding them.” Kravitch’s comments on size offered an intriguing clue as to how the 11th Circuit might view the Alabama case, although she did not mention it specifically. That case deals with efforts by Alabama Supreme Court Chief Justice Roy S. Moore to keep a Ten Commandments monument he designed in the colonnaded rotunda of the state’s judicial building. 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, including 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.” Moore claims that the monument depicts the moral foundation of the law. MONUMENT ORDERED REMOVED Last year, U.S. District Judge Myron H. Thompson ordered Moore to remove the monument, which Thompson called the “centerpiece” of the Alabama Judicial Building’s rotunda. Moore refused, and in so doing, set up Wednesday’s argument in Montgomery, Ala., before Edmondson, 11th Circuit Judge Edward E. Carnes, and Richard W. Story, an Atlanta federal district judge assigned to the case. Edmondson penned a four-sentence concurrence to Kravitch’s decision in the Richmond County court-seal case. He indicated that he wrote separately “because I am uncomfortable with the characterization and the manner of application of some of the precedents discussed as the Court explains its decision.” Edmondson did agree, however, that “no precedent comes close” to compelling the conclusion that the Richmond County display violated the U.S. Constitution. King v. Richmond County, No. 02-14146 (11th Cir., May 30, 2003). The Richmond County plaintiffs plan on asking the full 11th Circuit to reconsider the ruling, said Robert L. Tsai, a University of Oregon law professor who first brought the case when he was a lawyer for the Georgia ACLU. Tsai said he was “extremely disappointed” by the ruling, which he described as the first federal appellate decision since 1980 that upholds government use of the Ten Commandments. “It’s the only decision holding that religious symbols without religious words somehow alters the impact of an obviously sacred symbol,” Tsai wrote in an e-mail. “It’s the first ruling suggesting that courts might be able to use the Commandments for official business, while other governmental entities are not,” Tsai added. “Apparently, smaller replications of the Commandments to the tune of 24,000 per year don’t equal one large display.” James W. Ellison of the Augusta firm Burnside, Wall, Daniel, Ellison & Revell represented Richmond County in its successful defense of the court seal. He noted that the court had rejected Tsai’s argument that if the seal resembled the Ten Commandments, then it was automatically in violation of the First Amendment. “You can’t make that leap,” said Ellison, emphasizing that the seal had a clearly secular purpose of authenticating documents. CONTEXT CONSIDERED KEY With regard to the Alabama case, Ellison noted that the 11th Circuit made clear that the context of a challenged Ten Commandments display was key — and that no factor is “outcome determinative.” Danielle Lipow of the Southern Poverty Law Center, one of the groups challenging the Alabama Ten Commandments monument, said that the Richmond County case, King v. Richmond County, “bodes very well” for her case. “The enormous Ten Commandments monument that Chief Justice Moore installed in the Alabama State Judicial Building could not be more different than the inconspicuous symbol at issue in King, and the court’s opinion in King makes it very clear that the Eleventh Circuit will recognize the constitutional significance of those differences,” she wrote in an e-mail. A spokesman for Americans United for the Separation of Church and State, which also is involved in the Alabama case, echoed Lipow’s comments. Herbert W. Titus, Moore’s lawyer, could not be reached to discuss the impact the King case would have on the Alabama case, Glassroth v. Moore, Nos. 02-16708-D and 02-16949-DD.

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