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Lawyers involved in a fight over a Ten Commandments display in the Barrow County, Ga., courthouse spent Monday studying the U.S. Supreme Court’s split rulings on whether such public displays are constitutional. With the justices split 5-4 against courthouse displays in Kentucky and in favor of a monument on the grounds of the Texas state Capitol, the Court left plenty of room for argument. Margaret F. Garrett of the Georgia chapter of the American Civil Liberties Union, which challenged the Barrow County display, said both of the opinions support the ACLU’s case. Herbert W. Titus, who represents Barrow and also represented former Alabama Chief Justice Roy S. Moore in his failed effort to keep a Ten Commandments monument in that state’s judicial building, expressed disappointment with the high court’s handling of both cases. “I am not sure the Supreme Court has clarified anything,” he said. It will be up to Judge William C. O’Kelley of the U.S. District Court for the Northern District of Georgia to use the high court’s decisions as guideposts for his handling of the Barrow case. O’Kelley, who in 2003 ordered the removal of a Habersham County display of the Ten Commandments, placed the Barrow case on hold pending the high court’s rulings in the Kentucky case, McCreary County v. American Civil Liberties Union, No. 03-1693, and the Texas case, Van Orden v. Perry, No. 03-1500 In McCreary, the Court ruled 5-4 that the display of the Ten Commandments and other historical documents in two county courthouses violated the First Amendment’s ban on government-established religion. Justice David H. Souter wrote for the majority that the counties’ purpose in placing the displays was “predominantly religious” and therefore unconstitutional. According to Souter, the counties in 1999 had posted the King James version of the Ten Commandments alone. Only after the ACLU filed suit did the counties add to the displays documents such as the Declaration of Independence and the Magna Carta and a notice that said the Ten Commandments had “profoundly influenced Western legal thought.” But since the original display included only the Ten Commandments, Souter found that the “reasonable observer could only think that the Counties meant to emphasize and celebrate the Commandments’ religious message.” In Van Orden, Justice Stephen G. Breyer became the swing vote. He switched from the liberal side of the Court that wanted to rule for the Ten Commandments challengers in both cases to the conservative side that favored the government displays. But Breyer joined only the result of Chief Justice William H. Rehnquist’s plurality opinion — emphasizing that he approved of the Texas monument because it had stood for 40 years without challenge, suggesting observers found it to have a secular purpose. Garrett, the local ACLU attorney, said the Barrow display, as in McCreary, is doomed by a religious purpose. She pointed to a 2003 press release announcing a rally to support the county’s display in which the chairman of the Barrow commission, Walter E. Elder, challenged citizens to “burn these Commandments into their minds, memories and hearts.” Noting Breyer’s emphasis on a display’s longevity, Garrett added that the high court’s upholding of the Texas monument would not provide much cover for the recent Barrow County display or government officials who wish to mount new displays. Barrow County lawyer Titus pointed out that in the Kentucky case, the local governments initiated the placing of the Ten Commandments in the courthouses. The display in Barrow County, Titus argued, was different because the local government merely complied with one citizen’s request to put up a single display of the Ten Commandments. Titus said it was not fair to attribute to a government action the religious motivation of a private person’s request. Doing so is “really telling religious people to stay out of politics,” he added. Titus concluded, “There’s no religious purpose with regard to the Barrow County display.” A major issue in the Barrow case has been whether the plaintiff, a regular courthouse visitor called “John Doe,” can remain anonymous because he fears retaliation. The dispute started in June 2003 when the ACLU demanded that the government remove the display. According to the ACLU complaint, the Ten Commandments issue was discussed at the next meeting of the county board of commissioners. Elder first invited pastors to speak on the issue, then invited others to express their views. Elizabeth F. Beckemeyer, who spoke at the meeting against maintaining the display, filed an affidavit supporting John Doe’s anonymity. She said others in the audience told her to “shut up and sit down” and to leave the county, saying she “ain’t welcome [here] no more.” She pointed out that she is not John Doe. Jody B. Hice, a Bethlehem pastor, filed an affidavit as part of a defense motion opposing John Doe’s anonymity. He said that at the commission meeting he had heard people groan at Beckemeyer’s argument, but she was received in a friendly manner afterward. Hice heads “Ten Commandments Georgia,” which Titus said is funding his defense of the Barrow display. Hice said Monday that his group has raised between $220,000 and $250,000 to defend the county.

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