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At first glance, the pair of decisions handed down Monday by the U.S. Supreme Court dealing with displays of the Ten Commandments on public grounds might appear to call for a rethinking of similar litigation over the past few years in Pennsylvania. By 5-4 votes in both cases, the justices ordered that a Ten Commandments display on two Kentucky courthouses must come down, but — with one justice switching sides — found that a monument of the Ten Commandments at the Texas state capitol may stay in place. So were the justices saying that Ten Commandments displays are never allowed in courthouses, but might be acceptable on other public grounds? If so, the rulings could spark a new wave of litigation in Pennsylvania where lawyers from the American Civil Liberties Union and Americans United for Separation of Church and State recently waged losing challenges seeking the removal of plaques of the Ten Commandments that had hung for decades on the walls of the courthouses in Chester and Allegheny counties. But on closer inspection, it’s clear that the pronouncements in Monday’s Supreme Court decisions are not so simple. Although both of the challenges to Ten Commandments displays in Pennsylvania were rejected by the 3rd U.S. Circuit Court of Appeals, it appears that only one justice in Monday’s decision came close to adopting the 3rd Circuit’s rationale. The swing justice — Justice Stephen G. Breyer — was the only justice in the majority in both decisions. But Breyer’s rationale for allowing the Texas display to remain was expressed in a concurring opinion that was joined by none of the other justices. Breyer noted that the Texas monument was donated to the state by the Fraternal Order of the Eagles in 1961 and had gone unchallenged for more than 40 years. That longevity, he wrote, tends to prove that “few individuals, whatever their beliefs, are unlikely to have understood the monument as amounting, in any significant way, to a government effort to favor a particular religious sect.” In Pennsylvania, the ACLU won the first round of litigation in the Chester County case when U.S. District Judge Stewart Dalzell ordered that the plaque be removed from the courthouse wall. When the Chester County case went on appeal, a suit over a nearly identical plaque on the Allegheny County courthouse wall was put on hold. In June 2003, the 3rd Circuit reversed Dalzell and ruled that the Chester County plaque — which had been mounted on the courthouse’s east all 83 years before — could stay in place because the modern-day county officials who refused to take it down had acted only out of respect for its historical importance and not because they wanted to promote its religious message. Senior 3rd Circuit Judge Edward R. Becker concluded that a “reasonable” person who sees the plaque today — in its historic context — would not read it as an “endorsement of religion.” “A reasonable observer must be presumed to know the history of the courthouse … and the fact that the plaque itself has become part of this historic courthouse. Thus, the reasonable observer would perceive the plaque as a part of an historic monument, namely the courthouse itself,” Becker wrote in Freethought Society of Greater Philadelphia v. Chester County. “Viewed in this context, the [County] Commissioners’ refusal to remove the plaque appears even less like an endorsement of religion and more likely motivated by the desire to preserve a plaque that has become part of the courthouse,” Becker wrote. Becker’s rationale ultimately proved to be the deciding factor in the Allegheny County case when U.S. District Judge Donetta W. Ambrose of the Western District of Pennsylvania found that the same logic applied to the Allegheny County plaque. The lawyers in the Chester County case had asked for reargument before the 3rd Circuit and were rejected. They then opted not to file a certiorari petition with the U.S. Supreme Court. But the Allegheny County case could be ripe for reopening. Although the 3rd Circuit upheld Ambrose’s decision, the court never ruled on any petition for rehearing before the full court because the U.S. Supreme Court announced that it had agreed to hear the Texas and Kentucky cases. In an interview Monday, attorney Alex J. Luchenitser of Americans United for Separation of Church said the 3rd Circuit agreed to put the Allegheny County case on hold pending the outcome of the Supreme Court cases. As a result, Luchenitser said, the plaintiffs in the Allegheny County case now have 30 days, starting Monday, to decide whether to petition for rehearing. Luchenitser said no decision has yet been made about whether to ask the 3rd Circuit to take another look at the case. But Luchenitser said that as his office studies Monday’s decisions, they are focusing on differences between the Texas and Kentucky cases, as well as the differences in the Allegheny County case. Although Breyer’s concurring opinion seemed to suggest that the number of years that a display is in place is one important factor, Luchenitser said Breyer also seemed to emphasize that the original decision to erect the display had a secular purpose. By contrast, Luchenitser said, the evidence in the Allegheny and Chester county cases showed that there was an explicitly religious purpose when the plaques were first displayed. Luchenitser also said Monday’s decision in the Kentucky case may have undermined the rationale employed by Becker in allowing the Chester County plaque to remain. Becker, he said, called for courts to focus not on the intent of those who erected the display, but only the intent of the modern-day governmental officials who chose not to take it down. Since those officials were acting on secular reasons of preserving a historical artifact, Becker concluded that the decision did not violate the First Amendment’s Establishment Clause. But Luchenitser said language in Justice David Souter’s majority opinion in the Kentucky case seemed to reject an approach of analyzing such cases by focusing only on the “last act,” and instead called for an examination of the entire history of a display. Luchenitser said his office was pleased by one aspect of the outcome of Monday’s decision because the justices “made it very clear that no new displays of the Ten Commandments are likely to be upheld.” Attorney Alfred W. Putnam of Drinker Biddle & Reath, who was on the winning side in the Chester County appeal, said he was encouraged by language in Breyer’s concurring opinion that echoed the 3rd Circuit’s decision. Putman filed an amicus brief in the Chester County case on behalf of the Chester County Historic Preservation Network in which he compared the forced removal of the plaque to the Taliban’s decision to destroy ancient Buddha statues. In the brief, Putnam 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 in order 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. In Breyer’s concurring opinion in the Texas case, he warned that ordering the removal of the Ten Commandments monument would “lead the law to exhibit a hostility toward religion that has no place in our Establishment Clause traditions. Such a holding might well encourage disputes concerning the removal of longstanding depictions of the Ten Commandments from public buildings across the nation. And it could thereby create the very kind of religiously based divisiveness that the Establishment Clause seeks to avoid.” Putnam also found it significant that Breyer quoted from the same passage that Becker had quoted in the Supreme Court’s 1963 decision in Abington School District v. Schempp in which Justice Arthur Goldberg said that, in Establishment Clause cases, the courts must “distinguish between real threat and mere shadow.” Becker concluded that the Chester County plaque, “when viewed in the context of its history, is not ‘real threat,’ but is instead ‘mere shadow.’ The fact that the plaque is a longstanding fixture on a historic monument, the courthouse itself (which has been placed on the National Register of Historic Places), lends further support for the notion that the context of the plaque changes the way in which the reasonable observer views it.” Echoing Becker, Breyer wrote: “I recognize the danger of the slippery slope. Still, where the Establishment Clause is at issue, we must ‘distinguish between real threat and mere shadow.’”

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