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Law, culture, and Catholicism...up in smoke!

Tuesday, December 20, 2005

ACLU Smackdown

Today a panel of the U.S. Court of Appeals for the Sixth Circuit ruled that a display of the Ten Commandments in Mercer County, Kentucky, does not violate the Establishment Clause of the First Amendment. This is the same court that ruled that another display of the Ten Commandments in McCreary County, Kentucky, was unconstitutional. Today's opinion acknowledged that the Mercer County display was identical in all relevant respects to the third display of the Ten Commandments deemed unconstitutional in McCreary County, but concluded, pursuant to the first prong of the much-maligned Lemon test, that the Mercer County display was motivated by a secular purpose.

The appeal, brought by the ACLU, was heard by a relatively conservative panel. Judge Richard Suhrheinrich, a senior judge who has apparently hired from a Third Tier Toilet known as Ave Maria School of Law, authored the opinion, which was joined by Judge Alice Batchelder. Here are a few gems:

"[W]e find unavailing the ACLU's own assertions that it finds the display offensive and that the display "diminishes [its] enjoyment of the courthouse." (Compl. ¶ 18.) Religion does not become relevant to standing in the political community simply because a particular viewer of a governmental display feels uncomfortable....Our concern is that of the reasonable person. And the ACLU, an organization whose mission is "to ensure that . . . the government [is kept] out of the religion business," does not embody the reasonable person.

We will not presume endorsement from the mere display of the Ten Commandments. If the
reasonable observer perceived all government references to the Deity as endorsements, then many of our Nation's cherished traditions would be unconstitutional, including the Declaration of Independence and the national motto. Fortunately, the reasonable person is not a hyper-sensitive plaintiff....Instead, he appreciates the role religion has played in our governmental institutions, and finds it historically appropriate and traditionally acceptable for a state to include religious influences, even in the form of sacred texts, in honoring American legal traditions.

[T]he ACLU makes repeated reference to "the separation of church and state." This extra-constitutional construct has grown tiresome. The First Amendment does not demand a wall of separation between church and state."

Given the well-known ideological split in this Circuit, it is not much of a leap to suggest that a different result might have been reached had the appeal been assigned to a more "hyper-sensitive" panel.