With Alito on high court, conservatives optimistic about Ten Commandments cases

by Michael Foust, posted Wednesday, May 03, 2006 (12 years ago)

WASHINGTON (BP)--Social conservatives may still be waiting for that critical fifth vote at the U.S. Supreme Court on the abortion issue, but -- thanks mostly to the confirmation of Justice Samuel Alito -- they might already have a winning majority on a number of religious liberty issues, including much-embattled Ten Commandments displays.

In the months since they lost at the U.S. Supreme Court, conservatives have tallied a number of Ten Commandments victories. In April, the U.S. Sixth Circuit Court of Appeals, in a 9-5 ruling, upheld the constitutionality of a Ten Commandments display that was part of a larger historical context in a Mercer County, Ky., courthouse. Last August, the U.S. Eighth Circuit voted 11-2 to uphold a stand-alone Ten Commandments monument that resided in a Plattsmouth, Neb., city park. The American Civil Liberties Union, which brought both of the cases, chose not to appeal the Eighth Circuit decision and hasn’t said it if would appeal the Mercer County, Ky., ruling.

In addition, governors in Georgia and Kentucky signed bills in April allowing the display of the Ten Commandments in public settings.

“There’s no doubt that we’re turning the corner in America on the church-state and the Ten Commandments issue,” Mathew Staver, president of the Christian legal group Liberty Counsel, told Baptist Press. Staver argued before the Supreme Court last year, defending a Ten Commandments display that the court ruled unconstitutional. His organization also assisted Mercer County, Ky., in the successful Sixth Circuit case.

The conservative victories come just 10 months after the Supreme Court issued a split ruling in a pair of Ten Commandments cases, ordering the removal of two Kentucky displays but allowing a Texas monument to stand. Since then, Justice Sandra Day O’Connor -- who voted against both displays -- has retired and been replaced by Alito, who is thought to be much friendlier on religious liberty matters. In fact, the Mercer County, Ky., display upheld by the Sixth Circuit was identical to the two displays that the Supreme Court ordered removed from courthouses in McCreary and Pulaski, Ky., counties. The only difference was that the latter displays started out as stand-alone Ten Commandments displays before a historical context was added. In Mercy County, the display was set in a historical context from the start.

Both the Sixth Circuit and Eight Circuit relied heavily on last year's Supreme Court Ten Commandments rulings in their decisions.

“What we’ve seen in the past 10 months is phenomenal,” Staver said. “... I think we’re seeing a clear change. In part, it’s due to the fact that there’s a change at the United States Supreme Court. It’s clearly the reason why the ACLU is not asking the Supreme Court to get involved in these cases, because they know it’s a different day and a different court.”

O’Connor disappointed conservatives on a number of religious liberty issues, including voting with the majority in a 2000 case that said pre-game prayers at a Texas high school football game were unconstitutional. Interestingly, Justice Anthony Kennedy also voted with the 6-3 majority in that case, even though he has sided with conservatives more than O’Connor. Kennedy voted to uphold both Ten Commandments displays last year, and he also voted to uphold Nebraska’s ban on partial-birth abortion, which was struck down in 2000, with O’Connor in the majority.

Thus, Kennedy could become the swing vote on closely watched religious liberty cases -- assuming that Alito and new Chief Justice John Roberts also side with conservatives. Justices Antonin Scalia and Clarence Thomas, who hypothetically would round out the five votes to uphold the Ten Commandments displays, rarely have disappointed conservatives.

Alito and Roberts have yet to rule on a Ten Commandments case, but conservatives are optimistic the two justices will vote to uphold religious displays. Staver, in fact, believes that the case he argued before the high court last year would have a different result before this court.

“If we had a Ten Commandments case today at the Supreme Court, there’s no question what the outcome would be with the current makeup of the court,” he said. “We’d have a strong 5-4 decision that would be a strong message in favor of the Ten Commandments.”

Staver doesn't believe it matters anymore whether the display involves a historical context, which typically includes such items as The Mayflower Compact, the Declaration of Independence and the Star Spangled Banner. The five conservative justices likely wouldn't "require it to be in the context of a historical display," Staver said. The new makeup of the court, he said, could impact not only Ten Commandments cases, but also lawsuits involving the Pledge of Allegiance, nativity scene and the national motto. Staver even believes it “probably won’t be very long" before the Roberts court jettisons the often-criticized Lemon test, which has guided Supreme Court decision-making since the 1971 Lemon v. Kurtzman decision. Under Lemon, a government does not establish religion if its action has a secular purpose, does not promote or inhibit religion and does not entangle government excessively with religion. Staver and other conservatives asked the court last year to dump the Lemon test and write a new one, but the court chose not to.

“I think they would create a new test that is more consistent with the historical understanding of the Constitution,” Staver said, adding that such a test could be handed down in the context of any religious liberty decision, such as one involving the Ten Commandments, the Pledge or even school vouchers.

The decision by the full Sixth Circuit affirmed a December ruling by a three-judge panel. In that ruling, Judge Richard Suhrheinrich called the ACLU's reference's to the “the separation of church and state" an “extra-constitutional construct [that] has grown tiresome. The First Amendment does not demand a wall of separation between church and state."

Jay Sekulow, chief counsel of the American Center for Law and Justice --- which, along with Liberty Counsel, assisted Mercer County -- called the Sixth Circuit decision from April "an important defeat for the ACLU and other groups that are committed to removing our religious heritage and traditions from the public square."

But conservative victories haven't been limited to appellate courts. A U.S. district judge ruled April 20 that a stand-alone Ten Commandments monument could stay outside the courthouse in Toledo, Ohio. That decision could be appealed to the full Sixth Circuit, which covers Kentucky, Michigan, Ohio and Tennessee. The aforementioned Eighth Circuit covers Arkansas, Iowa, Missouri, Minnesota, Nebraska, North Dakota and South Dakota.

“We’ve almost come to the point where we have to lose one of these Ten Commandments cases so we can be the ones asking the Supreme Court to take the case,” Staver said. “Because when we win them at the federal courts of appeal now, the ACLU is backing away and has become very timid about asking the Supreme Court to be involved.”

The bill signed by Kentucky Gov. Ernie Fletcher, a Republican, places a Ten Commandments monument on the state capitol grounds, allows Ten Commandments displays in a historical context to be placed in public schools and other public buildings and requires "In God We Trust" to be posted in the Kentucky House of Representatives, behind the speaker of the house.

The bill signed by Georgia Gov. Sonny Perdue, a Republican, also allows courthouses to display the Ten Commandments in a historical context.

Both bills had bipartisan support.


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