Thursday, March 27, 2008

9th Circuit Upholds 10 Commandments Display

In Card v. City of Everett, (9th Cir., March 26, 2008), the U.S. 9th Circuit Court of Appeals rejected an Establishment Clause challenge to a 10 Commandments monument on the grounds of the Everett, Washington city hall. The monument was presented to the city by the Fraternal Order of Eagles in 1959. Judge Wardlaw, writing for the court, pointed out that the context surrounding this display is similar to that in the display that was upheld by the U.S. Supreme Court in Van Orden v. Perry:

this monument bears a prominent inscription showing that it was donated to the City by a private organization. As in Van Orden, this serves to send a message to viewers that, while the monument sits on public land, it did not sprout from the minds of City officials and was not funded from City coffers.

Judge Fernandez, agreeing that the result was controlled by Van Orden, concurred in a short, but interesting, opinion that reads in part:

I applaud Judge Wardlaw’s scholarly and heroic attempt to create a new world of useful principle out of the Supreme Court’s dark materials. Alas, even my redoubtable colleague cannot accomplish that. The still stalking Lemon test and the other tests and factors, which have floated to the top of this chaotic ocean from time to time in order to answer specific questions, are so indefinite and unhelpful that Establishment Clause jurisprudence has not become more fathomable. Would that courts required neutrality in the area of religion and nothing more or less.

Reuters yesterday reported on the decision. [Thanks to Robert H. Thomas for the lead.]

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