While in 2005, the U.S. Supreme Court upheld a preliminary injunction barring the a display of the Ten Commandments along with other historical documents that refer to God in two Kentucky county courthouses, it turns out that decision hardly ended the litigation. A majority of the Supreme Court concluded that the "Foundations of American Law and Government" displays violated the Establishment Clause because their predominant purpose was the advancement of religion. (See prior posting.) However Justice Souter added: "we do not decide that the Counties' past actions forever taint any effort on their part to deal with the subject matter." That led the counties to continue to pass new resolutions setting forth secular purposes for the displays. Yesterday in American Civil Liberties Union of Kentucky v. McCreary County, Kentucky, (6th Cir., June 9, 2010), a majority of a 6th Circuit panel agreed with the district court that resolutions adopted in 2005 were adopted only as a litigating position, and affirmed the district court's grant of a permanent injunction. (See prior posting.) Judge Clay's opinion for the court said that while a later 2007 resolution was technically not before the court, it too was inadequate to change the counties' original purpose.
Judge Gibbons issued a concurring opinion concluding that new resolutions passed by the counties in 2005 did not eliminate their religious purposes. However she said she would not reach the question of whether the 2007 resolution eliminated the religious purpose because procedurally the defendants never appealed the trial court's ruling on a motion in which that resolution was first brought to the attention of the district court.
Judge Ryan issued a strong dissent, saying: "I humbly associate myself with Justice Scalia's powerful and logically compelling explanation in McCreary IV that the displays in question do not violate the First Amendment and never did." He urged fellow judges to grant en banc review in the case. In a press release, Liberty Counsel which represents defendants indicated it would file a motion for review.
