Federal: Sixth Circuit Upholds Ten Commandments Display at Mercer County

A federal appeals court says a Kentucky courthouse can keep its display of the Ten Commandments.

The Sixth Circuit Court of Appeals ruled today that the Mercer County Courthouse in Harrodsburg can continue to display the Ten Commandments which are viewed alongside nine other historial documents, including the Bill of Rights and Declaration of Independence.

The American Civil Liberties Union brought the case against Mercer County, arguing the display violated the Constitution's guarantee separating church and state.

In a turn of fortunes, the ACLU's lawyer argued for the side that prevailed in the Supreme Court case did not fare as well in the Sixth Circuit and was on the short side of this decision. Although appellate cases should not be considered as 'wins and losses', the irony highlights the old saw among lawyers that my old mentor Reford Coleman in Etown taught me "There ain't a horse that can't be rode, and ain't a rider that can't be throwed."

In light of the basic fact that the ACLU was given 120 days to conduct discovery into the purpose of this display and did NOT do so, but appealed the district court ruling nonetheless, it would be another odd turn of events for the ACLU to appeal this up to the U.S. Supreme Court and not now simply allow the lower courts apply the standard as enunciated in the McCreary, Pulaski decisions.

A reader sent me the following commentary on the Ten Commandment posting cases, and please note his/her comments were independent of mine and I have not modified mine to address those comments since this is not a 'point/counterpoint' but rather a discussion of a sensitive issue. They are posed to provide you another perspective on this topic:

In the case discussed, the 10 Commandments were posted with historical documents which the Court said made it appear to be historical and not religious to the objective reasonable observer. Distinguishing other opinions where posting historical documents seemed to be a litigation ploy late in the game, the Sixth Circuit rejected a challenge by the ACLU. Ironically, the more the religious conservatives that push for such postings say and do, by holding religious rallies, public prayers when they are dedicated etc., the more likely they will be struck down later by the courts as an endorsement of religion. I predict this will lead to a new round of postings and be a recurring issue for the right wing to endorse posting this type of display, as this plays well with certain types of voters and distracts from the hard issues such as passing a budget, fully funding education, solving the public pension deficit, and otherwise governing. As a taxpayer, I am not amused. When a government loses these cases, the ACLU gets its attorneys fees paid by the taxpayers. When the county or state wins, what have we really accomplished? The average Kentuckian is probably not horribly offended when such displays are posted, but neither are they likely to have a religious conversion or change their behavior. The only winners are politicians who exploit this non-issue and lawyers who are paid well to litigate endlessly.

Here is a link to the full text of that decision:

American Civil Liberties v. Mercer County Kentucky Sixth Circuit 12/20/2005

"Because the challenged display here is identical in all material respects to the third and final display in McCreary County, we held this appeal in abeyance pending Supreme Court review. Unlike McCreary County , we conclude that the Mercer County display lacks a religious purpose and further conclude that it does not endorse religion." [. . .]

" In the affidavit, Judge McGinnis explained the County?s decision, including Mr. Rousey?s involvement and the Mercer County Fiscal Court?s awareness of the Kentucky legislature?s resolution authorizing such displays. He stated that the purpose for erecting the "Foundations" display was that "all of the documents, including the Ten Commandments, have played a role in the formation of our system of law and government. . . . [The] display is not intended [to], nor does it, endorse or promote religion. It simply acknowledges our history." [. . .]

". The County nevertheless argues that its display is constitutional because, in contrast with McCreary County, the predominant purpose of the display in this case is secular. We agree. Mercer County concedes that the display itself is identical in all material respects to the third and final displays found unconstitutional in McCreary County was the extended history: the original standalone copy of the Ten Commandments; a pastor?s speaking to the existence of God at the hanging ceremony; a second, more distinctly religious display; and the "extraordinary" resolutions authorizing the displays that were not repealed even after the "Foundations" display was posted. The objective observer in McCreary and Pulaski Counties was deemed aware of this background, and thus saw an impermissible purpose.Critical to the finding of sectarian purpose in id. at 2735, except "in those unusual cases where the claim was an apparent sham" and the primary objective is religious, id. at 2736 (emphasis added)."

The Mercer County display, on the other hand, lacks a similar sectarian pedigree. Here, there was only one display, one authorizing measure, and one implementation, all of which demonstrate a secular purpose. The "Foundations" display is the lone exhibit the County has posted in its courthouse. There being but one display, the County has needed but one resolution. Mr. Rousey hung the display himself; there is no evidence of a ceremony solemnized by a clergyman. In fact, the only history the objective observer would incorporate into this display is the statement of Judge McGinnis that the purpose of the display is to recognize American legal traditions. We defer to the government?s stated purpose, McCreary County." [ . . .]

"The Mercer County display has a secular purpose. Unlike McCreary County , there is nothing in the legislative history or implementation that tends to prove a religious purpose. Nor does the display have the effect of endorsing religion. The display is therefore constitutional as a matter of law. There being no genuine issue of material fact, the district court properly granted Mercer County?s motion for summary judgment."

The following is an open letter to both the Kentucky General Assembly, and to a man whom I've come to regard as a friend, and a true man of the people, Rep. David Floyd (R-50th District: Bullitt, Nelson and Spencer Counties).

Rep. Floyd:

Thanks so much for sending a direct link to your proposed bill on Eminent Domain legislation: http://www.lrc.ky.gov/record/06RS/HB165.htm ...the information I found there was extremely enlightening, albeit somewhat brain-rattling for my not-quite-ready for prime time legal knowledge!

I really appreciate all the hours of work it must have taken to write, re-write, etc. As I said, to the legally untrained eye, it certainly looks like you are trying to look out for the interest of your constituents here in the Bluegrass.

My major problem is with all the legalese, which I assume are mostly standard.

One word, however, that struck the attention of both myself and a sharp-eyed reader, was in Sec.2, subsection b; the word "blight." Merriam-Webster online definers it as:
"Main Entry: 1blight
Pronunciation: 'blIt
Function: noun
Etymology: origin unknown
1 a : a disease or injury of plants resulting in withering, cessation of growth, and death of parts without rotting b : an organism that causes blight
2 : something that frustrates plans or hopes
3 : something that impairs or destroys
4 : a deteriorated condition "

There seems to me to be an inherent danger in using "blight" as a standard for the authorization of eminent domain. All that would be needed for a municipality to declare an area blighted would be for that municipality to simply ignore the upkeep of the targeted area.

I know this may sound extreme, but, as you and I have both witnessed in our day, there are those out there who are cunning (and extreme) enough to make a five, or even ten year plan to make an area blighted: ignore this for two years; ignore that for three; and ignore the rest for five and...Walla! We have a blighted neighborhood which, for the good of the city, would be much better served with an up-scale hotel and casino.

Another possible scenario might be a working class neighborhood with fairly-well maintained homes which is dotted here and there with a run-down home...but a home nonetheless. Would it be worth condemning this neighborhood as blighted because, say, 10% of the homes were run-down? Or would 5% suffice? See what I mean? Where is the line drawn? This is something that MUST be clarified for the good of our property owners.

And to take it a step further-when is a home considered "run-down" to begin with? This is another obstacle which, in my humble opinion, needs to be addressed. Yet another is, could the neighborhood in question be brought up to "unblighted" standards for a fraction of the cost that it would take to raze the whole community and rebuild a more prosperous one?

After all, in most of these eminent domain cases we have seen since the unfortunate Connecticut Supreme Court ruling, all that is being done is running out a group of hard-working lower-middle class families and businesses in an effort to bring in higher scale properties and businesses--naturally for the intention of a higher tax base and more revenue for the local government. They don't come straight out and admit that is the reason, but once in a while, like with that genius of a mayor in Florida, one will slip and the sheep's clothing comes off. We would be insane to think that the same thing couldn't possibly happen here.

I am not claiming to have all the answers to what are obviously some pretty tough questions. I am not a politician, and I never even went to law school. However, I was raised to know right from wrong, and I am going to give the GREAT benefit of the doubt that all of your colleagues in our State Assembly were as well.

Now, all we need to do is to get our Senators and Representatives, whom we have already established know right from wrong, and who, by their very titles, are politicians, to fuse those two virtues into an alloy that would make a bullet-proof eminent domain law for the people of the Commonwealth of Kentucky!

During my weekly visit to the Kentucky chapter of the ACLU's website, I came across this interesting story, which emphatically shows the ACLU's disdain for the American military, which is, without question, the greatest fighting force on the face of the Earth.

Although I peruse the site regularly, this story, which is now two months old, either just appeared on the site, or was somehow overlooked by yours truly. Either way, it has left a bitter taste in my mouth.

The website's story, viewable at: http://www.aclu-ky.org/news.html#Military%20Opt-Out%20Press%20Release, claims to be a letter to school superintendents across the Commonwealth to "improve their procedures to inform parents and students about their right to control the release of student information to military recruiters, colleges, and the general public." This, I assure you, is not the case.

I offer as exhibit one the very link to the website's story. It is called "Military%20Opt-Out%20Press20Release." Not, "College or general public opt-out," just "military opt-out." That alone is a slam-dunk that this has absolutely nothing to do with the general public or college recruiters.

Exhibit two: Why in the world would the ACLU want to promote an opt-out option for college recruiters? It has been shown time and again that the VAST majority of college professors in this country are tree-hugging, bleeding-heart liberals who support socialism over capitalism, just as the ACLU does.

Exhibit three: Again referring to the opt-out for college recruiters--does the ACLU mean to imply that it would like to see a nation of non-college-educated people in this country? Why, who would go on to law school to become the lawyers that would fight against decency and morality in our beloved country? They would be cutting their own throat!

Finally, as Shepard Smith would say, and then there's this: the ACLU is "requesting" that this opt-out option "should be provided in a communication separate from other school directives and regulations. School districts around the country have found that putting notice in the school handbook leads to parents and students overlooking this information." Once again, the ACLU is making personal accountability something that should not be a standard in America.

Come on now, a communication separate from other directives and regulations? Obviously, what they are saying is that parents don't bother to read the information that affects their children's future, and should have a special contingency to take away what could be a wonderful opportunity for the future of their kids.

Yes, joining the military means there is a chance you could go to war, but it also means you have self-discipline, the best training available on Earth, a GUARANTEED college education, special financing to purchase a home not available to the general (civilian) public, lifetime medical benefits, the list goes on and on.

It would seem to me that the ACLU would be pushing for a communication separate from the handbook that says, "Please read this handbook in its entirety, as your child's future may well depend upon its contents!"

I will even take this argument one step further--Our children are being provided a FREE education (well, sort of) because of the freedoms afforded us by millions of brave men and women who have valiantly served this country for over two centuries. The government should ABSOLUTELY be allowed to show students the benefits that can come from joining the military.

Now, I would agree to a requirement that they also tell potential recruits that they could be sent to war to fight for freedom and liberty...and that they may even be killed in that effort. But there is NO WAY they should ever be required to be "opted-out" of the opportunity to try and recruit young Americans for service to their country!

As always, I encourage all to visit the Stop The ACLU Coalition's website at: http://www.stoptheaclu.org/. As the State Coordinator for Kentucky, I need help from those willing to fight the anti-American ACLU by becoming County Coordinators. Please visit the website for details on how you can help keep America FREE!!

I was in "shock and awe" when I received the following email from the American Family Association. Although I will put it here in its entirety, I want to give a little commentary, too (As hard as that is for some of you to believe, I'm sure!).

Well, let me put the email here, and then I will comment on it:

"NBC Demeans Christian Faith
Writer for new series is practicing homosexual
Dear Michael,
NBC is promoting the network's mid-season replacement series "The Book of Daniel" with language that implies it is a serious drama about Christian people and Christian faith. The main character is Daniel Webster, a drug-addicted Episcopal priest whose wife depends heavily on her mid-day martinis.

Webster regularly sees and talks with a very unconventional white-robed, bearded Jesus. The Webster family is rounded out by a 23-year-old homosexual Republican son, a 16-year-old daughter who is a drug dealer, and a 16-year-old adopted son who is having sex with the bishop's daughter.

At the office, his lesbian secretary is sleeping with his sister-in-law.

Network hype-and the mainstream media-call it "edgy," "challenging" and "courageous." The hour-long limited drama series will debut January 6 with back-to-back episodes and will air on Friday nights. The writer for the series is a practicing homosexual.

The homosexual son will be network prime-time's only regular male homosexual character in a drama series.

Please use the link below to send a letter to NBC Chairman Bob Wright.

Next, please forward this to your family and friends today!

Those at NBC responsible for this program consider it a good, religiously oriented show typical of Christian families.
Click Here to Email NBC Now! https://secure.afa.net/afa/afapetition/takeaction.asp?id=175
Sincerely,
Don
Donald E. Wildmon, Founder and Chairman
American Family Association
P.S. Please forward this e-mail message to your family and friends."

Now, far be it from me to encourage censorship, HOWEVER, I hope and PRAY that it be close to me to encourage morality and values. What these people are doing is exposing ALL AMERICANS, from the age of one to one-hundred-one to what sounds like a pornographic version of the Holy Bible. I find this DESPICABLE!

We live in a nation where, according to recent polls, 85% of us at least CLAIM to be Christians. Why in the world would NBC choose to air a program which, if the polls are correct, is so offensive to 85% of the American population? Maybe they have polls that show the other 15% are watching NBC?

Either way, I am pleading with all who read this to go to the site listed above, and here: https://secure.afa.net/afa/afapetition/takeaction.asp?id=175 and sign the petition by the AFA. This outrage must be stopped before it happens.

I also encourage all to write their local NBC affiliate and demand that this mini-series not be aired in their area. As it says in the AFA petition, Mr. Bob Wright, Chairman of NBC, himself testified before Congress last year that "they are not required to air this program if they choose not to."

Please take action NOW! If NBC thinks that this junk represents a typical American family, they have proven what most of us have known all along: the mainstream media is WAY OUT OF TOUCH with the pulse of the American public.

The following is an article which was written by the founder of the Stop The Aclu Coalition (www.stoptheaclu.org), Nedd Kareiva. With his permission, I am reprinting it here at Mr. Right Opinion because I think his opinion is--well--right!

Does the ACLU really defend Christians?

Nedd Kareiva
December 15, 2005

At this Christmas season, the ACLU is apparently trying to crash the party by trying to convince the Christian community that it is in our corner. Recent near-carbon-copy letters to the editor from ACLU directors in Indiana and Louisiana to the Fort Wayne Gazette and Baton Rouge Advocate, respectively, want to persuade you that they'll defend you if you identify yourself with Jesus Christ.

Grab the Rolaids. I think someone just got a taste of acid reflux.

Yes, it is true. The ACLU may consider defending you ? your religious expression, that is.

But what about traditional Christian values? Does the ACLU respect our values system?

The answer is an unequivocal no. The ACLU has a clear duplicity on religious expression as we shall see. But let's first examine the ACLU on values.

Anti-Christian values

Perhaps no two values define cultural Christian conservatives more than the sanctity of life and the upholding of traditional marriage, though issues like pornography and public displays of the 10 Commandments are certainly worthy of "honorable mention."

One need not look further than the ACLU's steadfast refusal to support any and all restrictions on abortion, including one to stop the gruesome procedure of partial birth abortion, a procedure as much as 80% of the American populace wants banned, to demonstrate the ACLU's hostility to the Christian value of life. A 2002 ACLU press release, as reported in the Alliance Defense Fund's recently published book ACLU vs. America, states abortionists should be "honored and upheld as the heroes they are," which is evidence their "value system" is not one the vast majority of Americans embrace.

Add to that a banquet held last week in honor of Judge George Greer by the Pinellas County, Florida chapter of the ACLU as the judge who permitted the starvation of Terri Schiavo, and it's hard to see how the ACLU is anything but friendly to Christian values.

Greer was the same judge who thumbed his nose at the Florida legislature, the governor, Congress, and the president for passing legislation to protect Terri, refused to consider massive evidence how she could be rehabilitated, rejected the parents' wishes to take care of her, and was unwilling himself to visit her (a right judges customarily take into consideration in their rulings) to ascertain her true condition.

It's worth noting that a self-described agnostic lesbian in a wheelchair said earlier this year, during protests outside the hospice where Terri was held, that she would rather have a Christian decide her fate than the ACLU. However, Terri, had no such fortune. The civil-rights-touting ACLU steadfastly refused to consider her civil liberties, the kind found in Section 1 of the 14th Amendment of the U.S. Constitution.

Instead, the ACLU chose to defend Terri's husband, Michael Schiavo, despite strong evidence of his vast spousal abuse. He joined forces with his assisted suicide buddy, attorney George Felos, before Judge Greer and Florida's courts. This is no surprise, considering that the ACLU backed unsuccessful California legislation earlier this year to grant assisted suicide, and filed a friend of the court brief in favor of the state of Oregon against the U.S. government defending the state's assisted suicide law, currently at the U.S. Supreme Court.

So if I understand the ACLU correctly, the ACLU's position regarding abortion is that it is a decision between a woman and her doctor. But on assisted suicide, it's apparently a decision to be made without the doctor, considering virtually all medical groups and organizations oppose it.

If you can't make heads or tails of the ACLU, you're not alone.

Anti-marriage

Regarding the sanctity of marriage, when an organization announces a national gay marriage campaign as the ACLU did in May ? despite the fact that voters in every state with marriage amendments on the ballot passed such legislation by substantial margins ? it can hardly be said that the ACLU represents Christian values. It's just the opposite.

But on the issue of marriage and homosexual relationships, it's not just Christian values that are offended. Orthodox Jews, most Muslims, and virtually all other religions oppose same sex marriage and homosexuality, yet the ACLU goes against the grain on them all. They successfully sued (thus far) to overturn Nebraska's voter-enacted marriage amendment and are working to create similar scenarios in states like Georgia, Oklahoma, Maryland, and Washington.

Yeah, I'm a radical right winger on this issue, like Orthodox Jews and most Muslims.

The ACLU's president, Nadine Strossen, has publicly stated on more than one occasion that the ACLU backs the practice of polygamy and has been involved in litigation in favor of it in Utah. So marriage to the ACLU means anything and everything.

Expression vs. values

Could ACLU directors Fran Quigley of Indiana and Joe Cook of Louisiana be referring to defending religious expression instead religious values? That seems to be the case, considering their mention of the ACLU defense of a Southern Indiana street preacher, a Michigan high school student who was censored from entering Christian expression, and the rights of Iowa students to distribute Christian literature.

If Quigley and Cook need a few items to add to their list of ACLU defenses, perhaps I can help. The ACLU of Pennsylvania did defend, oddly enough, a pro-life family, not because of the family's position on abortion, but the right to display pro-life signs in front of their own home.

The ACLU also defended, in an unusual alliance with the American Family Association (AFA), an imprisoned New Mexico street preacher, and filed a friend of the court brief in support of the right of a 2nd grade girl in New Jersey to sing "Awesome God," a case filed by the Alliance Defense Fund (ADF). They also defended Massachusetts school children who wanted to pass out Christmas candy canes with scriptural messages (while supporting same sex marriage in the state).

And the ACLU recently tried coming to the aid of a street evangelist who was prevented from preaching outside a California courthouse, another case represented by ADF.

The ACLU says on its web site regarding the New Jersey case "There is a distinction between speech by a school and speech by individual students. The Constitution protects a student's individual right to express herself, including the right to express herself religiously."

However, that free speech that was affirmed by the New Jersey ACLU apparently did not apply to a Jonesboro, Arkansas, high school senior girl who gave "an altar call" to accept Jesus Christ. The ACLU of Arkansas director, Rita Sklar, called Jessica Reed's right to express herself as a "blatant display of contempt for the 1st Amendment."

Oh, by the way, did I say that Ms. Sklar is also the spokesperson for the National Gay & Lesbian Task Force (NGLTF)? Make the connection.

The same ACLU that defended the freedom of expression of the Pennsylvania family above to display their pro-life signs sought to oppose the same 1st Amendment rights by supporting the use of FACE (Freedom of Access to Clinic Entrances) against pro-lifers as well as buffer zones.

Furthermore, Louisiana's Mr. Cook conveniently ignored the 1st Amendment rights of a Louisiana student who prayed over a loudspeaker prior to a football game, choosing instead to sue school officials who allowed the prayer, even to the point of equating them with 9/11 terrorists. And Indiana's Quigley recently helped obtain a court injunction against the state legislature, barring prayer before legislative sessions by ministers that mentions Jesus and Christ.

Can we conclude that the ACLU is hostile to religious values while dancing on both sides of the fence on religious expression?

In the balance

I have received many e-mails at my web site telling the me the ACLU would defend my civil rights if they were violated. Judging from the above cases, I would say the chances of that occurring are 50% at best if it involves the defense of religious expression. But if the issue concerns the defense of religious values, such as abortion, same sex marriage, and pornography, the ACLU's likelihood of going to bat for me are at best 0%.

Some of these same people can quote the above cases where the ACLU went to bat for a Christian. These folks conveniently ignore the thousands of lawsuits of the ACLU defending Planned Parenthood, the National Abortion Rights Action League (NARAL), the National Organization of Women (NOW), abortionists, the Gay, Lesbian & Straight Education Network (GLSEN), Gay/Straight Alliances, homosexuals seeking state sanctioned marriage, atheists seeking to remove religious symbols or the 10 Commandments from city logos or public property, pornographers like Larry Flynt of Hustler Magazine, and many others.

But because of the little good the ACLU does, should I praise them for it? Almost anyone can do good 10% in their lifetimes.

Let's assume an adult video and bookstore applies for a permit to move into your community. 90% of what the owner plans to sell is X rated. However, to appease the majority of citizens who don't want the store, he agrees to set aside 10% of the store for Christian videos and books, thinking that the public will overlook his smut and thus create a family friendly environment.

Are you likely going to want to purchase a Bible or a Disney children's film from this proprietor?

Or assume John Q. Senator is up to reelection. He amassed 20 votes on issues that were important to you. He voted with your views only twice out of those 20 but was passionately principled about those occasions of agreement.

Do you want John Q. to represent you for another 6 years?

If your answer is NO to either or both examples, why would you want the ACLU in your corner for the 10% (at best) of the time they do something good?

Share the truth

I'd be lying if I said the ACLU never did any good. The ACLU has been on the right side in its opposition to the blatantly unconstitutional Campaign Finance Reform law that was signed into existence by President Bush. The ACLU has fought for removal of cameras from traffic lights, citing 1st Amendment concerns. And the ACLU has defended street preachers as noted above.

But given the wholesale destruction of America's values by litigating them out of existence in favor of ACLU values that scant minorities of Americans embrace, and by using activist courts that are willing to be complicit in their process, does it benefit America and specifically us pro-life, pro-family Christians to have the inaptly named American Civil Liberties Union go to bat for us?

This Christmas season, share the truth of the ACLU with a friend or family member. If he or she is an ACLU member, so much the better. Perhaps he or she considers the ACLU a civil rights organization that defends everyone, a point the ACLU claims on many of its chapters' web sites. Explain that the ACLU may defend his or her freedom of expression but if he or she has any traditional religious values needing representation, they would be much better off using a worthy and family friendly, pro-life public interest law firm like ADF, a group successfully having staved off ACLU threats and litigation on many fronts over the last decade.

The greatest gift America could be given this season would be reducing the ACLU's half million membership base, doing so one individual at a time. America will be kept safer and freer by its depletion. Share this piece with those in your circle.

To Terri Schiavo, whom the ACLU refused to come to the aid of, to Terri's parents ? Bob & Mary Schindler ? and to their other children, Bobby and Suzanne, this piece is dedicated to you.

Merry CHRISTmas to one and all and a happy 2006.

Nedd Kareiva is the founder and director of the Stop the ACLU Coalition . He is a 45 year old man from Chicago who began the Stop the ACLU web site in August of 2004. His background is varied, which includes a degree in Biblical studies. He once served as the associate director of the Christian Broadcasting Network's Chicago counseling center when such centers were operating in major cities across America. He spent 7+ years in real estate and mortgages and worked for the city of Chicago for 3 1/2 years. He served as the singles director in the 1990s for a church in southwest Chicago. He has a 9 year old son with Asperger's Syndrome.

Nedd is a professional Scrabble player who played in many tournaments (and won a few) from across the Midwest for approximately 13 years, between 1992 & 2005 and was once in the top 150 players in North America, according to the National Scrabble Association.

Nedd got involved in political issues back in the early 90s when his mother and late stepdad took an active position in the pro-life movement. They were pro-life activists and even went to jail for their stances. Thanks to them and a church willing to deal with issues, his political involvement began to set in motion. [Click for more]

© Copyright 2005 by Nedd Kareiva
http://www.renewamerica.us/columns/kareiva/051215