A Stitch in Haste

This is not to deny that the Commandments have had influence on civil or secular law; a major text of a majority religion is bound to be felt. The point is simply that the original text viewed in its entirety is an unmistakably religious statement dealing with religious obligations and with morality subject to religious sanction. When the government initiates an effort to place this statement alone in public view, a religious object is unmistakable.
--McCreary County v. ACLU, 545 U.S. 844 (2005)

The sole function of the monument ... is to display the full text of one version of the Ten Commandments. The monument is not a work of art and does not refer to any event in the history of the State. It is significant because, and only because, it communicates the following message: ... This State endorses the divine code of the "Judeo-Christian" God.
--Van Orden v. Perry, 545 U.S. 677 (2005) (Stevens, J., dissenting)

A bizarre (i.e., dead wrong) Decalogue case in the Ninth Circuit:

The monument at the heart of this dispute was donated to the City of Everett [Washington] in 1959 by the local aerie (chapter) of the Fraternal Order of Eagles, a national civic organization. It sits adjacent to Old City Hall on public land under the City's control. The Old City Hall building itself now houses only the police department. The monument, which is located along a sidewalk about forty feet north of the entrance to the building, is constructed of granite and stands about six feet tall. Its main feature is an inscription of a non-sectarian version of the Ten Commandments[.]

Since this is essentially an identical Eagles-donated monument to the one upheld in Van Orden v. Perry, the Ninth Circuit chooses that Supreme Court precedent over its companion case, McCreary County v. ACLU, and upholds this Decalogue's continued presence on government property.

What I always took away from the "McCreary - Van Orden" Decalogue bifurcation was not that a Ten Commandments display on government property would be permissible if it "reflects a primarily secular purpose" (since, of course, it is beyond delusional to suggest that there can ever be a truly secular purpose to a Decalogue -- it is a purely religious symbol with a purely religious message; any suggestion to the contrary is the most insolent sophistry).

Instead, the only workable "McCreary - Van Orden test" is:

• Decalogue as "one among equals" in a series of historical or legal displays: permitted under the First Amendment


• Decalogue standing alone: Establishment Clause violation

Simple, easily applied, and at least somewhat rationally anchored.

This is why I say that the Everett case is "bizarre" -- it falls not on the Van Orden side of the line at all but obviously on the McCreary side! The fact that "it's the same FOE monument" completely omits the "collection of items" context of Van Orden, especially relative to the "stands alone" counterexample of McCreary.

"Eagles Decalogues are okay" simply was not the holding of Van Orden, and "stand-alone Decalogues are not okay" simply was the holding of McCreary. The Everett Decalogue was irrefutably a "McCreary Decalogue," not a "Van Orden Decalogue," and the Ninth Circuit was irrefutably wrong to invoke the latter case rather than the former.

That's my ruling. Any dissents?

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Meanwhile, is this case a victory for the theocrats who can't seem to tell the difference between a courthouse and a church?

The City's intent is the key here, and nothing apart from the monument's text suggests a religious motive on the City's part. We reject Card's assertion that the presence of clergy at the dedication ceremony distinguishes this situation from Van Orden. All indications in the record are that the Eagles arranged and funded the dedication. While the Mayor was present to accept the monument, as noted above, the City had many plausible secular reasons for accepting the gift, and we will not infer a non-secular purpose. We agree with the City that there is also some contemporary historic relevance to the monument -- as a testament to the Eagles' lengthy relationship with, and contributions to, the City.

So the reason stand-alone Decalogues on government property are not necessarily problematic under the First Amendment is because the Ten Commandments are no big deal? There are "many plausible secular reasons" to brandish a Decalogue in public? Decalogues can, indeed should, be viewed merely as the civic organization equivalent of a greeting card?

If I were a theocrat -- indeed if I were simply a non-theocratic Jew or Christian -- I would not be pleased to see a Decalogue disrespected in this manner.

Also:

The district court judge visited Old City Hall, and observed that there was "an air of neglect or disregard," in the display of the monument. Discussing the 1988 relocation, the court noted that "[n]ot only was it moved off of its corner perch ... but the City opted to relocate it to a spot behind one of the three War Memorial monoliths and almost surrounded by trees and shrubs that significantly impair most views of the monument."

Again: If I were a theocrat -- indeed if I were simply a non-theocratic Jew or Christian -- I would not be pleased to see a Decalogue disrespected in this manner.

Win the battle, but lose the culture war?

The case is Card v. City of Everett, No. 05-35996 (9th Cir., March 26, 2008) (PDF - 26 pages)

More thoughts from Wall of Separation.