A Ten Commandments monument in Grayson County, Kentucky that had been ruled unconstitutional by a federal district judge was reinstated by a 6th Circuit appellate decision today. By a 2-1 vote, the panel determined that the message and purpose of the display was not religious. AP reports the ACLU is considering an appeal to the Supreme Court, or a request for the entire 6th Circuit to rehear the case. See key excerpts from the ruling below.
In his majority opinion, Judge David McKeague writes (pdf):
While there is no doubt that the Fiscal Court members could have been more explicit about their educational goals, we nonetheless find that, taken as a whole, the Foundations Display endorses an educational message rather than a religious one.
…
The dissent’s conclusion that the Fiscal Court members’s true purpose was predominantly religious may or may not be erroneous; it is simply not supported by the record evidence on which the judicial assessment – of what the objective observer would have understood the purpose behind to display to be – must be made. Indeed, there may be good reason to believe that religious purpose underlies many of the attempts in recent years to place copies of the Ten Commandments in public buildings. Nonetheless, while “the secular purpose required has to be genuine, not a sham, and not merely secondary to a religious objective,” it is those objecting to a display of the Ten Commandments who bear the burden of producing evidence sufficient to prove that the governmental entity’s secular purpose is a sham, and that an objective observer would understand the display to be motivated predominately by religion. Plaintiffs have not carried their burden in this case.
Calling the County's claimed purpose "a sham" that "should be rejected", dissenting Judge Karen Nelson Moore counters:
Although the Supreme Court has noted that the Ten Commandments have some historical value, an objective observer reviewing these minutes and their context in the light most favorable to the County would rightly conclude that the Fiscal Court’s predominant purpose in erecting the Display was not secular. The evidence from these meetings clearly indicates that the predominant purpose was to post the Ten Commandments as a religious text and that the additional, “Historical Documents” were added merely to avoid violating the Constitution. Most notably, throughout the Fiscal Court’s discussion of whether to erect a display, the Ten Commandments were always treated as separate from and more important than any of the “Historical Documents” mentioned. Reverend Shartzer, a religious leader, specifically asked the Fiscal Court to display the Ten Commandments. Magistrates Hornback and Farris, both government officials, singled out the Ten Commandments as their primary focus when making their respective motions to place the Display in the courthouse and clearly considered the “Historical Documents” as distinct from the Ten Commandments. Indeed, the actual orders that the Fiscal Court passed on September 18 and September 28 both focused on hanging the Ten Commandments and explicitly distinguished them from the “Historical Documents,” which were mentioned in passing and only as a way to attempt to avoid constitutional problems.
