Via Religion Clause, the Alliance Defense Fund has filed a petition (pdf) with the Supreme Court over the 10th Circuit's ruling that Haskell County, OK's Ten Commandments monument is unconstitutional.
The Tenth Circuit’s split with the Ninth and Eighth Circuits on whether similar Ten Commandments monuments are constitutional reveals the confusion arising after this Court’s decisions in Van Orden and McCreary. Circuit courts need this Court’s guidance on the proper analysis to apply to monuments passively acknowledging religion’s historical significance that are part of historical displays ongovernment grounds. Otherwise, these cases will continue to be decided based on irrelevant facts like those that led to the finding of unconstitutionality in this case.
This case provides the Court with an opportunity to correct the doctrinal instability currently existing in religious display cases because of uncertainty about whether to apply the Lemon test (as in McCreary)¸ or the historical analysis, as in Van Orden.
In addition to the chance to clear up confusion, ADF wants the Court to have another crack at crippling the doctrine of standing that allowed this monument to be challenged in the first place.
This case also presents the issue of whether the doctrine of offended observer standing – unique to Establishment Clause cases – should continue unchecked so as to allow anyone who claims to be annoyed by a religious display to challenge it. This virtually boundless standing rule has contributed to the confusion in Establishment Clause jurisprudence by allowing cases to proliferate without the traditional safeguards to ensure there is a concrete dispute before the court.
