LOUISVILLE, Ky. (AP) - A split federal appeals court on
Wednesday upheld a ban on including the Ten Commandments in a
display that featured multiple religious and government documents
at two southern Kentucky courthouses.
The 6th U.S. Circuit Court of Appeals in Cincinnati ruled, in a
2-1 vote, that the permanent injunction barring McCreary and
Pulaski counties from posting the display can remain in place. The
ruling comes in a long-running legal battle that reached the U.S.
Supreme Court in 2005.
Along with the Ten Commandments, the displays, called the
"Foundations of American Law and Government," included the Bill
of Rights, Magna Carta and Star Spangled Banner.
The decision turned on whether the two counties "purged" the
religious intent of the displays by changing the documents
surrounding the commandments from primarily religious texts to
writings more historical in nature.
Judge Eric Clay wrote that the two counties could not provide a
"valid secular purpose" for the display.
"The fact that Defendants seek to minimize the residue of
religious purpose does not mean that Plaintiffs do not suffer
continuing irreparable injury so long as the display remains on the
walls of the county courthouses," Clay wrote.
Senior Judge James Ryan, the lone dissenter, said Clay and Judge
Julia Smith Gibbons were following flawed precedents set by the
U.S. Supreme Court, which he described as having "persistent
hostility to religion."
The high court's majority, Ryan wrote, does not acknowledge
historical evidence that part of the intent of the First Amendment
was to protect religious symbols and support of religious devotion.
"The result, I fear, is that federal courts will continue to
close the Public Square to display of religious symbols as
fundamental as the Ten Commandments, at least until the Supreme
Court rediscovers the history and meaning of the words of the
religion clauses of the First Amendment," Ryan wrote.
Phone messages left for the ACLU of Kentucky, which represented
the citizens challenging the display, and the Liberty Counsel, a
Florida-based group that defended the counties, were not
immediately returned Wednesday morning.
The counties started the court battle by posting stand-alone
copies of the Ten Commandments that a court found "indisputably
unconstitutional" at the time, then fought all the way to the U.S.
Supreme Court to defend their actions instead of settling the case.
The U.S. Supreme Court upheld the ban in 2005, saying the
display had a predominantly religious purpose. However, the court
has also ruled that religious materials could be allowed as part of
an educational or historical display. The high court sent the case
back to federal district court in Kentucky for more hearings after
the counties altered the displays.
A judge in 2008 issued a permanent injunction against the
counties. Since then, the 6th Circuit has upheld as constitutional
displays in Grayson and Mercer counties.
In those cases, Clay wrote, the counties had not previously had
displays or resolutions backing the displays expressing an
"avowedly religious purpose" for posting the Ten Commandments in
Since the high court's decision in 2005, Ten Commandments
displays and monuments in Alabama, Georgia, Indiana, Maryland,
Nebraska, Ohio, Tennessee and West Virginia have been challenged
and taken down.
(Copyright 2010 by The Associated Press. All Rights Reserved.)