Full 10th Circuit won’t rehear Okla. Ten Commandments ruling

Friday, July 31, 2009

DENVER — A sharply divided federal appeals court has refused to reconsider a decision that a Ten Commandments monument on the lawn of the Haskell County courthouse is unconstitutional.

On a 6-6 vote yesterday, the 10th U.S. Circuit Court of Appeals let stand the June 8 ruling by a three-judge panel that the monument endorses religion. Seven votes were needed to reconsider the ruling. County commissioners had asked the full court to rehear the case.

In a strongly worded dissent in Green v. Haskell County Board of Commissioners, the opposing judges said the ruling “perpetuates a regrettable misapprehension of the Establishment Clause: that recognition of the role of religion in this country’s founding, history, traditions, and laws is to be strictly excluded from the civic sphere.”

The dissenters also questioned the U.S. Supreme Court's reasoning in two key Ten Commandments cases, Van Orden v. Perry and McCreary County v. ACLU, both decided in 2005.

In splintered decisions, the high court justices ruled in Van Orden that a Ten Commandments monument on the Capitol grounds in Austin, Texas, could stay where it had been since 1961. But in McCreary County, they held, the Ten Commandments displays in two county courthouses in Kentucky, put up in 1999 with unabashed pro-Christian intent, had to come down.

The 10th Circuit dissenters declared that the panel’s June 8 ruling “misconstrues — and in so doing multiplies the errors inherent in — the Supreme Court’s already-questionable “tests” used to analyze passive acknowledgments of religion such as Ten Commandments monuments.”

“The opinion strongly suggests that Ten Commandments displays authorized by small-town commissioners who harbor personal religious beliefs are unconstitutional establishments of religion. Such a conclusion is not only inconsistent with the original meaning of the Establishment Clause, but is also plainly contrary to the Supreme Court’s precedent in Van Orden v. Perry,” the dissent said.

The June panel decision was written by 10th Circuit Judge Jerome Holmes of Oklahoma City, who was appointed by former President George W. Bush.

The Alliance Defense Fund today announced plans to ask the U.S. Supreme Court to review the 10th Circuit’s decision.

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