Since the Ten Commandments were removed from public display in an emotional showdown at an Alabama courthouse two months ago, two courthouse displays of the Ten Commandments in Pennsylvania have survived court challenges.
How can a Ten Commandments display at one courthouse be ruled unconstitutional while displays at other courthouses are permitted? With some 4,000 Ten Commandment displays at courthouses and public buildings nationwide, it is a question many local officials and courts are wrestling with, especially in the wake of the highly publicized Alabama case.
The answer seems to lie, at least in part, in the context of the setting, the age of the display -- and in interpretations of legal precedent by different courts.
The contradictory Alabama and Pennsylvania decisions have further muddled the ongoing issue of whether such displays on public property violate the constitutional ban against government endorsement of religion. They have also focused new attention on a controversial church-state precedent established by the U.S. Supreme Court 32 years ago.
In the Alabama and Pennsylvania cases, separate federal appeals courts applied the Supreme Court’s so-called “Lemon test” -- named for the plaintiff in a landmark 1971 church-state decision -- but reached different conclusions.
Under the Lemon test, laws or policies must have a secular purpose, neither advance nor inhibit religion, and not foster excessive government entanglement with religion.
The test is despised by many religious conservatives and some Supreme Court justices -- five of the nine sitting justices have criticized the Lemon standard, saying it invites contradictory appellate rulings.
In Alabama, a federal appeals court in July ordered the removal of the 5,300-pound granite monument erected two years ago in the busy rotunda of the state judicial building. Noting that state Supreme Court Chief Justice Roy Moore had said his religious beliefs motivated him to install the monument, the court found that the display’s primary effect was to promote religion. Moore is scheduled to go on trial Nov. 12 on ethics charges stemming from his refusal to obey the federal judge’s order that the monument be removed.
Historic Context Prevails
In a less-publicized West Chester case, a federal appeals court in Philadelphia permitted a small, 83-year-old plaque of the Ten Commandments to remain on a courthouse wall because its historic context outweighed its religious content. The court said a “reasonable person” familiar with the history of the bronze, 50-by-39-inch plaque, mounted next to a doorway that has been closed for years, would conclude that its continued presence was secular, not evangelical.
And in Pittsburgh, citing the West Chester precedent, a federal judge allowed a similar 85-year-old plaque of the Ten Commandments to remain on the wall of the Allegheny County Courthouse.
In her opinion, U.S. District Judge Donetta Ambrose found that the 50-by-80-inch plaque -- erected in 1918 by an organization that wanted to infuse religious principles into public law -- did not reflect an intent by county officials to promote or favor one religion over another.
Decisions in other cases that have arisen around the country have gone both ways, though more displays are being ordered removed. A survey of recent cases by Washington-based Americans United for Separation of Church and State found 15 Decalogue displays ordered removed and eight allowed to remain.
The survival of the West Chester plaque was assured this month when a local atheist and the American Civil Liberties Union decided to abandon an appeal of the appellate ruling, which cited the plaque’s age and its historic and legal significance.
“I’ll have to have this religious text screaming religion at me any time I enter the courthouse,” said Margaret Downey, an atheist, at her West Chester home, where she heads a liberal group called the Freethought Society. An inscription on the plaque reads: “Thou shalt love the Lord and thy God with all thine heart.”
Downey first complained about the plaque a few years ago, when she visited the courthouse to sue the local Boy Scouts for kicking out her son, also an atheist. She lost that case, then sued the county over the Ten Commandments plaque in October 2001.
U.S. District Court Judge Stewart Dalzell in Philadelphia ruled in March 2002 that the plaque violated the constitutional ban against government endorsement of religion. He was overturned in June, prompting Downey’s appeal.
Downey and Stefan Presser, legal director of the ACLU’s Philadelphia office, said the appeal was dropped because they believed it had little chance at the U.S. Supreme Court, where at least three justices have voiced support for Ten Commandments displays in public buildings.
The decision in the West Chester case is the first to cite the age of a display as a factor in deciding its constitutionality, according to Ayesha Khan, legal director of Americans United for Separation of Church and State. She said the decision establishes a new “grandfather clause” that favors longevity over content.
“It makes it even more difficult for legislators and local officials to figure out what’s allowed and what’s not allowed,” Khan said.
Colin A. Hanna, chairman of the Chester County commissioners, said the decision by the U.S. Court of Appeals for the 3rd Circuit correctly recognized the plaque’s historic and legal context.
“We argued that history is context,” said Hanna, the lead defendant, of his testimony.
Hanna acknowledged that the plaque, installed in 1920 by a group called the Religious Education Council, is “undeniably religious.”
But it does not represent an impermissible endorsement of religion, he said, because of the courthouse’s historical significance -- it was built in 1846 -- its legal context and the role of the Ten Commandments as “a foundation of our legal system.”
The appeals court agreed, saying the retention of the plaque after so many years reflected the county’s desire to maintain a site with historical and legal significance, not to endorse a religion.
“Because of the plaque’s age and its placement on an historic courthouse, the reasonable observer would believe that the plaque itself is historic,” appellate Judge Edward R. Becker wrote.
He added: “We do not believe ... there can never be a secular purpose for posting the Ten Commandments, or that the Ten Commandments are so overwhelmingly religious in nature that they will always be seen only as an endorsement of religion.”
The ACLU’s Presser, who assisted Downey with her appeal, called the ruling inconsistent and baffling.
“I didn’t write the opinion, so I can’t begin to explain it,” he said. “It didn’t make sense to me, and I’m sure it didn’t make sense to Judge Dalzell, either.”
Vexed by ‘Lemon Test’
The Lemon test has vexed courts for years. Supreme Court Justice Antonin Scalia, for instance, has said he would like to “inter the Lemon test once and for all,” adding that it “stalks our Establishment Clause jurisprudence, frightening little children and school attorneys.”
Judge Becker said he applied Lemon “with an abundance of caution.” He wrote that the county commissioners’ “articulation of a secular purpose for refusing to remove the plaque met the requirements of Lemon.”
Becker told the courtroom: “We don’t get paid to decide the easy cases -- and this one ain’t easy.”
Last week, visitors to the Chester County courthouse were unable to see the Decalogue clearly without walking through construction scaffolding. The original courthouse, which has no public entrance, is undergoing repairs. The main entrance is through a modern annex, built in the 1960s, just down the street from the plaque.
The display still enrages Downey, who said she has received death threats and harassing phone calls. Her co-plaintiff, Sally Flynn, was compared to the Taliban in a friend-of-the-court brief posted on the county Web site.
Though Downey has dropped her appeal, she said the case attracted new members to her Freethought Society, which she calls a watchdog group of atheists, agnostics and “non-theists” dedicated to church-state separation.
“The watchdog is off the porch, bigger, stronger and more determined than ever,” she said.