From: Karen Rand Smigrodzki (Karen@smigrodzki.org)
Date: Wed Jun 04 2003 - 23:56:15 MDT
Ten Commandments Symbol Passes Test
Jonathan Ringel
Fulton County Daily Report
06-03-2003
In the first of two cases deciding how far the government may go in its
use of religious symbols, a federal appeals panel has ruled that a local
court seal depicting the Ten Commandments does not cross the
constitutional barrier between church and state.
The decision, released late Friday by the 11th U.S. Circuit Court of
Appeals, upheld the Richmond County Superior Court's use of a 1-inch
seal depicting the Ten Commandments with two rounded tablets
containing the Roman numerals I through X.
The Richmond County, Ga., case could affect an argument set for
Wednesday in which another 11th Circuit panel will weigh the
constitutionality of a 5,280-pound monument of the Ten
Commandments in the Alabama Judicial Building. Chief Judge J.L.
Edmondson sits on both panels.
The cases grew out of challenges by local chapters of the American
Civil Liberties Union, and other groups, alleging that the displays
violated the First Amendment's prohibition against state-established
religion. But the cases are different, an important fact in light of U.S.
Supreme Court precedent requiring judges to view Establishment
Clause challenges on a case-by-case basis.
Three members of the Georgia ACLU -- an Augusta attorney, E.
Ronald Garnett; a Unitarian pastor, the Rev. Daniel King; and one of
King's congregants, Shirley Fencl -- brought the Richmond County
case against the court seal in 2000.
RULING FOR THE DEFENSE
Last year, Chief Judge Dudley H. Bowen Jr. of the U.S. District Court
in Augusta ruled for the defendants, the county and Elaine Johnson,
the court clerk.
Bowen wrote that because the Ten Commandments played a role in
the secular development of law, a reasonable observer would not
consider a seal depicting the tablets as a primary government
endorsement of religion. He noted that in the 1870s, when the
earliest-known use of the seal was identified, at least 35 percent of
Georgians were illiterate, suggesting the county clerk needed a
symbol that graphically depicted the law.
Edmondson, Senior Judge Phyllis A. Kravitch and visiting 8th Circuit
Senior Judge John R. Gibson affirmed Bowen's decision at the 11th
Circuit.
Kravitch wrote for the panel that despite the Ten Commandments'
obvious religious connotations, the Richmond County court seal
passed constitutional scrutiny because it used the Ten
Commandments in a secular context -- authenticating 24,000 legal
documents filed in the Augusta courthouse each year.
Kravitch noted that much public and private law grew out of the final six
commandments, which deal with honoring one's parents and prohibiting
murder, adultery, stealing, lying and coveting. Moreover, she added, the
Richmond County seal shows a sword placed behind the tablets. The
sword, according to Kravitch, is "among the most recognizable symbols
of the legal system."
Finally, Kravitch concluded that the seal's size -- about 1 inch in
diameter -- made it "discreet," as opposed to other, larger Ten
Commandments images held to violate the First Amendment's
prohibition against state-established religion.
Kravitch contrasted the Richmond County case with others in which
courts struck down the use of large monuments to the Ten
Commandments on public grounds. Those cases, she wrote, "involved
displays that were large or 'in your face' and occupied a place of
prominence or special honor, often dominating the other objects
surrounding them."
Kravitch's comments on size offered an intriguing clue as to how the
11th Circuit might view the Alabama case, although she did not
mention it specifically. That case deals with efforts by Alabama
Supreme Court Chief Justice Roy S. Moore to keep a Ten
Commandments monument he designed in the colonnaded rotunda
of the state's judicial building.
Occupying about 36 cubic feet, the monument is capped by two tablets
that suggest an open Bible. Engraved on the tablets are the Ten
Commandments, as excerpted from Exodus in the King James Bible,
starting with "I am the Lord thy God" and "Thou shalt have no other
Gods before me."
On each side of the monument, Moore added 14 quotations, including
the motto on U.S. currency, "In God We Trust," and a reference in the
Declaration of Independence to "Laws of nature and of nature's God."
Moore claims that the monument depicts the moral foundation of the
law.
MONUMENT ORDERED REMOVED
Last year, U.S. District Judge Myron H. Thompson ordered Moore to
remove the monument, which Thompson called the "centerpiece" of
the Alabama Judicial Building's rotunda. Moore refused, and in so
doing, set up Wednesday's argument in Montgomery, Ala., before
Edmondson, 11th Circuit Judge Edward E. Carnes, and Richard W.
Story, an Atlanta federal district judge assigned to the case.
Edmondson penned a four-sentence concurrence to Kravitch's decision
in the Richmond County court-seal case. He indicated that he wrote
separately "because I am uncomfortable with the characterization and
the manner of application of some of the precedents discussed as the
Court explains its decision."
Edmondson did agree, however, that "no precedent comes close" to
compelling the conclusion that the Richmond County display violated
the U.S. Constitution. King v. Richmond County, No. 02-14146 (11th
Cir., May 30, 2003). The Richmond County plaintiffs plan on asking
the full 11th Circuit to reconsider the ruling, said Robert L. Tsai, a
University of Oregon law professor who first brought the case when he
was a lawyer for the Georgia ACLU.
Tsai said he was "extremely disappointed" by the ruling, which he
described as the first federal appellate decision since 1980 that upholds
government use of the Ten Commandments.
"It's the only decision holding that religious symbols without religious
words somehow alters the impact of an obviously sacred symbol,"
Tsai wrote in an e-mail.
"It's the first ruling suggesting that courts might be able to use the
Commandments for official business, while other governmental entities
are not," Tsai added. "Apparently, smaller replications of the
Commandments to the tune of 24,000 per year don't equal one large
display."
James W. Ellison of the Augusta firm Burnside, Wall, Daniel, Ellison
& Revell represented Richmond County in its successful defense of
the court seal.
He noted that the court had rejected Tsai's argument that if the seal
resembled the Ten Commandments, then it was automatically in
violation of the First Amendment. "You can't make that leap," said
Ellison, emphasizing that the seal had a clearly secular purpose of
authenticating documents.
CONTEXT CONSIDERED KEY
With regard to the Alabama case, Ellison noted that the 11th Circuit
made clear that the context of a challenged Ten Commandments
display was key -- and that no factor is "outcome determinative."
Danielle Lipow of the Southern Poverty Law Center, one of the groups
challenging the Alabama Ten Commandments monument, said that
the Richmond County case, King v. Richmond County, "bodes very
well" for her case.
"The enormous Ten Commandments monument that Chief Justice
Moore installed in the Alabama State Judicial Building could not be
more different than the inconspicuous symbol at issue in King, and
the court's opinion in King makes it very clear that the Eleventh Circuit
will recognize the constitutional significance of those differences," she
wrote in an e-mail.
A spokesman for Americans United for the Separation of Church and
State, which also is involved in the Alabama case, echoed Lipow's
comments.
Herbert W. Titus, Moore's lawyer, could not be reached to discuss the
impact the King case would have on the Alabama case, Glassroth v.
Moore, Nos. 02-16708-D and 02-16949-DD.
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