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Ten Commandments issue — again

Since the Supreme Court last struck down a government display of the Ten Commandments, five years have passed and four new Justices have come to the bench.  A pair of Kentucky counties, unsuccessful in that prior test case, are offering the “new” Court a chance to change its mind.  Subtly, the new plea cites helpful comments by Samuel A. Alito, Jr., when he was a lower court judge — but he now may hold the decisive vote on the Supreme Court.

The new petition is, in fact, an attempt to get the Justices to allow the very same display on the courthouse walls in the two counties, with the argument that times have changed and so has the motive for the displays, so they should now be allowed because the unconstitutional “taint” has been erased.  The new case is McCreary County, et al., v. ACLU of Kentucky, et al. (docket 10-566) — the same title as before.

And, besides defending anew the specific displays, the petition once again makes a plea (rejected last time by a five-Justice majority) for the Court to abandon the current constitutional formula for judging government-sponsored displays that include religious materials. That is the so-called “Lemon test,” taking its name from the 1971 decision in Lemon v. Kurtzman.

The prior McCreary case was decided by a 5-4 vote of the Justices on June 27, 2005 — the same day that the Court, in another case (Van Orden v. Perry) upheld a Ten Commandments display on the lawn of Texas’s state capital, for different reasons.  From the McCreary majority, Justice David H. Souter (the author of the opinion) and Justices Sandra Day O’Connor and John Paul Stevens have now retired, and have been replaced by Justices Sonia Sotomayor, Samuel Alito, and Elena Kagan.

Among the dissenters was the late Chief Justice William H. Rehnquist.  Justice Antonin Scalia wrote the dissent, joined by full by Rehnquist and Justice Clarence Thomas, and in most of its arguments — especially, its attack on the “Lemon test”– by Justice Anthony M. Kennedy.  Rehnquist has been succeeded by Chief Justice John G. Roberts, Jr.

Assuming that the three remaining dissenters have not changed their minds — that the McCreary and Pulaski Counties displays were constitutional even with no change, the counties’ new appeal would have to attract two more votes to win a new test of their displays’ validity.  The obvious candidates would be the Chief Justice and Justice Alito.

The counties do not ask the Court to overrule the McCreary decision from 2005.  In fact, they argue that the Sixth Circuit Court (in a ruling that can be found here) failed to follow the McCreary majority’s comment that it might be possible for a government to change enough its policy toward a display to take away its unconstitutional nature.

Arguing that that is exactly what the counties have since done, their new appeal notes that their local governing bodies with new membership have spelled out a firm non-religious reason for the display — commemorating several historic documents — and have expressly repudiated the former purpose: having a frankly religious display.  It was that religious purpose, the petition notes, that led the Supreme Court to nullify the display the last time around.

The Sixth Circuit rejected that claim, concluding that even after the Supreme Court had struck down the display, the counties continued to fight in court to maintain a display that the Justices had barred, and that they essentially have not abandoned the religious motive that has been at work all along.  (The panel was split 2-1 in rejecting the displays again.  Circuit Judge James L. Ryan wrote a brief but fervent dissent, contending that the Supreme Court majority has harbored a “persistent hostility to religion” and hoping for the day when the Supreme Court “jettisons the flawed reasoning” of the Lemon test.)

In challenging the new Circuit Court ruling, the counties argue explicitly for that “jettisoning” of the Lemon test, contending that it simply has not worked and has only caused confusion among lower courts.  Even within the Sixth Circuit itself, cases involving Ten Commandments displays in two other Kentucky counties, have been upheld by different panels of judges, the petition notes.

The counties also assert that the Justices need to clarify when a government can remove the “taint” of a previously invalid display that includes religious material — such as by changing its official view of what the display is to convey, and by allowing the passage of time to help erase the past embrace of the religious character, and by having a change in government bodies’ membership.  The question, they argue, is “of extreme public importance.”

In arguing that the Court has already made clear, in McCreary, that “public displays of religious expression are not to be labeled ‘once tainted always tainted’,” the petition quoted then-Judge Alito as making that point in a 1999 opinion for the Third Circuit Court, where he formerly served (in a case involving a government display of a Christian Nativity scene).  In that case, the petition noted, Judge Alito rejected an argument that a display of a creche that was invalid when it stood alone would still be invalid if later surrounded  by other, non-religious holiday symbols.

(Under the Court’s rules, the ACLU of Kentucky is now scheduled to file a response to the new petition by Nov. 29.  If the briefing moves along on a normal schedule, the Justices could still act on the case in time for a final ruling in the current Term.)

Recommended Citation: Lyle Denniston, Ten Commandments issue — again, SCOTUSblog (Nov. 4, 2010, 7:05 PM),