Connellsville Ten Commandments Update

Lawyers for the Freedom From Religion Foundation have filed a "Brief in Opposition to Defendant's Motion To Dismiss" a few days ago.

You can read it here.

Let's take a few steps back and look at the motion they're opposing.  Liz Zemba of The Trib writes this:

In seeking to dismiss the case, attorneys for the school district argued, among other reasons, that the monument should stay because it is more secular than religious. Courts in other cases found that similar monuments on government-owned property do not violate the establishment clause, they argued, including one at the Texas State Capitol that survived a Supreme Court challenge.

This requires some explanation.  Whereas I (a non-attorney if ever there was one) tend to think that the issue's been settled by Stone V Graham, there's another Supreme Court case upon which the school district's attorney's are relying - Van Orden V Perry.  Here's what happened: in 2004 two very similar cases were decided before the Supreme Court, Van Orden v Perry and McCreary County, Kentucky v. ACLU of Kentucky and the Supremes held that the former display constitutional and the latter unconstitutional.

Justice Breyer was the "swing" vote in the sense that his was the only vote that changed between the two cases.

From the District's earlier brief:

In the plurality opinion finding no Establishment Clause violation, Chief Justice Rehnquist, (joined by Justices Scalia, Kennedy, and Thomas), provided that the Court’s Establishment Clause analysis would be “driven both by the nature of the monument and by our Nation’s history.” Acknowledging the history and significance of the Ten Commandments, the Court distinguished the “passive use” of the Eagles’ Ten Commandments monument by the State of Texas from the impermissible use of the text by the State of Kentucky, which had mandated by statute that the text be posted inside every public classroom. Id. at 691 (distinguishing Stone v. Graham, 449 U.S. 39 (1980)). After a detailed discussion of our Nation’s history regarding the use of the Ten Commandments and other religious symbols, Chief Justice Rehnquist, with a fifth vote from Justice Breyer concurring in the judgment, concluded that the State did not violate the Establishment Clause by its display of the Eagles’ Ten Commandments monument on Capitol grounds. (“We cannot say that Texas’ display of this monument violates the Establishment Clause of the First Amendment”) (Emphasis added).

Justice Breyer, concurring in the judgment, agreed that the text of the Ten Commandments conveys a religious message, but cautioned, as did Chief Justice Rehnquist, that focusing on the religious nature of the message alone cannot resolve an Establishment Clause. Instead, the context in which the text is used must also be considered. According to Justice Breyer, the State of Texas displayed the monument on its Capitol to communicate both a secular and a religious message. Id. He concluded, however, that the “circumstances surrounding the display’s placement on the Capitol grounds and its physical setting suggest that the State” intended the secular aspects of the monument’s message to predominate, despite the monument’s religious content. (Breyer, J., concurring in judgment).

(Let me state that the "Emphasis added" above is in the brief. It's not my note.)

From Breyer's concurring opinion in Van Orden we read:

The case before us is a borderline case. It concerns a large granite monument bearing the text of the Ten Commandments located on the grounds of the Texas State Capitol. On the one hand, the Commandments' text undeniably has a religious message, invoking, indeed emphasizing, the Deity. On the other hand, focusing on the text of the Commandments alone cannot conclusively resolve this case. Rather, to determine the message that the text here conveys, we must examine how the text is used. And that inquiry requires us to consider the context of the display.

So it's the context of the placement of the monument that defines it's constitutionality.  And from this, it's my guess that Connellsville is looking to establish the context of the monuments as secular.  If they can establish that, then Van Orden is the Case to use in their argument.

The only problem is what Breyer wrote elsewhere in this opinion:

This case, moreover, is distinguishable from instances where the Court has found Ten Commandments displays impermissible. The display is not on the grounds of a public school, where, given the impressionability of the young, government must exercise particular care in separating church and state.

All this was in my talk a few weeks ago before the Center for Inquiry (a talk which most of you missed, by the way).  Imagine my relief when what I said at that talk isn't much in conflict with this week's Brief in Opposition.

Whew.

From the brief:

Justice Breyer’s concurring opinion also highlights the distinction between public school grounds and other government property. At the outset, Justice Breyer focused on the particular context of the Texas Capitol monument and called Van Orden “a borderline case.” Id. at 700. Justice Breyer distinguished the Texas Capitol display from the public school context: “This case, moreover, is distinguishable from instances where the Court has found Ten Commandments displays impermissible. The display is not on the grounds of a public school, where, given the impressionability of the young, government must exercise particular care in separating church and state.” Id. at 703. (citing Lee v. Weisman, 505 U.S. 577, 592; Stone, 449 U.S. at 39). In its Brief, the Defendant purports to explain away this statement by Justice Breyer by conjuring up hidden meaning. Def. Brief, p. 14- 15. According to the Defendant’s memorandum, “For it was not merely the school setting that Justice Breyer was arguably recognizing as distinguishable, but the manipulative, coercive, and restraining conduct by the State evidenced in Lee.” Id. There is no support for this bald assertion. Justice Breyer’s statement specifically distinguished Van Orden from a display “on the grounds of a public school” with no mention of further conduct by the government.

Whew, as I said.

This religious monument currently stands on the grounds of a public school and there is simply no way to describe it with any other word than this one: UNCONSTITUTIONAL.