Ruling Awaited on Display of Commandments at Court
By ADAM LIPTAK - NEW YORK TIMES
When you look at the picture with this article of the display, ya gotta ask yourself, "What were they thinking?" This monument is so obviously illegal that I don't know why they thought they would get away with it.
A federal appeals court is set to hear arguments today about whether a monument engraved with the Ten Commandments may remain in the rotunda of the Alabama Supreme Court. A decision issued by the same federal court on Friday may contain clues about how the court will rule in the Alabama case.
The arguments, before the United States Court of Appeals for the 11th Circuit, will take place in Montgomery, Ala., just blocks from the State Judicial Building, where, in August 2001, Chief Justice Roy S. Moore of the Alabama Supreme Court unveiled a 5,280-pound granite monument setting out the Ten Commandments in the King James version.
On Friday, another three-judge panel of the federal court, including one of the judges deciding the monument case, upheld use of a stylized picture of the commandments on a Georgia court's official seal.
The two cases are part of a trend, said Douglas Laycock, a law professor at the University of Texas who is an expert in the law of religious liberty. "There has been a lot of Ten Commandments litigation over the years, and in an escalating pace recently," he said. "For the most part the government has been losing these cases."
Friday's decision was an exception and an error, said Robert L. Tsai, a law professor at the University of Oregon who represents the plaintiffs. "This is the first federal appellate decision to uphold governmental display or usage of the Ten Commandments since 1980," he said. That was when the United States Supreme Court struck down a Kentucky law requiring the posting of the commandments in public school classrooms.
For 130 years, the official seal of the Superior Court in Richmond County, Ga., used to authenticate legal documents, has depicted a sword and two tablets bearing the first 10 Roman numerals. All concerned agreed that the tablets represent the commandments, but the parties differed about whether the depiction indicated a government endorsement of religion.
The original purpose of the seal is, the trial judge found, "lost in the mists of history." The judge, Dudley H. Bowen Jr., of Augusta, Ga., said the tablets were among other things a secular symbol for the rule of law and might have aided illiterate people in recognizing the legal validity of documents displaying the seal.
The appeals court said that justification was plausible. It added that the seal did not give the appearance that the government was endorsing religion. That holding would at first appear helpful to Chief Justice Moore. But the court's reasoning mostly hurts his case, experts said.
The court noted that the seal was used in "the very narrow context of authenticating legal documents," albeit some 24,000 a year. The commandments were not, the court said, "displayed in the superior court's courtroom or anywhere else in the courthouse." The presence of the sword on the seal helped, too, the court held, "increasing the probability that observers would associate the seal with secular law." In addition, the seal is "relatively small."
Finally, the court noted that the text of the commandments did not appear on the seal.
"None of those things are true of the Alabama Supreme Court monument," Professor Laycock said.
Friday's decision was defensible, he said, but it should be of no help to Chief Justice Moore. "To uphold that," he said, referring to the monument, "the court would have to say that we agree with the argument that the Ten Commandments are sufficiently secular that you can put them anywhere except public school, which is unlikely but possible in the Eleventh Circuit. It's impossible in the Supreme Court. If they uphold it, they will be reversed."
Herbert W. Titus, Chief Justice Moore's lawyer, did not return a call seeking comment. In his brief to the Eleventh Circuit, the judge defended the monument as a constitutionally permissible "acknowledgment of God as the source of the moral foundation of law." The chief justice has noted that depictions of the Ten Commandments or blank tablets evoking them can be found in many government buildings, including that of the United States Supreme Court.
J. L. Edmondson, the 11th Circuit's chief judge, concurred in the result in Friday's decision, but he did not join in its reasoning, saying little more than that he was "uncomfortable with the characterization and the manner of application of some of the precedents discussed." He is also on the three-judge panel that will hear arguments today and is the only judge involved in both cases.
"Certainly he had our case in mind" in issuing his limited concurrence, said Danielle Lipow of the Southern Poverty Law Center, which represents one of the plaintiffs in the Alabama case.
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