U.S. Appeals Court Votes 3-0 Against Okla. Commandments Display

By Eric Young, Christian Post Reporter Tuesday, June 09, 2009

Government displays of the text of the Ten Commandments are not presumptively unconstitutional, affirmed a federal appeals court Monday.

"The Ten Commandments have a secular significance that government may acknowledge," wrote Circuit Judge Jerome Holmes of the U.S. 10th Circuit of Appeals on behalf of the three-judge panel.

In the case of a Ten Commandments monument on the lawn of the Haskell County courthouse in Stigler, Okla., however, the "reasonable observer" would be aware of the religious motivations of the man who worked to get the monument erected, Holmes wrote in a 52-page opinion.

"[W]e hold that, under the unique circumstances presented here, the Establishment Clause was violated because the reasonable observer would view the Monument as having the impermissible principal or primary effect of endorsing religion," the judges explained after voting 3-0 against the display on Monday.

According to court records, Haskell County resident Mike Bush had raised $2,000 in private funds to pay for the eight-foot tall and three-foot wide monument, which lists the Ten Commandments on front and the Mayflower Compact on the back.

County officials, who gave Bush approval for his display, have for many years allowed citizens to erect monuments in the courthouse lawn area. Such monuments include three memorials to veterans of World War II, the Vietnam War, and the Korean War; an Unmarked Graves monument; a Choctaw Indian Tribe Monument; two benches commemorating the high school graduating classes of 1954 and 1955; and 150 personalized message bricks on the sidewalk leading to the courthouse's front steps.

"Haskell County officials acted within the law when they allowed the display of this Ten Commandments monument," argued Attorney Kevin Theriot of the Alliance Defense Fund, who represented the commissioners in this case. "The monument is historically important and does not represent the furtherance of any religion by the county."

According to the attorney, the U.S. District Court for the Eastern District of Oklahoma had "wisely" denied the attempt of the American Civil Liberties Union "to erase the Ten Commandments out of American history."

But the U.S. 10th Circuit of Appeals on Monday reversed the district court's order, ruling that the county had violated the Establishment Clause of the First Amendment because of Bush's widely known religious motivations and because of the statements of religious beliefs made by at least two of the three commissioners to the local media.

"By not distinguishing their personal opinions from their official views, the commissioners left the impression that a principal or primary reason for the erection and maintenance of the display was religious," the judges concluded.

In light of this, they added, "We conclude, in the unique factual setting of a small community like Haskell County, that the reasonable observer would find that these facts tended to strongly reflect a government endorsement of religion."

With the district court's order now reversed, the appeals court remands for district court to enter judgment consistent with their opinion.

Attorney Theriot, however, insists that the judges erred "for many reasons" in Monday's decision, and he cited Supreme Court decisions in similar cases to support his conclusion.

Theriot told NewsOK that he is recommending to the commissioners that they ask all 12 judges of the court to reconsider the decision of the three-judge panel.