Judge Refuses to Dismiss Ten Commandments Suit

Judge Refuses to Dismiss Ten Commandments Suit January 27, 2013

A federal judge denied a motion to dismiss a lawsuit filed by the Freedom From Religion Foundation against the New Kensington-Arnold School District over a Ten Commandments monument at the entrance of the high school. The ruling is on Lexis, so I can’t link to it, but I’ll put some excerpts here. The judge began by pointing out the incoherent nature of the Supreme Court’s Establishment Clause jurisprudence:

Throughout the turbid history of Establishment Clause jurisprudence, the Supreme Court has announced no less than four judicially crafted “tests” to analyze whether governmental action violates the Constitution: the three-part “Lemon test” derived from Lemon v. Kurtzman; the “endorsement test” first advanced by Justice O’Connor in Lynch v. Donnelly and later interpreted as essentially the second Lemon prong; the “coercion test” pronounced in Lee v. Weisman and applied in Santa Fe Independent School District v. Doe; and the “legal judgment test” formulated by Justice Breyer is his concurrence in Van Orden v. Perry. Several members of the Supreme Court have also theorized that other tests should govern, although their proposals have not garnered majority support. Notably, “[n]o fewer than seven times since 1983 has the Supreme Court decided an Establishment Clause case without applying Lemon.”

The ruling quotes Judge Richard Posner of the Seventh Circuit Court of Appeals, who said in one case, “The case law that the Supreme Court has heaped on the defenseless text of the establishment clause is widely acknowledged, even by some Supreme Court Justices, to be formless, unanchored, subjective and provide no guidance.” That pretty much sums it up. In light of this, the judge notes, “there is little doubt then why the parties in this case seemingly cannot agree on what test controls, let alone whether their counterpart(s) even correctly characterized this body of law.”

You may recall that back in 2005, the Supreme Court issued two rulings on the very same day: Van Orden v Perry, which upheld the constitutionality of a Ten Commandments display in Texas, and ACLU v McCreary County, which declared a Ten Commandments display in Kentucky to be unconstitutional. The school argues that their display is just like the one in Van Orden because it’s been there for a long time and no one has complained. But the judge notes that they ignore a lot of important factors:

Defendant particularly focuses on the obvious facial similarities between the monument at issue in this case and the stone monolith upheld under the Establishment Clause by a fractured Court in Van Orden. The School District does not go to any great lengths to explain away the distinguishing factual aspects of Van Orden which ultimately swayed a majority of the Justices to hold the monument withstood constitutionally scrutiny, including its longstanding inclusion among numerous secular subjects and the historical lack of complaints directed toward its display on public grounds.

The monument in Van Orden was one of a couple dozen other similar monuments in the same place, while the monument in this case is by itself and sitting right near the entrance to the school. The judge rejected this argument, along with others:

Likewise, a review of the record reveals that there is no meaningful evidence to support the School District’s attack on the merits of Plaintiff’s case and thus the “foreclosure” argument is unavailing at this time. A semblance of judicially noticeable facts does not alter this outcome. The School District cannot readily expect this Court to interpret the facets of the challenged monument and grant the relief requested based on the facts it attempts to inject into the record without the benefit of discovery.

So this case will go to trial. And I’ll be very interested in seeing the result.

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