I missed this story last week, although I believe other bloggers have already reported it. The 6th Federal Appellate Circuit ruled against the ACLU in a Ten Commandments case on December 21st, ruling specifically that the Constitution did not require a wall between church and state, revalidating the display of the Ten Commandments on government property:
A federal appeals court has upheld a display of the Ten Commandments alongside other historical documents in the Mercer County, Ky., courthouse.
The judge who wrote the opinion blasted the American Civil Liberties Union, which challenged the display, in language that echoed the type of criticism often directed at the organization.
Judge Richard Suhrheinrich’s ruling said the ACLU brought “tiresome” arguments about the “wall of separation” between church and state, and it said the organization does not represent a “reasonable person.”
The decision was issued by a three-judge panel of the 6th U.S. Circuit Court of Appeals, based in Cincinnati. It upheld a lower-court decision that allowed Mercer County to continue displaying the Ten Commandments along with the Declaration of Independence, the Bill of Rights, the words to “The Star-Spangled Banner” and other documents.
All of the items were posted at the same time in 2001.
The ACLJ, which often squares off against the ACLU in appellate court, also notes the decision on its web site. This makes for an interesting showdown in the new Supreme Court, especially with Sandra Day O’Connor retiring and her “know it when I see it” approach to religion disappearing soon. Nowhere is her case law more muddy than on this point, and the 6th Circuit has now provided an excellent test case for the new SC to elucidate a clear and resounding standard. Does the Establishment Clause guarantee a public square scrubbed of any religious mention whatsoever, or will the newly constituted court actually rule from the text itself and discover that it just prohibits the government establishment of a single official religion?
When Alito joins the court, I’m betting that the Supremes start consistently voting for the latter.