Strengthening Constitutional Self-Government

No Left Turns

Batchelder’s dissent in ACLU v. Ashbrook

Earlier today Nate Stewart brought to your attention the Sixth Circuit decision ACLU v. Robert Ashbrook (Robert Ashbrook, a Richland County Commissioner, was the defendant in his official capacity but is unrelated to the Ashbrook Center or to the late John Ashbrook). Another bad decision from a federal court. But do note Judge Alice Batchelder’s excellent dissent. It is longer than the opinion of the court and much more powerful (starts on page 19). Note just a few passages from Batchelder’s dissent:

The reasonable observer defined by the Supreme Court would not conclude that DeWeese’s inclusion of the Decalogue in a display that also includes the Bill of Rights, a portrait of Abraham Lincoln, accolades to the jury system, the Great Seal of Ohio, and the items comprising the Freedom Shrine, constitutes the government’s endorsement of religion.

Nor do I agree with the majority’s incredible assumption that fostering debate between the philosophical positions of moral absolutism and moral relativism "crosses the line created by the Establishment Clause." A great many state educational institutions will be shocked, I suspect, to learn that fostering debate between philosophical positions is now unconstitutional in the Sixth Circuit.

As Justice Thomas has so aptly noted:


For nearly half a century, [the Supreme] Court has extended First Amendment protection to a multitude of forms of "speech," such as making false defamatory statements, filing lawsuits, dancing nude, exhibiting drive-in movies with nudity, burning flags, and wearing military uniforms . . . . [T]he Courts of Appeals have []concluded that the First Amendment protects, for example, begging, shouting obscenities, erecting tables on a sidewalk, and refusing to wear a necktie.

Nixon v. Shrink Missouri Gov’t PAC, 528 U.S. 377, 411-12 (2000) (Thomas, J., dissenting). But the majority opinion holds today that that same First Amendment does not protect the posting, in a historical display used for educational purposes, of a set of rules that has played an undeniable role in the formation of this nation’s laws.

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