Strengthening Constitutional Self-Government

No Left Turns

Ten Commandments cases

I was going to post some links to the briefs and editorials, but it looks like Peter beat me to the punch. I do, however, have a few comments about the cases. First of all, as I have stated elsewhere, the McCreary County case really should not be close. Whatever one’s view is of the First Amendment and the scope of its prohibitions, it is obvious to any reasonable observer that the displays at issue here do not constitute "establishment" of any sort. They were historical displays that included numerous secular documents and symbols, united by a common theme about their impact on American law and government. The defendants in this case even took the unnecessary step of posting explanatory documents that informed viewers of the Commandments’ impact on American secular law. This does not offend the Constitution. The First Amendment does not forbid public officials from posting a historical display simply because some people may find the content of that display offensive.

Second, for anyone interested in reading the amicus brief filed by the Ashbrook Center and Senator Harris, I would like to point out that the brief addresses the plaintiffs’ "standing" problems at pages 4-8. I believe it is the only brief filed in this case that mentions the issue. Standing is central to any lawsuit because a plaintiff cannot sue if he or she has not been injured in some way by the defendant. The Supreme Court requires that a plaintiff show that he has actually suffered an injury, caused by the defendant, that will be remedied by the lawsuit. This is why the Supreme Court rejected Michael Newdow’s suit to remove "under God" from the Pledge of Allegiance. Newdow had not been injured in any way, so his suit was dismissed and the Court did not even need to address the merits of his claims.

As the amicus brief points out, the standing requirements were completely overlooked by the district court and the Sixth Circuit in McCreary County. None of the plaintiffs alleged an injury sufficient to confer standing. In fact, none of them ever even claimed to have seen the displays at issue. This case should have been dismissed by the district court a long time ago.

Discussions - 2 Comments

We forget that for the sectarian Protestants of 18th century America, an establishment of religion was more a matter of government regulation of religion than a matter of government support for religion. Their ancestors had come from the British Isles in many cases to escape government persecution because they would not conform to the state church. In the prior century sectarian Protestants had suffered under disabilities similar to those under which Catholics suffered until the 19th century.

The same people who ratified the Bill of Rights passed the Northwest Ordinance making public financial provision for religious institutions on the frontier in a non-sectarian way.

The founding fathers would find these legal challenges to the 10 commandments ridiculous and pathetic. They would be appalled by the mess SCOTUS has made of jurispudence in this area.

A brief clarification on why the Supremes threw out Newdow’s case. They ultimately passed on the case because Michael Newdow was not the legal custodian of his daughter, who was the one allegedly harmed. Sandra Banning, the girl’s mother, took issue with Mr. Newdow’s suit, and so the Court bowed out of the case. As Stevens put it:

Because California law deprives Newdow of the right to sue as next friend, he lacks prudential standing to challenge the school district’s policy in federal court. The standing requirement derives from the constitutional and prudential limits to the powers of an unelected, unrepresentative judiciary.

Rehnquist, O’Connor, and Thomas agreed with Stevens’s unanimous decision that the lower court ruling be reversed, but they did not agree that Newdow lacked standing and therefore they issued concurring opinions giving their reasoning for how they would have decided the case.

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