By Constitution Staff

In a 6-to-6 decision on July 30, the full U.S. Court of Appeals for the 10th Circuit narrowly decided not to review a three-judge panel's determination that a Ten Commandments display at the Haskell County, Oklahoma, Courthouse is unconstitutional. Attorneys with the Alliance Defense Fund (ADF) plan to appeal the case to the U.S. Supreme Court. "Americans shouldn't be forced to abandon their religious heritage simply to appease someone's political agenda," said ADF Senior Counsel Kevin Theriot. "As some of the dissenting judges pointed out, the three-judge panel's decision is in conflict with both the U.S. Supreme Court and other federal appellate courts. There is no difference between this Ten Commandments display and the one at the Texas state capitol that was upheld by the U.S. Supreme Court nearly five years ago."

On June 19, attorneys with the ADF appealed the June 8 ruling by the three-judge panel of the U.S. Court of Appeals for the 10th Circuit in Denver. The ruling reversed a lower court decision that upheld the constitutionality of display. The American Civil Liberties Union (ACLU) had filed suit to have the monument displaying the Ten Commandments removed on behalf of a man who claims he was offended by it. In the appeal, Theriot requested the full 12 judge court to reconsider the decision of the three-judge panel.

The ADF is a legal alliance of Christian attorneys and like-minded organizations defending the right of people to freely live out their faith. Launched in 1994, ADF employs a unique combination of strategy, training, funding, and litigation to protect and preserve religious liberty, the sanctity of life, marriage, and the family.

In its June 8 decision, the three-judge panel ruled that the monument violated the Establishment Clause of the U.S. Constitution because a "reasonable observer would view the monument as having the impermissible principal or primary effect of endorsing religion." The display is unconstitutional, the court ruled, because the proposal to erect the monument, its approval by the Haskell County Board of Commissioners, and the commissioners' expressly religious defense of the monument "strongly reflect a government endorsement of religion." The three-judge panel sent the case back to federal Judge Ronald White in Muskogee with instructions to issue a new ruling consistent with theirs. White previously rejected arguments that the monument promotes Christianity at the expense of other religions.

"This is a significant ruling for the citizens of Oklahoma," said Joann Bell, Executive Director of the ACLU of Oklahoma, concerning the ruling by the Denver court panel. "Religion should not be something that should be allowed to divide the citizens of this state, which is what happens when the government endorses one particular set of religious beliefs. All Oklahomans, of all creeds -- and not just the beliefs of those in power -- should feel welcome at the county courthouse."

The ACLU filed the lawsuit challenging the display of the Ten Commandments in October 2005. The previous year, a lay minister in Haskell County received permission from the Haskell County Board of Commissioners to build the monument. Several days after erection of the monument, a dedication ceremony was held that included opening and closing prayers and remarks from several local pastors who talked about the religious significance of the monument.

In August 2006, Judge White ruled in Green v. Haskell County Board of Commissioners that the presence of the monument on the Haskell County Courthouse lawn was constitutional. The ACLU then appealed the decision to the 10th Circuit. The courthouse lawn area also includes memorials to veterans of World War II, the Vietnam War, and the Korean War; an Unmarked Graves monument; a Choctaw Indian Tribe Monument; as well as numerous other items commemorating significant events.

In their ruling, the three-judge panel noted that comments supporting the monument made by local officials in their personal capacities were relevant because, "In a small community like Haskell County, where everyone knows everyone, and the commissioners were readily identifiable as such...the reasonable observer would have been left with the clear impression...that the commissioners were speaking on behalf of the government and the government was endorsing the religious message of the Monument."

"That leaves small-town government officials with fewer free speech rights than those in larger cities," Theriot explained. "Small-town government officials have just as much right to express their personal opinions about monuments as those in larger cities.

Furthermore, the commissioners stated publicly that they allowed the monument because of its historical significance and would allow other historical monuments that contain speech from other religions."

Meanwhile, plans are proceeding for a similar marker on the grounds of the Oklahoma State Capitol. Earlier this year, House Bill 1330 by state Rep. Mike Ritze (R-Broken Arrow) easily won legislative approval and was signed into law by the governor."We did not pattern ours after the Haskell County display," said Ritze. He noted that the wording for the Capitol monument is similar to monuments in Texas and Utah that have withstood the scrutiny of the U.S. Supreme Court. Those markers stood on the Capitol grounds in Texas and in a city park in Pleasant Grove, Utah, for decades before being challenged.

Tamya Cox, legislative counsel for the American Civil Liberties Union of Oklahoma. said the organization was encouraged by the June 8 ruling and is contemplating whether to file a lawsuit over the Capitol monument.