Getting the Goods for Stacking the Courts
Esther Kaplan printable version print page     Bookmark and Share
Mon Dec 26, 2005 at 05:24:04 PM EST

A Sixth Circuit decision last week upholding a Ten Commandments display in a Kentucky courthouse was mostly ignored by the mainstream press but hailed as "momentous" by the likes of Jerry Falwell and celebrated throughout the conservative Christian media. Writing for a unanimous three-judge panel, Judge Richard Suhrheinrich issued a decision that reads at moments like a speech from D. James Kennedy at one of his Reclaiming America for Christ conferences. "The ACLU makes repeated reference to `the separation of church and state,'" Suhrheinrich wrote. "This extra-constitutional construct has grown tiresome. The First Amendment does not demand a wall of separation between church and state." In rejecting the ACLU's claim that the display was sectarian in nature, he threw in this gratuitous barb: "The ACLU, an organization whose mission is `to ensure that ... the government [is kept] out of the religion business,' does not embody the reasonable person."

Suhrheinrich's decision is just the latest fruit of the 25-year-old Republican effort to stack the federal courts with conservatives and rewrite constitutional law on such matters as church/state separation.

Suhrheinrich was first appointed to the federal courts in 1984 by Ronald Reagan, who ran for president on an explicit platform of remaking the federal judiciary. Reagan railed against judges who "legislate rather than make judgments" and called instead for "constitutionalists." He promised, in the words of the 1980 GOP platform, to appoint only judges: "[with a] belief in the decentralization of the federal government and efforts to return decision-making power to state and local elected officials...who respect traditional family values and the sanctity of innocent human life...[and] who share our commitment to judicial restraint."

Once in office, Reagan put Ed Meese in charge of screening potential nominees for ideological purity and cut the American Bar Association out of the vetting process until after nominees were already announced (a tactic that's been reprised by George W. Bush). (For an excellent history of Reagan's judicial juggernaut, see Herman Schwartz's 1988 book Packing the Courts.)

Suhrheinrich was later placed on the Sixth Circuit Appeals Court by George Bush Sr., whose judicial nominations were then being shepherded by White House counsel C. Boyden Gray, a man whose stated aim was "to shift the courts in a more conservative direction." Gray now runs the Committee for Justice, an organization led by corporate heavy-hitters whose mission is to help push George W.'s judicial nominees onto the federal bench; the committee produced a series of ads accusing Democrats of religious bias for filibustering ultraconservative nominee William Pryor, a Catholic who supports mandatory school prayer and sees the Constitution as a "Christian" document. At the time, the Free Congress Foundation applauded Suhrheinrich as a "strict-constructionist," a conservative code word that has become quite familiar in today's battles over judicial appointments.

The display in question in ACLU of Kentucky v. Mercer County was mounted in a county courthouse in Kentucky and entitled "Foundations of American Law and Government." The display gives the Ten Commandments, a religious document, equal weight with such legally significant documents as the Declaration of Independence and the Bill of Rights. A caption under the Ten Commandments claims that it "provide[d] the moral background of the Declaration of Independence and the foundation of our legal tradition." The display also includes the text of the Mayflower Compact, a 1620 colonial charter frequently quoted in conservative Christian books seeking to establish America's "Christian heritage" because it declares the Pilgrims' purpose to be "the Glory of God and the advancement of the Christian faith." Yet Suhrheinrich still argued that "[a] reasonable observer would not view this display as an attempt by Mercer County to establish religion. Instead, he would view it for what it is: an acknowledgement of history."

This is precisely the argument of advocates of the disingenuous claim that America was founded as a "Christian nation"--that biblical law is a central part of American history. They selectively quote documents like the Mayflower Compact and tiptoe around the godless Constitution itself. Listen to the words of the attorney representing Mercer County in the case, Mathew Staver, president of the Liberty Counsel, a conservative Christian legal outfit affiliated with Falwell's Liberty University School of Law, after the Sixth Circuit decision came down: "Today's decision begins to turn the tide against the ACLU, which has been on a search-and-destroy mission to remove all vestiges of our religious history from public view. Whether the ACLU likes it or not, history is crystal clear that each one of the Ten Commandments played an important role in the founding of our system of law and government."

Court decisions like the Sixth Circuit's bolster these Christian supremacist views of history.




Display:
The Mercer County in this case is in Kentucky, not Tennessee (though it IS in Appalachian Kentucky).

And yes, there's also a bit of backgrounder to this that folks may not be so aware of.  (The fact that the judge himself may have dominionist connections is something I suspected, and am glad for the confirmation.)

Anyways, the backgrounder:

This is very close to an area of Kentucky (McCreary County) where it was ruled that a Ten Commandments display was unconstitutional (and thus a federal court ruling, much less a Supreme Court ruling, IS binding). Dominionist groups, in particular Frank Simon's AFA Kentucky and a Focus on the Family state affiliate based in Lexington called "the Family Institute", have been putting extremely heavy pressure--especially in eastern Kentucky, where this case was ruled on--on local communities, and those areas (which are pretty much entirely comprised of Southern Baptists and pentecostals) do tend to be sympathetic. (How overrun are they? Most of those areas are still dry, almost 80 years after Prohibition was reversed.  And yes, it HAS been pretty much the Southern Baptists and pentecostal groups who have kept those counties from even allowing beer sales at restaurants and going "damp", much less allowing liquor sales by the drink in restaurants (going "moist") or going wet.)

Many of those areas are also focuses of Klan and "Christian Militia" activity, including a shooting of a major "Christian Patriot" group leader not too long ago. Some parts of eastern Kentucky are still to this day unsafe for people of colour to be in at night :P And yes, in case you're curious, both the Klan and the "Christian Patriot" militia groups are two of the major forces in those parts of the country pushing for the "Ten Commandments" stuff.

Ever since the ruling against McCreary County's Ten Commandments display, dominionist groups have been trying to get a group here in Kentucky to set one up so they can reverse that court precedent--to the extent of literally setting up an American Center for Law and Justice and a Liberty Counsel office in eastern Kentucky.

If the ACLU of Kentucky appeals this decision--and I see no real reason why they wouldn't--they still may be able to use the McCreary and Pulaski County decisions to reverse it (as those are Supreme Court decisions). They can also argue possible prejudice by the judge.

(And yes, as the judge seems quite blatantly prejudiced against the ACLU, they COULD well have a legal case for having the case thrown out due to prejudice. There is legal precedent for this.)

At least one other poster to a thread on this decision on Dark Christianity has also noted that this appeals court has at least one level of appeals between it and the Supreme Court:

It's also worth noting that there is a level of appeal between this ruling and the Supreme Court. The ACLU could request an en banc appeal, which would have all the Sixth Circuit judges review the issue together.

By all means we should NOT be complacent but--especially with evidence that the judge is a dominionist--the ACLU may have grounds for an appeal.  (Keep in mind that the state of Kentucky is under not one, but two court orders regarding keeping Ten Commandments displays off governmental property.  Both of these have been with the Supreme Court.  There are similar state Supreme Court rulings to boot.)

by dogemperor on Mon Dec 26, 2005 at 06:40:02 PM EST
I corrected the text -- yes, the case was in Kentucky!

And thanks for offering the background, too: in this case, the Sixth Circuit decided that this was different from the Supreme Court's McCreary decision because the secular elements of the display weren't added after the fact, to cover over an original religious intent, but were rather part of the display design from the beginning. While this is an important distinction, legally speaking, I find this display insidious in the way Intelligent Design is an insidious version of Creationism. Here, by integrating foundational legal documents such as the Bill of Rights with the Ten Commandments, we have the insinuation of Biblical documents into a narrative about America's legal history. This may allow the display to pass Supreme Court muster, but feeds right into the hands of the "Christian nation" ideologues.

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Of such church/state legal battles would be very helpful - only a small minority of Americans who are in principle opposed to Christian theocracy seem aware of the extent to which recent legal decisions have punched substantial holes in the "firewall" between religion and government in America.

A running timeline of the more significant events would be a very handy educational tool.

by Bruce Wilson on Mon Dec 26, 2005 at 09:57:42 PM EST

Yes, and some of them would be somewhat obscure, for example, changes in procedure that limit constitutional challenges to wholesale religious uses of government money in abstinence only education to a case-by-case basis.

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