Chalk One Up for the Good Guys: The ACLU goes down in Nebraska!

Nebraska News - Government

ACLU Says No mas! on Ten Commandments Case

September 19, 2005 So far as the Nebraska Civil Liberties Union is concerned the fight over the Ten Commandments monument in a Plattsmouth public park is over. After years of legal wrangling, the U.S. Supreme Court recently said the monument was a “passive” sort of religious thing that referenced a legitimate element of the nation’s history. ACLU spokesman Tim Butz said the organization’s board recently decided it would not try to continue the courtroom wrangling. It could have asked the nation’s highest court to reconsider its recent decision. Full article on the U.S. 8th Circuit Court of Appeals and Supreme Court decisions below:

Federal Court Says Ten Commandments Are Okay In Plattsmouth Park

by Ed Howard, August 19, 2005

The City of Plattsmouth can keep a Ten Commandments monument in a city park, the U.S. 8th Circuit Court of Appeals said Friday.

The 11-2 decision reversed an earlier divided ruling by a panel of the appellate court.

The Plattsmouth monument falls under a recent U.S. Supreme Court decision that said a similar replication of the Ten Commandments on the grounds at the Texas Capitol was permissible, the appellate court concluded.

Judges Kermit Bye and Morris Arnold dissented. Saying the majority decision took the Texas case out of context, they argued that the Plattsmouth monument was not allowable under the Supreme Court’s guidelines.

The Supreme Court issued two ‘Ten Commandment decisions’ this year; one involving a case from Kentucky and the other the Texas case.

The 8th Circuit majority said:

“Like the Ten Commandments monument at issue in [the Texas case] the Plattsmouth monument makes passive – and permissible – use of the text of the Ten Commandments to acknowledge the role of religion in our Nation's heritage.

“Similar references to and representations of the Ten Commandments on government property are replete throughout our country ….”

A spokesman for the ACLU said Friday it was too soon to say whether the Plattsmouth case would be filed.

Such an appeal would effectively be asking the nation’s highest court to revisit a question it only recently decided.

Officials in Plattsmouth said they were delighted with Friday’s ruling.

The ACLU brought suit on behalf of a citizen of Plattsmouth who objected to the monument, arguing it violated the constitutional ban on government recognizing any particular form of religion.

U.S. District Judge Richard Kopf of Lincoln ruled in favor of the plaintiff. The panel of the 8th Circuit upheld Kopf’s ruling.

The full appellate courted cited the Supreme Court’s conclusion in the Texas case – that such monuments are permissible insofar as they also represent a secular purpose.

The 11-member majority noted Friday that the Supreme Court approved what it called the “passive use” of the Ten Commandments monument at the Texas Capitol.

In the companion case, the Supreme Court said the State of Kentucky violated the doctrine of separation of church and state “where copies of the text hung in public-school classrooms and "confronted elementary school students every day."

The Supreme Court said more than religion must be considered in any similar cases.

For example, one justice said the fact that the Texas monument had stood for 40 years without significant objections and "those 40 years suggest more strongly than can any set of formulaic tests that few individuals . . . are likely to have understood the monument as amounting, in any significantly detrimental way, to a government effort" to promote, endorse, or favor religion.

The Plattsmouth monument was erected 35 years ago.

The appellate court dissent, written by Judge Bye, said:

“At most [the Texas case] holds a Ten Commandments display, incorporated into a larger display of thirty-eight monuments and historical markers, will survive constitutional attack because it reflects a broad range of secular and religious ideals. [It] did not extend constitutional protection to Ten Commandments displays with no secular or historical message …. It is not enough that Plattsmouth's monument has stood for more than thirty-five years in Memorial Park. Without the contextualizing presence of other messages or some indicia of historical significance, there is nothing to free the display from its singular purpose of advancing its religious message.

“Because no such broader application is apparent – or for that matter offered – the monument violates the Establishment Clause,” the dissent said.

Bye said the monument did not meet the U.S. Supreme Court test for several reasons.

“The monument does much more than acknowledge religion; it is a command from the Judeo-Christian God on how he requires his followers to live. To say a monument inscribed with the Ten Commandments and various religious and patriotic symbols is nothing more than an acknowledgment of the role of religion’ diminishes their sanctity to believers and belies the words themselves.”

To read the full decision issued by the U.S. Court of Appeals For the 8^th Circuit, click here.

Previous analysis: click here.

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Following is background of the Plattsmouth case cited by the 8th Circuit Court of Appeals preceding its opinion:

In 1965, the Fraternal Order of Eagles (Eagles) donated to the City of Plattsmouth an approximately five-foot-tall and three-foot-wide granite monument inscribed with a nonsectarian version of the Ten Commandments. Above the text of the Commandments appear two small tablets surrounded by a floral design; an eye within a pyramid—an all-seeing eye similar to that appearing on the back of a dollar bill; and an eagle clutching the American flag. Below the text are two Stars of David; the intertwined Greek letters "chi" and "rho"; and a scroll reading, "PRESENTED TO THE CITY OF PLATTSMOUTH, NEBRASKA BY FRATERNAL ORDER OF EAGLES PLATTSMOUTH AERIE NO. 365 1965." …. The Plattsmouth monument is one of many other Ten Commandments monuments given by the Eagles to towns, cities, and even states in the 1950s and 1960s. The Eagles is a national social, civic, and patriotic organization. Its local chapter has been responsible for many philanthropic and community-enhancing contributions to the City of Plattsmouth.

The monument was erected in a corner of Plattsmouth's forty-five-acre

Memorial Park, ten blocks distant from Plattsmouth City Hall. Then Street

Commissioner Art Hellwig, an Eagles officer at the time, and other City employees helped erect the monument, although it is not known whether these City employees were acting in their personal or official capacities. The monument is located two hundred yards away from the park's public parking lot, and there are no roads or walkways from the parking lot to the monument. The words of the monument face away from the park, away from any recreational equipment, picnic tables, benches, or shelters. Although the inscribed side of the monument faces the road, it is too far away to be read by passing motorists. The City of Plattsmouth performs no regular maintenance on the monument, but if repairs are required, City employees perform those duties. In addition to the monument, the park contains, among other items, recreational equipment, picnic tables and shelters, and a baseball diamond. Certain individual items located in the park, such as grills, benches, and picnic shelters, bear plaques identifying their donors. In addition, a large plaque inscribed with the names of all donors to Memorial Park is located near the park's entrance. Because no

contemporaneous City records exist, there is little evidence in the record regarding the process by which the monument was accepted and installed.

In 2001, more than thirty-five years after the monument was installed, Doe and the ACLU sued the City of Plattsmouth, claiming that the Ten Commandments monument interfered with Doe's use of Memorial Park and caused him to modify his travel routes and other behavior to avoid unwanted contact with the monument.

According to Doe and the ACLU, the City's display of the monument in Memorial Park is a violation of the Establishment Clause. The District Court granted summary judgment in favor of the plaintiffs, finding that both Doe and the ACLU have standing to bring suit and that the City's display of the monument violates the Establishment Clause.