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Quandary in the Court

  —Russ Pulliam | Columns, Watchwords | July 11, 2001



Perhaps still looking for the wisdom of Solomon, the US. Supreme Court is not showing an inclination to take up the controversy over display of the Ten Commandments on public prop erty.

The court declined to intervene in a lower court ruling against a Ten Com mandments monument that has been on the lawn of the Elkhart. Ind., municipal building since 195$.

The Indiana Civil Liberties Union, which brought the suit against Elkhart, now plans to target a similar monument in Vincennes, Ind. The ICLU also is pursuing a legal quarrel with the state of Indiana over a proposal for putting a monument with the commandments on the Statehouse lawn, along with a dis play of the Bill of Rights and the Pre amble to the Constitution.

The Elkhart case goes back to U.S. District Judge Allen Sharp, who originally agreed with the city in the legal dispute but was overruled by a divided U.S. Circuit Court of Appeals.

Sooner or later, the Supreme Court will have to take up the posting of the Ten Commandments in public settings. The lower courts wander all over the map on this issue. The Colorado Supreme Court allowed a monument in a park near the state capitol in Denver in a 1994 ruling, and the U.S. Supreme Court did not hear that case on an appeal. Sharp and a number of other federal judges have not sided with the ACLU and its supporters in the drive to cleanse the public sphere of scriptural references.

But the high court’s reluctance to re view these cases is understandable. The justices have no easy way out of the dilemma they have created in many years of rulings that give some ground to the American Civil Liberties Union position without adopting it wholesale.

The ACLU position is that the First Amendment forbids government at any level from having anything to do with religion. That position prompts all kinds of lawsuits and threats of suits that add up to a Scripture-cleansing campaign in the public square. In Shawnee County, Kan., the organization sued county trea surer Rita Cline for putting up posters that said “In God We Trust,” but U.S. District Court Judge Sam Crow dismissed the case.

The traditional or strict constructionist position is that the First Amendment says nothing about wiping scriptural references from every piece of public property. Instead, it declares: “Congress shall make no law respecting an establishment of religion or prohibiting the free exercise thereof.” The intent of the amendment was to avoid the establishment of a state church, similar to the government established Church of England.

Certainly, the First Amendment never was designed to require sandblasting all references to Scripture on government propery. The authors of the First Amend ment used Scripture freely in their debates over the Constitution. Plenty of scriptural references can be found on government property, including ones that go back to the founding of the country. The Liberty Bell in Philadelphia declares from the book of Leviticus: ‘Proclaim liberty throughout the land, and to all the inhabitants thereof.”

Symbolic tablets representing the commandments are on display in the U.S. Supreme Court chambers. Going along with the ACLU agenda would contradict the original intent of the Constitution and require some embarrassing remodeling within the court’s own chambers.

Some justices want to return to the original intent of the first Amendment and get the court out of being a national referee for such cases. Others seem to think the ACLU might be partly right but are not sure where to draw the line. Reflecting those divisions within the court, the justices have allowed certain kinds of prayer in some public settings but forbid den it at other times; permitted scriptural references in some public settings but said no elsewhere.

The practical result is that school administrators and other public officials wind up having to call a lawyer even if someone might want to start a school board meeting with prayer.

If the court upholds the ACLU position, coins will have to be reminted, the Supreme Court walls will have to be renovated, and the First Amendment will be given a meaning never intended by its original authors.

In looking for Solomon’s wisdom, the best option is to go back to the original intent of the authors of the First Amendment.