Monumental decision: Appeals court rules marker unconstitutional

By Doug Russell, News Editor

STIGLER, June 11 — A Ten Commandments display on the Haskell County Courthouse lawn violated the Establishment Clause of the First Amendment, according to the U.S. 10th Circuit Court of Appeals.

In a decision issued Monday, the court overturned a lower court’s decision that allowed the monument to remain on the courthouse lawn.

“In the context of the small community of Haskell County, we hold that the board’s actions in authorizing and maintaining the monument — inscribed with the Ten Commandments — on the courthouse lawn had the impermissible principal or primary effect of endorsing religion in violation of the Establishment Clause,” the decision said.

Local resident Michael Bush, who is described in the court decision as a construction worker and part-time minister, had requested and received permission to put the monument at the courthouse. The monument was paid for with funds Bush raised from various religious organizations.

Several hundred people, including two of the three county commissioners, attended a dedication ceremony on Nov. 7, 2004. While there, some of the commissioners made statements supporting the Commandments’ placement, including some that were religious in nature.

Commissioners again voiced religious opinions at a rally in support of the monument in November 2005, about a month after a lawsuit asking for its removal was filed in federal court.

In May 2006, commissioners enacted a policy that prohibits the county from denying placement of a display on the courthouse lawn based on viewpoint, but the court said that didn’t change the board’s previous alleged endorsement of religion.

“We conclude that the principal or primary effect of the (Board of County Commissioners’) action is to endorse religion or a particular form of religion,” the appeals court said. In addition, “actions which have the effect of communicating governmental endorsement or disapproval, ‘whether intentionally or unintentionally … make religion relevant, in reality or public perception to status in the political community.’”

Although attorneys arguing for commissioners said that the monument should be viewed as private, rather than public, speech since it was paid for with private funds, the 10th Circuit noted that in one recent decision, the Supreme Court found that “permanent monuments displayed on government property typically represent government speech.”

Alliance Defense Fund attorney Kevin Theriot, who is representing the county in the case, said he will recommend that the county commissioners seek a rehearing before all members of the appeals court. The court can choose to hear the case or decline. If it chooses, the latter, the current ruling will stand unless overturned by the U.S. Supreme Court.

For a more detailed breakdown of the court’s decision, as well as local reaction to it, see this week’s issue of the Stigler News Sentinel.

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