Sunday, November 13, 2005

When "No" is not enough

The Liberty Counsel ("Restoring the culture one case at a time by advancing religious freedom, the sanctity of human life and the traditional family") has announced that McCreary and Pulaski Counties in Kentucky plan to continue to defend their courthouse displays of the Ten Commandments. This despite the Supreme Court's opinion this past June in McCreary County v. ACLU.

How's that? The Supreme Court's opinion affirmed the Sixth Circuit's decision upholding the trial court's preliminary injunction against the courthouse displays. By order of the court, the displays--each of which had been broadened once before the trial court's opinion was issued in an attempt to make them seem more secular--were taken down post haste in advance of a potential trial on the merits seeking a permanent injunction.

The counties initiated an appeal of this decision but withdrew in order to regroup and hire new lawyers. Instead of appealing, they changed up the displays yet again, cushioning the commandments with "framed copies of the Magna Carta, the Declaration of Independence, the Bill of Rights, the lyrics of the Star Spangled Banner, the Mayflower Compact, the National Motto, the Preamble to the Kentucky Constitution, and a picture of Lady Justice." As if the point were not clear--and, clearly, it wasn't--they added insistent commentary on how "The Ten Commandments provide the moral background of the Declaration of Independence and the foundation of our legal tradition."

The ACLU succeeded in getting the initial injunction modified to apply to these latest exhibits. This is the decision the Sixth Circuit, by a 2-1 vote, upheld, and then the Supreme Court affirmed 5-4, in a decision written by Justice Souter.

Justice Souter's opinion fairly comprehensively deals with the merits of the case, focusing much of its attention on whether the displays had a "secular purpose." The counties wanted the Court to ignore the history of the displays (their original intent, if you will) and to look narrowly at the latest version. This the Court would not do.

The Counties would read the cases as if the purpose enquiry were so naive that any transparent claim to secularity would satisfy it, and they would cut context out of the enquiry, to the point of ignoring history, no matter what bearing it actually had on the significance of current circumstances. There is no precedent for the Counties’ arguments, or reason supporting them.

Although the Court was careful to say "we do not decide that the Counties’ past actions forever taint any effort on their part to deal with the subject matter," it indicated that context mattered a great deal: "an implausible claim that governmental purpose has changed should not carry the day in a court of law any more than in a head with common sense. It is enough to say here that district courts are fully capable of adjusting preliminary relief to take account of genuine changes in constitutionally significant conditions."

So now the counties are aiming to try the issue on the merits in federal district court, hoping once again to take it all the way up. What dramatic shift in context are they going to be able to show? What "genuine change" in a "constitutionally significant condition"?

Only one. His name is Samuel Alito. He authored, for the Third Circuit, the opinion in ACLU v. Schundler (1999), which the counties had used--unsuccessfully--to support their argument. The issue was whether a "holiday" crèche and menorah in front of the city hall in Jersey City was constitutional. The city had "modified" the initial display to include "not only a crèche, a menorah, and Christmas tree, but also large plastic figures of Santa Claus and Frosty the Snowman, a red sled, and Kwanzaa symbols on the tree." Similarly to what the Kentucky counties would do, to make assurance double sure they added interpretive text "stating that the display was one of a series of displays put up by the City throughout the year to celebrate its residents' cultural and ethnic diversity." Judge Alito held that the "modified" display was constitutional: "The mere fact that Jersey City's first display was held to violate the Establishment Clause is plainly insufficient to show that the second display lacked 'a secular legislative purpose.'"

But there's more to the history of this case than meets the eye. The 1999 Schundler case was the second Third Circuit opinion in the same proceeding. (Alito was not on the first panel of judges.) In a 1997 opinion, an appeal at the preliminary injunction stage, the court had held precisely the opposite: that even the addition of Santa, Frosty, etc. did not "demystify" the display. Specifically the court said,

We reiterate that Jersey City's display of the crèche at the seat of City government power impermissibly conveyed a message of government endorsement of religion. And, in our view, the City's addition of Santa, Frosty, and a red sled did little to secularize that message.

Judge Alito proclaimed this prior assertion of his own court to be "dicta."

I'm grateful to Eric Muller for analyzing this little wrinkle by way of asking how a future Justice Alito might be expected to deal with precedent.

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