Inconsistent Pleadings: ACLU v. Grayson County, or, America's Heritage

by Ian Retford

Among all the consequential pieces of federal legislation passed or proposed last year, you may have missed one gem: “America’s Spiritual Heritage Resolution.” Some salient facts about this bill: (1) it was co-sponsored by Michele Bachmann; (2) it relies heavily on the historical scholarship of Newt Gingrich; and, most obviously, (3) “America’s Spiritual Heritage” is unequivocally Christian. The bill died in committee. But if you think you’ve heard the end of this type of thing, you haven’t yet learned that Christian Fundamentalists are the hydra of American political theater. When one crazy idea gets axed, two more, bilious and hissing, sprout up in its place.

In a recent show, hydra head No. 327 was played by Reverend Chester Shartzer of Leitchfield, Kentucky (who is, surprisingly, not a Pynchon character). The Reverend had one simple wish: to adorn various public buildings in Grayson County, KY with copies of the Ten Commandments. But the Rev isn’t an idiot. Realizing that the Constitution might stand in the way of using public buildings like a church bulletin board, he proposed that the County hang the Ten Commandments along with “other historical documents.” This approach, he guessed, might lead “Civil Liberties” to “look more favorable toward it.”

Various Grayson County luminaries thought this sounded like a great idea and greenlighted the display. Entitled “Foundations of American Law and Government,” this Rauschenbergian piece of Americana included the Ten Commandments, the Mayflower Compact, the Declaration of Independence, the Magna Carta, the Star Spangled Banner, the National Motto, the preamble to the Kentucky Constitution and the Bill of Rights.

For those of you thinking that the inclusion of the Ten Commandments in this historical pastiche seems, well, ahistorical, the exhibit’s “Explanation Document” might help: “The Ten Commandments provide the moral background of the Declaration of Independence and the foundation of our legal tradition.” Which seems facially untrue, in light of the fact that (1) most of the prohibitions in the Ten Commandments have never been enacted into law anywhere in the United States, and (2) the ones that have (e.g., no killing or stealing) are rules that appear basically in any society with a criminal legal code.

None of this sat well with America’s favorite communist outfit, the ACLU, which brought suit alleging that the display violated the First Amendment, which forbids, among other things, “law[s] respecting an establishment of religion.” Under that clause, displays on government property are permissible so long as they (1) are not motivated by a religious purpose and (2) would not be interpreted by a reasonable observer as “endorsing” a particular set of religious beliefs.

Grayson County lost in the trial court and appealed the case to the Sixth Circuit, which is the federal appeals court covering various parts of Hillary country (Kentucky, Tennessee, Michigan, and Ohio). In reversing the trial court, the Sixth Circuit first found that the display, a collection of “historical documents,” was motivated by an acceptable secular purpose-namely, the education of Grayson County residents.

The court further found that [PDF link], given the mélange of documents in the display, a reasonable observer would view the presence of the Ten Commandments as an “acknowledgment of history” and not necessarily an affirmation of the tablets’ teachings.

The Sixth Circuit’s opinion is seriously flawed on both counts. As for the purpose of the display, let’s check in with Reverend Shartzer about why he was so keen on including the Ten Commandments: “I’m just wanting to put a road sign in the courthouse as a directive for young people… how it’s embedded in my heart, and I want it in other hearts.” This sounds a lot more evangelical than educational, as Shartzer’s comments at the re-hanging of the display earlier this week seem to confirm.

No more defensible is the court’s holding that the display does not endorse any particular religious beliefs. The opinion assumes that gussying up the Ten Commandments with various unobjectionable documents dilutes any religious message, but this seems only to make the message less blatant, and more insidious. Mounting the Ten Commandments among various undeniably foundational documents suggests that Moses’ handiwork is a canonical or orthodox part of America’s legal tradition-a view that falls somewhere on the spectrum between exaggeration and outright myth. If forced to choose, I think I’d prefer that the government proselytize nakedly instead of wrapping a religious message in faux-historical swaddling clothes.

It might seem ridiculous to get worked up over a no-doubt-comical-looking diorama, housed on the second floor of a Kentucky courthouse, that will be seen by approximately no one. But attempts to “recognize” America’s Spiritual Heritage™ by injecting religion and religious symbolism into the most remote corners of American life deserve our antagonism. If we let fringe elements nibble, undisturbed, on the fringe of the Constitution, their next stop will be its heart.

Previously: Bryan v. McPherson, or, Don’t Tase Me When I’m Pantsless, Bro

Ian Retford is the pseudonym of a lawyer in New York City.