In case you missed it, on Monday, the Rapides Parish Police Jury voted 8-1 to display the Ten Commandments in the Rapides Parish Courthouse, despite the advice of their lawyer, Tom Wells, who called the action “inappropriate legally.”
Jury legal counsel Tom Wells warned that there could be legal consequences to displaying a religious message in a public building, particularly when using public funds to do it. The motion was amended to allow for private donations to be used to fund the display if possible after a pair of citizens at the meeting said they would be willing to contribute.
“There have been numerous court opinions that this would be inappropriate to do because of the tradition of (the separation of) church and state,” Wells said. “I know this is important to a lot of people, but my general opinion would be that this is inappropriate legally.”
The very next day, the American Civil Liberties Union of Louisiana issued a strongly-worded press release and a public records request, asking for any and all records, memoranda, and minutes concerning the decision. Quoting from their press release:
Courts, including the Supreme Court, have repeatedly ruled that religious displays in public buildings violate the First Amendment. Because the Rapides Parish attorney has himself expressed doubt, the ACLU of Louisiana has requested documents underlying the proposal, as well as recordings of the meeting at which the proposal was approved.
“The taxpayers of Rapides Parish deserve to know that their elected officials will follow the law,” said Marjorie Esman, Executive Director of the ACLU of Louisiana. “Religion is a matter for individuals and families, not for government. The Parish attorney has advised against this plan, and the Police Jury should follow the advice of its lawyer.”
To be sure, while the Supreme Court ruled in 2005 that framed copies of the Ten Commandments in two Kentucky courthouses were unconstitutional, they also held that the display of the Ten Commandments was not inherently unconstitutional.
The justices voting on the prevailing side in the Kentucky case left themselves legal wiggle room, saying that some displays inside courthouses would be permissible if they’re portrayed neutrally in order to honor the nation’s legal history.
Writing for the majority in the Kentucky case, Justice David Souter said that “the touchstone for our analysis is the principle that the First Amendment mandates government neutrality between religion and religion, and between religion and nonreligion.”
“When the government acts with the ostensible and predominant purpose of advancing religion, it violates the central Establishment clause value of official religious neutrality,” he said.
In other words, when the Ten Commandments are displayed on public property and contextualized and presented appropriately as a part of our country’s legal history, they may be deemed permissible and constitutional. Displays should have a facially “secular” purpose, not a religious one; if the purpose is religious, then the display is likely unconstitutional. Again, it all depends on context. And, notably, it doesn’t matter if public or private funds are used; that’s a red herring. Even if one uses private funds, we’re still talking about a religious display on public property.
The court ruled that, although (Judge) DeWeese (the Defendant) claimed not be imposing his religion but only sought “to express [his] views about two warring legal philosophies,” the court ruled that his claim was a “sham” based on his explanations of previous displays.
“It is questionable whether Defendant has articulated a facially secular purpose. However, assuming for the sake of argument that Defendant has stated a facially secular purpose, and giving that stated purpose its due deference, the history of Defendant’s actions demonstrates that any purported secular purpose is a sham,” stated the opinion.
The appeals court forced DeWeese to remove a similar display erected in 2000, which DeWeese said included the Ten Commandments in order “to express the belief that law comes either from God or man, and to express his belief that God is the ultimate authority.”
With respect to the Rapides Parish Police Jury, it should be noted: They only voted to allow the display of the Ten Commandments. No such display currently exists in the Rapides Parish Courthouse, and as Mr. Wells noted, any such display would be at the discretion of the presiding judges, not the Police Jury. Put another way, despite their efforts, the Police Jury cannot simply compel judges to display the Ten Commandments in the courthouse.
Still, regardless of whether or not the Ten Commandments will ever actually be displayed, there are legitimate questions about whether or not the Police Jury violated, in Justice Souter’s words, “the central Establishment clause value of official religious neutrality.” Clearly, the Rapides Parish Police Jury is the government, and with their action on Monday, based on published reports, it certainly seems as if they acted with the “ostensible and predominant purpose of advancing religion” (again, quoting Justice Souter). It doesn’t matter that the Ten Commandments are not yet displayed; the government cannot advance any particular religious faith, whether it’s erecting a 3,000 pound statue of the Ten Commandments in a courthouse, like Judge Roy Moore once did, or by passing an ordinance or a piece of legislation that endorses such actions. In this particular case, the Rapides Parish Police Jury did not vote to display the Ten Commandments in a secular context.
One of the jurors who sponsored the legislation is Jamie Floyd, a man who previously made news after his failed attempt to rename the O.K. Allen Bridge after the bishop of his church. Quoting again from The Town Talk:
“I have about eight months left on this jury, and I want to be able to tell my grandkids I took a stand and got the Ten Commandments on the wall of the courthouse,” said District C Juror Jamie Floyd…. “If that’s all I get done in these four years, that’s enough for me and my family,” Floyd said.
While some jury members, the most vocal being Floyd, were willing to face potential lawsuits and possible displeasure of judges, others were wary of the legal ramifications.
I don’t know Mr. Floyd, but he seems to be implying that he didn’t care about exposing taxpayers to litigation costs, didn’t want to listen to the sound advice of his attorney, and didn’t worry about the “possible displeasure of judges.” As he demonstrated with his attempt to name a bridge after the bishop of his church, Mr. Floyd, once again, seems to believe he should use his role as a public official in order to promote his own religious beliefs, no matter the costs or the constitutional ramifications.
Make no mistake: This is not and should not be about the validity of the Ten Commandments. They are an important article of faith for the Jewish and Christian religions (and there are many parallels in Islam and in numerous other religions). This is about blurring the lines between church and state, a separation that is fundamental to American democracy and one that provides all of us with the ability and the opportunity to worship or to not worship in a respectful and free society. Public officials are not charged with or responsible for enforcing or proselytizing their own personal religious beliefs; they are responsible for protecting the freedom of all Americans and upholding the Constitution.
Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof.