Federal Judiciary

Ninth Upholds Hollywood-Inspired Ten Commandments Monument

By Robert Loblaw

Card v. City of Everett, 05-35996 (9^th Cir., March 26, 2008)

In a big church-state decision, the Ninth Circuit has given the constitutional green light to a Ten Commandments monument that stands at the entrance of the Old City Hall in Everett, Washington. The six-foot high granite monolith was donated to the City almost fifty years ago by the Fraternal Order of the Eagles, a national civic organization akin to the Knights of Columbus. The monument is currently shrouded by shrubberies and not visible to the average passerby, but this obscurity hasn?t stopped two Everett citizens from complaining, nor did it stop an activist group from threatening a law suit.

Similar threats have succeeded in clearing religious displays from public buildings around the country. But this isn?t just any old religious monument. The idea to have the Eagles donate granite statues to cities across the country was cooked up by Cecil B. DeMille as a publicity stunt for his infamous Ten Commandments movie, starring Charlton Heston as Moses. And that Hollywood connection may be the monument’s saving grace, as it was a significant factor in the district court?s decision that the monument could stand.

On appeal, the Ninth Circuit affirms. Judge Wardlaw?s lead opinion strains mightily to try to find guiding principles in the Supreme Court?s tangled web of church-state case law. Does she succeed? Judge Ferguson doesn?t think so. He concurs, writing:

I applaud Judge Wardlaw?s scholarly and heroic attempt to create a new world of useful principle out of the Supreme Court?s dark materials. Alas, even my redoubtable colleague cannot accomplish that. The still stalking Lemon test and the other tests and factors, which have floated to the top of this chaotic ocean from time to time in order to answer specific questions, are so indefinite and unhelpful that Establishment Clause jurisprudence has not become more fathomable.

Maybe it is best to adapt the old Potter Stewart test for obscenity: “Excessive entanglement with religion? We can?t define it, but we know it when we see it.”

Full post as published by Decision of the Day on March 26, 2008 (boomark / email).