High court refuses to hear dispute over Ten Commandments display
By The Associated Press
WASHINGTON A divided Supreme Court today declined to hear a case testing whether public display of the Ten Commandments violates the principle of separation of church and state.
The court turned aside an appeal by city officials from Elkhart, Ind., who had lost the church-state fight in lower courts. The dispute was over a granite marker bearing the biblical commandments that has stood on the lawn of the city office building since 1958.
The court let stand a lower court ruling that the marker violated the constitutional boundaries between church and state. A federal judge will now determine what to do with the monument.
Two Elkhart residents, with backing from the American Civil Liberties Union, had sued to get rid of the marker.
It takes the affirmative votes of at least four justices to get a case heard, but the court almost never reveals the vote by which it agrees or refuses to take a case.
At least three justices Chief Justice William H. Rehnquist, and Justices Antonin Scalia and Clarence Thomas nonetheless went on record as saying they disagreed with the decision not to hear Elkhart v. Books.
Rehnquist, Scalia and Thomas said they found nothing wrong with the monument's display.
The monument "simply reflects the Ten Commandments' role in the development of our legal system," Rehnquist wrote for the three.
Justice John Paul Stevens then added his own note, taking issue with the dissenters.
Stevens said the words "I am the Lord thy God," in the first line of the monument's inscription are "rather hard to square with the proposition that the monument expresses no particular religious preference."
City leaders in Elkhart had asked the high court to overturn a federal appeals court ruling that the monument was an unconstitutional government promotion of religion.
The city claimed a high court ruling, which prohibited such displays on school grounds in 1980, did not preclude the display of the list elsewhere on government property. It claimed that the lawn display met various tests the Supreme Court had set for public displays of other religious symbols.
"Today's announcement should help bring the religious right's Ten Commandments crusade to a screeching halt," said the Rev. Barry Lynn, executive director of Americans United for Separation of Church and State, which filed a friend-of-the-court brief in the case.
Lawyers for the city said the court missed an opportunity to rule on a simmering national issue.
The court's decision not to weigh in on the "issue will only add to the confusion surrounding the displays of Ten Commandments in communities across America," said Francis J. Manion of the American Center for Law and Justice in a news release.
The ACLJ is a religious-oriented, nonprofit legal group on the model of the ACLU but usually opposed to the secular civil rights group's positions.
The city claimed it did not intend to promote religion by displaying the 6-foot marker, which sits near two secular monuments. When threatened with a lawsuit over the monument in 1998, the city council refused to remove it and declared it a "historical and cultural monument that reflects one of the earliest codes of human conduct."
The city and its backers also claim that the two men who complained may not have the right to sue because the commandments' display caused them no real harm.
The two "merely walk or drive by a passive stone which they are free to look at or ignore, revere or revile," lawyers for the city argued in court papers.
The marker is one of scores donated nationwide by the Fraternal Order of Eagles. It depicts two tablets, with an inscription that begins, "The Ten Commandments. I am the Lord thy God. Thou shalt have no other gods before me."
The Ten Commandments contain both religious and secular directives, including the familiar proscriptions on stealing, killing and adultery.
The nine Supreme Court justices have declined past invitations to hear challenges to similar monuments donated by the Eagles, most recently in 1996.
In that case, the court turned away a constitutional challenge to a monument in a park near the Colorado state Capitol, meaning the monument could stay.
Lower courts have been divided over the issue.
The decision at issue in this case was a ruling by a divided three-judge panel of the 7th U.S. Circuit Court of Appeals. Another federal appeals court, the 10th U.S. Circuit Court of Appeals, ruled the other way and approved the continued display of an Eagles monument.
Other fights over the Ten Commandments have focused on the list's display in courtrooms. Backers of that idea say the commandments are a cornerstone of western legal thought while opponents make the same First Amendment claim at issue in the Elkhart case.
The Supreme Court's own courtroom contains depictions of the Ten Commandments, although the actual words themselves do not appear.
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