File Name: 05a0477p.06 NOTE: pdf documentAMERICAN CIVIL LIBERTIES UNION OF KENTUCKY; BART MCQUEARY, Plaintiffs-Appellants, v. MERCER COUNTY, KENTUCKY; CHARLES H. MCGINNIS, in his official capacity as Mercer County Judge Executive, Defendants-Appellees.
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"Were we to focus on the perceptions of individuals, every religious display would be “necessarily precluded so long as some passersby would perceive a governmental endorsement thereof.” Pinette, 515 U.S. at 779 (O’Connor J., concurring). Thus, we find unavailing the ACLU’s own assertions that it finds the display offensive and that the display “diminishes [its] enjoyment of the courthouse.” (Compl. ¶ 18.) Religion does not become relevant to standing in the political community simply because a particular viewer of a governmental display feels uncomfortable. Id. at 780 (O’Connor J., concurring); see Lee v. Weisman, 505 U.S. 577, 597-98 (1992) (“People may take offense to all manner of religious as well as nonreligious messages, but offense alone does not in every case show a violation. We know too that sometimes to endure social isolation or even anger may be the price of conscience or noncomformity.”). Our concern is that of the reasonable person. And the ACLU, an organization whose mission is “to ensure that . . . the government [is kept] out of the religion business,” 16 does not embody the reasonable person.
The ACLU’s argument contains three fundamental flaws. First, the ACLU makes repeated reference to “the separation of church and state.” This extra-constitutional construct has grown tiresome. The First Amendment does not demand a wall of separation between church and state. See Lynch, 465 U.S. at 673; Lemon, 403 U.S. at 614; Zorach v. Clauson, 343 U.S. 306, 312 (1952); Brown v. Gilmore, 258 F.3d 265, 274 (4th Cir. 2001); Stark v. Indep. Sch. Dist., No. 640., 123 F.3d 1068, 1076 (8th Cir. 1997); see also Capitol Square, 243 F.3d at 300 (dismissing strict separatism as “a notion that simply perverts our history”). Our Nation’s history is replete with governmental acknowledgment and in some cases, accommodation of religion. See, e.g., Marsh v. Chambers, 463 U.S. 783 (1983) (upholding legislative prayer); McGowan v. Maryland, 366 U.S. 420 (1961) (upholding Sunday closing laws); see also Lynch, 465 U.S. at 674 (“There is an unbroken history of official acknowledgment by all three branches of government of the role of religion in American life from at least 1789.”); Capitol Square, 243 F.3d at 293-99 (describing historical examples of governmental involvement with religion). After all, “[w]e are a religious people whose institutions presuppose a Supreme Being.” Zorach, 343 U.S. at 313. Thus, state recognition of religion that falls short of endorsement is constitutionally permissible.
Second, ~~snip~~ “proving” that the Ten Commandments themselves are religious does not prove an Establishment Clause violation.
Third, the ACLU erroneously – though perhaps intentionally – equates recognition with endorsement. To endorse is necessarily to recognize, but the converse does not follow. ~~snip~~ we fail to see why the reasonable person would interpret the presence of the Ten Commandments as part of the larger “Foundations” display as a governmental endorsement of religion.
We will not presume endorsement from the mere display of the Ten Commandments. If the reasonable observer perceived all government references to the Deity as endorsements, then many of our Nation’s cherished traditions would be unconstitutional, including the Declaration of Independence and the national motto. Fortunately, the reasonable person is not a hyper-sensitive plaintiff. ~~snip~~ . Instead, he appreciates the role religion has played in our governmental institutions, and finds it historically appropriate and traditionally acceptable for a state to include religious influences, even in the form of sacred texts, in honoring American legal traditions.
This decision was a major victory as common sense finally won out. And as to 'starry decide us' (sarcasm) it's another nail in the ACLU's coffin -- they are LOSING the anti-god war.