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10th Circuit Denies En Banc Review In 10 Commandments Case By 6-6 Vote

By Howard M. Friedman

By a vote of 6 - 6 yesterday, the judges on the U.S. 10th Circuit Court of Appeals denied an en banc rehearing in a Ten Commandments case. The 3-judge panel had invoked the Establishment Clause to invalidate a display of the Ten Commandments on the courthouse lawn in Stigler, Oklahoma. (See prior posting.) In Green v. Haskell County Board of Commissioners, (10th Cir. en banc, July 30, 2009), two dissenting opinions to the denial of en banc review were filed. Judge Kelly's dissent, joined by Judges Tacha and Tymkovich said:

The Court?s decision in this case perpetuates a regrettable misapprehension of the Establishment Clause: that recognition of the role of religion in this country?s founding, history, traditions, and laws is to be strictly excluded from the civic sphere.... The opinion strongly suggests that Ten Commandments displays authorized by small-town commissioners who harbor personal religious beliefs are unconstitutional establishments of religion. Such a conclusion is not only inconsistent with the original meaning of the Establishment Clause, but is also plainly contrary to the Supreme Court?s precedent in Van Orden v. Perry....

A second dissent written by Judge Gorsuch and joined by Judges Tacha, Kelly and Tymkovich criticized the panel's application of the Lemon test and went on to contend:

[By] making us apparently the first court of appeals since Van Orden to strike down an inclusive display of the Ten Commandments, the panel opinion mistakes the Supreme Court?s clear message that displays of the decalogue alongside other markers of our nation?s legal and cultural history do not threaten an establishment of religion.

As is typical, none of the judges voting to deny review wrote an opinion. [Thanks to Peter Irons for the lead.]

Full post as published by Religion Clause on July 31, 2009 (boomark / email).