High court refuses to hear appeal of Pulaski, McCreary 10 Commandments case

High court decision means copies stay down

bestep@herald-leader.comFebruary 23, 2011 

An unsuccessful legal fight by two Southern Kentucky counties to post copies of the Ten Commandments is finally over, after more than 11 years and two trips to the U.S. Supreme Court.

In an order issued Tuesday, the high court declined to hear another appeal by Pulaski and McCreary counties.

That means a lower court order that struck down the counties' attempts to post the biblical laws remains in place.

"We're pleased with today's decision because it represents a victory for everyone's religious freedom," said William E. Sharp, an attorney with the American Civil Liberties Union of Kentucky, which represented people challenging the counties' effort to post the Ten Commandments. "When politicians use government to promote a particular religion, they do a disservice to both institutions and exceed the limited authority granted them by the Constitution."

The Supreme Court's decision ends the case except for one big issue: a payment of more than $400,000 to the ACLU.

U.S. District Judge Jennifer Coffman ruled in March 2009 the counties had to pay the ACLU $393,798 in attorneys' fees and $8,133 in expenses for its work.

The bill will be closer to $500,000 because of legal work since then, Sharp said.

McCreary County Judge-Executive Doug Stephens said Tuesday he did not think the county's insurance carrier will cover the county's share of the bill.

"A $250,000 hit, whatever it's going to be, is going to be a significant punch," Stephens said.

McCreary County, one of the state's poorest, is hard-pressed at times to fund services.

Stephens said if the insurance company does not cover the bill, he hopes to find a way to pay it without using taxpayer money.

Pulaski County Judge-Executive Barty Bullock was not available for comment Tuesday.

The counties could contest the size of the award to the ACLU.

Tuesday's decision does not mean Pulaski and McCreary counties can never post copies of the Ten Commandments in the courthouse.

Rather, it means officials would have to do it in a way that shows the purpose of the display is not to endorse or promote religion.

That is where Coffman said the counties erred to begin with.

The case dates to 1999, when officials in both counties posted framed, stand-alone copies.

The ACLU and some residents sued, arguing the displays constituted an improper endorsement of religion, a violation of the First Amendment.

The counties later added copies of other documents, such as the Declaration of Independence and a print of blind Lady Justice, in an attempt to illustrate some of the foundations of American law and government.

That cured the complaint that they had posted the displays to promote religion, the counties argued.

The ACLU, however, argued the counties put up the additional documents in a transparent attempt to escape liability for the true, religious motive behind the displays.

Coffman issued a preliminary injunction barring the counties from displaying the Ten Commandments, which higher courts upheld.

The Supreme Court ruled 5-4 in 2005 that the motivation for putting up the displays was clearly religious.

However, the court said displays of the Ten Commandments were not inherently unconstitutional.

Courts have upheld displays in other Kentucky counties when there was a finding that the primary purpose was not to promote religion.

After that 2005 Supreme Court decision, the case came back to Coffman for further consideration.

The judge decided the counties had not shown a valid, non-religious reason for posting the displays and ruled they were unconstitutional, according to the ACLU's news release.

That led to the further appeals that ended with Tuesday's order.

Supporters of posting the Biblical laws had hoped to win with a new lineup on the Supreme Court since the 2005 decision, but were disappointed.

Mathew Staver, who represented the counties, said the order leaves a confusing standard in place, in which displays including the Ten Commandments have been upheld in Mercer and Grayson counties but struck down in Pulaski and McCreary counties.

The Supreme Court will have to clear up the issue someday, said Staver, founder and chairman of Liberty Counsel, a Christian legal group.

"The Ten Commandments have influenced American law and government and may be displayed in a court of law," said Staver.

Sharp, however, said there is no inconsistency in the fact that some displays that include the Ten Commandments have been upheld.

If the motive behind the displays is a valid, non-religious purpose, they are acceptable, but evidence showed otherwise in Pulaski and McCreary counties, Sharp said.

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