The Christian legal group that has been defending a Ten Commandments display in Stigler, Okla., is reviewing possible options for appeal after a federal appeals court deemed the monument as a perceivable endorsement of religion by the government.
"Americans shouldn't be forced to abandon their religious heritage simply to appease someone's political agenda," said Kevin Theriot, senior counsel for the Alliance Defense Fund.
"The emotional response of a single, offended passerby does not amount to a violation of the Establishment Clause," he added.
According to court records, Haskell County resident Mike Bush had raised $2,000 in private funds to pay for the eight-foot tall and three-foot wide monument, which sits on the lawn of the Haskell County courthouse in Stigler and lists the Ten Commandments on front and the Mayflower Compact on the back.
County officials, who gave Bush approval for his display, have for many years allowed citizens to erect monuments in the courthouse lawn area.
On Monday, however, a three-judge panel of the U.S. Court of Appeals for the 10th Circuit said that while government displays of the text of the Ten Commandments are not presumptively unconstitutional, a "reasonable observer" would be aware of Bush's religious motivations – especially in a small community like Haskell County, "where everyone knows everyone."
"[W]e hold that, under the unique circumstances presented here, the Establishment Clause was violated because the reasonable observer would view the Monument as having the impermissible principal or primary effect of endorsing religion," the judges explained after voting 3-0 against the display on Monday.
ADF Senior Counsel Theriot, however, argues that the judges' "small-town" reasoning is insufficient and leaves small-town government officials with fewer free speech rights than those in larger cities.
"Small-town government officials have just as much right to express their personal opinions about monuments as those in larger cities. Furthermore, the commissioners stated publicly that they allowed the monument because of its historical significance and would allow other historical monuments that contain speech from other religions," he added.
Theriot also asserted that there is no difference between Haskell County's Ten Commandments display and the one at the Texas state capitol that was upheld by the U.S. Supreme Court nearly five years ago.
"This one, like that one, was donated and paid for by a private individual and displayed among numerous other monuments to veterans, pioneers, and others," he noted.
In the case of the Texas capital display, the high court had determined that the 6-foot-granite monument – one of 17 historical displays on the 22-acre lot – was a legitimate tribute to the nation's legal and religious history.
"Of course, the Ten Commandments are religious – they were so viewed at their inception and so remain. The monument therefore has religious significance," wrote then-Chief Justice William H. Rehnquist for the majority.
However, "[s]imply having religious content or promoting a message consistent with a religious doctrine does not run afoul of the Establishment clause," added Rehnquist, whose remarks were cited by the district court judge whose 2006 decision was effectively overturned by Monday's ruling.
In the decision Monday, the appeals court said it remands for the district court to enter judgment consistent with their opinion.
The district court had originally sided with the monument, stating that a "reasonable observer" would see that the monument is not the focus of the courthouse lawn, as there are a number of other displays, including three memorials to veterans of World War II, the Vietnam War, and the Korean War; an Unmarked Graves monument; a Choctaw Indian Tribe Monument; two benches commemorating the high school graduating classes of 1954 and 1955; and 150 personalized message bricks on the sidewalk leading to the courthouse's front steps.
"A reasonable observer would be aware that the Commandments and the Compact are primarily and historically legal dictates, and would know that the lawn of a courthouse is particularly appropriate for historical codes to be displayed," wrote Judge Ronald White of the U.S. District Court for the Eastern District of Oklahoma.
According to legal analysts, Haskell County now has two ways to appeal Monday's decision, should they decide to do so. They can ask the entire 10th Circuit Court of Appeals to hear the case. And they can ask the U.S. Supreme Court to hear the case.
If those appeals fail, the county will be legally obligated to remove the monument even though a state bill authorizing its placement was overwhelmingly approved last month by the Legislature and signed into law by Gov. Brad Henry.