(CN) – A divided 6th Circuit panel on Wednesday upheld an order barring two counties in Kentucky from displaying framed copies of the Ten Commandments in their county courthouses.
The 2-1 ruling is the latest development in a case decided in 2005 by the Supreme Court, which ruled that the Ten Commandments displays in McCreary and Pulaski County violated the constitutional separation of church and state.
The counties have since expanded the displays to include other documents, including an excerpt from the Declaration of Independence, the Mayflower Compact and the preamble to the Kentucky Constitution.
The counties also passed new “resolutions” authorizing the modified displays and emphasizing the importance of religion in historical documents.
But in 2000, U.S. District Judge Jennifer Coffman ruled for the American Civil Liberties Union and others who had challenged the displays. She said the counties were still motivated by an unconstitutional religious purpose, even though they had added non-religious documents to the mix.
She ordered the counties to remove the displays and barred them from erecting “similar displays” in the future.
The counties responded by again altering the displays, calling them the Foundations of Law and Government Displays. This third set of documents contained nine documents of equal size, including the Ten Commandments, and a one-page explanation for each.
Judge Coffman extended her injunction to include the latest installation.
In 2005 the Supreme Court upheld the preliminary injunction on the basis that the displays, regardless of the changes, lead an objective observer to “suspect that the counties were simply reaching for any way to keep a religious document on the walls of the courthouses constitutionally required to embody neutrality.”
The high court has held that a secular purpose “has to be genuine, not a sham, and not merely secondary to a religious objective.”
Judge Coffman permanently barred the displays on remand, and the Cincinnati-based appeals court agreed that the new resolutions did not eliminate the counties’ improper religious motive.
“These resolutions represent defendants’ latest effort in a long line of attempts to conform their conduct to the requirements of the Constitution after adverse court rulings,” Circuit Judge Eric Clay wrote.
“Defendants have spent the time since the Supreme Court decision continuously seeking to accomplish their initial purpose of posting the Ten Commandments as a religious document.”
However, Clay noted that the 6th Circuit has since upheld two identical displays since the Supreme Court’s decision, including one in Grayson County, Ky. The displays in those counties were different, the court explained, because they had no “history evidencing a predominantly religious purpose.”
Judge James Ryan dissented, saying the only question on appeal was “whether the defendants have ‘purged’ the Foundations of Law and Government Displays of the religious ‘taint’ of the Ten Commandments.”
“My colleagues think they have not. I think they could not because there was no ‘taint’ to be ‘purged,’ and even if there were, the defendants’ efforts to do so has been disqualified as a mere ‘litigating position,'” Ryan wrote.