Liberty Alerts, American Center for Law and Justice
It’s a case we’ve been involved with for years. And, after more than a year, a three-judge panel of the U.S. Court of Appeals for the 6th Circuit issued a decision yesterday in the case of Judge James DeWeese.
Judge DeWeese is the Ohio Court of Common Pleas judge whom we have been defending against the ACLU of Ohio for nearly a decade. The latest case involved a constitutional challenge to the judge’s display in his courtroom of a poster called “Philosophies of Law in Conflict.” The poster contained a version of the Ten Commandments alongside a list of “Humanist Precepts.” The judge sought to illustrate what he sees as the conflict between a legal philosophy based on Moral Absolutes, symbolized by the Decalogue, and a philosophy based on Moral Relativism, symbolized by statements drawn from Secular Humanist sources. You can learn more about the case here.
The 6th Circuit panel sided with the ACLU which had argued that DeWeese’s display violates the Establishment Clause of the First Amendment.
This decision, while disappointing, now gives us an opportunity to ask the full 6th Circuit Court of Appeals to review the case and address some of the key issues that the three-judge panel, frankly, just got wrong.
To begin with, the panel ignored the very real issue in this case of the ACLU’s standing to sue. Under Article III of the Constitution people can only have the federal courts adjudicate their cases if they can show an actual “injury.” In the case of Valley Forge Christian Coll. v. Americans United for Separation of Church and State, 454 U.S. 464 (1982), the U.S. Supreme Court made clear that the mere “psychological consequence produced by observation of conduct with which one disagrees” is not a constitutional “injury” and, thus, is not a basis for standing.
In the DeWeese case, the ACLU’s representative happens to be an attorney who practices frequently in DeWeese’s court and with whom the judge enjoys a cordial, professional relationship. His sole claim of injury is that he disagrees with DeWeese’s display of the poster on legal grounds. Under Valley Forge, this is clearly not enough. This is no more than so-called “offended observer” standing, a concept that has been criticized by other members of the 6th Circuit as well as justices of the Supreme Court. The concept has been used by the ACLU and others for years to roam the country trying to rid the public square of anything government does or displays that has any religious connotation in the eyes of the “offended observer.”
On the merits of the case, the three-judge panel relied heavily on the previous case involving Judge DeWeese, a case decided in 2004. That decision, however, was before the Supreme Court ruled, in 2005, in a pair of cases involving public displays of the Ten Commandments. In one of those cases, Van Orden v. Perry, 545 U.S. 677 (2005), the Court upheld the display of a six-foot tall monument of the Ten Commandments in front of the Texas State Capitol. Justice Breyer, who wrote the controlling opinion in that case, described the monument’s purpose as conveying “a secular moral message about proper social conduct” and called the Commandments symbols of “ethics” and “morals.” The three-judge panel failed to address our argument on Judge DeWeese’s behalf that this is precisely the sort of message his courtroom poster attempts to convey. We argued that it would be impossible to reconcile a decision against Judge DeWeese’s display with the Supreme Court’s decision in Van Orden.
We look forward to bringing these important issues before the full Court of Appeals and, if necessary, the U.S. Supreme Court.
Our brief to the full 6th Circuit is due on February 16th.
Used with the permission of the American Center for Law and Justice.