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Friday, June 27, 2003

By Jeffrey Cohan, Post-Gazette Staff Writer

In a decision that could have major implications for a similar case in Allegheny County, the 3rd U.S. Circuit Court of Appeals ruled yesterday that a suburban Philadelphia county can keep a Ten Commandments plaque on the facade of its courthouse.

The appeals court ruled that the plaque does not constitute an official endorsement of religion and may remain on the Chester County Courthouse for the sake of historic preservation.

A lawsuit involving a similar Ten Commandments plaque on the facade of the Allegheny County Courthouse has been on hold for more than a year while the parties awaited a ruling in the Chester County case.

The 3rd Circuit's decision figures to help Allegheny County in its legal battle against two atheists who filed a federal lawsuit two years ago hoping to force the plaque's removal on grounds that it violates the constitutional separation of church and state.

"It would appear that the 3rd Circuit's ruling is consistent with a number of arguments that we've made in our case," said Perry Napolitano, a Downtown attorney who is representing Allegheny County on a pro bono basis.

The 3rd Circuit said a reasonable person familiar with the Chester County plaque's history would regard the decision to leave it in place as religiously neutral, rather than evangelical.

"We cannot ignore the inherently religious message of the Ten Commandments," Judge Edward R. Becker wrote. "However, we do not believe ... that there can never be a secular purpose for posting the Ten Commandments, or that the Ten Commandments are so overwhelmingly religious in nature that they will always be seen only as an endorsement of religion."

The court's ruling overturned a March 2002 lower court decision that the plaque was inherently a religious statement, improper for a government building, and must be taken down.

A spokesman for Americans United for Separation of Church and State, the organization representing the two atheists in the Allegheny County case, voiced disappointment.

"Obviously, it's not good news for our side," said Joe Conn, the spokesman. "We'll have to read this ruling very closely and see what the court's reasoning was."

Americans United is representing plaintiffs Andy Modrovich of West Mifflin and James Moore of Squirrel Hill.

Because all of Pennsylvania lies within the 3rd Circuit, yesterday's ruling figures to guide Chief U.S. District Judge Donetta Ambrose in her handling of the Allegheny County case. The U.S. Supreme Court has never ruled on a case involving a Ten Commandments display at a courthouse, so the 3rd Circuit ruling serves as the most relevant precedent.

The three-judge panel of the 3rd Circuit tailored its ruling, however, to the specifics of the Chester County plaque, and said that there may be other circumstances under which a display of the Ten Commandments is improper.

Becker said the court might have ruled differently if the plaque had been erected recently. In the Chester County case, the 50-inch-tall plaque was attached to the courthouse in 1920.

"A contemporary decision to erect such a plaque could not be motivated by historic preservation; rather it would appear much more likely that the county commissioners were motivated by religion," Becker wrote.

Allegheny County also is arguing that it wants to keep its plaque in place in the interest of historic preservation. The 50-by-80 inch plaque was mounted in 1918 by the long-since-defunct International Reform Bureau, an organization that was campaigning to infuse religious principles into public life and law.

Both the Allegheny County and Chester County plaques display a form of the Ten Commandments taken from the King James version of the Bible.

It remains to be seen precisely how and when the Allegheny County case will emerge from its dormancy. One possibility is that Ambrose will ask the attorneys to file briefs assessing the relevancy and implications of the 3rd Circuit ruling.

In the meantime, the atheist group that sued Chester County indicated it will consider appealing yesterday's ruling to the U.S. Supreme Court.

"We, as an atheist community, feel marginalized and we feel treated like second-class citizens," said Margaret Downey, a member of the Freethought Society of Greater Philadelphia. "When the government displays a religious icon, it gives credence to the persecution of atheists."

Chester County Commissioner Andrew Dinniman, who is Jewish, hailed yesterday's ruling, saying the commandments played an important part in the formation of secular law.

"The story of the Ten Commandments is the story of people coming out of the wilderness and finding civilization and law," he said. "It symbolizes order through law."

Chester and Allegheny aren't the only Pennsylvania counties that have Ten Commandments controversies at their courthouses. Without filing a lawsuit, atheists in Clearfield County asked for the removal of a Ten Commandments tablet from the courthouse there last year, but the county commissioners refused.

The Associated Press contributed to this report.