Judge Richard Suhrheinrich has ruled that the ACLU arguments about the “wall of separation” between church and state are “tiresome.”
He criticized the organization for arguing that the First Amendment mandates a “wall of separation between church and state.”
“Our nation’s history is full of governmental acknowledgment and in some cases accommodation of religion,” the judge wrote.
WND reports:
Writing for the 6th Circuit Court of Appeals, Judge Richard Suhrheinrich said the ACLU’s “repeated reference ‘to the separation of church and state’ … has grown tiresome. The First Amendment does not demand a wall of separation between church and state.”
Here is the most interesting snippet of the full opinion (pdf).
The ACLU’s argument contains three fundamental flaws. First, the ACLU makes repeated reference to “the separation of church and state.” This extra-constitutional construct has grown tiresome. The First Amendment does not demand a wall of separation between church and state. See Lynch, 465 U.S. at 673; Lemon, 403 U.S. at 614; Zorach v. Clauson, 343 U.S. 306, 312 (1952); Brown v. Gilmore, 258 F.3d 265, 274 (4th Cir. 2001); Stark v. Indep. Sch. Dist., No. 640., 123 F.3d 1068, 1076 (8th Cir. 1997); see also Capitol Square, 243 F.3d at 300 (dismissing strict separatism as “a notion that simply perverts our history”). Our Nation’s history is replete with governmental acknowledgment and in some cases, accommodation of religion. See, e.g., Marsh v. Chambers, 463 U.S. 783 (1983) (upholding legislative prayer); McGowan v. Maryland, 366 U.S. 420 (1961) (upholding Sunday closing laws); see also Lynch, 465 U.S. at 674 (“There is an unbroken history of official acknowledgment by all three branches of government of the role of religion in American life from at least 1789.”); Capitol Square, 243 F.3d at 293-99 (describing historical examples of governmental involvement with religion). After all, “[w]e are a religious people whose institutions presuppose a Supreme Being.” Zorach, 343 U.S. at 313. Thus, state recognition of religion that falls short of endorsement is constitutionally permissible.
Second, the ACLU focuses on the religiousness of the Ten Commandments. No reasonable person would dispute their sectarian nature, but they also have a secular nature that the ACLU does not address. That they are religious merely begs the question whether this display is religious; it does not answer it. “[T]he Establishment Clause inquiry cannot be distilled into a fixed, per se rule.” Pinette, 515 U.S. at 778 (O’Connor J., concurring); see Lee v. Weisman, 505 U.S. 577, 597-98 (1992). Although treating the subject matter categorically would make our review eminently simpler, we are called upon to examine Mercer County’s actions in light of context. “Simply having religious content or promoting a message consistent with a religious doctrine does not run afoul of the Establishment Clause.” Van Orden, 125 S. Ct. at 2863 (plurality opinion). Moreover, “[f]ocus exclusively on the religious component of any activity would inevitably lead to its invalidation under the Establishment Clause.” Lynch, 465 U.S. at 680. The Constitution requires an analysis beyond the four-corners of the Ten Commandments. In short, “proving” that the Ten Commandments themselves are religious does not prove an Establishment Clause violation.
Third, the ACLU erroneously–though perhaps intentionally–equates recognition with endorsement. To endorse is necessarily to recognize, but the converse does not follow. Cf. Mercer County, 219 F. Supp. 2d at 789 (“Endorsement of religion is a normative concept; whereas acknowledgment of religion is not necessarily a value-laden concept.”). Because nothing in the display, its history, or its implementation supports the notion that Mercer County has selectively endorsed the sectarian elements of the first four Commandments, we fail to see why the reasonable person would interpret the presence of the Ten Commandments as part of the larger “Foundations” display as a governmental endorsement of religion.
We will not presume endorsement from the mere display of the Ten Commandments. If the reasonable observer perceived all government references to the Deity as endorsements, then many of our Nation’s cherished traditions would be unconstitutional, including the Declaration of Independence and the national motto. Fortunately, the reasonable person is not a hyper-sensitive plaintiff. See Washegesic ex rel. Pensinger v. Bloomingdale Pub. Sch., 33 F.3d 679, 684 (6th Cir. 1994) (Guy, J., concurring) (describing the “eggshell” plaintiff as unknown to the Establishment Clause). Instead, he appreciates the role religion has played in our governmental institutions, and finds it historically appropriate and traditionally acceptable for a state to include religious influences, even in the form of sacred texts, in honoring American legal traditions.