- The Washington Times - Tuesday, February 26, 2002

The Supreme Court refused yesterday for the second time in nine months to block an American Civil Liberties Union lawyer's crusade to rid Indiana public places of the Ten Commandments.
The high court rejected Gov. Frank O'Bannon's appeal that he be allowed to replace a 1950s monument removed from statehouse grounds because it was vandalized in 1991.
A disappointed Gov. O'Bannon said yesterday the state government now surrenders on that issue after the court acted without comment.
"We thought it was our duty to make the effort. The court's decision not to hear our case effectively ends this issue for the state," Gov. O'Bannon said in a written statement issued jointly with state Attorney General Steve Carter.
Local governments may fight on as Elkhart, Ind., is doing, despite a similar setback in May. That city drew encouragement from an unusual dissenting comment by Chief Justice William H. Rehnquist, who said the Elkhart monument "simply reflects the Ten Commandments' role in the development of our legal system."
The chief justice, with Justices Antonin Scalia and Clarence Thomas, mentioned the frieze of "lawgivers" that dominates the Supreme Court chamber, which also contains bronze replicas of tablets bearing the Commandments.
"Indeed, a carving of Moses holding the Ten Commandments, surrounded by representations of other historical legal figures, adorns the frieze on the south wall of our courtroom, and we have said that the carving 'signals respect not for great proselytizers but for great law-givers,'" the chief justice wrote.
Indianapolis lawyer Kenneth J. Falk of ACLU's Indiana affiliate said he would never contest the Supreme Court display, which he considers legitimate for secular use because it is linked to a long history. He said he conceded a similar case in Illinois for the same reason and would accept any that are so inclusive.
Mr. Falk denied in an interview yesterday that he was crusading when he brought cases against the state, the cities of Vincennes, Elkhart and Mishawaka as well as Montgomery, Lawrence and Wayne counties. But he had no ready explanation for why he has become the primary source of challenges reaching the Supreme Court.
"It's not personal," Mr. Falk said. "Why are so many places ignoring what the law is? Why do we have places in Indiana that still have displays that are against the law?"
He said his legal efforts stirred "a lot of controversy here," but he speculated that Indiana has more than its share of Ten Commandments monuments among the hundreds donated nationwide in the 1950s by the Fraternal Order of Eagles.
In 1996 the Supreme Court refused to hear an appeal involving a similar Eagles monument at Colorado's Capitol, which allowed that monument to remain in place.
Yesterday's action was praised by the Rev. Barry W. Lynn, executive director of Americans United for the Separation of Church and State, who said, "Public buildings should display patriotic symbols that bring us together, not religious symbols that divide us."
Gov. O'Bannon took the position that erecting the donated seven-foot limestone monument at the state Capitol would demonstrate the law's roots in the Bill of Rights, the preamble to Indiana's Constitution, plus the Ten Commandments.
Nine states, including Virginia, supported Indiana in a friend of the court brief that said a hodgepodge of lower court rulings show confusion about the law.
The May 2001 decision forced Elkhart to remove a monument outside City Hall. City officials now seek to display the Ten Commandments with the Magna Carta, Declaration of Independence, Bill of Rights and the Constitution.
Mr. Falk said yesterday that doesn't go far enough because the Ten Commandments are "a sacred document … not part of American history or English common law."
While the "sacred document" phrase came from the 1980 Supreme Court Stone v. Graham decision, which overturned a state law requiring classrooms to display the Ten Commandments, the chief justice would not apply that to the Indiana cases.
"We have never determined, in Stone or elsewhere, that the Commandments lack a secular application," the chief justice wrote in the Elkhart case.


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