Georgia County Government - July 2008 - (Page 29)

CountiesandtheLaw Thou Shalt Honor Thy Establishment Clause: An Analysis of Ten Commandments Displays in Georgia Courthouses By Paul Koster, Esq. and Greg Reybold Daley, Koster & LaVallee, LLC. I n 2005, the United States Supreme Court, in McCreary County v. ACLU, determined the posting of a historical display that included the Ten Commandments in two county courthouses in Kentucky violated the First Amendment establishment clause, 545 U.S. 844 (2005). In 2006, the Georgia legislature passed a law authorizing a nearly identical historical display to be posted in Georgia courthouses. O.C.G.A. § 45-13-51 (2006). Similar to the display in McCreary, an authorized Georgia historical display must include the Mayf lower Compact; the Ten Commandments; the Declaration of Independence; the Magna Carta; The Star-Spangled Banner; the national motto of the United States of America; the Preamble to the state Constitution; the Bill of Rights; and a picture of the Lady Justice. Id. Does the Georgia law fly in the face of the establishment clause? Those who would rush to such a conclusion need to look closer. In McCreary, the Supreme Court was clear that in ruling the display unconstitutional, it was not holding that sacred texts can never be incorporated into a government display on law and religion. 545 U.S. at 874. Indeed, on the very same day the Supreme Court found the historical display unconstitutional in McCreary, it ruled that a Ten Commandments display in Texas authorized pursuant to state legislation did not violate the establishment clause in Van Orden v. Perry, 545 U.S. 677 (2005). In Van Orden, the Ten Commandments display was one of 17 other monuments along with 21 historical markers that were meant to commemorate the “people, ideals, and events that compose Texan identity.” Id at 681. Significant to the plurality decision in Van Orden was the dual purpose of the Ten Commandments display in its context with the other monuments and the fact that it had been erected more than 40 years ago. Id. at 682-92. While the Supreme Court has developed and employed a number of tests to guide its establishment clause analysis, the McCreary Court looked to the purpose behind the government action. 545 U.S. at 860. Beginning with the premise that the “First Amendment mandates government neutrality between religion and religion, and between religion and non religion,” the focus of the Supreme Court’s analysis was on whether the government had a “secular purpose” for the display or a predominant purpose of “advancing religion.” Id. In order to determine the “purpose” behind the display, the Supreme Court utilized an “objective observer analysis,” asking whether an objective observer who takes into account the text, legislative history and implementation of the statute would find that the government officials acted with a secular purpose or with LAW continued on page 30 Going forward, government officials choosing to put historical displays in Georgia courthouses would be well advised to take measures to ensure their message is a secular one consisting of history and law rather than faith and religion. JULY 2008 www.accg.org 29 http://www.accg.org

Table of Contents Feed for the Digital Edition of Georgia County Government - June 2008

Georgia County Government - June 2008 Contents President’s Message County Matters Laurens, Treutlen and Wheeler Counties Work Together to Leverage Economic Development 2008 Hurricane Season Forecast to be Active GDEcD: Georgia Is Bolstering International Marketing Efforts U.S. Communities Announces Auto Parts Service Contract Energy Innovation Center Opens in Warner Robins Coweta County Uses Innovative Road Construction Techniques Counties & The Law: An Analysis of Ten Commandments Displays in Georgia Courthouses Georgia’s Grand Old Courthouses: Talbot County Extension News: Youth Summit Teaches Civic Engagement Research Corner: Train Me! NACo News: NACo Seeks Obesity Prevention Programs County Parade Index of Advertisers

Georgia County Government - June 2008

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