I'm pretty sure that merely "allud[ing] to the Ten Commandments" is not now to "endorse religion." As the McCreary County majority said, "Displaying [the full] text is thus different from a symbolic depiction, like tablets with 10 roman numerals, which could be seen as alluding to a general notion of law, not a sectarian conception of faith." Clearly the simple presence of the tablets is not per se unconstitutional.

On the other hand, I suppose some work might have to be done to figure out the original "purpose" of including the tablets. If someone could find quotes from early Chief Judges saying, "Let's make sure we have the Decalogue in our seal so everyone'll know the Ninth Circuit loves religion," that would probably spell the end of it. Assuming no such quotes are forthcoming, my sense is that today's Court would be no more willing to strike down this seal than their own murals: "[We do not] have occasion here to hold that a sacred text can never be integrated constituitonally into a governmental display on the subject of law [(a seal?)], or American history. We do not forget, and in this litigation have frequently been reminded, that out own courtroom frieze was deliberately designed ... to include the figure of Moses holding tablets exhibiting a portion of the ... Commandments."
[Disclaimer: I have not yet read Van Orden]

This passage from McCreary County seems to most directly address the situation, if not to be precedentially on point:

Nor do we have occasion here to hold that a sacred text can never be integrated constitutionally into a governmental display on the subject of law, or American history. We do not forget, and in this litigation have frequently been reminded, that our own courtroom frieze was deliberately designed in the exercise of governmental authority so as to include the figure of Moses holding tablets exhibiting a portion of the Hebrew text of the later, secularly phrased Commandments; in the company of 17 other lawgivers, most of them secular figures, there is no risk that Moses would strike an observer as evidence that the National Government was violating neutrality in religion.

The Ninth Circuit's seal is easily distinguished from this dictum, so it becomes a very interesting question.

Mr. Justice Breyer's vote seems to go to the older symbol no one complained about for 40 years and not the one obviously (to him) put up for an overtly religious purpose. If the Ninth Circuit case were before the Court right this second, the seal would probably be ok, with Breyer's vote. (I assume, maybe the seal is two years old and was designed in reaction to the Pledge case or somethng, but I doubt it.)

Seems to me that there is not an <i>ab initio</i> or solely religious purpose for the inclusion of the Commandments — especially in light of modern standards — perhaps there was initially. It should stand under the <i>Perry </i>and <i>McCreary </i>cases.

There is an 11th Cir. case dealing with an outline of the 10 Commandments on a county clerk's seal <i>King v. Richmond County</i>, 331 F.3d 1271 (2003) which was cited by Scalia in a laundry list of 10 Commandment cases. That usage was upheld by the court using the purposes and effects test. The court there relied on the small size of the symbol, the lack of text on the symbol, the inclusion of other symbols, and the limited context. This analysis seems to fit into what I've read from today's opinions and the 9th should get to keep its seal, if it buys into the 11th's reasoning.

The <i>McCreary </i>majority also said "neutrality" was an important facto — that it be included with other objects and secular ones might be dispositive.

The 9th's seal looks like that described in Richmond — a Miss Justice, 10 Commandments and a (sword?) can't tell from that picture.

I'm sure it will stand — at least from SCOTUS. The 9th? They might change their own seal.

Justin: I do think it's important vis a vis the McCreary County dictum that if the litigation involves only the seal (and we were warned by Prof. Volokh to have read today's opinions, not his Fox News link, and I haven't!), it's missing 17 mostly secular lawgivers to go with the Commandments.

I agree that Estabishment Clause jurisprudence remains a mess after today, and is maybe worse.

Respectfully, the pertinent question is what sanctions can be assessed against the plaintiff for bringing this suit -- court costs, attorneys' fees, fine, injunction not to file another suit without court permission?

I understand that federal rules of pleading are pretty liberal and the complaint might survive a motion to dismiss for failure to state a cause of action but I do not think it can survive a motion for summary judgment.

The religious component of the seal is purely imaginary. An artistic rendition of two tablets with indecipherable script on the seal resembles an artistic description of the tablets of the Ten Commandments. The plaintiff has either not being taking his medicine or has been taking the wrong kind of "medicine".

I am curious as to the basis for applying the establishment clause to the federal judiciary, in this case the Court of Appeals for the Ninth Circuit. Can someone point me to a case where the Court has found that the constitutional commandment that "<i>Congress</i> shall make no law respecting an establishment of religion" (my emphasis) in fact prevents the Article III judiciary from doing anything that remotely "endorses" religion? The so-called "wall of separation" between Church and State is a handy metaphor, but it doesn't really connect up too well with the actual text of the establishment clause, which does not purport to bind "The State," nor the "United States," nor the "Government," but speaks specifically of "Congress." The clause also doesn't specifically prohibit Congress from any act which might be seen to symbolically endorse religion, but only prohibits it from making laws that establish religion. I very much doubt that the form of the seal of the Ninth Circuit is mandated by a law passed by the U.S. Congress, but was instead probably selected by judicial officials of the Ninth Circuit, without any congressional input. If that assumption is true, then what is the basis for concluding that the action of choosing this particular imagery for the court's seal, an action which cannot reasonably be characterized as a law made by Congress, violates the establishment clause of the First Amendment?

I understand the concept of holding the establishment clause against any branch of a state goverment, via the incorporation doctrine and the Fourteenth Amendment, but what argument gets the establishment clause to limit the non-legislative actions of the executive and judicial branches of the federal government? I often hear criticisms of the Supreme Court's establishment clause jurisprudence that point out the inconsistency of the Supreme Court maintaining religiously themed decorations of its own building and courtroom, and retaining the religious language of its summoning plea ("God Bless the United States and this Honorable Court", I think). I can understand the political wisdom of the Court pretending that it ought to abide by the rules it would set for others, and therefore to excuse such trappings as <i>de minimis</i>, but why isn't the straightforward legal answer to such criticism simply that the Court's decisions on how to decorate and furnish its own courtroom, even if they include outright religious symbolism, are just not covered by the establishment clause of the First Amendment, because the Court is not Congress, and is not making a law? It can't be Fifth Amendment due process, can it, because who could possibly have standing as an injured party to challenge religiously themed decorations at the Supreme Court building? Without some cognizable injury, there is no right to due process, correct? The same issues would seem to apply to the Ninth Circuit Court of Appeals, even if it is a lower court established by Congress, rather than specifically created in the Constitution as the Supreme Court is. Unless the form of the court's seal is set by federal statutory law, how can the establishment clause prevent federal judges from using a seal which happens to include religious imagery? For that matter, how can the establishment clause prevent the judges from using the seal with the specific intent to promote religion?

That's nothing. I'm going to sue the federal government for its outrageous maintenance of a 7-day week. Surely the Court, after evidence presented by experts in social science, can point the way to a workweek that's both more efficient and avoids the establishment of the Judeo-Christian weekly calendar and associated Sabbath. I'm leaning toward a 9-day week, 6 days of work then a 3-day weekend. But whatever the period, as long as it isn't 7 or 14 (21, etc.) days long, a new week will fairly days off so no religion is favored or disfavored in terms of its Sabbath.