Coming Soon to a Ninth Circuit Near You:

Here's the Ninth Circuit's logo:

The Ninth Circuit is being sued on the grounds that this violates the Establishment Clause, because the tablets allude to the Ten Commandments and thus endorse religion. How will the case come out in light of today's decisions?

Please comment only if you have read the decisions. I'm looking for actual legal analysis (even if it's motivated by a desire to expose the errors in one or another position). No general fulminations about those awful Justices/politicians/whoever (whether Left, Right, or pox-on-both-their-houses), please. Reference to recent lower court cases is perfectly fair game — there was one recent one that is potentially on point — but it would be especially interesting to see how today's cases affect the result.

A Northwestern Law Student (mail):
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]

6.27.2005 4:07pm
Scott Moss (mail) (www):
(Ok, I just read them, though please don't give me a pop quiz on the seven Van Orden opinions....)

I read Justice Breyer's concurrence, as the decisive vote to allow the Texas monument, as turning heavily on the fact that it a 40 year-old monument that had inspired little divisiveness over those decades. He expressly says that the result might be different for a 2005 governmental display of the commandments:

"[I]n today's world, in a Nation of so many different religious nand comparable nonreligious fundamental beliefs, a more contemporary state effort to focus attention upon a religious text is certainly likely to prove divisive in a way that this longstanding, pre-existing monument has not."

So it's not clear there are five justices ready to uphold any recent display, given that Breyer might view a recent display more negatively than the one he upheld as a "borderline case" where the passage of decades was a "critical" factor.
6.27.2005 5:01pm
Matt Barr (mail) (www):
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.)
6.27.2005 5:02pm
The most obvious difference between the two cases is that Kentucky insisted on repeatedly reaffirming their religious purpose in establishing the display, and I think that will be their legacy.

I think the Court has had about enough of ruling on these random cases involving the Ten Commandments and various allusions thereto; but the message is that if you blab on endlessly about having an impermissible purpose, there's only so much the Court can do to bail you out.
6.27.2005 5:38pm
Troy Hinrichs (mail):
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.
6.27.2005 6:17pm
Justin Levine:
With all do respect to Professor Volokh and the commenters here - the very act of posing the question regarding the Ninth's Seal is to completely miss the big picture of both today's decisions and Establishment Clause jurisprudence for the past few decades. The only constant rule in Establishment Clause cases is that there are no fixed rules at all. To try and analyze this fact pattern based on some aspect of the Court's jurisprudence is pure folly since Justices can split the hairs of any fact that they want in future court hearings.

[Note: I have read today's cases and honestly feel that it is impossible to divorce the kind of "general fulmination" that is discouraged on this thread from what I consider to also be a helpful objective analysis. If you disagree, feel free to delete these comments.]

For a great illustration of just how flexible these tests can be. Check out the 3rd Circuit's "Freethought" case. Astonishingly, the only mention of this case is an incidental reference in footnote 11 in Scalia's McCreary dissent. Does McCreay shed any decisive light on Freethought's outcome? I must confess that I fail to see any.

Are we supposed to look at the size of the tablets in relation to the seal as a whole? Are we supposed to consider how prominent it is? Or how "uncluttered" it looks to me? Do my personal views count? What if my personal views are based on some objective visual criteria? Do we apply the Lemon test? If so, is it dispositive? Or just advisory??

I have only read each of today's decisions once, but I don't see how they answer any of these questions conclusively.

Matt Barr's observation that the Ninth's Seal is "easily distinguished" from the McCreary dictum seems off base to me. Just how is it "easily distinguished"? After all, don't we have to consider what other displays are in the 9th Circuit's courtroom (or do ,we??)? We obviously don't have that information in this hypothetical, but Mr. Barr (perhaps?) mistakenly thinks that we should only look within the confines of the seal itself. Once gain, he fails to appreciate the cynical flexibility that these decisions offer.
6.27.2005 6:50pm
Matt Barr (mail) (www):
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.
6.27.2005 7:03pm
Intent seems to be the critical element behind the McCreary County decision. What was the intent behind the 9th Circuit in selecting its symbol.

There doesn't seem to be anything special about a courthouse making any difference so far as whether or not a monument or display is appropriate. The issue seems to be about whether the perceived purpose of displaying work is to advance religion, or whether it is to serve a secular purpose.

There was evidence in the record that legislators had expressed religious motives in supporting the monument. It's unlikely such an intent was behind the 9th circuit seal.

One suspects that future lawmakers will be much better coached, won't make the mistake of referring to religion when debating the meaure, will make sure not to make religion the majority of the content, and will be careful to have a secular plot interleaving the religion scenes.
6.27.2005 7:51pm
nk (mail):
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".
6.27.2005 11:15pm
The Fox (mail) (www):
The Ninth Circuit logo contains a symbol of the Ten Commandments, not the text. Also, the symbol may be ambiguous enough to avoid being deemed the Ten Commandments, but I expect the shape and legal context will lead judges to conclude the symbol represents the Ten Commandments. Today's cases do not provide any guidance about those fact issues.

The overall impression given by the logo does not seem religious. The only religious item in the logo is the Ten Commandments symbol. Even the Kentucky opinion today does not go so far as to make such a display objectionable, unless the less objectionable parts were added in an effort to retain the elements with a religious character, which is not the case here.

The logo has been around for a long time without raising objections. In the Texas case, Rehnquist (and Breyer in his concurrence) specifically used the 40-years of pre-litigation existence and the petitioner's awareness of the Ten Commandments display as evidence to support the nonreligious character of the entire display. I would expect that ACLU lawyers have seen the Ninth Circuit logo over a long period. Contrast with the Kentucky case, in which the Ten Commandments were displayed in 1999 and the ACLU sued in November 1999.

I do not see enough guidance from the Supreme Court today to feel comfortable about my conclusion. Nonetheless, for the reasons given above, I think the courts will rule that the Ninth Circuit logo does not violate the Extablishment Clause.
6.28.2005 1:50am
Tom Walker:
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?
6.28.2005 5:54am
NickM (mail) (www):
When was this particular seal design promulgated? In this context, Breyer's concurrence in the Texas case makes that an important issue. [It would also be important in the L.A. County seal case, if the Board of Supervisors had not changed the seal, that it had been around since 1957.]

I believe Breyer's concurrence can be seen as incorporating into the constitutional rules a de minimis exception - items of long standing that had shown themselves to have no real effect are no violation becuse de minimis non curat lex. I also think it is a suggestion that he may join a majority judgment upholding the Pledge of Allegiance on a future Newdow-like challenge.

6.28.2005 12:57pm
David Pittelli (mail) (www):
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.
6.28.2005 10:16pm
John Grant (mail):
I have not read the entirety of the cases, but it seems likely to me that those tablets represent the Bill of Rights and not the Ten Commandments. They are similar to the tablet marked with roman numerals 1-10 in the East Frieze of the Courtroom in the Supreme Court itself.
6.29.2005 1:50am