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 Sixth-Circuit Shenanigans The troubling history behind McCreary. By Kay Daly Today the Supreme Court hears oral arguments in McCreary Co. v. ACLU, a case concerning whether the Ten Commandments may be posted in a courthouse as part of a display of dozens of documents illustrating the foundations of American law. The case is important for several reasons: In addition to settling the question about the constitutionality of these displays across the country, the Court has agreed to reconsider the controversial test it uses in deciding whether government action violates the First Amendment's prohibition against religious establishments. But perhaps most important, the case vividly demonstrates the problem with willful judges, and the need to confirm President Bush's long-stalled judicial nominees.Judge Clay of the United States Court of Appeals for the Sixth Circuit wrote the decision reviewed by the Supreme Court in McCreary. In concluding that posting the Ten Commandments as part of a larger display is unconstitutional, Judge Clay subtly yet substantially changed the legal test. Specifically, instead of asking the relevant question under Supreme Court precedent — i.e., whether the display of numerous documents illustrative of the foundations of American law had "a secular purpose" — he asked whether the primary or "predominate purpose" for the display was religious. But the Supreme Court has rejected that standard, noting in the seminal case on religious displays that "[e]ven where the benefits to religion were substantial . . . we saw a secular purpose and no conflict with the Establishment Clause." Click here to read the full article.
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