Posted on 10/19/2002 11:04:36 AM PDT by MainFrame65
Taliban' Tactics in Ten Commandments Suit?
Shannon P. Duffy The Legal Intelligencer 10-21-2002
As attorney Alfred W. Putnam of Philadelphia's Drinker Biddle & Reath sees it, the American Civil Liberties Union and some of its clients have something in common with the Taliban.
In a friend-of-the-court brief filed last week, Putnam is urging the 3rd U.S. Circuit Court of Appeals to overturn a March 2002 decision by U.S. District Judge Stewart Dalzell that said Chester County, Pa., must remove a bronze plaque of the Ten Commandments that has hung on the eastern wall of its courthouse for more than 80 years.
Arguing on behalf of the Chester County Historic Preservation Network, Putnam compares the forced removal of the plaque to the Taliban's decision to destroy ancient Buddha statues.
Putnam argues that the ACLU and its clients were asking for too much -- and that Dalzell went too far when he granted their request -- because the law does not require governments to destroy historic monuments in order to avoid violating the Establishment Clause of the First Amendment.
"It is possible to preserve and respect the works of one's ancestors without 'endorsing' them. We do it every day. It is true that the Taliban does not understand this. But we are not the Taliban. And our Constitution does not require that we behave as if we were," Putnam wrote.
Putnam opened the brief by urging the appellate judges to focus on three questions. For each, he suggested an answer:
Whether the "pertinent government action" at issue in the lawsuit was the decision to erect the Ten Commandments plaque or the decision not to disturb and/or to preserve the already existing plaque. Putnam suggests it was the latter.
Whether such a decision not to disturb and/or to preserve an already existing monument or marker can legally be characterized as an "endorsement" of whatever message the original creators of the monument or marker wished to convey when they created it. Putnam suggests the answer is no.
Whether the U.S. Constitution prohibits the government from preserving an existing monument or marker if the monument or marker was originally erected for religious reasons by religious people. Putnam again suggests the answer is no.
The suit was filed by attorney Stefan Presser, the legal director of the American Civil Liberties Union of Pennsylvania, on behalf of the Freethought Society of Greater Philadelphia and two of its members -- Sally Flynn and Margaret Downey -- who testified that they are offended by the religious nature of the plaque every time they see it.
In March, Judge Dalzell, of the Eastern District of Pennsylvania, held a non-jury trial and ordered that the plaque be removed, finding that its strong religious message violates the First Amendment's prohibition against state establishment of religion.
"The tablet's necessary effect on those who see it is to endorse or advance the unique importance of this predominantly religious text for mainline Protestantism," Dalzell wrote in his 25-page opinion in Freethought Society of Greater Philadelphia v. Chester County.
Dalzell rejected the county's argument that the plaque serves a valid "secular purpose" of being a "symbol of law giving."
Instead, Dalzell found that the plaque's history shows it had a strongly religious purpose when it was first placed on the outside wall of the courthouse in 1920.
Chester County received the plaque as a gift from the Council of Religious Education of the Federated Churches of West Chester, an organization Dalzell described as "a group of mainline Protestant churches that promoted Bible study and religious education."
In the trial, Presser set out to prove that county and court officials had strong religious motives when they accepted the plaque as a gift from the council of churches.
Presser introduced as evidence a program book from the dedication ceremony that included the text of a dedication in which audience members participated by reciting responses in unison.
The ceremony leader opened the dedication by saying: "Because we believe that the Ten Commandments are basic to righteousness and justice in government, industry, commerce, the administration of law, and in society."
The audience responded "We dedicate to God this tablet of the Ten Commandments."
Dalzell found that Presser had proven that the plaque's history showed that its purpose was not secular.
"The program of the Dec. 11, 1920, ceremony dedicating the plaque ... confirms the marriage of church and county that took place that day," Dalzell wrote.
Soon after the ruling, Dalzell ruled that the plaque could remain on the courthouse wall through the appeal, but that the county must cover it with a drape in the interim.
In the amicus brief, Putnam argues that Dalzell's entire approach to the case was faulty since he focused on conduct that took place in 1920 when deciding whether today's county officials had violated the law.
"The question presented in this case never should have been whether the then Commissioners of Chester County acted unconstitutionally in 1920; it was whether the defendants in this case, the present Commissioners, acted unconstitutionally in 2001. The distinction, with all due respect, is critical because the decision the Commissioners made in 2001 -- such as it was -- is different in kind than the decision their predecessors made in 1920," Putnam wrote.
Putnam argues that since there has been no "affirmative act" by the government since December 1920, the plaintiffs cannot use the "continuing wrong" doctrine to impute the conduct to today's county officials unless the court creates "some kind of special exception for Establishment Clause cases."
As a result, Putnam says, the ACLU's arguments fall apart unless the courts "overlook the substantive difference between a 'decision to build' and a 'decision to preserve.'"
To illustrate the point, Putnam asked the judges to imagine that the ACLU's client had filed suit demanding that the words "In God We Trust" be removed from United States coins.
"It is possible, perhaps, that she might find a judge willing to order the mint to delete that phrase from all our coins starting in January of 2003. But what are her chances of finding a judge willing to order the recall of all United States coins minted since 1791?" Putnam wrote.
"Even if we concede that [the plaintiff] finds the old coins to be just as offensive and 'unwelcome' as brand new coins, and even though it is undeniable that the old coins will keep turning up in her change for the rest of her life, her 'recall' case is simply different in kind than her 'mint no more' case."
When the government mints a new coin saying "In God We Trust," Putnam says, "it is at least arguably saying something. But when it declines to destroy old coins, it isn't saying anything at all. It is just leaving alone the words used by an earlier government at another time."
Returning to the Ten Commandments plaque, Putnam argues that the defendants -- the three Chester County commissioners -- "were never asked to erect a monument or marker containing the Ten Commandments, or for that matter, anything else."
Instead, he says, the plaque "has been on the wall of the Courthouse since before any of them was born. They neither chose nor approved the inscription. They have never been asked to 'endorse' it. What they were asked to do was to remove it. And that is what they declined to do."
Putnam's central argument is that "a decision not to disturb an existing object does not constitute an 'endorsement' of the original message the object's creators wished to convey."
In his closing pages, Putnam compared the ACLU's lead plaintiff, Sally Flynn, to the Taliban members who destroyed the Buddha statues.
"Just a few months before [Flynn] asked Judge Dalzell to order the removal of the plaque in Chester County, another group of community activists was trying to persuade their government to remove 'unwelcome' religious monuments in the Bamiyan Valley of Afghanistan," Putnam wrote.
"In that case, the people who had originally created the offensive works were unquestionably religious people. They had undertaken their work -- the carving of two giant Buddhas into the side of a sandstone cliff -- for religious reasons and no doubt hoped the statues would evoke the kind of reflection, contemplation and spiritual growth that images of the Buddha are said to inspire among those who are open to such inspiration."
Although the people of the Bamiyan Valley haven't been Buddhist for more than 1,000 years, Putnam noted that the Muslim people of the valley had preserved and maintained the great Buddhas that their ancestors had built for centuries -- even though their own religion disapproved of the creation and veneration of images of any kind.
"It seems these otherwise devout Muslims recognized, as Ms. Flynn does not, that there was a difference between making religious images and merely preserving images made by one's predecessors," he wrote.
But in early in 2001, Putnam said, "the spirit of Sally Flynn swept through the Bamiyan valley. A new breed of Muslim found the monuments that their predecessors had left to be 'unwelcome.' And, of course, these new Muslims were more than ready to advance the very argument that Ms. Flynn is advancing here.
"You cannot distinguish, they said, between 'preserving' something and 'creating' something; when you 'preserve' the works of your ancestors, you necessarily 'endorse' those works. You cannot be a good Muslim and 'preserve' a Buddhist statue. A good Muslim is obliged to destroy Buddhist statues. Leaving them alone is not an option; it merely 'continues' the original wrong."
That argument, Putnam said, "unfortunately ... persuaded the black-robed rulers of Afghanistan and they proceeded to blow the Buddhas up."
And the Taliban is not alone, he argued, since history is replete with examples of groups raging against monuments left behind by others, from the Christian mobs that destroyed icons in Alexandria, to more recent examples of atheist governments that have been "extraordinarily diligent in destroying buildings, monuments and objects that reflect 'unwelcome' social and religious values of earlier governments and times."
Putnam argues that "this is not the way most Americans think about the past." Instead, he says, public and private institutions throughout the United States "devote substantial resources not only to preserving buildings and monuments but also to informing and educating the public about those objects, the people who made them, and the times they lived in."
Putnam was joined on the brief by Drinker Biddle & Reath attorneys Kirke D. Weaver and D. Alicia Hickok.
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