Divided 8th Circ allows Plattsmouth's 10 Commandments to stand

Since monument is nearly 10 blocks from the city hall and Courthouse, the monument represents merely a passive memorial to the nation's religious heritage. 08/19/05 ACLU NE Foundation v. City of Plattsmouth U.S. Court of Appeals Case No. 02-2444 District of Nebraska [PUBLISHED] [Bowman, Author, for the Court En Banc]Like the Ten Commandments onument in Van Orden v. Perry, 125 S.Ct. 2854 (2005), the Plattsmouth monument makes passive - and permissible - use of the text of the Ten Commandments to acknowledge the role of religion in our nation's heritage, and the district court's judgment in favor of the ACLU is reversed. Judge Bye, joined by J. Morris S. Arnold, dissenting, argue calling the 10 commandments a passive statement detracts from its powerful but religious message; the monument is in a quiet area where people will think about it and get brainwashed into christianity, and it was put in a long time ago when America did not embrace diverse cultures. funny the plaintiff in the case did not belong to any religion. there are plenty of buddists, muslims, hindus in Nebraska now, none of them have objected. The District Court granted summaryjudgment in favor of the plaintiffs, finding that both Doe and the ACLU havestanding to bring suit and that the City's display of the monument violates theEstablishment Clause. On appeal, a divided panel of this Court affirmed. ACLU Nebraska Found. v. City of Plattsmouth, 358 F.3d 1020 (8th Cir. 2004), vacated and rehearing en banc granted, April 6, 2004. With the benefit of the United States Supreme Court's recent decision in Van Orden v. Perry, 125 S. Ct. 2854 (2005), we now reverse.Using the test described by the Supreme Court in Lemon v. Kurtzman, 403 U.S. 602 (1971), the District Court held that thepresence of the monument in a City park violates the Establishment Clause.The Chief Justice went on to cite recent cases in which the Supreme Court did not apply the Lemon test. See,e.g., Zelman v. Simmons-Harris, 536 U.S. 639 (2002); Good News Club v. Milford Cent. Sch., 533 U.S. 98 (2001). Chief Justice Rehnquist ultimately concluded that the Lemon test was "not useful in dealing with the sort of passive monument that Texas has erected on its Capitol grounds." Van Orden, 125 S. Ct. at 2861. Instead,he declared that Establishment Clause analysis in these circumstances was "drivenboth by the nature of the monument and by our Nation's history." Id. Explicitlyrecognizing the religious nature and significance of the Ten Commandments, id. at2863, the Chief Justice distinguished the "passive use" of the Ten Commandmentstext by the State of Texas from the impermissible use of the text by the State ofKentucky, where copies of the text hung in public-school classrooms and "confronted elementary school students every day," id. at 2864 (distinguishing Stone v. Graham,449 U.S. 39 (1980)). After discussing in some detail our Nation's history insofar asthe use of the Ten Commandments and other religious symbols are concerned, id. at2859–63, Chief Justice Rehnquist—with a fifth vote from Justice Breyer concurring in the judgment—concluded that the State of Texas did not violate the EstablishmentClause by its display of the Ten Commandments monument on its Capitol grounds,id. at 2864.Like the Ten Commandments monument at issue in Van Orden, the Plattsmouthmonument makes passive—and permissible—use of the text of the Ten Commandments to acknowledge the role of religion in our Nation's heritage.the Plattsmouth monument is located in arelatively isolated corner of Memorial Park, more than ten blocks distant fromPlattsmouth City Hall and, as far as the record shows, not close to any other buildingthat is part of City government. This fact provides further support for our conclusionthat Van Orden effectively protects the Plattsmouth monument from successful attackunder the Establishment Clause."[s]imply having religious content or promoting a message consistent with a religious doctrine does not run afoul of the Establishment Clause." Id. at 2863; BYE, Circuit Judge, with whom MORRIS SHEPPARD ARNOLD, Circuit Judge,joins, dissenting; (not only are these brillant judical scholars, they are art critics!).Pedestrians, picnickers, and others using the park, however, have an unrestricted view of the Ten Commandments as written on the monument. Nothing in the monument's surrounds suggests its religious message might notbe its raison d'etre.The monument shares its environs with trees and recreationalequipment but none of this mise-en-scéne reflects an intent to merely complement anotherwise secular setting by drawing upon one of the Ten Commandments' secular applications. Rather, the monument's stark religious message stands alone withnothing to suggest a broader historical or secular context. Shades of Jim Crow and Salem Witch Trials from barely 40 years ago! : Many earlier monuments and inscriptions appeared at a time when we "may not have foreseen the variety of religions for which this Nation wouldeventually provide a home." McCreary, 125 U.S. at 2747 (O'Connor, J., concurring)(why arent Muslims, Jews, Buddhists or Hindus joining the Snivel Liberties Union Lawsuit as Plaintiffs?) Indeed, "for nearly a century after the Founding, many accepted the idea that America was not just a religious nation, but 'a Christian nation,'" (wont be for long if those whom the 8th Circuit dissenters enable have anything to do with it, Allah is Great) In today's pluralistic America we no longer accept norcountenance such a narrow reading of the Establishment Clause.the Plattsmouth monument stands alone with nothing to recommend it but its religious message.It is not enough that Plattsmouth's monument has stood formore than thirty-five years in Memorial Park. Without the contextualizing presenceof other messages or some indicia of historical significance, there is nothing to freethe display from its singular purpose of advancing its religious message. (Maybe these Mainstream Protestan manquees are remembering their Sundays past getting that old time religion) To say a monumentinscribed with the Ten Commandments and various religious and patriotic symbolsis nothing more than an "acknowledgment of the role of religion" diminishes theirsanctity to believers and belies the words themselves. (We) respectfully dissent.