Wednesday, June 11, 2003

Tablet supporters optimistic on appeal

By Dan Horn and Marie McCain
The Cincinnati Enquirer

The Ten Commandments came down at four Adams County public schools this week, but the battle over the four granite tablets is far from over.

School officials and others who want the tablets back are optimistic about their chances later this year when the case is argued before the U.S. 6th Circuit Court of Appeals in Cincinnati.

Although a panel of the 6th Circuit refused to delay the removal of the tablets Monday, the court as a whole has undergone changes that school officials believe will help them win their case in the end.

Four new judges - all appointed by President Bush - have joined the 6th Circuit in the past year. Four other seats on the court remain open and may also be filled by Bush before the Adams County case is over.

All of the newly appointed judges are considered conservatives who, some believe, will be more sympathetic to the Adams County School District, which in 1997 placed the 800-pound tablets in front of four high schools.

"I think time is on our side," said Francis Manion, the school district's lawyer. "The 6th Circuit will be a different court."

The 200 or so people who turned out at the schools Monday to protest the removal of the tablets hope Manion is right. They say a majority of county residents want the tablets to stay and the courts have no right to take them away.

"Even though we have lost a minor battle, the war is still being waged," said Rev. Rob Schenck, president of the National Clergy Council and one of those who protested the removal Monday. "There is a higher moral authority than the courts."

It's up to the courts, however, to decide whether the Ten Commandments stay or go in Adams County. And lately, courts around the country have looked better to those fighting the kind of battles that Manion and Schenck are fighting in Adams County.

President Bush's judicial appointments have begun to shift the balance of power on several circuit courts, which are just one step removed from the U.S. Supreme Court.

No court has changed more than the 6th Circuit, which serves Ohio, Michigan, Kentucky and Tennessee. Once considered a left-leaning court, it now is one of the most evenly divided in the country.

Six of the 12 active judges were appointed by Democratic presidents; six by Republicans.

"Does that mean we win the case? I don't know," Manion said. "Separation of church and state cases are tough to predict."

Lawyers for the American Civil Liberties Union, which pushed for the removal of the Ten Commandments, say the court's new tilt to the right is no guarantee it will ultimately rule in favor of the school district.

"Judges understand First Amendment jurisprudence pretty clearly," said Scott Greenwood, the ACLU lawyer who sued the school district on behalf of an Adams County resident. "These religious displays are pretty well established to be forbidden to local governments when done in this manner."

That was the conclusion of Magistrate Timothy Hogan, who ruled last year that the monuments had to go because it is unconstitutional for a public school to endorse a particular religion.

The same argument is now before the 6th Circuit, which will assign a new panel to hear the case.

The school district installed the tablets in 1997 after they were donated by a local group of ministers. When the ACLU challenged the presence of the religious message, school officials added other items, such as a tablet inscribed with the Magna Carta, and argued the Commandments were part of a historical display.

Greenwood said he doesn't think the 6th Circuit, regardless of the ideology of its judges, will buy that argument. But school officials and their supporters remain optimistic.

They have put three of the tablets in storage for now, and the fourth will be displayed in a store window in West Union. They say they will be ready to return them to the schools as soon as the 6th Circuit gives the go-ahead.

"I'm going to do everything I can to focus on the appeal," said Tammy Baldwin, a pastor at West Union Church of the Nazarene. "I feel our rights have been violated."

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