The US Court of Appeals for the Sixth Circuit [official website] on Wednesday upheld [opinion, PDF] a permanent injunction against the display of the Ten Commandments [JURIST news archive] in two Kentucky courthouses. The displays, called "Foundations of Law and Government," contain eight other documents in addition to the Ten Commandments, including the Declaration of Independence, the Magna Carta, the Bill of Rights, and the Star Spangled Banner. The latest display marks the third attempt by McCreary and Pulaski counties to post the Ten Commandments in their courthouses. The original attempt, featuring only the commandments, was abandoned after a successful lawsuit. The second attempt, which included other religious documents, was determined by lower courts to violate the Establishment Clause [Cornell LII backgrounder] of the First Amendment. The US Supreme Court [official website] heard the case in 2005 [JURIST report] and upheld an injunction against the counties' second display attempt because it did not purge the religious intent of the original. Wednesday's opinion, written by Judge Eric Clay, found that the third display was simply another strategy "in a long line of attempts" to comply with the Constitution for litigation purposes and did not "minimize the residue of religious purpose" created by the first two attempts. As a result, the display did not meet the standards set forth by the Supreme Court in the 2005 case. Judge James Ryan wrote in his dissenting opinion that he did not fault his colleagues for upholding the ban and following the Supreme Court's "persistent hostility to religion," but recommended that the case be reheard en banc.
Last month, the Sixth Circuit denied an en banc rehearing in another case [opinion, PDF] involving the display of the Ten Commandments in a Grayson County, Kentucky, courthouse. The court found the display to be constitutional, distinguishing it from McCreary because it presented a valid secular purpose from the outset. In a 2005 decision, the Sixth Circuit ruled in favor of a Ten Commandments display in a Mercer County, Kentucky, courthouse. The 2005 Supreme Court decision prompted lawmakers to propose a constitutional amendment [JURIST report] to overturn it. On the same day it issued the McCreary decision, the Supreme Court ruled that a six-foot-tall display of the Ten Commandments [JURIST report] on the grounds of the Texas state capitol was constitutionally acceptable because it had a secular purpose.