Ten Commandments monument foes argue against suit dismissal

Liz Hayes
| Tuesday, Dec. 18, 2012, 9:22 a.m.

The Freedom From Religion Foundation and the New Kensington-Arnold School District families who are suing the district over its Ten Commandments monument have asked a federal judge to deny the district's request to dismiss the case.

The district, through its attorneys Anthony G. Sanchez and Amie A. Thompson, in November asked U.S. District Judge Terrence F. McVerry to throw out the lawsuit because they believe the monolith, donated by a local Fraternal Order of the Eagles branch about 50 years ago, is a secular and historical touchstone rather than a religious endorsement.

Two district parents and their children in September joined the Wisconsin-based organization that advocates the separation of church and state to demand the removal of the Decalogue at Valley High School. The plaintiffs argue the monument violates the First Amendment's prohibition on government establishing a religion.

On Friday, Marcus B. Schneider, the attorney representing the plaintiffs, responded to the request for dismissal by arguing the district's attorneys had attempted to “put the proverbial cart before the horse” by trying to argue the final merits of the case prior to the discovery phase when each side exchanges information and establishes facts.

Given the complexity of court cases dealing with the Establishment Clause — that part of the First Amendment that states “Congress shall make no law respecting an establishment of religion” — and an array of rulings, Schneider indicated each situation must be weighed individually.

Additionally, Schneider believes the district's assertion that a 2005 U.S. Supreme Court case resolves the New Kensington-Arnold case does not account for the nuanced differences between the two cases.

The district's request for dismissal frequently referenced the Van Orden versus Perry case, in which the display of a monument nearly identical to the New Kensington Decalogue on the grounds of the Texas State Capitol building was found to be constitutional.

“Courts have drawn a clear distinction between religious display cases involving public schools and those involving other government property,” Schneider wrote.

Schneider noted other differences between the two cases:

• The Texas monument's placement in a park among nearly 40 other monuments and historical markers, whereas the Valley High School monument stands alone;

• Plaintiff Thomas Van Orden could avoid the Texas monument by taking a different path to the Texas Supreme Court Library or using another library altogether, whereas Valley High School students must attend school and can't avoid the monument that sits in front of one of the building's main entrances.

In its request for dismissal, the district also asked the court to strike the plaintiffs' inclusion of comments made by school board President Bob Pallone in support of the monument, as well as references to supportive phone calls received by the district and a prayer vigil sponsored by clergy.

The district argued Pallone's comments on the Facebook page “Keep the Ten Commandments at Valley High School” were personal and not representative of the entire school board and, along with the other references to community support, were immaterial to the case.

Schneider counters that Pallone appeared to be speaking for the entire district by using phrases such as “the administration, the board and our staff are outraged by the request...” Pallone's comments, made in March, since have been removed from the site.

Schneider argued a reasonable observer could interpret Pallone's and the community's support as being “rooted in its favoring a particular religion.”

He noted that in another Establishment Clause case, Green versus the Haskell County (Oklahoma) Board of Commissioners in 2009, the Tenth Circuit Court of Appeals used statements made by individual commissioners to the media as indicators of the overall board's views when it ordered a Ten Commandments monument be removed from the courthouse lawn.

Liz Hayes is a staff writer for Trib Total Media. She can be reached at 724-226-4680 or lhayes@tribweb.com.

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