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Lawyers point to history in New Kensington-Arnold Ten Commandment case

| Tuesday, Oct. 30, 2012, 7:42 a.m.

Determining whether something is religious or historical might be the key to keeping the Ten Commandments monument near Valley High School.

Attorneys for the New Kensington-Arnold School District have until mid-November to file a response to a federal lawsuit seeking to remove the monument from school grounds.

While Superintendent John Pallone stopped short of saying district's defense will be based purely on the historical nature of the monument near the high school gymnasium, he indicated it is a key component of the school district's position.

“I don't have that answer for you today,” Pallone said of the defense strategy. “We need counsel to tell us how to approach. We don't believe it is a constitutional violation to have that monument on our property at this point because it is there for its historical and landmark-type value.”

Amie Thompson and Anthony Sanchez of Andrews & Price LLC, the firm representing the district's insurance company, and Doug Smith of Jackson Lewis, a Valley High School graduate, did not return a reporter's calls seeking comment for this story. Pallone said the cost to the district for Andrews & Price's services will be its insurance deductible which he estimated at $10,000. Smith is joining the defense team on a pro bono basis, meaning his services will be without pay.

“At this point all we have are allegations and, other than the obvious, that the monument exists and it is located where it is physically located, there are many other facts and conditions at issue,” Pallone said.

The monument, donated in 1957 by the New Kensington aerie of the Fraternal Order of Eagles, was part of a nationwide movement to provide a code of conduct for America's youth. The Eagles teamed with Cecil B. DeMille, producer/director of the blockbuster film “The Ten Commandments,” who saw the obvious publicity value in conjunction with the 1956 release of the film, to donate many such monuments throughout the country.

The Wisconsin-based Freedom From Religion Foundation, however, believes the monuments cross the line between the separation of church and state and violate the Constitution's First Amendment guarantee of religious freedom and prohibition against government establishing or recognizing an official religion. It is also known as the Establishment Clause.

Marcus Schneider of the Pittsburgh law firm Schneider and Steele, filed a lawsuit against the school district on behalf of the foundation and New Kensington resident Maria Schaub. Schaub joined in order to provide someone with local standing in the lawsuit.

Schaub's phone number is not listed and she did not respond to an email from the Valley News Dispatch seeking comment for the story.

Schneider said he anticipated the district using history as a defense.

“If there can be a historical purpose for displaying the Ten Commandments, it would have to be displayed with something that conveys the historical meaning,” Schneider said. “It is hard to argue that it has historical value when it is standing alone and it would be hard to understand what the historical value would be.”

He said the historical argument was successful in preserving the Ten Commandments monument in the van Orden versus Perry case in Texas because it was one of 38 historical markers and monuments surrounding the state Capitol, amounting to a historical display. But he emphasized that is not the case with Valley High School monument.

“Just standing alone for a long time doesn't change the fact that it is still standing alone and has a religious rather than historical meaning,.” Schneider said.

“My position would be that no amount of time would be sufficient,” he continued. “The mere passage of time doesn't suggest to me that a religious object is now suddenly historical.”

As for the possibility of the foundation's lawsuit ignoring the will of the local community, Schneider said local will is not factor.

“That's one of the things that our Constitution is designed to protect against is local will,” he said. “You basically open the door to everything being decided by local will.”

To put the argument in a different perspective, Schneider said if another religious sect other than Christians became the majority in the community and local will dictated such decisions, that sect could chose to remove the Ten Commandments and replace with one rooted in their religion.

As for the possibility of the school district selling the small piece of property where the monument sits to an independent group which wants to preserve the monument, Schneider does not think that would work.

“I think then you would be looking at the district's decision to sell the property as a violation of the establishment clause,” he said.

“I think you would be looking at a different decision of the district to challenge but I think it would be open to challenge.”

The foundation also sued the Connellsville Area School District in Fayette County asking for the removal of its Ten Commandments monument from near Connellsville Junior High.

Tom Yerace is a staff writer for Trib Total Media. He can be reached at 724-226-4675 or tyerace@tribweb.com.

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