Attorneys representing Arkansas are asking a federal judge to temporarily stop proceedings in a lawsuit over the constitutionality of a Ten Commandments monument at the state Capitol until the U.S. Supreme Court decides a similar issue involving a World War I memorial shaped like a cross in Maryland.
The nation's high court is scheduled to hear arguments Feb. 27 in The American Legion v. American Humanist Association, a case on appeal from the Virginia-based 4th U.S. Circuit Court of Appeals, and an opinion is anticipated no later than June, according to a motion filed Wednesday.
"The case involves the constitutionality of the Bladensburg Cross memorial, a passive display in the shape of a Latin cross located on Maryland state government property," according to the motion jointly filed by Assistant Solicitor General Michael Cantrell; Gary Sullivan, managing attorney for the Arkansas secretary of state's office; and the First Liberty Institute in Plano, Texas. All are representing Secretary of State John Thurston, who took over as the plaintiff this month after he was elected to replace the term-limited Mark Martin as secretary of state.
On May 23, two federal lawsuits naming Martin as the defendant were filed to contest the return of a Ten Commandments monument to the Capitol lawn, with both sets of plaintiffs alleging it violates the establishment clause of the First Amendment, constituting an illegal government endorsement of religion.
On June 25, U.S. District Judge Kristine Baker agreed to merge the lawsuits into one because of their similarities. One was filed by members of a walking and cycling club who walk past the monument regularly and are supported by the American Civil Liberties Union of Arkansas, while the other was filed by people representing a variety of religious viewpoints, led by the president of the Arkansas Society of Freethinkers. The consolidated case is known as Cave v. Thurston.
In December, Baker granted a motion to intervene by the Satanic Temple; its spokesman, Lucien Greaves, whose real name is Doug Misicko; and Erika Robbins of Little Rock, a member of the organization, which describes itself as having a mission to "encourage benevolence and empathy among all people." The group also contends that the monument constitutes an illegal government endorsement of religion, but requests an alternative solution: the placement of an 8½-foot-tall bronze statue of Baphomet -- a deity that is part man, part goat -- on the Capitol grounds.
The secretary of state's office was sued because it allowed the installation of the Ten Commandments monument, which was paid for by donations to the American History and Heritage Foundation, which was created by Sen. Jason Rapert, R-Conway. Rapert and state Rep. Kim Hammer, R-Benton, also co-sponsored legislation requiring lawmakers to approve proposals to erect new monuments before they can be considered by the Capitol Arts and Grounds Commission, which has kept the request to install Baphomet from moving forward.
The 6-foot-tall Ten Commandments monument was first installed on June 27, 2017, but was knocked down and broken apart within 24 hours by a Van Buren man who rammed it with his vehicle overnight. He was acquitted last summer of felony criminal mischief on mental-health grounds.
A replacement monument -- this time surrounded by 3-foot-tall concrete posts -- was installed April 26 in the same location.
The motion from attorneys representing the state say the case pending before the U.S. Supreme Court presents the question "whether the constitutionality of a passive display incorporating religious symbolism should be assessed under the tests articulated in [previous U.S. Supreme Court cases from 1971, 2005 and 2014], or some other test."
"Like American Legion, the central, dispositive issue in the instant consolidated action is the constitutionality of a passive display that incorporates religious symbolism," the attorneys wrote. They argued that because the disposition of the American Legion case "is likely to simplify and clarify the legal standard that controls the disposition of the principal claims" in Cave, the local case should be halted pending the high court's opinion.
The ruling in the American Legion case "will dispose of -- or significantly narrow -- the issues presented in this consolidated case," they said.
In a telephone conference Friday with attorneys, Baker said she won't rule on the request until after attorneys for the plaintiffs have time to respond in writing.
40-FOOT TALL MEMORIAL
The Maryland monument at the heart of the American Legion case stands 40 feet tall and is located in the island of a high-traffic intersection.
After several non-Christian residents sued a state commission that has title to the memorial and the land, alleging the display violates the establishment clause, a federal district judge ruled that the memorial didn't violate the establishment clause because it has a secular purpose, neither advances nor inhibits religion, and doesn't have the primary effect of endorsing religion, according to the Constitutional Law Reporter in an article published Thursday.
The district judge was overturned by the 4th Circuit, however, which said the memorial breaches the wall of separation between church and state because it "has the primary effect of endorsing religion and excessively entangles the government in religion."
The Reporter said that before the Supreme Court can decide whether the monument is unconstitutional, "they must first resolve an issue that has divided the federal courts -- which First Amendment test should be applied."
The oral arguments date was just set last week, apparently right before the defendants filed their motion to stay the Arkansas case.
On Nov. 2, when the U.S. Supreme Court decided to take up the American Legion case, the Alliance Defending Freedom, a Christian conservative legal advocacy group, issued a news release saying, "One group's agenda shouldn't diminish the sacrifice made by America's veterans and their families. The Supreme Court was right to take up this case so that it has the opportunity to affirm that the offended feelings of a passer-by does not amount to a constitutional crisis."
The group is one of many that have filed a friend-of-the-court brief in the case in opposition to the American Humanist Association, a nonprofit organization advocating for the separation of church and state.
The establishment clause says, "Congress shall make no law respecting an establishment of religion," but courts have disagreed on what constitutes "an establishment of religion."
"Given the decades-long consensus that Establishment Clause jurisprudence is in disarray," the Supreme Court opinion in American Legion "will likely significantly simplify this case," the attorneys representing the state argued, in favor of Baker staying the case.
Metro on 01/28/2019
Print Headline: State wants to stay monument lawsuit; attorneys cite parallels in Ten Commandments case, contested WWI display