Ten Commandments and Internet research

On October 19 we will have our second "Internet Day." Before I turn to the topics you can consider for our "45 Minutes of Research" in class, I wanted to review a few things from class on October 14.

The two themes/issues we dealt with for last week were: (1) the period before and after the framing of the US Constitution (approximately 1776-1790) and (2) the jurisprudential issues surrounding adoption of the Field Code of 1848. With respect to the latter, I tried to contrast the complexity of common law pleading with the simplicity of the 1848 Field Code standard. Though not normally treated in the typical jurisprudence class (though, as we saw in week 1 there is no "canon" of materials for such a class), I think that procedural reform is close to the essence of what constitutes jurisprudence, for it has everything to do with how litigants approach the court. Having said that, however, I know of no studies that argue that justice was better served or better dispensed under Code reform. We are alll heirs of the process begun by the Field Code, however, even if we are under the "notice" pleading of the Federal Rules and not "fact" pleading of the Field Code.

The Ten Commandments

Hundreds of news outlets carried the story last week that the US Supreme Court had granted certiorari in two cases (from TX and KY) regarding constitutionality of displays of the Ten Commandments on public property. The factual scenarios of the cases are quite different and there are several other fascinating issues that might contribute to our understanding of these cases. Choose one of the topics below, spend 45 minutes in class doing research and then we will come back together for 40 minutes of discussion.

1. The Texas case is Van Orden v. Perry, decided by the Fifth Circuit on November 12, 2003. It had to do with the display of the Commandments on the grounds of the state capitol. Find the case, read it and summarize the facts and approach of the lower court.

2. The Kentucky case is McCreary County v. ACLU, 354 F3d 438 (6th Cir. 2003). Displays of the Commandments in two counties (Pulaski also) at county courthouses are at issue here. Find the case and report on it.

3. Ten Commandment cases have been decided in a number of Curcuits since 1980. One report I read said that four circuits have held the practice constitutional and three have invalidated the displays. Find these cases and create a chart summarizing crucial facts and the decisions of the courts (I know there were Alabama, Indiana and PA cases, too).

4. The Supreme Court will use its Establishment Clause Jurisprudence to try to understand this case. Describe the test devised in Lemon v. Kurtzman (1971) and the subsequent refinements of the test in later cases. Also, the Supreme Court has decided one "Ten Commandments" case in the past--1980 (Stone v. Graham). Find this per curiam decision and summarize it. Finally, the Supreme Court did not grant review for a third KY case, Harlan County v. ACLU, regarding Ten Commandment displays in public schools. What do you think is going on there?

5. The issue of religious symbols in public buildings/school classrooms is an international one. I recall Jan mentioned that there was a German case on the issue of crucifixes in public school classrooms recently. If anyone (Jan?) would like to take this topic, describe that case, the way the appellate process in the German courts worked on this issue and the nature and basis for the decision. Jan also mentioned to me in an email that the issue of head scarves for teachers in schools may be an issue. Tell us what the issue is.

6. One of the issues in the KY case was whether the Ten Commandments surrounded by displays of other secular legal symbols made the Ten Commandments a "secular" document. I would like someone to study the Allegheny case (482 US 573 (1989)) to see how the Court handled multiple religious/secular symbols in one display. You might want to start with my summary of the case on my "Religion and Law" page on my website.

7. I have asked Shannon to summarize some of the historical arguments made by Justice Rehnquist and Justice Rutledge on the historical meaning of the First Amendment religion clauses.

8. This question can involve many of you. In the past several years many, many legal centers have grown up whose purpose it is to argue/prepare briefs before the US Supreme Court on religion issues. They each have very strong opinions, as you might guess, and each has web sites that tells about their involvement in this and other cases. Please check out the web site of one (or more) of these groups and report back on the range of their interests and their perspectives, beginning with the Ten Commandments issue.

a. The American Civil Liberties Union/Religion cases

b. National Legal Foundation

c. Americans United for Separation of Church and State

d. The First Amendment Center

e. Liberty Counsel (counsel of record in the KY case)

f. American Center for Law and Justice

There are, no doubt, others, but this will get you started.

9. One of the more visible "Ten Commandments" cases in the past few years was the attempt by Chief Justice of the Alabama Supreme Court Roy Moore to erect a huge display of the Commandments at the Alabama Supreme Court. One of the arguments made in that case was that the moral foundations of American Law are derived from the Ten Commandments. Professor Green wrote a brief in that case regarding the Ten Commandments in common law and American legal history (only about 15 pages). I have a copy of the brief and would like one of you to read and summarize it.

10. On ScotusBlog on the day that certiorari was granted, the blogger listed a number of news stories/analyses that covered the granting of cert. Find the blog for the day, read the news stories/analyses (you will need to "sign in" for almost all of the papers, but all you need is an ID and password, which you can get right away) and report back on them.

If you finish early on your assignment, choose another one to work on, too, until the 40 or so minutes is over.