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As a subscriber you can listen to articles at work, in the car, or while you work out. Subscribe NowThe American Civil Liberties Union of Indiana is trying to stop Gov. Mike Braun from displaying the Ten Commandments on the Statehouse lawn, saying such an action would violate the First Amendment understanding of the separation of church and state.
Earlier Monday, the ACLU filed a motion asking a federal judge to allow an updated complaint in its long-running case against the state for several attempts to place a large limestone monument inscribed with the fundamental Judeo-Christian law on public land. Last month, a federal judge allowed Braun and Indiana Attorney General Todd Rokita to reopen the 25-year-old dispute, writing in an order that how the courts assess the First Amendment’s Establishment Clause has changed “significantly” since the case began more than 20 years ago.
The ACLU’s amended complaint asks the court to declare Braun’s plans unconstitutional and to keep the injunction in place.
“No one is questioning the right of a church, home, or private organization to display the Ten Commandments,” said Ken Falk, legal director at the ACLU of Indiana, in a public statement on Monday. “But when the State puts that text on the lawn of the Statehouse, it is no longer private expression. It becomes a government-endorsed message about religion, and the First Amendment does not allow the State to send that message.”
The Indiana Lawyer reached out to Braun and Rokita’s offices for comment, but they did not immediately respond.
In 2000, then-Gov. Frank O’Bannon accepted the monument as a gift from the Indiana Limestone Institute to replace a similar monument that had been on the Statehouse lawn for decades before it was vandalized in 1991.
According to court documents, the faces of the monument in question display the religious law, the federal Bill of Rights, and the preamble to the 1851 Indiana Constitution.
However, before the monument could be set, the Indiana Civil Liberties Union (now the ACLU of Indiana) sued O’Bannon and moved for a preliminary injunction to block its placement.
The federal court in Indianapolis approved the injunction, and it has been in place ever since. The 7th Circuit Court of Appeals later affirmed the decision and entered a permanent injunction, according to the ACLU.
But the case again found life in December, after Braun and Rokita announced the state had filed a motion, asking the court to lift the injunction.
“This monument reflects foundational texts that have shaped our Nation’s laws, liberties, and civic life for generations,” Braun said in a news release at the time. “Given the clear shift in constitutional law and the long history of similar displays across the country, we ask the court to lift this outdated injunction. Restoring this historical monument is about honoring our heritage and who we are as Hoosiers.”
Court precedent regarding the Establishment Clause – which prohibits the government from establishing a religion – has changed over the last 20 years.
In April, the 5th Circuit Court of Appeals in Rabbi Nathan v. Alamo Heights Independent School District upheld a Texas law requiring the display of the Ten Commandments in every public school classroom across the state.
“It is indisputable here that Establishment Clause jurisprudence has changed significantly since 2002, when the final judgment was first entered in this case, and further, there is also no dispute that Lemon (Lemon v. Kurtzman), which served as the primary legal underpinning for the judgment, no longer provides the applicable legal test for assessing an Establishment Clause claim in this context,” Southern District of Indiana Judge Sarah Barker wrote in a May order.
The ACLU holds that if the state were to post the Ten Commandments at the Statehouse – the seat of governmental power and authority in Indiana – that would represent a state-sponsored religious statement in violation of the separation of church and state.
Although the court permitted another look at the case, Barker did not make any specific conclusions.
“Determining whether the specific practice at issue here, to wit, the State’s erection of a permanent monument containing a seven-foot-tall depiction of the complete text of the Ten Commandments on the grounds of the Indiana Statehouse is ‘consistent with a historically sensitive understanding of the Establishment Clause’ … requires a more fulsome record than is currently before us,” Barker wrote.
The case is Indiana Civil Liberties Union, et al., v. Mike Braun, 1:00-cv-00811-SEB-MKK.
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