Lewis Webb said he spent days and nights brooding over arguments of hanging the Ten Commandments in schools.
On Tuesday, Webb was one of two Giles County School Board members to vote against a historical display for schools that includes the biblical text. The prevailing board majority that voted to hang the display also pledged to fight for the displays in court — a lawsuit is expected soon to challenge the board’s decision.
“This issue creates a great conflict between what is in my heart as opposed to my mind,” Webb said after the vote. “I took an oath to uphold the Constitution of this great country. … Personally, I feel this issue violates the Constitution.”
Free speech legal experts are more torn than Webb on a court case’s possible outcome. At the heart of the case: how a court interprets the school board’s history and motives, they say.
The issues’ two sides are these: Liberty Counsel — a Christian free speech organization advising Giles County — says the historical display, of nine documents, is legal because it focuses on the history of law rather than solely the commandments. In short, the board’s decision was a secular and educational one.
Meanwhile, the American Civil Liberties Union of Virginia and Wisconsin-based Freedom From Religion Foundation challenge that the school board’s actions are religious and violate First Amendment rights.
The opposition groups represent two anonymous Giles County families and have said they will file suit against the school board in U.S. District Court. The groups had not done so as of Wednesday.
“If what the ACLU is saying is true, and can prove it, it’s pretty clear cut,” said Carl Tobias, a University of Richmond law professor and courts watcher. “It comes down to whether you can show the history of the display shows a religious purpose.”
The ACLU’s argument hinges on a 2005 U.S. Supreme Court judgment, McCreary County v. ACLU of Kentucky.
That case decided that McCreary and another Kentucky county could not post displays with the commandments in courthouses because earlier actions by those counties promoted religion. The Supreme Court split 5-4 in its decision.
The proposal that lawyer Bobby Lilly of Giles County gave the school board, and which the board passed with few changes Tuesday, includes wording that puts the display in a civic context. The proposal doesn’t give the Ten Commandments more attention than other documents, such as the Virginia Statute for Religious Freedom, Declaration of Independence and Magna Carta.
“If there’s a way to do it, this is a way to do it properly and constitutionally,” said John Whitehead, founder and president of Charlottesville civil liberties group The Rutherford Institute. “The Supreme Court is in the middle on this issue; that’s why it has to be argued well.”
Liberty Counsel has won cases that reached appeals courts in Kentucky and Indiana that use Ten Commandments displays for secular reasons.
However, Giles County’s history with this situation and the pro-commandments outpouring from churches and hundreds of citizens may factor in, said Charles Haynes, a First Amendment scholar at the Freedom Forum and Newseum’s Religious Freedom Education Project director.
“If we all know what’s really going on here, the court will look at that,” Haynes said. “It’s a close case.”
Giles County schools had hung framed, church-donated copies of the commandments and U.S. Constitution in six buildings since about 1999. Legal threats from Freedom From Religion, an atheist and agnostic group, and the ACLU compelled the district to take them down in December and again in February.
In the county, many believe the school board’s decision is the right one.
Pastor Shahn Wilburn has led members of Riverview Baptist Church in Ripplemead to advocate for the commandments in Giles County schools because they are part of Judeo-Christian and American government history, he said.
If the school system loses its case, it could be responsible for its opposition’s legal fees.
The McCreary vs. ACLU case ended with a more than $450,000 bill that two counties must split and are struggling to pay.
Giles County’s situation likely won’t drag on as long or reach the Supreme Court. It probably won’t cost as much, either, Haynes said, because there will be little investigation, a major expense.
Giles County supervisors Chairman Eric Gentry said his board, which provides the school district funds each year from tax revenue, has no stance on the matter.
He supports the commandments in schools and the district going to court.
“The trick there is not to lose,” he said Wednesday. “We’ve got a long way to go before anything happens at all.”
(June 9, 2011)