Firm Foundation

This week the Idaho Supreme Court ruled 4 to 1 that an initiative petition that would allow the people of Boise City to vote on whether a Ten Commandments monument should be displayed in a public park must be placed on the ballot. The Ten Commandments display, donated to the city by the Fraternal Order of Eagles in 1965, had been on display in the city’s Julia Davis Park until 2004 when the city council had it removed. A private group, Keep the Commandments Coalition, started a petition drive and garnered over 10,000 signatures to have the placement of the monument in the public park put to a vote.

Showing callous disregard for the democratic system and the people’s wishes, the city council refused to place the initiative on the ballot. The city council then filed a lawsuit seeking a declaration that the subject of the petition was not a proper one for a ballot initiative. The district court ruled in the council’s favor, but the Idaho Supreme Court reversed that decision in a short opinion released Monday.

The city council argued that it did not have to place the initiative on the ballot because the subject matter, i.e., placement of a monument on public land, is an administrative action rather than a legislative one. Idaho law permits initiatives and referenda only if they are legislative in nature rather than administrative because they are enactments of law. The potato state’s high court did not address that issue, however, in making its decision. Instead, it decided that the initiative process should not be interrupted by the Court before it has been voted upon. The court likened an initiative to a bill in the legislature: courts do not stop bills pending in legislatures from being enacted, but rather wait until the bill becomes law and someone challenges the law in court. The court said the same logic holds for an initiative: it should not be stopped prior to the people’s vote.

The bottom line of this technical ruling is that the people of Boise City will be allowed to vote on whether the Ten Commandments monument should be displayed in Julia Davis Park. Assuming the people vote in favor of the public display of the monument, the city council then will be permitted, should it choose, to challenge the initiative in court and make the same argument it did here about the initiative being administrative rather than legislative in nature. From a technical legal perspective, the city council is probably correct that this particular initiative concerns an administrative action; thus, when all is said and done, the initiative very well could be struck down.

But this ruling still constitutes a victory because the people’s voices will be heard about the public display of the Ten Commandments. That is precisely what the city council had hoped to avoid by challenging the initiative when it did. If the vote is overwhelmingly in favor of placing the monument back in the park, then it would take a brave (and politically inept) city council to challenge the initiative in court. Of course, the ACLU or Americans United for Separation of Church and State may challenge the initiative instead, but at least everyone will see who is against the people and against the Ten Commandments.

One thing that is not likely to happen is an Establishment Clause challenge to the display itself if it is returned to the park. In Van Orden v. Perry (2005), a case in which the Foundation filed an amicus brief, the U.S. Supreme Court approved of the display of a Fraternal Order of Eagles Ten Commandments monument that had been on public land for over 30 years. The facts in the Boise City case are close enough to those in Van Orden that the anti-religion legal forces are not likely to waste their time litigating it on Establishment Clause grounds.