Firm Foundation

As we predicted, the full 5th Circuit Court of Appeals has agreed to rehear the case involving a Bible monument outside a courthouse in Houston (right). Oral arguments will be heard and more briefs will be submitted, although the clerk has not yet set the schedule.

As you may recall, after a lawsuit was filed by Houston lawyer Kay “I’m not an Atheist” Staley, a 3-judge panel of the court held in August that the 50-year-old Bible display, a memorial to a Christian businessman, was unconstitutional—but only because a judge and court reporter in the 1990′s raised funds to refurbish the monument, and rededicated it in a ceremony that featured prayers by Christian ministers and speeches about returning God to government. (See our post on that opinion here.) Because of the prayers and speeches at the rededication, held the court, the monument was “commandeered . . . for religious purposes,” causing it to “evolve[] into a predominantly religious symbol.”

Such an opinion furthers the recent trend in religious display cases—including the recent Ten Commandments cases from the Supreme Court—that the older the monument/display and the further back in time it was meant to acknowledge God or His higher law, the “more constitutional” said monument/display will be. Conversely, recent acknowledgments of God are deemed unacceptable for being “too religious” and making atheists and nonbelievers “feel like outsiders.” (See here, here and here for examples.)

The 5th Circuit has some good judges on the bench, at least one that should probably be considered for a higher Court, but whether the full court will actually reverse the panel decision is harder to predict. Rehearings are no guarantee of a reversal, but the lower court’s opinion in this case is so patently flawed and so blatantly hostile to religion and its public expression, that it is likely we’ll see the refurbished Bible monument vindicated.