Cumberland Times-News Editorial

June 13, 2018

Maybe so

Some might have scoffed at the idea of the Allegany County commissioners granting an easement to protect the status of the Ten Commandments monument on the courthouse lawn.

Edward Taylor Jr. asked them to deed a few feet of the land for that purpose. He is president of the nonprofit Cumberland Historic Cemetery Organization, the only organization so far to publicly say the monument should stay where it is. (See: “County asked to defend Ten Commandments monument,” June 11 Times-News, Page 1A.) A historic easement is a legal agreement — a deed — that assures the property owner its historic character will be preserved.

We have taken no position on the matter, but have found that Taylor makes a valid point.

Dr. Jeffrey Davis, a Garrett County physician, sued two years ago in federal court to have the monument removed on grounds it violates the First Amendment clause that forbids government from respecting an establishment of religion.

The Supreme Court has ruled that Ten Commandments displays must be removed from public property if they demonstrate a religious intent on the part of the officials who put them there. One such monument can stay on the grounds of the Texas state capitol because it serves “a mixed but primarily nonreligious purpose.”

It’s only partly true that the Supreme Court building has representations of the Ten Commandments. Moses is shown holding a tablet that has commandments 6 through 10 (written in Hebrew letters), which concern murder, adultery, theft, perjury and covetousness — secular commandments. The religious commandments are not visible. He is joined by several other historical lawgivers, including Hammurabi, Solomon, Octavian, Solon and Confucius.

The entry to the court’s chambers contains two tablets bearing Roman numerals I through V on the left door and VI through X on the right door, and no wording. They can be interpreted as representing the first 10 amendments in the Bill of Rights.

Our monument was donated by the local Fraternal Order of Eagles aerie in 1957, when other Eagles clubs were doing the same as part of a nationwide promotion of the “Ten Commandments” movie.

Davis subsequently withdrew his suit without comment, and so far as we know hasn’t said or done anything publicly about the matter lately.

Taylor told the commissioners he was there because Davis or someone else may eventually try to have the monument removed.

“Something needs to be done,” he said. “Because in the future, we may have three commissioners that may be in favor of removing this treasure of Allegany County. This monument is the basis of our American judicial system.”

County attorney William Rudd said the issue is complex and he will take the issue under advisement.

Complex it is, as you will see … just as we found out after referring to an article written by Paul McGreal in 2008 for the Northwestern University Law Review: “The Case for a Constitutional Easement approach to Permanent Monuments in Traditional Forums.” It is available for reading online.

McGreal speculates that a veterans group is allowed to place a veterans monument in a public park, but a political group is denied permission to hold a rally there because the park “is for peaceful recreation and not for noisy demonstrations.”

The political group’s First Amendment rights are found to have been violated because the park is a public forum and at least some assembly, speech and debate must be allowed there.

Subsequently, a religious group wants to place a monument in the park that represents the tenets of its faith. This is denied on grounds that the only permanent structures allowed are those that serve the park’s recreational purposes.

The religious group counters that the veterans group has a monument there, and exclusion of the religious group’s monument prevents its speech in a place that is a public forum.

McGreal wrote “Rights in the traditional public forum have the same structure as easements. The traditional public forum has a land owner (the government) whose real property (the traditional public forum) is burdened by the right of third parties (the public) to use the property.”

The article is 10 years old and the courts have had much to say since then. The Supreme Court has since ruled that permanent monuments in public parks are not subject to the same free speech protections that apply to speeches and rallies.

McGreal’s analysis does apply here because our courthouse lawn has been the site of protests, political gatherings and other events. This makes it a public forum that is owned by the government.

It also is home to our Ten Commandments monument, which is definitely religious in nature, and is located near a statue of George Washington, who was definitely a veteran. Both were put there by private citizens with the government’s permission.

Copyright (c)2018 Cumberland Times News, Edition 6/13/2018