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The Eleventh Commandment: “Thou Shalt Not Violate the Establishment Clause”

August 19, 2009
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Posted By: Dwight Merriam, Partner, Robinson & Cole, LLP

So sayeth the Tenth Circuit in Green v. Haskell County Board of Commissioners on June 8, 2009, followed on July 30th by the court en banc voting 6 to 6 to deny a rehearing.  Close only counts in horseshoes and hand grenades. 

In reading the dissent to the en banc decision, you will see the frustration and angst among both local officials and the jurists as to where to draw the line.

The board of commissioners of Haskell County, Oklahoma, authorized a Ten Commandments monument, eight feet tall, in front of the county’s courthouse in Stigler.  Here it is up close:

And here it is in context:

Here is the layout of the front lawn (Appendix C, page 51 of the decision):

clip_image003

As you may recall, the U.S. Supreme Court decided two Decalogue cases in 2005, allowing the monument in one, Van Orden v. Perry, and finding an Establishment Clause violation in the other, McCreary County v. ACLU of Kentucky. The difference appears to be that the former had been up for many years and did not have any apparent history of being placed in support of religion.

The Haskell County monument, emplaced on November 5, 2004, was up just a year before it was challenged and the there was ample evidence that many supporters wanted it there for religious purposes.  It was sponsored by Michael Bush, a construction worker and part-time minister who helped raise the money for it from local churches. Two of the three county commissioners, and several ministers, attended the unveiling of the monument (along with 200 people and representatives of 17 churches) and participated in a rally afterwards. 

In speaking of the monument sometime in November 2004, one county commissioner reportedly said:

“That’s what we’re trying to live by, that right there…The good Lord died for me. I can stand for him, and I’m going to…I’m a Christian and believe in this.  I think it’s a benefit to the community.”

 Another county commissioner said:

  “God died for me and you, and I’m going to stand up for him.”

At a rally two weeks later attended by 300-400 people, one commissioner said:

“I’ll stand up in front of that monument and if you bring a bulldozer up here you’ll have to push me down with it.”

At least one photograph in the press showed all three commissioners standing next to the monument.

The commissioners failed to distinguish their personal religious beliefs from that of the Board and consequently “left the impression that a principal or primary reason for the erection and maintenance of the display was religious.”

The Alliance Defense Fund plans to petition for certiorari in the U.S. Supreme Court.

“Americans shouldn’t be forced to abandon their religious heritage simply to appease someone’s political agenda,” said ADF Senior Counsel Kevin Theriot.  “As some of the dissenting judges pointed out, the three-judge panel’s decision is in conflict with both the U.S. Supreme Court and other federal appellate courts.  There is no difference between this Ten Commandments display and the one at the Texas state capitol that was upheld by the U.S. Supreme Court nearly five years ago.”

Here is a checklist I have prepared, based on my review of the several cases, for local government lawyers to use in managing the placement of religious monuments on public property:

1. Put up several monuments at once, including totally secular ones, like the Star Wars Pledge of Allegiance:

 

Star Wars Pledge of Allegiance


By Miba Reywes

I pledge allegiance to George Lucas,
the master of all that is Star Wars,
and to the movies he has created,
one galaxy, in war,
OT and PT, with Jedi
and blasters for all.

http://www.starwarsdotcom.com/fans/fanfiction/miba003.html.

In Haskell County, the minister who sponsored the display added the Mayflower Compact on the back apparently to somehow neutralize the religious content of the display.  Really, he did that.  The Board didn’t know about it.

2. Have the commissioners who vote to approve the monument say things like:  “So what are the Ten Commandments – I never heard of ‘em.”  And “Ten?  I thought there were two – drink beer and party.”

3.  After the vote to authorize the monument, have a couple of commissioners say something showing that they didn’t really know what they were voting on, like:  “Decalogue?  I thought we were building a ‘deck of logs’ in the park.”  In that way you totally insulate the commissioners from any religious intent.

4.  Have Larry Flynt sponsor the monument.  He’s got a kind of religion, yes, but not usually associated with this type of display.

5.  Have all the ministers and other religious types stay away from the unveiling.

6.  On further thought, don’t have an unveiling – have it erected on some moonless night behind the densest bush you have and a few weeks later approve a new landscape plan that eliminates the bush.

7.  Glue moss to the side in the shadows and prominently engrave on the bottom of any display: “Erected anonymously and without public support on November 14, 1957”.


Wind’s Winning Ways

January 27, 2009
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Posted by: Dwight Merriam, Partner, Robinson & Cole, LLP

With increasing concerns about global climate change, carbon footprints, sustainability and the price of oil, everyone seems to be looking for alternatives to produce electricity.  Surprisingly, it is believed that there are only 4,000 residential small wind turbines in the country, so there remains the potential for rapid growth.[1] Wind power is the best alternative in terms of the lowest cost per kilowatt hour among the technologies that are practical and reasonably available.[2]

Electric generators come in a wide variety of shapes and sizes from a few hundred watts such as might be used to provide additional power on a small boat or to run a water pump in a distant farm field, to a 50 kW or larger unit where the basic enclosure for the wind turbine is the size of a city bus.

While much has been written on planning for regulating large wind farm systems, there is a surprising lack of information about what local governments can and should do about the smallest of systems, the backyard wind turbine systems. How do we plan for them?  How should they be regulated? What should local officials be doing to assist homeowners in making decisions about the installation of residential wind turbines?

I have an article on the regulation of small “backyard” wind turbines forthcoming in the Vermont Journal of Environmental Law in which I attempt to answer these questions, at least in part.  Professor Ronald H. Rosenberg made a great presentation on the subject of wind power generally at IMLA’s Nashville meeting in October 2007.  His comprehensive article is “Diversifying America’s Energy Future: The Future of Renewable Wind Power,” Virginia Environmental Law Journal, Vol. 26, p. 505 (2008) and is available at http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1152405.  It’s the place you want to start it if you need to get up to speed quickly.

One of the best places to go to keep up with latest developments is National Wind Watch, Inc., which is — in its own words — “a nonprofit corporation that promotes knowledge and raises awareness of the negative environmental and social impacts of industrial wind energy development.”I don’t find the news they report all that negative and I have not found a better source for local developments in planning and regulation.  Information, analysis, and other materials are available on its website, http://www.wind-watch.org. You can sign up for its news feed at http://www.wind-watch.org/lists/?p=subscribe. Their channel on YouTube is www.youtube.com/windwatchorg.

This last week the site reported on a zoning amendment initiative which may make good sense (especially since I suggest it in my upcoming article…) – eliminate most regulations for smaller systems under a certain capacity and height.

The hot issue right now is the Cape Wind project off of Cape Cod, opposed by Senator Kennedy and supported by Massachusetts Governor Patrick – both close to President Obama, who wants to promote sustainable, renewable power.  For the latest news on the project, go to this recent Associated Press report. http://www.google.com/hostednews/ap/article/ALeqM5iynzQewvfjpZVZhSlaj5eMCohGXAD95V13SO0.   The final environmental impact statement supporting the project has just been issued. http://www.mms.gov/offshore/AlternativeEnergy/PDFs/FEIS/Cape%20Wind%20Energy%20Project%20FEIS.pdf.


[1]Kristin Dispenza, “Cities Look into Changing Zoning Laws to Accommodate Wind Power Generators” Energy, Energy Production (June 24, 2008 ) available at http://greenbuildingelements.com/2008/06/24/cities-look-into-changing-zoning-laws-to-accommodate-wind-power-generators/.  An overview of the issues is found in Michael Donohue, “Siting of Wind Power Developments,” Zoning and Planning Law Report, Westlaw 28 NO. 4 ZPLR 1 (April 2005).

[2]

For a comprehensive analysis of the trade-offs between continuing to use fossil fuels to generate electricity and the aesthetics of wind turbines, see Avi Brisman, “The Aesthetics of Wind Energy Systems,”  New York University Environmental Law Journal, 13 NYU Envtl. L.J. 1 (2005). 
 
 
 

 

 


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This blog is made possible by the International Municipal Lawyers Association (IMLA), but may include guest bloggers (who are attorneys with experience in local government matters) who might or might not work for IMLA. Their views (and those expressed on this site) do not necessarily express the views of IMLA.

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