[JURIST] The US Court of Appeals for the Sixth Circuit [official website] has refused to conduct a full court rehearing [order, PDF] of a three-judge panel's ruling [JURIST report] that a Mercer County, Kentucky courthouse display containing the Ten Commandments is constitutional. In the decision [PDF text] last December, the judges distinguished the Mercer County display from displays ruled unconstitutional by the Supreme Court [JURIST report] last year based upon its history. The court cited the inclusion of other historical documents in the original Mercer County display as evidence that the display did not demonstrate a religious intent or purpose.
Five judges joined in a dissent [PDF text] from the decision not to rehear the case, arguing that the majority blatantly disregarded the county's religious intent and misconstrued the Supreme Court's decision:
In short, the panel essentially ignored the Supreme Court's characterization of the content of the Mercer County display. The panel flouted the Supreme Court's charge that the reasonable observer not be "absentminded," and the panel viewed context as coterminous with legislative history. Compare Mercer County, 432 F.3d at 632 ("The objective observer has no recent history of religiously motivated governmental acts or resolutions to incorporate into the display.") with McCreary County, 125 S. Ct. 2737 ("The Counties' position just bucks common sense; reasonable observers have reasonable memories, and our precedents sensibly forbid an observer 'to turn a blind eye to the context in which [the] policy arose.'"). The panel read Mercer County's action of quickly and exactly copying its fellow counties' embattled and religiously motivated display out of the record. Rather, the panel held as a matter of law, ostensibly construing the evidence in the light most favorable to the nonmoving party, that the reasonable observer would perceive a predominantly secular purpose behind Mercer County's display.The Louisville Courier-Journal has more.