Dispatches from the Creation Wars

Howard Friedman points to a new decision from the 9th circuit that allows a Ten Commandments display on public property in Everett, Washington to remain in place. The ruling notes that the circumstances are very similar to those in Van Orden v Perry, which the court considered the controlling decision:

this monument bears a prominent inscription showing that it was donated to the City by a private organization. As in Van Orden, this serves to send a message to viewers that, while the monument sits on public land, it did not sprout from the minds of City officials and was not funded from City coffers.


But the really notable part is a concurring opinion by Judge Fernandez, which takes the unusual step of chiding the Supreme Court in rather sarcastic terms for the utter incoherence of its church/state jurisprudence:

I applaud Judge Wardlaw’s scholarly and heroic attempt to create a new world of useful principle out of the Supreme Court’s dark materials. Alas, even my redoubtable colleague cannot accomplish that. The still stalking Lemon test and the other tests and factors, which have floated to the top of this chaotic ocean from time to time in order to answer specific questions, are so indefinite and unhelpful that Establishment Clause jurisprudence has not become more fathomable. Would that courts required neutrality in the area of religion and nothing more or less.

I doubt any law professor would disagree with that. I certainly don’t.