Passive Acknowledgement or Active Promotion of Religion? Neutrality and the Ten Commandments in Green V. Haskell

I. INTRODUCTION In Green v. Haskell, the Tenth Circuit considered whether the Haskell County Board of Commissioners' decision to approve a private citizen's request to erect a monument inscribed with the Ten Commandments on the lawn of the county courthouse violated the Establishment Clause. With reasoning based primarily on Justice O'Connor's "Endorsement Test,"2 the court found that under the unique circumstances of the case, a reasonable observer would view the government's decision to allow the display of the Ten Commandments as having the "principle or primary effect of endorsing religion," and thus the display violated the Establishment Clause.3 This Note argues that the Tenth Circuit erred in finding that the monument in Haskell County violated the Establishment Clause. The Tenth Circuit failed to apply the controlling precedent of Van Orden v. Perry4' to find that the monument in Haskell County was a constitutionally acceptable, neutral acknowledgement of the religious history of this nation. Instead, the court incorrectly distinguished Van Orden both by using an unrealistic "reasonable observer"5 standard requiring a clear secular purpose for the erection of the monument, and by incorrectly attributing the divisiveness surrounding the lawsuit to the unconstitutional effect of the monument. II. FACTS AND PROCEDURAL HISTORY Haskell County, located in Southeastern Oklahoma, has a small population of about 15,000 people.6 The courthouse is located in Stigler, the county seat, and is situated in the middle of a square block of county property, which also contains a rustic cabin for the Haskell County Historic Society, a gazebo used for activities ranging from political rallies to symphonies, and a lawn where a number of public and private events take place. The lawn contains a number of marble monuments "spread willy-nilly," which were mostly paid for and erected by private citizens of Haskell County.7 Although no written policy exists regarding the types of monuments allowed to decorate the lawn, the theme of the monuments could arguably be construed as relating to the historical significance of Haskell County and the United States in general.8 The largest monument, situated directly in the center of the lawn, honors Haskell County citizens who died in World War I and World War II. There are also smaller monuments including one that honors those who were killed in action in Vietnam and Korea; a rose garden with a bird bath; a flag pole with the American Flag; a large monument for the Choctaw Nation; two marble benches dedicated to and inscribed by the local high school classes of 1954 and 1955; white billboards with advertisements for various churches; a section for "personal message" bricks from private sponsors; and, of course, the recently added monument displaying the Ten Commandments. 10 The plans for the addition of die Ten Commandments monument began in 2004 when a private citizen named Mike Bush attended a regularly scheduled meeting for the Board of County Commissioners and asked for permission to erect a monument with the Ten Commandments.11 Mr. Bush said that he would take care of all expenses for the project.12 The Board discussed the historic aspects of the project, but it did not discuss any religious aspects of the decision to allow the monument's erection.13 Mr. Bush was granted permission, and he proceeded to design the monument and raise funds for the project.14 As an afterthought, Mr. Bush decided, without approval from the Board, to add the text of the Mayflower Compact.15 The monument was erected on the courthouse lawn on November 5, 2004, and an unveiling ceremony organized by Mr. Bush followed days later consisting primarily of impromptu religious speeches.16 Two of the commissioners attended the ceremony.17 After the unveiling of the monument and the initial media coverage, there was a period of relative calm until James Green filed a lawsuit on October 6, 2005, claiming that he was "offended by the Monument because he believes its text is presented as a mandate and is thus an endorsement by the government of religious matters. …