Alfred Putnam Comments on U.S. Supreme Court Ten Commandments Decision

At first glance, the pair of decisions handed down Monday by the U.S. Supreme Court dealing with displays of the Ten Commandments on public grounds might appear to call for a rethinking of similar litigation over the past few years in Pennsylvania.

By 5-4 votes in both cases, the justices ordered that a Ten Commandments display on two Kentucky courthouses must come down, but -- with one justice switching sides -- found that a monument of the Ten Commandments at the Texas state capitol may stay in place.

[T]he rulings could spark a new wave of litigation in Pennsylvania where lawyers from the American Civil Liberties Union and Americans United for Separation of Church and State recently waged losing challenges seeking the removal of plaques of the Ten Commandments that had hung for decades on the walls of the courthouses in Chester and Allegheny counties. ...

The swing justice -- Justice Stephen G. Breyer -- was the only justice in the majority in both decisions. But Breyer's rationale for allowing the Texas display to remain was expressed in a concurring opinion that was joined by none of the other justices. ...

Attorney Alfred W. Putnam of Drinker Biddle & Reath, who was on the winning side in the Chester County appeal, said he was encouraged by language in Breyer's concurring opinion that echoed the 3rd Circuit's decision.

Putman filed an amicus brief in the Chester County case on behalf of the Chester County Historic Preservation Network in which he compared the forced removal of the plaque to the Taliban's decision to destroy ancient Buddha statues.

In the brief, Putnam argued that the ACLU and its clients were asking for too much -- and that Dalzell went too far when he granted their request -- because the law does not require governments to destroy historic monuments in order to avoid violating the Establishment Clause of the First Amendment.

"It is possible to preserve and respect the works of one's ancestors without 'endorsing' them. We do it every day. It is true that the Taliban does not understand this. But we are not the Taliban. And our Constitution does not require that we behave as if we were," Putnam wrote. ...

Putnam also found it significant that Breyer quoted from the same passage that Becker had quoted in the Supreme Court's 1963 decision in Abington School District v. Schempp in which Justice Arthur Goldberg said that, in Establishment Clause cases, the courts must "distinguish between real threat and mere shadow."