August 12, 1999

Legal History Of Ten Commandments
Shows City Had Reasons To Fight Suit

When citizens of Manhattan talk about the Ten Commandments monument at City
Hall most, if not all, assume that it is a religious symbol and it therefor
against the Constitution of The United States.

The Manhattan City Commission voted to keep the monument in October of
1998. The vote was 3-2. Commissioners Steve Hall, Ed Klimek, and Rober
Reitz voted in favor. Commissioners Karen McCulloh and Bruce Sneed voted to
remove the monument.

In the 1999 City Election, Hall was replaced by Carol Peak. Three days
after the new Commission took office the ACLU representing seven local
citizens filed a law suit against the City.  At the April 27, 1999, City
Commission meeting Commissioner Peak joined Sneed and McCulloh in voting to
remove the Ten Commandments.

Before both votes the Commissioners were given an opinion by City Attorney
William L. (Bill) Frost that gives the history of the monument and tells
how other court cases turned out. The Commissioners knew that the courts
had ruled the Ten Commandment monument was not in violation of the
Constitution. Here is the Frost Memo:

October 28, 1998
TO:     Gary Greer, City Manager
FROM: William L. Frost, City Attorney
SUBJECT:        Placement of the Ten Commandments at City Hall You have
asked that I write an opinion regarding legal issues concerning the
placement of the monument depicting the Ten Commandments at City Hall.  The
purpose of this memo is not to either support the removal, or the
retention, of the monument.  Since there have been numerous suggestions in
the media that the placement of the monument is in violation of the
constitution, the purpose of this memo is to address that issue, and
provide the City Commission with legal advice thereon.

The Establishment Clause of the United States Constitution provides:

“Congress shall make no law respecting an establishment of religion . . .”.

The Establishment Clause is made applicable to the states by the Fourteenth
Amendment.  Contrary to the implication of published reports in the media,
not every government action which indirectly involves religion is
unconstitutional.  Government acts which have both a religious, and a
secular, message often have been found by Courts to pass constitutional
challenges.  As Justice Douglas said in a 1952 United States Supreme Court

“We are a religious people whose institutions presuppose a Supreme Being.
We guarantee the freedom to worship as one chooses. We make room for as
wide a variety of beliefs and creeds as the spiritual needs of man deem
necessary. We sponsor an attitude on the part of government that shows no
partiality to any one group and that lets each flourish according to the
zeal of its adherents and the appeal of its dogma. When the state
encourages religious instruction or cooperates with religious authorities
by adjusting the schedule of public events to sectarian needs, it follows
the best of our traditions. For it then respects the religious nature of
our people and accommodates the public service to their spiritual needs. To
hold that it may not would be to find in the Constitution a requirement
that the government show a callous indifference to religious groups.  That
would be preferring those who believe in no religion over those who do
believe. . . . We find no constitutional requirement which makes it
necessary for government to be hostile to . . . religious influence.”

The United States Supreme Court has established a three (3) pronged test to
determine whether government action violates the Establishment Clause.  In
order to be constitutionally permissible, the challenged action by a
government must comply with the following: a) It must   have a secular
(non-religious) purpose; b)  It’s principle or primary effect must be one
that neither advances nor inhibits religion; c)  The action must not foster
an excessive government entanglement with  religion.

Interestingly enough, there have been several court cases which have
addressed fact situations almost identical to Manhattan’s circumstances.
In 1973 the United States Court of Appeals for the Tenth Circuit rendered
an opinion in a case challenging the placement of a monument containing the
Ten Commandments, by the Fraternal Order of Eagles, on the City-County
Courthouse grounds of Salt Lake City and Salt Lake County.  The United
States Court of Appeals for the Tenth Circuit is the Appellate Court to
which federal cases filed in Kansas would be appealed; therefore, the
decision in this Appellate Court would be particular applicable to
Manhattan, Kansas.  In 1995, the Supreme Court of Colorado rendered a
decision in a case involving the challenging of the placement of a monument
containing the Ten Commandments, again by the Eagles, in a City park in
Denver.  Although this case would not be binding upon Kansas Courts, nor on
Federal Courts, the reasoning in this case is excellent, and the opinion
addresses almost all of the relevant cases that have discussed this
particular issue. I believe that both Kansas Courts, as well as Federal
Courts, would be persuaded by the reasoning used by the Colorado Supreme
Court in this case.

The monuments in question in both the Salt Lake City case and the Denver
case are almost identical to the monument which is located at City Hall.
In addition, all three (3) of the monuments were donated to the three (3)
cities by the Fraternal Order of Eagles as part of a program established in
the 1940’s and 1950’s.  The Colorado case recites the history of this
donation, and I presume that history is applicable to Manhattan as well.
According to the facts set forth in the Colorado  case, in 1943 a Minnesota
juvenile court judge decided to address what he perceived as a need of many
juveniles he had encountered in his court. Believing these juveniles were
“without any code of conduct or standards by which to govern their
actions,” the judge thought “they could benefit from exposure to one of
mankind’s earliest codes of conduct, the Ten Commandments.” He made clear,
however, that such exposure “was not to be a religious instruction of any
kind.” The juvenile judge decided to post a copy of the Ten Commandments in
state juvenile courts across   the country as part of a nationwide youth
guidance program. The judge was of the opinion that the commandments would
demonstrate to the youths coming in contact with the juvenile courts that
there were long “recognized codes of behavior to guide and help them.” As
chair of the Youth Guidance Committee of the Fraternal Order of Eagles (the
“Eagles”), the judge presented his ideas to the Eagles for financial
support. Initially the Eagles rejected the notion of sponsoring the
National Youth Guidance Program because it was felt that such distribution
“might seem coercive or sectarian.” However, after representatives of the
Jewish, Protestant, and Catholic faiths were able to develop a version of
the Ten Commandments which was not identified with any particular religious
group,  the Eagles agreed to support such a youth guidance program. The
version agreed upon is the same version which is now inscribed on the
monument in front of City Hall in Manhattan.  At the same time, the
juvenile judge received a telephone call from motion  picture producer
Cecil B. DeMille, who was then producing the movie “The Ten Commandments.”
Mr. DeMille suggested distributing copies of the Ten Commandments to
coincide with the release of the movie.  As a promotion of his movie, no
doubt, Mr. DeMille suggested that bronze plaques be produced with the Ten
Commandments imprinted for distribution throughout the country. Because
“the original Ten Commandments were on granite,” the judge suggested and
DeMille agreed that stone or granite tablets produced by local Minnesota
granite companies would be “more suitable.” Various local chapters or
“aeries” of the Eagles paid for the stone monuments and donated them as
part of the youth guidance program to several local and state governments,
including, apparently, the City of Manhattan. The United States Court of
Appeals, in the Salt Lake City case, found that the placement of the
monument on the City-County Courthouse grounds, was not a violation of the
constitution.  The Court of Appeals stated as follows:

“It does not seem reasonable to require removal of a passive monument,
involving no compulsion, because its accepted precepts, as a foundation for
law, reflect the religious nature of an ancient era. The wholesome
neutrality guaranteed by the Establishment and Free Exercise Clauses does
not dictate obliteration of all our religious traditions. Although an
accompanying plaque explaining the secular significance of the Ten
Commandments would be appropriate in a constitutional sense, we cannot say
that the monument, as it stands, is more than a depiction of a historically
important monument with both secular and sectarian effects. No one can be
the judge of his own objectivity. It may well be that in this blurred,
indistinct area of our national life and environment, opinions about the
purpose and effect of the monolith are influenced by orthodox or unorthodox
propensities. But be that as it may, we are brought to the conclusion that
the monolith is primarily secular, and not religious in character; that
neither its purpose or effect tends to establish religious belief.”

The Colorado Supreme Court also found that the placement of the monument,
in Denver’s park was not a violation of the constitution.  In it’s opinion,
this Court stated as follows:

“Upon consideration of the content of the monument itself, we conclude that
it was not erected with the purpose of endorsing religion. The monument at
issue here does not reproduce exactly the Ten Commandments as accepted by
any particular sect. The text includes symbols of at least two significant
religions, Judaism and Christianity, whose teachings are in substantial
conflict with each other. We find that the juxtaposition of the Christian
Chi and Rho with the Jewish Star of David reflects an acknowledgment of
reconciliation and diversity more than any sentiment of intolerance.
Between the two tablets is an “all-seeing eye” which has both  secular and
nonsecular meanings. Dr. Clarence Snelling, Jr. testified that the “eternal
eye” contains the pyramid, which is a symbol from Egypt itself, indicating
that “it has a different genesis than the three religions that use the Ten
Commandments.” The monument also has patriotic symbols in the form of an
eagle and the flag.

Furthermore, the content of the monument is consistent with the stated
secular purpose of the donation. The monument was donated as part of the
National Youth Guidance Program, whose  purpose was secular in nature.
Such secular intent of the donation is logical in light of the historical
fact that the Ten Commandments has served over time as a basis for our
national law.  All the experts who testified at trial agreed that, at least
to the extent that the Commandments established ethical or moral
principles, they were expressions of universal standards of behavior common
to all western societies. It was agreed that these moral standards, as
influenced by the Judeo-Christian tradition, have played a large role in
the development of the common law and have formed a part of the moral
background for the adoption of the national constitution.  While a
statement disclaiming any religious purpose perhaps would have provided
greater evidence of no intention to promote religion, the existence of such
a statement or its absence alone is not determinative.”

It would appear from these two (2) cases, that there is more than enough
legal basis for the Commission to find that the monument displayed at City
Hall is not a violation of the constitution.  Therefore, the Commission is
free to do what it thinks is appropriate regarding this matter.  If you or
any of the Commissioners have any questions regarding this matter, please
feel free to contact me.