In yet another highly-charged Establishment Clause battle, a divided 5th U.S. Circuit Court of Appeals has ruled that a neon-lit Bible should be removed from a monument outside a Houston courthouse because the purpose of the display has become “predominantly religious.”
A 2-1 majority said the monument evolved from a permissible memorial to a philanthropist to an impermissible government endorsement of religion after a former Texas judge, John Devine, surrounded the Bible portion of the monument in red neon light. At the time, Devine was running for judicial office on a platform of putting Christianity back into government.
While “there had been no such previous focus or emphasis on the Bible,” Judge E. Grady Jolly wrote in the majority opinion, a “reasonable observer ... would conclude that Judge Devine and his allies essentially had commandeered the monument for religious purposes.”
Judge Patrick E. Higginbotham joined Jolly in the majority. But in a dissent, Judge Jerry E. Smith accused them of “an appalling hostility to any hint of religion in public spaces,” insisting that
The appearance of religious themes in time-honored monuments, like the invocation of God in legislative session, at court arguments, or on our currency, is permissible official recognition of the place occupied by religion in the tapestry of our national culture.
Smith also argued that a public display involving religion is constitutional “as long as [a] secular purpose predominates over the course of the monument’s existence.” The monument to William Mosher was installed outside the Harris County civil courthouse in 1956 by a homeless charity to which he donated.
The “current purpose” of the Mosher monument, however, should be decisive, in part because the Star of Hope Mission charity removed the Bible from the display for seven years. Devine had it replaced in 1995 and, as Jolly noted,
the circumstances attending the replacement indicate an almost exclusively religious purpose for the restoration of the monument.
What's truly “appalling” is Smith's hostility toward his panel colleagues, neither of whom is exactly a flaming liberal. It was Higginbotham, indeed, who held in 2003 that a display of the Ten Commandments at the Texas State Capitol did not violate the Establishment Clause. Van Orden v. Perry, 351 F.3d 173.
By Matthew Heller
8/16/06
A New Jersey appeals court's decision in the case of a college student who fell out of a loft bed has made it easier for manufacturers to defend product liability claims by arguing that the danger of the product was “open and obvious.”
A jury in 2004 awarded $179,001 to Donald Mathews, who suffered a separated shoulder in falling six feet off the ground after his roommate startled him awake. He alleged that University Loft Co. was liable for failing to warn him of the danger of sleeping in a loft bed.
Some New Jersey courts have limited the absolute defense for obvious dangers to design defect claims. But in throwing out Mathews' award, the Appellate Division of New Jersey Superior Court said “the obviousness of the danger is an absolute defense to plaintiff's failure to warn action in this case.”
Mathews' own expert testified that "when you're asleep you're not in control of your behavior; you roll over in your sleep."
“The risks are so obvious here that we fail to see what a college student would or could have done differently while asleep to protect himself from falling, or what a warning could have advised in addition to the obvious,” the opinion concluded.
By Matthew Heller
8/16/06
