An Oklahoma judge has departed from standard legalese and channeled Dante into a satirical lament over the state of Establishment Clause law, saying recent U.S. Supreme Court decisions have left trial courts “in Limbo.”

Deciding whether a Ten Commandments monument outside a county courthouse violates the separation of church and state “means making our way through the Limbo created by McCreary and Van Orden,” U.S. District Judge Ronald E. White complained.

Both the cited cases involved public displays of the Ten Commandments. In McCreary County v. ACLU, the Supreme Court last year said a display inside a courthouse was unconstitutional, while, in Van Orden v. Perry, it declared a similar display outside a courthouse constitutional.

Since those decisions, the 6th U.S. Circuit Court of Appeals has said that “we remain in Establishment Clause Purgatory.”

But White quarreled with that description in an opinion divided into Dante-style cantos. “The state of Establishment Clause jurisprudence,” he said,

may be more akin to Limbo. Dante envisioned Limbo as a place of sorrow without torment, illuminated by the light of reason and home to virtuous pagans unfit to enter the kingdom of heaven. Yes, we are definitely in Limbo.

As for the monument on the lawn of the Haskell County, Okla., courthouse, the poetically-inclined judge distinguished the case from McCreary and dismissed a challenge brought by the ACLU.

The plaintiffs, he concluded, had failed to show that “Haskell County’s purpose in erecting the Monument was the ostensible and predominate purpose of advancing religion.”

By Matthew Heller
8/27/06