Ten Commandments suit in Va. survives challenge

By Laurence Hammack

ROANOKE

A judge today declined to dismiss a lawsuit challenging a display of the Ten Commandments in a Giles County school, setting the stage for a long legal battle.

U.S. District Judge Michael Urbanski said there are too many unknown facts about the case to throw it out now for legal reasons.

"Facts matter," the judge said. "You can’t just apply a one-size-fits-all because the facts are very different" in prior cases involving the Ten Commandments.

The ruling is a setback for the Giles County School Board, which was sued in September for a display of the Ten Commandments in Narrows High School. A student at the school contends in the lawsuit that the board’s action amounted to a governmental endorsement of religion – which is prohibited by the First Amendment.

As for the identity of the student, Urbanski gave lawyers 14 days to work out the details of a protective order sought by the American Civil Liberties Union, which filed the lawsuit.

The ACLU has argued that bitter opposition in the community to the lawsuit makes it necessary to keep the identity of the student and his or her parent a secret.

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The plaintiffs' chairs will be empty today in a federal courtroom when lawyers debate a display of the Ten Commandments that hangs in a hallway of Narrows High School.

A student at the school sued the Giles County School Board two months ago, alleging that the display violates the constitutional separation of church and state.

The case is scheduled to be argued at 2 p.m. in U.S. District Court in Roanoke.

One of the first questions for Judge Michael Urbanski will relate to the empty chairs: Should the student and a parent, referred to in court papers only as Doe 1 and Doe 2, be allowed to remain anonymous?

The American Civil Liberties Union, which with the Freedom From Religion Foundation represents the student and his or her parent, is asking for a protective order to shield them from possible backlash in a community where support for God's words in the schools is fervent.

"Maintaining anonymity is important to me because I fear that if my involvement was made public, I would experience social ostracism, harassment, or threats from my school peers or community members," the unnamed student wrote in an affidavit.

The ACLU is asking that the student and parent not be required to appear in open court, and their testimony be taken by deposition with no public disclosure of their names.

Liberty Counsel, a Christian-based legal group that is representing the school board for free, is objecting to the request.

If members of the school board cannot be told who is suing them, as the ACLU is asking, they would in effect be "bound and gagged" and unable to defend themselves, lawyers for Liberty Counsel wrote in court papers.

The idea of secret plaintiffs also undermines the fundamental principle of open courts, the school board contends. "The people have a right to know who is using their courts," its lawyers wrote in court briefs.

Also at today's hearing, lawyers are expected to argue the merits of the underlying lawsuit.

Liberty Counsel has filed a motion to dismiss the case, arguing that the school board cannot be held responsible for the Ten Commandments display because it played no role -- and provided no funding -- in its placement.

In June, the board voted 3-2 to allow a private citizen to rehang the Ten Commandments along with eight historical documents -- including the Bill of Rights and the Declaration of Independence -- as part of a broader presentation on American law and government.

Such a defense is "absurd," the ACLU said in court papers, arguing that the school board caved to the same public uproar that now makes it necessary to keep the plaintiffs anonymous.

"The community has already expressed considerable animus toward these plaintiffs," ACLU of Virginia legal director Rebecca Glenberg said. "If their identities are revealed, there is no doubt they will become targets of much more direct harassment."

The ACLU has cited angry emails it received and comments at public hearings as evidence of the community's outrage. Such comments are inadmissible hearsay, Liberty Counsel maintains, and offer no proof that the plaintiffs have been threatened with physical or mental harm.

A final resolution is unlikely today. Judges in federal court usually listen to arguments from attorneys and issue a ruling in writing later.