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Friday, March 25, 2005

Ind. Decisions -- 7th Circuit posts two today

USA v. Grap, Daniel D. (ND Ill.) [14 pp.]

Before CUDAHY, EASTERBROOK, and WILLIAMS, Circuit Judges.
CUDAHY, Circuit Judge. Defendant Daniel Grap was indicted for one count of stealing firearms, in violation of 18 U.S.C. § 924(1), and for one count of possessing stolen firearms, in violation of 18 U.S.C. § 922(j). Grap pleaded guilty to the possession of stolen firearms count, but conditioned his plea on the right to appeal the denial of his motion to suppress physical evidence in the form of firearms recovered by a police officer in a warrantless search of his parents’ premises. In addition, things did not proceed smoothly for Grap at sentencing, where the district court applied two enhancements to his sentence based upon its findings that he was a “prohibited person” under the applicable statute and that he had possessed a firearm in conjunction with a felony other than the offense to which he had pleaded guilty. On appeal, Grap contends that the district court erred in denying his motion to suppress physical evidence since his mother lacked the requisite mental capacity to consent to a warrantless search. He also asserts that the enhancements to his sentence violate the Constitution under United States v. Booker, 543 U.S. ___, 125 S.Ct. 738 (2005), since they were predicated on factual findings made only by the sentencing judge based only on a preponderance of the evidence. We affirm the denial of Grap’s motion to suppress, but order a limited remand for the purpose of allowing the sentencing judge to consider whether to reimpose his original sentence. * * *
Books, William A. v. Elkhart County (SD Ind., Robert L. Miller, Jr., Chief Judge) [27 pp.]
Before FLAUM, Chief Judge, EASTERBROOK and SYKES, Circuit Judges.
SYKES, Circuit Judge. This case tests the constitutionality of a display of the Ten Commandments on public property. The display in question is a framed text of the King James version of the Ten Commandments, one of nine historical texts and symbols that comprise a “Foundations of American Law and Government Display” in the County Administration Building in Elkhart County, Indiana. Authorized by resolution of the Elkhart County Board of Commissioners, the exhibit includes a selection of significant historical documents and symbols that, according to the resolution, “positively contribute to the educational foundation and moral character of the citizens of [Elkhart] county.” Evaluating the display under the three-part test of Lemon v. Kurtzman, 403 U.S. 602 (1971), the district court held that the inclusion of the Ten Commandments violates the First Amendment’s Establishment Clause because the County had no purpose other than “paying homage to the Ten Commandments,” a sacred religious text. The court ordered the County to remove the Ten Commandments from the display.

We reverse. The display satisfies the Lemon test and is therefore constitutional under the First Amendment. The County’s stated purposes—to educate its citizens in the history of American law and politics and provide moral uplift—are secular, and we see no good reason to doubt the County’s sincerity. Nor is the primary effect of the display to advance religion. The inclusion of the Ten Commandments in a multifaceted historical exhibit of texts and images that have influenced or symbolized American law and government cannot reasonably be understood as an endorsement of religion. * * *

III. Conclusion. In the first Books case we said that the Ten Commandments “no doubt ha[ve] played a role in the secular development of our society and can no doubt be presented by the government as playing such a role in our civic order.” Books, 235 F.3d at 302. It appears Elkhart County has taken us at our word by exhibiting the Ten Commandments in a comprehensive display along with other historical texts and images that it considers to be important influences in American legal and political tradition. We see no reason why the display as erected must be purged of the Ten Commandments to survive constitutional scrutiny. This is a secular display in its purpose and effect. The order of the district court is reversed and the case is remanded for entry of summary judgment for Elkhart County. REVERSED AND REMANDED

[p.23] EASTERBROOK, Circuit Judge, dissenting. My colleagues ask and answer the question whether inclusion of the Ten Commandments in a display at Elkhart’s County Administration Building endorses religion and thus transgresses the establishment clause of the first amendment, applied to state and local governments by the fourteenth amendment. I have serious doubts about the nature of the question, even on the supposition that the establishment clause affects states in the same way as the national government. See Elk Grove Unified School District v. Newdow, 124 S. Ct. 2301, 2330-31 (2004) (Thomas, J., concurring). “Endorsement” differs from “establishment.” A government does not “establish” milk as the national beverage when it endorses milk as part of a sound diet. * * *

Posted by Marcia Oddi on March 25, 2005 01:55 PM
Posted to Ind. (7th Cir.) Decisions