Sep 15, 2011

In August 2003, we received a complaint about a Ten Commandments monument in a public park in the Borough of Hanover, Pennsylvania. We sent a letter to the Borough, which quickly responded with an offer to have the monument moved to a private location. We negotiated a written agreement addressing the terms of the removal but, when it was disclosed to the public, there was an outcry and the Borough reconsidered its decision. Instead of moving the monument, the Borough Council voted to sell the monument and the parcel of land immediately below it to a historic association that promised to maintain the monument in its current location. Because such action conflicts with the donors’ intent that the property forever remain a public park, however, the Borough must first obtain state court permission for the sale. Accordingly, the Borough petitioned the local "Orphans Court" for approval of the sale. We filed a Protest to the Petition, arguing that the governing statute does not authorize the sale, that the monument violates the federal Constitution, and that the sale would not cure the violation. The court held a hearing on the matter on June 7, 2004, at which our Madison Fellow Sandi Farrell, together with an ACLU attorney, presented evidence and oral argument. The Court asked for further briefing on the matter, which was completed in August 2004. Prior to the issuance of a decision, and after the Supreme Court took certiorari in McCreary and Van Orden, the court asked for the parties’ input on whether a decision should be stayed. The parties agreed that it should not and, on November 30, 2004, the Court held that the Borough could permissibly sell the property. We opted not to appeal the decision and, instead, to await the Supreme Court’s rulings in McCreary and Van Orden before deciding whether to challenge the sale in federal court. We ultimately decided, based on the Van Orden opinion and other Third Circuit religious display cases, that we should not pursue the matter further.