Quoting a 1976 Supreme Court case, Dalzell wrote that "the loss of First Amendment freedoms, for even minimal periods of time, unquestionably constitutes irreparable injury."
"The plaque here has already rebuked the First Amendment for over 81 years," Dalzell added, "and thus its removal from sight on this courthouse (of all places) is long overdue."
Dalzell gave the county until April 22 to cover the 50-inch by 39-inch bronze plaque with an opaque drapery "of a color calculated to match, as closely as possible, the limestone on the High Street facade of the courthouse."
"It's not the best solution for us, but it is certainly not the worst. At least the plaque stays on the wall," said Thomas C. Abrahamsen, the attorney for the commissioners.
On March 6 Dalzell ruled in a lawsuit filed last year by Sally Flynn, a Chester County atheist, and Margaret Downey, president and founder of the Freethought Society of Greater Philadelphia, that the text of the courthouse Decalogue, far from being the secular compendium of accepted social conduct the county contended, was plainly a Protestant Christian interpretation.
Yesterday's ruling was on a motion by the county to stay the order to remove the plaque while the case is pending before the U.S. Court of Appeals for the Third Circuit.
Commissioner Andrew E. Dinniman cited part of Dalzell's ruling that suggested mediation and said the plaque might be constitutional as part of a tableau of other documents illustrating development of U.S. law.
"This is good language from our point of view," Dinniman said, adding that he would like to discuss the tableau idea with Flynn, Downey and the American Civil Liberties Union, which sued on their behalf.
Commissioner Karen Martynick said Dalzell's ruling "opens the door for the county to achieve its goal of maintaining the plaque. Although we have not won the war, I'd have to say this round clearly went to the county."
"At this point the county would have to reach out with something," said Stefan Presser, legal director of the ACLU in Philadelphia.
Downey, however, said such an alternative is not acceptable to her: "Absolutely not. It doesn't take away the religious intent just because you add other items of secular intent around it."
While encouraging the parties to try to resolve the dispute, Dalzell also warned the county that a drape was only an intermediate solution. The judge called "nothing more than wishful thinking" the county's view that it can convince the Supreme Court to reverse its 1971 decision governing religious displays on taxpayer-supported public property.
Dalzell's March 6 ruling has infuriated many in West Chester and the county, some who see it as an attack on Christianity and others as an attack on a historic part of a historic building in a historic community.
The plaque was donated in 1920 by the Council of Religious Education of the Federated Churches of West Chester.
Contact Joseph A. Slobodzian at 215-854-2658 or jslobodzian@phillynews.com.
