                                                                      [PUBLISH]

               IN THE UNITED STATES COURT OF APPEALS

                       FOR TH E ELEV ENTH C IRCUIT       FILED
                         ________________________ U.S. COURT OF APPEALS
                                                         ELEVENTH CIRCUIT
                               No. 02-14146                  MAY 30, 2003
                                                           THOMAS K. KAHN
                         ________________________
                                                               CLERK

                        D.C. Docket No. 00-00100-CV -1


REVEREND DANIEL KING,
E. RONALD GARNET T, and
SHIRLEY FENCL,

                                                    Plaintiffs-Appellants,

      versus

RICHMON D COUN TY, GEORG IA and
ELAINE JOHNS ON, in her individual
capacity and in her official capacity as
Clerk of the Superior Court of Richmond
County, Georgia,

                                                    Defendants-Ap pellees.


                        __________________________

               Appeal from the United States District Court for the
                          South ern Dis trict of G eorgia
                         _________________________
                                (May 30, 2003)
Before EDMONDSON, Chief Judge, and KRAVITCH and GIBSON *, Circuit
Judges.

KRAV ITCH, Circuit Judge:

       The question presented is whether the use of a court clerk’s seal violates

the Establishment Clause of the First Amendment when the seal contains an

outline of the Ten Commandments, a sword, and the name of the court and is

used so lely to auth enticate do cumen ts. We co nclude th at it does n ot.



I.     BACKGROUND

       Since 1852, a Georgia statute has required clerks of the state superior

courts to have a “substantial seal of office” with the name of the county and

court inscribed thereon.1        In conformance with the statute, the Clerk of the

Superior Court of Richmond County has maintained an official seal (the “Seal”)

for more than 130 years. Records found in the Richmond County clerk’s office

indicate that the Seal has been used on documents at least since 1872.




*
  Honorable John R. Gibson, United States Circuit Judge for the Eighth Circuit, sitting by
designation.
1
  Acts of the General Assembly of the State of Georgia, 1851S1852, No. 46, Title VII, Section 1
& 2, approved January 12, 1852 (making it the duty of clerks, with failure punishable as a
misdemeanor, “to buy a good and Substantial Seal of Office”); O.C.G.A. § 15-6-61(a)(7) (2001)
(requiring the clerk of the superior court “[t]o procure a substantial seal of office with the name
of the court and the county inscribed thereon”).

                                               2
      The Seal is circular, with the words “SUPERIOR COURT RICHMOND

COUNTY, GA” inscribed around the perimeter. The center of the Seal contains

a depiction of a hilt and tip of a sword, the center of which is overlaid by two

rectangular tablets with rounded tops. Roman numerals I though V are listed

vertically on the left tablet; the right lists numerals VI to X. The Seal is placed

on docum ents in on e of three ways: w ith ink from a rubber stamp, by

embossment into paper, or by embossment into a gold seal on paper. The ink-

stamped version of the seal is approximately one-and-a-half inches in diameter,

with the center portion depicting the tablets measuring approximately one inch.

The embossed version is smaller, approx imately one-and-a-fourth inches in

diameter, with the center portion measuring less than three-fourths of an inch.

      The Seal’s only function is to authenticate legal documents. In one of the

forms describe d abov e, the Seal is affixed to all certified copies of court

docum ents and real- estate records, witness subpoenas, certifications of juror

service,   notary   certificates   of   appointment,    and   attorney    licenses.

Approximately 24,000 documents bore the Seal in 1999. The Seal does not

appear on the office of the clerk’s letterhead or on its website, nor is it

displayed in the clerk’s office, in the courtroom, or anywhere else in the




                                         3
Richmond County Courthouse.               The office of the clerk’s letterhead and

envelopes bear the seal of the state of Georgia instead.

       Richmond County displays another object relevant to this case. A statue

of Justice, entitled “M iss Justice,” stands in the park ing lot of the city-co unty

municipal building and courthouse.2 The statue depicts Justice as a woman

holding a swor d in her r ight han d and th e scales of justice in h er left.

       Appe llants Reverend Daniel King, E. Ronald Garnett, and Shirley Fencl

filed suit in federal district court under 42 U.S.C. § 1983, contending that the

Seal violates the E stablishm ent Clau se of the F irst Am endme nt.            App ellants

sought injunctive and declaratory relief as well as nominal damag es against

Richmond Coun ty and E laine Joh nson, C lerk of the Superior Court, in both her

individual and official capacities.          According to the complaint, the Seal

“promin ently displays the Ten Commandments, a sacred text in the Judeo-

Christian religious traditions,” in violation of the Establishment Clause and

Article I, section I I, paragr aph V II of the G eorgia C onstitutio n. In resp onse, the

Appellees conceded that the pictograph in the center of the Seal resembles




2
  The statue, dating from 1820, was originally placed on the cupola of the Augusta City Hall,
which became the Richmond County Courthouse. When the previous courthouse was
demolished, the county restored the statue and in 1962 placed it at its current location.

                                              4
depictions of the Ten Com mandments, 3 but argued that the use of the Seal is not

unconstitutional under any of the Su preme Court’s Establishmen t Clause tests.

       After a summary bench trial, the District Court concluded that although

the tablets dep icted on th e Seal rep resented the Ten Comm andments, and th at a

reasona ble observer could view them as such, there was no Establishment

Clause violation . The D istrict Cou rt found , and both parties a greed, th at the

Seal had been in use for more than 130 years but that there was no evidence of

the purpose for the Seal’s design or when it was adopted by the clerk of the

superio r court.

       Employing the Supreme Court’s test in Lemon v. Kurtzman, 403 U.S.

602 (1971), the District Court examined the facts to determine (1) whether the

Seal had a secular purpose, (2) whether its primary effect was to advance

religion, and (3) whether it fostered excessive entanglement between

government and religion. O n the first of these questions, the District Court

found that the pu rpose o f the Sea l’s design was “los t in the mists of history” but

that pictographs of the Ten Commandments represented “both religious virtue

and the rule of law .” Secon d, the cou rt held tha t the Seal’s primary effect was



3
  Appellees’ br. at 4. Appellees observe that the “figure has a sword, which appears to either
pierce it or go behind it” and that to their knowledge “there is no representation of the Ten
Commandments with a sword such as in the Superior Court seal . . . .” Id.

                                              5
not to advance religion.       The court reasoned that the outline of the Ten

Comm andme nts was distinguishable from cases in which the text was

displayed, indicating that a depiction without the text “would not lead a

reasona ble observer to conclude that religion was endorsed.”                The court

concluded that, given the Ten Commandments’ “role in the secular

development of our society” and le gal system , a reason able obs erver w ould

view the Seal as “conveying the image of a widely recognized legal code used

merely to notify the reader that the stamped documents are court documents.”

The court em phasized that the us e of the S eal was lim ited to the authentication

of documents and was inconspicuous when compared to the governmental

displays described in other cases. Third, the court found that the use of the Seal

had not caused an excessive entanglement between government and religion.

Finally, it h eld that the claims un der Ge orgia’s co nstitution were w ithout m erit.

       On appeal, Appellants argue that the District Court erred in finding that

the Seal did not violate the Establishment Clause because (1) the Seal has a

religious purpose and (2) the use of the Seal has the primary effect of endorsing

religion. Appellants do not challenge the District Court’s conclusions as to the

lack of excessive entanglement or their claims under the Georgia Constitution.




                                           6
II.    STANDARD OF REVIEW

       We review the Distr ict Court’s factual findings for clear error and review

de novo its legal con clusions . See ACLU of Ga. v. Rabun County Chamber of

Commerce, Inc., 698 F.2d 1098, 1110 (11th Cir. 1983) (per curiam).



III.   ANAL YSIS

       The issue presented is whether the use of the Seal violates the

Establishment Clause o f the Firs t Amendment.         The Establishment Clause

prohib its Congress from making any law “respecting the establishment of

religion, or prohibiting the free exercise thereof . . . .” U.S. Const., Ame nd. I.

The prohib ition against the establishment of religion applies to the states

through the Fourteenth A mendm ent. See Cantwell v. Connecticut, 310 U.S.

296 (1940).

       In religious-symbols cases, the Supreme Court has applied th e analysis

outlined in Lemon v. Kurtzman, 403 U .S. 602 (1971 ). See, e.g., County of

Allegheny v. ACLU, Greater Pittsburgh Chapter, 492 U.S. 573, 592 (1989);

Lynch v. Don nelly, 465 U .S. 668 , 679 (1 984); Stone v. Graham, 449 U.S. 39,

40 S 41 (1980) (per cur iam). Under the Lemon analysis, a governmental practice

violates the Estab lishmen t Clause if it does no t have a secular p urpose , if its



                                         7
primary effect is to advance or inhibit religion, or if it fosters excessive

govern ment en tanglem ent with religion. Lynch, 465 U.S. at 679.

       Despite the Supreme Court’s reliance on these three “tests,” it has

emphasized that there is no bright-line rule for evaluating Establishment Clause

challenges and that each cha llenge calls for line-d rawing based o n a fact-

specific, case-by-ca se analysis . Id.; see also County of Allegheny, 492 U.S. at

592.    In recent years, the Court has “paid particularly close attention” to

whether the challenged governmental practice has either “the purpose or effect

of ‘endorsing religion.’” County of Allegheny, 492 U .S. at 592 . Even though

some Justices an d comm entators h ave stron gly criticized Lemon,4 both the

Supreme Court and this circuit continue to use Lemon’s three-pronged analysis.

See id.; Adler v. Duval County Sch. Bd., 206 F.3d 1070, 1075 (11th Cir. 2000)

(en banc), vacated by 531 U .S. 801 , opinion and judgment reinstated by 250

F.3d 1 330 (1 1th Cir. 2 001); Rabun Coun ty, 698 F.2d at 1098.

       Here, Appellants argue that the use of the Seal violates the purpose and

effect prongs of the Lemon analysis; they do not contend that use of the Seal

4
  See, e.g., Lamb’s Chapel v. Center Moriches Union Free Sch. Dist., 508 U.S. 384, 397 (1993)
(Scalia, J., concurring); County of Allegheny v. ACLU, Greater Pittsburgh Chapter, 492 U.S.
573, 660 (1989) (Kennedy, J., concurring in part and dissenting in part); Jesse H. Choper, The
Establishment Clause and Aid to Parochial Schools—An Update, 75 CAL. L. REV . 5, 6S8 (1987);
William P. Marshall, “We Know It When We See It”: The Supreme Court and Establishment, 59
S. CAL. L. REV . 495, 496S98 (1986); Michael W. McConnell, Accommodation of Religion, 1985
S. CT . REV . 1, 1S3, 6.

                                            8
implicates excessive government entanglement with religion. Accordingly, for

Appe llants to prevail, they mu st show that, given the particu lar facts of this

case, the use of the Seal violates either the purpose test or the effect test of

Lemon.



A.    Purpose Prong

      “Under the Lemon analysis, a s tatute or practice which touches upon

religion, if it is to be permissible under the Establishment Clause, must have a

secular purpose.”    County of Allegheny, 492 U .S. at 592 .       Accor ding to

Appellants, our analysis of this prong could begin and end with Stone v.

Graham, 449 U .S. 39 (1 980) (p er curiam ). Although inf ormativ e, Stone does

not foreclose our inquiry.

      In Stone, the Sup reme C ourt inv alidated a K entucky statute that required

the posting of the text of the Ten Commandm ents on the wall of every public-

school classroom. 449 U.S. at 41. Describing the Ten Commandments as an

“undeniably sacred text,” the Court found that the “pre-eminent purpose for

posting the Ten Comm andments on schoo lroom walls is plainly religiou s in

nature.” Id.   Stone, howe ver, does not stand for the proposition that there can

never be a permissible secular use of the Ten Commandments. The opinion



                                        9
distinguishes Kentucky’s posting the text of the Ten Commandments on

schoolroom walls fro m cons titutionally a pprop riate uses o f the Co mman dments

and other parts of the B ible in a public-sch ool curriculum , such as “an

approp riate study of history, civ ilization, ethics, comparative religion, or the

like.”     Id. at 42.    Accordingly, because governmental use of the Ten

Commandments is not a per se violation of the purpose prong, we must

continue our inquiry and determine whether the Seal’s depiction of the Ten

Commandments and sword h as a secular purpose.

         Lemon’s first prong requires us to ascertain the purpose of the relevant

governmental practice.      Appellees argue that the first prong of Lemon is

satisfied because state law requires the superior court’s cle rk to hav e a seal. See

O.C.G.A. § 15-6-61(a)(7) (2001). Appellees’ assertion, however, misperceives

the true inquiry. Under the purpose test, the relevant inquiry is not whether

there was a secular purpose for creating and using a legal seal; it is to determine

the government’s purpose for adopting this particular seal, one that depicts the

Ten Commandments and sword.

          As stated previously, the District Court found, and b oth parties concede,

that there was no evidence regarding the original purpose for adopting the

design of the Seal and that the Seal has existed in its current form since at least



                                         10
1872. The District Court hypothesized that, because approximately thirty-five

percent of Georgia’s population in 1872 was illiterate, the then-clerk of the

court may have chosen the Ten Commandments and the sword as pictographs

that were easily recognizable symbols of the law. Additionally, the District

Court found that a pictograph of the Ten Commandments w as, in add ition to

being a religiou s symbo l, a secular s ymbol f or the ru le of law . Nevertheless,

the court admitted that the purpose for adop ting this particular seal design has

been “los t in the mis ts of histo ry.”

       This case, there fore, presents the issue of how to apply the pu rpose test

when there is no evidence of the government’s intent for adopting a particular

practice.    No de cision fro m the S uprem e Cour t or the E leventh Circu it

addresses this issue d irectly, but p receden ts do give som e guidan ce. In Rabun

Coun ty we stated, “At the core of the Establishment Clause is the requirement

that a government justify in secular terms its purpose for engaging in activities

which may appear to endorse the beliefs of a particular religion.”           Rabun

Coun ty, 698 F.2d at 1110. Hence, it seems that the government always has the

obligation to prop ose a secu lar justificatio n for the challeng ed practic e. This

does not mean, however, that the g overnm ent fails the purpo se pron g in cases in




                                          11
which there is no available evidence of the original intent for adopting a

practice.

      When there is no evidence of the original purpose for adopting a practice,

the government may propose possible secular justifications for the challenged

practice.   In Mueller v. Allen, 463 U.S. 388 (1983), the Supreme Court

explained that it was reluctant to attribute an unconstitutional motive to the

government where a “plausible secular purpose” may be discerned from the

statute. Id. at 394S 95; see also Adler, 206 F.3d at 1075. The fact that the

government articulates a possible legitimate secular purpose for the practice,

however, does not mean that it has satisfied the purp ose pro ng. Alth ough c ourts

should be “deferential to a State’s articulation of a secular purpose,” Edwards v.

Aguillard, 482 U .S. 578 , 586 (1 987), th e party ch allenging the governmental

practice can prevail under the purpose prong if it can show that the

governm ent’s articulated secular purpose is insincere or a “sham.” Id. at 587;

cf. Stone, 449 U.S. at 41 (explaining that an “avowed” secular purpose that is

“self-serving” is “not suf ficient to avoid conflict with the First Amendment”).

Therefore, once the government proposes a possible secular purpose for the

challenged practice, the party ch allenging the practic e has the o pportu nity to

rebut the stated secular purpose with evidence showing that the articulated



                                        12
purpose is insincere or a sham. See id.; cf. Lynch, 465 U.S. at 679 (“The Court

has invalidated legislation or governmental action on the ground that a secular

purpose was lacking, but only when it has concluded that there was no question

that the statute or activity was motivated wholly by religious considerations.”).

         Apply ing this approach to the present case, Appellees have articulated a

plausible secular purpose for the design of the Seal. They claim that, in the

context of authenticating legal documents, using a pictograph of the Ten

Comm andme nts intertwined with the sword helps viewers recognize the legal

validity of documents. 5       The District Court’s findings support A ppellees’

proposed justification. The court found that during the 1870s the outline of the

Ten Comm andme nts presu mably w ould ha ve enab led illiterate citiz ens to

recognize the legal validity of documents displaying the Seal.          Appellees’

proffered secular justification satisfies the initial burden under the purp ose

prong.      Because there is no evidence of the purpose in adopting the Seal’s

design and because Appellants have not shown that the articulated secular

purpose is implausible, we conclude that App ellees have satisfied the first

prong of the Lemon test.




5
    Appellees’ br. at 19S21.

                                         13
      Of course, this analysis applies only when there is no evidence of

governmental intent for adopting a practice.       When evidence shows that

endorsement or promotion of religion was a primary purpose for the challenged

practice, the inquiry ends, as the practice violates the Establishme nt Claus e.

See Edwards, 482 U.S. at 585 (holding that Louisiana’s Balanced Treatment for

Creation-Science and Evolution-Science in Public School Instruction Act was

unconstitutional because the act’s primary purpose was the promotion of a

particular religious belief); Wallace v. Jaffree, 472 U.S. 38, 57S 59 (1985)

(holding that Alabam a’s moment-of-silence statute was unconstitutional

because legislative history showed that the statute’s primary purpose was to

promote prayer and religion).



B.    Effect Prong

      The second inquiry of the Lemon test, the effect prong, is whether the

“principal or primary effect” of a challenged law or conduct is “to advance or

inhibit religion.” Lynch, 465 U .S. at 679. The Court has explained the effect

prong to mean that, even when evidenc e of religious purpose is lacking, the

Establishment Clause prohibits the government from “appearing to take a

position on questions of religious belief or from ‘making adherence to a religion



                                       14
relevant in any way to a person’s stan ding in the po litical commun ity.’”

Coun ty of Allegheny, 492 U.S. at 594 (quoting Lynch, 465 U.S. at 687

(O’Connor, J., concurring)). Two of the Court’s most recent religious -symbo ls

cases give guidance in applying Lemon’s effect prong.



      1.     Prior Precedent

      a.     Lynch v. Don nelly

      In Lynch v. Don nelly, 465 U.S. 668 (1984 ), the Supreme Court held that

the City of P awtuck et, Rhod e Island did not violate the Establishment Clause

when it displayed a crèche a s part of its annual C hristmas display. In addition

to the crèche, which is a representation of the Nativity scene, the display

included a Santa Clause house, reindeer, candy-striped poles, a Christmas tree,

carolers, hundreds of colored lights, and a large banner with the words “Seasons

Greetings.” Id. at 671.

      Rejecting a strict wa ll-of-separation theory of the Establishment Clause,

the Court cited numerous examples of “the Government’s acknowledgment of

our religious heritage and governmental sponsorship of that heritage,” id. at

677, to demo nstrate that the Constitution does not prevent government from

ever using re ligious sy mbols o r referen ces to div inity. See id. at 673–78. The



                                        15
Court explaine d, “In eve ry Estab lishmen t Clause case, we must reconcile the

inescapa ble tension between the objective of preventing unnecessary intrusion

of either the church or the state upon the other, and the reality that, as the Court

has so often noted, total separation of the two is not possible.” Id. at 672. The

Court continu ed, “In eac h case, the inquiry c alls for line drawin g; no fix ed, per

se rule can be framed.” Id. at 678.

      Repeating the three “useful” “inquiries” of the Lemon test, the Court

emphasized    that   the   constitutionality   of   the   government’s    use   of   a

predom inantly religious symbo l depend s on the c ontext in which it appe ars. Id.

at 679.   Hence, the Court instructed that in deciding the constitutionality of

Pawtuck et’s display, the “focus of our inquiry must be on the crèche in the

context of the Christmas season.”        Id. (emph asis adde d).    Fur thermo re, in

reviewing precedent, the Court explained that the state practices in Stone v.

Graham, 449 U .S. 39 (1 980) (p er curiam ), and Abington School District v.

Schempp, 374 U.S. 203 (1963) (Bible study in public schools), were

impermissible because the government did not use the religious writings in a

context s ufficiently related to a secular p urpose. See Lynch, 465 U .S. at 679 .

      Applying these principles, the Court held that the district court erred

when it found that the crèche display served no secular purpose. Celebrating



                                         16
the Christmas holiday season and depicting the origins of that holiday, the

Court explained, were “legitimate secular purposes.” Id. at 681. Furthermore,

the Court applied Lemon’s effect test a nd con cluded th at the use o f the nativ ity

scene, at least in the context of a Christmas display that included both religious

and nonreligious symbols, did not have the primary effect of advancing or

endors ing religio n. See id. at 683, 685–86.

      In a concurring opinion that has influenced subsequent religious-symbol

cases, Justice O’Connor framed the central issue in the case as “whether

Pawtucket has endorsed Chris tianity by its display of the crèche.” Id. at 690

(O’Connor, J., concu rring). “T o answ er that question, w e must ex amine b oth

what Pawtucket intended to communicate in displaying the crèche and what

message the City’s display actually conveyed. The purpose and effect prongs

of the Lemon test represent these tw o aspects of the meaning o f the City’s

action.” Id. (O’Connor, J., concurring). According to the concurrence, “[t]he

meaning of a statement to its audience depends both on the intention of the

speaker and on the ‘objective’ meaning of th e statement in the community.” Id.

(O’Connor, J., concurring).      Thus, the test has both a subjective and an

objective compo nent.     A govern mental sta tement o r action fails Lemon’s

purpose prong if, despite the existence of a stated secular purpose, the



                                         17
“government intends to convey a message of endorsement or disapproval of

religion.”   Id. at 691 (O’Connor, J., concurring).           The effect prong asks

whether, irrespectiv e of government’s actual purposes, the practice under

review in fact w ould co nvey a m essage o f endor sement o r disapp roval to an

inform ed, reaso nable ob server. Id. at 690 (O’Connor, J., concurring).

       In applying the effect prong, Justice O’Connor reasoned that “[a]lthough

the religious and ind eed sectar ian signif icance of the crèch e . . . [was] not

neutralized by the setting, the overall holiday setting change[d] what viewers

[would] fairly understand to be the purpose of the display . . . .” Id. at 692

(O’Connor, J., concurring). “Every government practice,” she stated, “must be

judged in its unique circumstances and context to determine whether it

constitutes an endorsement or disapproval of religion.” Id. at 694 (O’Connor,

J., concur ring) (em phasis added).     Because governmental celebrations of the

holiday season are so common, Justice O’Connor concluded that a reason able

person would not perceive a crèche that is accompanied by purely secular

symbo ls of the se ason to b e a gove rnmen tal endor sement o f religion .



       b.     County of Allegheny v. American Civil Liberties Union




                                           18
       A more recent religious-symbol case is Coun ty of Allegheny v. ACLU,

Greater Pittsburgh Chapter, 492 U.S. 573 (1989).                That case involved tw o

holiday displays located on public property. The first was a crèche displayed

on the Grand Staircase of the county courthouse during the Christmas season.

The crèche “include[d] figures of the infant Jesus, Mary, Josep h, farm animals,

shepherds, and wise men, all placed in or before a wooden representation of a

manger, which ha[d] at its crest an angel bearing a banner that proclaim[ed]

‘Gloria in Excelsis Deo!’” Id. at 580. A fence and a backdrop of greenery and

poinsettias surrounded the Nativity scene, and a sign indicated the name of the

donor, but no other secular symbols or decorations accompanied the display.

“Altogether, the crèche, the fence, the poinsettias, and the trees occupied a

substantial amoun t of space on the G rand S taircase,” w hich was “the ‘main ,’

‘most beautiful,’ and ‘most public’ part of the courthouse . . . .” Id. at 579S 80.

       The second holiday display was located at the entrance to the main office

building for the city and coun ty.            The d isplay con tained an 18-foo t-tall

Chanukah menorah 6 standing next to a 45-fo ot-tall ever green C hristmas tree. A




6
  “Menorah” is Hebrew for “candelabrum,” County of Allegheny, 492 U.S. at 583 n.14 (quoting
11 Encyclopaedia Judaica, “Menorah,” at 1356), and traditionally is used to celebrate Chanukah,
a religious holiday. For a discussion of the Chanukah menorah and its history, see id. at 583S85.

                                             19
sign referred to the display as a “Salu te to Liberty.” The ACLU argued that the

use of the crèche and the menorah violated the Establishment Clause.

      A splintered Court h eld that the crèche d isplay vio lated the E stablishment

Clause but that the use of the menorah did not. Justice Kennedy, joined by

Chief Justice Rehnquist and Justices White and Scalia, believe d that bo th

displays were co nstitution al; Justice B rennan , joined b y Justices M arshall and

Stevens, would have found both to be unconstitutional.               Only Justices

Blackmun and O’Connor believed that the menorah display was constitutional

and that the crèche display was not, but, as they were the “swing votes” in the

case, their view prevailed.

      In holding the crèche display unconstitutional, the Court focused on the

display’s effect. The Court began its analysis by explaining that “[u]nder the

Court’s holding in Lynch, the effect of a crèche turns on its s etting” an d that,

unlike the display in Lynch, the crèche in this case stood alone as “the sin gle

element of the display on the Grand Staircase.” Id. at 598. “[N]othing in the

context of the display detract[ed] from the crèche’s religious message.”         Id.

Furthermore, because the crèche sat on the Grand Staircase, which was “the

‘main’ and ‘most beautifu l part’ of th e buildin g that is the seat of co unty

govern ment,” the Court reasoned that “[n]o viewer could reasonably think that



                                        20
it occupie[d] this location without the support and approval of government.” Id.

at 599. The Court explain ed that “by permittin g the ‘disp lay of the c rèche in

this particular physical setting,’ the county sends an unmistakable message that

it supports and promotes the Christian praise to God that is the crèche’s

religious message.” Id. at 600 (internal citation omitted). The Court concluded,

“The display of the crèche in this context, therefore, must be perma nently

enjoined .”    Id. at 602 (emphasis added).       In short, the Court assessed the

crèche’s “endors ement ef fect” by analyzing the display’s overall context and

the displa y’s likely im pact on r easonab le viewe rs. Id. at 598S 602.

       As part of its dis cussion of the crè che disp lay, the Co urt explicitly

rejected the “proselytization” approach, which Justice Kennedy had proposed as

an alternative to the Court’s endorsement inquiry. Id. at 602. Furthermore, the

Court declined Justice Kennedy’s reading of Marsh v. Chambers, 463 U.S. 783

(1983), explaining that “history cannot legitimate practices that demonstrate the

governm ent’s allegiance to a particular sect or creed.” Allegheny County, 492

U.S. at 603.

       The Court did not agree on the reason for upholding the menorah display,

so it issued only a judgment declaring that the menorah display was

constitutio nal. Justices B lackmu n and O ’Conn or, the sw ing vote s, focuse d their



                                          21
individual opinions on the importance of context when applying the effect

prong, just as the Court had done in its opinion regarding the crèche display.

See id. at 595S 97, 613S 21 (op inion of Blackm un, J.); id. at 624–27 (O’Connor,

J., concurring).7

       Supreme Court precedent in the most recent religious-symbols cases

makes one thing clear: when applying Lemon’s effect test, the co nstitution ality

of the government’s use of a predominantly religious symbol depends upon the

context in which it appears.             In religious-symbols cases, context is the



7
   Relying on Justice O’Connor’s Lynch concurrence, Justice Blackmun explained, “The effect
of the display depends upon the message that the government’s practice communicates: the
question is ‘what viewers may fairly understand to be the purpose of the display.’” Id. at 595
(opinion of Blackmun, J.). “That inquiry, of necessity, turns upon the context in which the
contested object appears: ‘[A] typical museum setting, though not neutralizing the religious
content of a religious painting, negates any message of endorsement of that content.’” Id.
(opinion of Blackmun, J.) (quoting Lynch, 465 U.S. at 692 (O’Connor, J., concurring)).
Explaining the result in Lynch, Justice Blackmun noted that “despite divergence in the bottom
line, the five Justices in concurrence and dissent . . . agreed upon the relevant constitutional
principles: the government’s use of religious symbolism is unconstitutional if it has the effect of
endorsing religious beliefs, and the effect of the government’s use of religious symbolism
depends upon its context.” County of Allegheny, 492 U.S. at 597 (opinion of Blackmun, J.).
         Applying these principles, Justice Blackmun recognized the menorah as a religious
symbol, but concluded that “the menorah’s message is not exclusively religious” and “has both
religious and secular dimensions.” Id. at 613–14 (opinion of Blackmun, J.). Given the
menorah’s “particular physical setting,” which included a large Christmas tree and a sign
saluting liberty, Justice Blackmun reasoned that “the city’s overall display must be understood as
conveying the city’s secular recognition of different traditions for celebrating the winter-holiday
season.” Id. at 620 (opinion of Blackmun, J.).
         Justice O’Connor wrote separately from Justice Blackmun on the effect-prong analysis
and concluded that “[a] reasonable observer would . . . appreciate that the combined display is an
effort to acknowledge the cultural diversity of our country and to convey tolerance of different
choices in matters of religious belief or nonbelief by recognizing that the winter holiday season
is celebrated in diverse ways by our citizens.” Id. at 635 (O’Connor, J., concurring).

                                              22
touchstone; we therefor e must in quire w hether o bserver s wou ld reason ably

believe that the government’s use of a predominantly religious symbol send s a

message of governmental endorsement of religion. See Allegh eny Co unty, 492

U.S. at 598 S 600; Adler, 206 F .3d at 11 01; Chabad-Lubavitch of Ga. v. Miller, 5

F.3d 1383, 1391 n .11 (11 th Cir. 19 93) (en banc).         C ourts m ust evalu ate

challenged governmental practices on a case-by-case basis, judging each

practice in its unique circumstances and in its particular physical setting.



      2.     Application of the Effect Prong

      Appe llants argue that using a symbol of the Ten Commandments on the

Seal violates the effect prong because it gives the appearance of governmental

endorsement of religion.      As the Supreme Court has recognized, the Ten

Comm andme nts are “undeniably a sacred text in the Jewish and Christian faiths

. . . .” Stone, 449 U .S. at 41. In many contexts, governmental use of the text of

the Ten Commandments would convey a message of endorsement and thereby

violate the Establish ment C lause. See id.

      Yet, as the Supreme Court explained in Lynch, it is improper to “[f]ocus

exclusiv ely on the religious com ponen t of any ac tivity,” as do ing so “w ould

inevitably lead to its in validation under th e Establishmen t Clause.” Lynch, 465



                                         23
U.S. at 680. Indeed, the Court in Stone noted th at, in the co ntext of p ublic

education, the Ten Commandments “may constitutionally be used in an

appropriate study of history, civilization, ethics, comparative religion, or the

like.” Stone, 449 U .S. at 42. T he issue under the effect p rong in this case is

whether, given the context in which the Seal is used and the Seal’s overall

appearance, the pictograph representing the Ten Commandments conveys a

messag e of religio us endo rsemen t.

        Although the Ten Commandments are a predomin antly religio us symb ol,

they also possess a secular dimension.          As Stone pointed out, the first four

Comm andme nts concern an individual’s relationship with God and “the

religious duties of believers : worsh iping the Lord G od alon e, avoidin g idolatry,

not using the Lord’s name in vain, and observing the Sabbath Day.” Id. For

this reason, having the text prominently displayed on schoolroom walls implies

a governmental endorsement of religion.             The final six comman dments,

however, deal with honoring one’s parents, killing or murder, adultery, stealing,

bearing false witness, and covetousness; 8 all of these prescribe rules of conduct

for dealing with other people. Much of our private and public law derives from

these final six co mman dments .        See Stone, 449 U .S. at 45 ( Rehnq uist, J.,



8
    Exodus 20:12–17.

                                           24
dissenting) (noting the “undeniable” and “significant” impact that the Ten

Comm andme nts have had on “the development of legal codes of the Western

World”). For this reason, although primarily having a religious connotation, the

Ten Comm andme nts can, in certain co ntexts, ha ve a secu lar significance. See

Coun ty of Allegheny, 492 U.S. at 615 (opinion of Blackmun, J.) (noting that

some holidays have “both religious and secular dimensions”).

      The proper inquiry in this case is which of these tw o messa ges the S eal is

most likely to communicate to a reasonable observer.              In making th is

determination, we have considere d four factors.



      a.     Limited Context

      First, the Seal is solely limite d to the very narrow context of

authenticating legal doc uments . There is a tight nexu s betwe en a legitim ate

secular purpose for using the pictograph of the Ten Commandments and sword

(using recognizable symbols of secular law, ones that suggest the force of law)

and the context in which the Seal is used (authentication of legal documents).

Even when the govern ment’s motives are permissible, if there is not a tight

nexus between the secular purpose for using a symbol and the context in which

the symbol appears, a reasonable observer may suspect that the true reason for



                                        25
adopting the symb ol was to endors e religion . Cf. Edwards, 482 U.S. at 586

(applying Lemon’s purpose prong to strike down Louisiana’s creation-science

and evolution-science act b ecause, inter alia, there was not a tight fit between

the act’s stated p urpose of prom oting aca demic fr eedom and the act’s effect,

which limited teachers’ autonomy in decidin g how to teach sc ience). In this

case, a reasonable observer has no reason to h arbor such suspicions, 9 as the use

of this recognizable legal symbol promotes the secular purpose of enabling

individuals to recognize the legal validity of documents.

       In addition to using the Seal in a manner that promotes a secular purpose,

the clerk of th e superio r court h as not us ed the S eal in con texts in w hich a

reasona ble observer might not und erstand the relationship b etween the S eal’s

symbo ls and its secular purpose. Courts have held the use of religious symbols

to be unconstitutional when the symbols have appeared in contexts in which the

links between the symbols and their suppo sed secu lar purp oses are n ot readily

apparen t. Cf. Friedman v. Bd. of County C omm’r s of Ber nalillo Co unty, 781

F.2d 777 (10th Cir. 1985) (applying Lemon’s effect test a nd hold ing that a

county-wide seal with religious imagery was unconstitutional). Here, however,

the Seal has not proliferated to contexts unrelated to document authentication.


9
  Again, under the effect prong, the inquiry is what effect the tablets and sword has in this
context and setting. County of Allegheny, 492 U.S. at 598.

                                               26
As stated previously, with the exception of the embossing instruments

themselves, no representations of the Ten Commandments or other religious

symbo ls appear in the office of the court clerk; the Seal is not displayed in the

superio r court’s courtro om or a nywh ere else in th e courth ouse; an d the Se al is

not used on official stationery or envelopes. Rather, the seal of the state of

Georg ia appears on the office’s official stationery. The clerk of the court has

confined the use of the Seal to the very limited context of authenticating legal

documents, where reasonable observers would logically perceive it as a symbol

of the force of law.



      b.     Use of Other Symbols in the Seal

      Second, the outline of the Ten Com mandments is not the only s ymbol in

the Seal; the Seal also has a depiction of a sword intertwined with the tablets.

The presence of this additional symbol increases the probability that observers

will associate the Seal with secular law rather than with religion.

      Appellants argue that the sword is a Christian symbol that enhances the

religious effect of the seal. We conclude, how ever, that the superior court’s use

of the sword cuts the other way when applying the effect test. Although the

sword might occasionally serve as a symbol of Christianity, the sword is among



                                         27
the most recognizable symbols of the secular legal system.                    For example,

numerous depictions of the female figure Justice are located on the grounds, in

the courtroom, and in the frieze sculptu res of the United States S uprem e Cour t,

usually holding a sword in her right hand and scales in her left.10 The sw ord, in

this context, symbolizes the power of law, which Justice stands re ady to us e in

“the allegorical story of the battle of Good Versus Evil.”11 In fact, another

representation of Justice with a sw ord in h er hand , a statue en titled “Mis s

Justice,” is located in the parking lot of the A ugusta- Richm ond C ounty

municipal building , which houses the supe rior cou rt.             This sta tute prob ably

predates the Seal’s inception, and it is likely that most members of the

comm unity who transact business with the county and the superior court have

seen this statue and understand the statue’s sword to be a symbol of the law.

           Given the strong symbolic associations between the sword and the power

of law, a reasonable observer is likely to understand the Seal’s depiction of the

Ten Commandments intertwined with the sword as a symbol of the secular legal

system. Like the secular decorations surrounding the crèche in Lynch or the

other lawgivers who acco mpany Mo ses and the Ten Commandments on the


10
  See Figures of Justice, Information Sheet, Office of the Curator, Supreme Court of the United
States, at http://www.supremecourtus.gov/about/figuresofjustice.pdf.
11
     Id.

                                              28
south wall frieze of the Supreme Court building,12 the Seal’s sword and the

words “SUPERIOR COURT RICHMON D COUN TY, GA” contextualize the

Ten Comm andme nts pictog raph.         Cf. County of Allegheny, 492 U.S. at 598

(“Here, unlike in Lynch, nothing in the context of the display detracts from the

crèche’s religious message.”).



       c.     Size and Placement of the Seal

       Third, the Seal is relatively small, and because it is generally placed near

the bottom or on the last page of legal documents, it is also discreet.                 In

assessing the effect that a symbol has on a reasonable observer, courts often

analyze the size an d placem ent of the challeng ed practic e.          For ex ample, in

Allegheny Coun ty, the Supreme Cou rt noted the crèche display’s special

placement in the Grand Staircase, “the ‘main’ and ‘most beautiful” part of the

building that is the seat of county government.” Allegheny County, 492 U.S. at

600; see also id. at 626 (O’Connor, J., concurring) (“The display of religious

symbols in public areas of core government buildings runs a special risk of

making religion relevant, in reality or public perception, to status in the political

community.”)       In Stone, the Court observed that the text of the Ten

12
  See Courtroom Friezes: North and South Walls, Information Sheet, Office of the Curator,
Supreme Court of the United States, at http://www.supremecourtus.gov/about/north&
southwalls.pdf.

                                            29
Comm andme nts appeared on the wall of “each public elementary and secondary

school classroom in the Commonwealth,” where “[i]f the posted copies of the

Ten Comm andme nts [we re] to hav e any effe ct at all, it [would] be to induce the

schoolchildren to read, meditate upon,” and perhaps “venerate and obey” the

Comm andme nts. Stone, 449 U.S. at 39 n.1, 42.

      Two circuit cou rts of app eals have dealt with Ten Com mandm ents

monu ments that were located or that were to be loca ted on th e groun ds of state

capitols. Adland v. Russ , 307 F.3d 471 (6th Cir . 2002) ; Ind. Civil Liberties

Union v. O’Bannon, 259 F.3d 766 (7th Cir. 2001).              In both cases, the

monu ments were “prominently located” at “the heart of state government” and

displayed the text of the Ten Commandments in “large lettering.” Adland, 307

F.3d at 486; see also Ind. Civil Liberties Union, 259 F.3d at 772S 73. Although

the monument in Adland also contained text from other sources of secular law,

the Ten Commandments “occup[ied] the bulk of the surface area and

accordin gly plainly do minate[d ] the mon ument.” Adland, 307 F .3d at 48 6; see

also Ind. Civ il Liberties Union, 259 F.3d at 772S 73 (affirming the grant of a

preliminary injunctio n against constructing the monument because the

monument was larg e and the lettering for the Commandments was larger than

the lettering for the Bill of Rights). The Adland court found that a reason able



                                        30
observer would infer religious endorsement, because the “Ten Commandments

monument physically domin ate[d] the ‘h istorical an d cultural display’ in the

Capitol garden area” and its “sheer dimensions . . . dwarf[ed] all the other

memorials” in the area.

       All of these cases found the use of the religious symbols to be

uncon stitutional, and all but the Stone opinion specifically analyzed the effect

that the symbols would have on a reasonable observer.                      All of the cases

involved displays that were large or “in your face” and occupied a place of

prominence or special honor, often dominating the other objects surrounding

them.13 In contrast, the pictograph of the tablets and sword is at most only one

inch in diame ter and is n ot the foc al point o f any go vernm ental display in an

important public building. Consequently, the Seal’s size and placement make it

less likely that a reasonable observer would believe that the government

intended to send a messag e of religio us endo rsemen t.14

       When assessing the effect that a governmental practice would have on a

reasona ble observer, we recognize that it would be improper to rely solely on

any single factor. The fact that a symbol is small or inconspicuous, alone, is not
13
  Referring to the size and placement of the Seal, the District Court found that the display of the
Seal was not “pervasive.” Order at 13S15.
14
  One plaintiff, Shirley Fencl, acknowledged that although she had possessed documents
bearing the Seal, she had not noticed the pictograph of the tablets and sword until seeing it in the
newspapers and “agree[ing] to this lawsuit.” Fencl Dep. at 12S14.

                                               31
dispositive. The caselaw show s that exclusively religious symbols, such as a

cross, will almost always render a governmental seal unconstitutional, no matter

how small the religio us symb ol is. See, e.g., Robinson v. City of Edmond, 68

F.3d 1226 ( 10th C ir. 1995 ); Harris v . City of Z ion, Lak e Coun ty, Ill., 927 F.2d

1401 (7th Cir. 1991); Friedman, 781 F .2d at 777.              Size and placement are,

howe ver, facto rs to con sider in th e overall e ffect-pro ng analy sis.



       d.     Fact that Seal Does Not Contain the Ten Command ments’ Text

       Finally, unlike the depiction of the Ten Commandments in the Stone

case, the text of th e Com mandm ents doe s not app ear on th e Seal.            This

distinction is material under the effect test. Because the words “Lord thy God”

and the purely religious mandates (commandments one through four) do not

appear on the Seal, a reasonable observer is less likely to focus on the religious

aspects of the Ten Com mandments. Un like the textual posting in Stone, the

Seal does not “induce [observers] to read, meditate upon, perhap s to vene rate

and obey, the Commandments.” Stone, 449 U.S. at 42. The fact that the Seal

does not show the Commandments’ text distinguishes this case from the

monu ments held to be unconstitutional in Adland v. Russ, 307 F .3d 471 (6th

Cir. 2002), and Indiana Civil Liberties Union v. O’Bannon, 259 F .3d 766 (7th



                                            32
Cir. 2001), where the text appeared in large lettering. Instead, the use of Roman

numer als rather tha n text on the tablets— together with the other factors already

discussed—allows a reasonable observer to infer that the government is using

the Ten Commandments to symbolize the force of law.



        Although none of the above factors, standing alone, would be sufficient

to satisfy the e ffect test, in this case the combination of these four factors favors

Appellees’ position. Furthermore, we note that the Seal has been in use for at

least 130 years, a fact th at arguab ly suppo rts App ellees und er the effe ct test. 15

Like all holdings interpreting the Establishment Clause, our holding applies

only to the particular facts of th is case. See Lynch, 465 U.S. at 678S 79. Just as

there is no per se rule that a crèche is constitutional when placed in a display

celebrating the holid ay season , compare id. at 685, with Allegh eny Co unty, 492

U.S. at 601 S 02, there is no per se rule tha t the use o f the Ten Comm andme nts

will be constitutional when used in the context of the legal system.




15
    Appellees’ argument that the long use of the Seal affects our analysis under the effect prong,
see Appellees’ br. at 38, implicates Justice O’Connor’s observations about the effect of “the
history and ubiquity of a practice.” See County of Allegheny, 492 U.S. at 630–31 (O’Connor,
J., concurring) (discussing, inter alia, the reason for upholding the practice of legislative prayer
in Marsh v. Chambers, 463 U.S. 783 (1983)). Yet, because the combination of the four factors
already discussed supports our conclusion under the effect test, we need not address what effect,
if any, the “history and ubiquity” of the Seal would have in applying the effect prong.

                                                33
IV.   CONCLUSION

      Because the use of the Seal does not have the purpose or primary effect

of endo rsing relig ion, we AFF IRM the Distr ict Cour t.




                                         34
EDM OND SON , Chief Ju dge, con curring in the jud gment:

       I concur in today’s judgment of the Court. I agree that the pertinent seal

does not violate the Establish ment C lause.       I write separately because I am

uncom fortable with the character ization and the manner of application of some

of the precedents discussed as the Court explains its decision.        I, however,

readily agree that no precedent comes close to compelling the conclusion that

Defen dants vio late the Fe deral Co nstitution by use o f the seal.




                                           35
