                                                                                                                           Opinions of the United
2004 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


10-6-2004

Modrovich v. Allegheny
Precedential or Non-Precedential: Precedential

Docket No. 03-3571




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          PRECEDENTIAL                            GIBSON,* Circuit Judges.

                                           (Opinion Filed: October 6, 2004)
IN THE UNITED STATES COURT OF
           APPEALS                               _______________________
     FOR THE THIRD CIRCUIT
            ________                             OPINION OF THE COURT
                                                 _______________________
             No. 03-3571
              ________
                                           Ayesha N. Khan
   ANDY M ODROVICH; JAMES                  Alex J. Luchenitser (argued)
           MOORE,                          Americans United for
                                           Separation of Church and State
              Appellants                   518 C Street NE
                                           Washington, DC 20002
                   v.
                                           Counsel for Appellants
      ALLEGHENY COUNTY,
        PENNSYLVANIA                       Perry A. Napolitano (argued)
                                           Donna M. Doblick
                                           P. Gavin Eastgate
               ________                    Darren P. O’Neill
                                           Reed Smith LLP
   On Appeal from the United States        435 Sixth Avenue
              District Court               Pittsburgh, PA 15219
for the Western District of Pennsylvania
 District Judge: The Honorable Donetta     Ralph A. Finizio
               W. Ambrose                  Kevin L. Colosimo
         (Civ. No. 01-cv-00531)            Houston Harbaugh
                                           Two Chatham Center, 12th Floor
               ________                    Pittsburgh, PA 15219-3463

        Argued March 24, 2004              Counsel for Appellee

   Before: FUENTES, SMITH, and
                                             *
                                              The Honorable John R. Gibson, Senior
                                           Circuit Judge for the United States Court
                                           of Appeals for the Eighth Circuit, sitting
                                           by designation.
                                                  Commandments plaque in Allegheny
Fuentes, Circuit Judge.                           County has been a fixture on an historical
                                                  courthouse since 1918, is not highlighted
        This appeal raises the issue of           or displayed prominently, and is one of
whether the display of a plaque containing        several historical relics displayed on the
the text of the Ten Commandments on the           courthouse, Allegheny County’s refusal to
Allegheny County Courthouse violates the          remove it does not send a message of
Establishment Clause of the First                 government endorsement of religion in
Amendment of the U.S. Constitution.               violation of the Establishment Clause.
Appellants Andy Modrovich and James
                                                   I. FACTUAL BACKGROUND AND
Moore seek review of the District Court’s
                                                        PROCEDURAL HISTORY
decision granting summary judgment in
favor of Allegheny County and holding                     In 1918, a bronze plaque containing
that displaying the plaque does not violate       the text of the Ten Commandments and
the Establishment Clause. Modrovich and           other biblical passages (“the Plaque”) was
Moore, two avowed atheists, claim to have         donated to Allegheny County Pennsylvania
had regular and unwelcome contact with            (“the County”). The Plaque is now affixed
the plaque while entering and walking past        to the stone wall of the Allegheny County
the courthouse. They argue that Allegheny         Courthouse, facing a main street (Fifth
County’s continued display of the plaque          Avenue) in downtown Pittsburgh.
represents a government endorsement of            Modrovich and Moore alleged that they
religion in violation of the Establishment        have had regular, direct and unwelcome
Clause.                                           contact with the Plaque while entering the
                                                  courthouse on errands and walking past it
       In Freethought Society of Greater
                                                  on their way to and from work.
Philadelphia v. Chester County, 334 F.3d
                                                  Modrovich and M oore claim to have felt
247 (3d Cir. 2003) [hereinafter
                                                  “affronted and deeply offended” by the
“Freethought”], we addressed a similar
                                                  display, feeling as though the County
dispute concerning a plaque of the Ten
                                                  views them as outsiders in the community
Commandments affixed to the façade of a
                                                  because they do not adhere to the religious
courthouse in Chester Cou nty,
                                                  me ssa ge of the Co mm andm ents .
Pennsylvania. We found that a reasonable
                                                  Complaint at ¶4.
observer, aware of the history of the 82-
year-old plaque, would not have viewed                  In October 2000, an attorney from
Chester County’s refusal to remove the            the Americans United for Separation of
plaque as an endorsement of religion, and         Church and State contacted the then-Chief
that the county had a legitimate secular          Executive of Allegheny County (James
purpose for continuing to display the             Roddey) and then-President of the County
plaque. In accordance with our decision in        Council (John DeFazio) on behalf of
Freethought, we hold that because the Ten         Modrovich and Moore, requesting that the


                                              2
Plaque be removed because its continued            concerning the display of a plaque of the
presence violated the Establishment                Ten Commandm ents affixed to a
Clause of the First Amendment. County              courthouse in Chester County.           See
officials disagreed with that assertion and        Freethought Soc’y v. Chester County, 191
refused to remove the Plaque. In addition,         F. Supp. 2d 589 (E.D. Pa. 2002). On
the County Council passed a motion on              March 6, 2002, that court, applying the
January 16, 2001, expressing its support           three-prong test set forth in Lemon v.
for the efforts of Roddey and DeFazio to           Kurtzman, 403 U.S. 602, 612-13 (1971),
prevent its removal.                               found that the plaque was only incidentally
                                                   secular, and that Chester County officials
        Modrovich and Moore filed suit in
                                                   intended the plaque to advance the
the Western District of Pennsylvania on
                                                   Christian religion. The court, therefore,
March 27, 2001, pursuant to the Civil
                                                   held Chester County’s display of the
Rights Act of 1871, 42 U.S.C. § 1983
                                                   plaque to be unconstitutional under the
(“Section 1983”). They claimed that their
                                                   Establishment Clause. Freethought, 191 F.
First Amendment rights were being
                                                   Supp. 2d at 599. Chester County appealed
violated under color of state law by a local
                                                   the district court’s decision to this Court.
municipality. They sought a declaratory
                                                   While Freethought was on appeal, the
judgment that the continued presence of
                                                   District Court judge in the instant case
the Plaque violated the First and
                                                   advised the parties that she would hold
Fourteenth Amendments.          They also
                                                   their motions for summary judgment in
sought a permanent injunction prohibiting
                                                   abeyance pending our decision.
the County from displaying the Plaque at
the courthouse. Modrovich and Moore                       On June 26, 2003, this Court,
filed a motion for summary judgment and            analyzing the constitutionality of the
a motion for a permanent injunction on             Chester County plaque under both the
January 31, 2002, arguing that the Plaque          “Lemon” test and the “endorsement” test,
had the effect of endorsing religion. The          reversed the decision of the district court
County filed a cross-motion for summary            in Freethought. The endorsement test, a
judgment on the same day, asserting that           modification of the Lemon test, was first
because the Plaque is one of over twenty           articulated by Justice O’Connor in Lynch
historical, political, and cultural relics         v. Donnelly, 465 U.S. 668, 687-88 (1984)
displayed at the courthouse, it has secular        (O’Connor, J., concurring). Under both of
significance and its continued display does        these approaches, this Court held that the
not amount to an unconstitutional                  Chester County plaque did not violate the
endorsement of religion.                           Establishment Clause. Freethought, 334
                                                   F.3d at 251.      We then vacated the
      While these motions were pending,
                                                   permanent injunction issued by the district
the Eastern District of Pennsylvania
                                                   court prohibiting Chester County from
decided Freethought, a case involving
                                                   displaying the plaque.
almost identical facts and issues

                                               3
       Following this precedent, the                      Finally, the “endorsement” test
District Court in this case granted                modifies Lemon in cases involving
summary judgment to Allegheny County               religious displays on government property.
and denied summary judgm ent to                    The endorsement test dispenses with
Modrovich and Moore.                               Lemon’s “entanglement” prong and,
                                                   combining an objective version of
II. THE LEGAL FRAMEWORK
                                                   Lemon’s “purpose” prong 1 with its
A. The Establishment Clause                        “effect” prong, asks whether a reasonable
                                                   observer familiar with the history and
        Under the Establishment Clause of
                                                   context of the display would perceive the
the First Amendment, “Congress shall
                                                   display as a government endorsement of
make no law respecting an establishment
                                                   religion.     Lynch, 465 U.S. at 687
of religion.” U.S. Const. amend. I. The
                                                   (O’Connor, J., concurring); see also
Fourteenth Amendment imposes this
                                                   County of Allegheny v. ACLU Greater
limitation on the states as well as their
                                                   Pittsburgh Chapter, 492 U.S. 573, 592
political subdivisions. Wallace v. Jaffree,
                                                   (1989) (adopting the endorsement test by
472 U.S. 38, 49-50 (1985). The Supreme
                                                   a majority of the Court); Tenafly Eruv
Court has articulated three separate tests
                                                   Ass’n, Inc. v. Borough of Tenafly, 309
for determining whether governmental
                                                   F.3d 144, 174 (3d Cir. 2002) (applying the
action violates the Establishment Clause.
                                                   endorsement test to a government display
The first of these, the “coercion” test, is
                                                   of privately owned and maintained
not applicable to this case. It focuses
                                                   religious objects). The endorsement test
primarily on government action in public
                                                   asks whether the government action has
education and examines whether school-
                                                   “the effect of communicating a message of
sponsored religious activity has a coercive
effect on students.         See Freiler v.
Tangipahoa Parish Bd. of Educ., 185 F.3d
                                                     1
337, 343 (5th Cir. 1999), cert. denied, 530           Instead of looking to the legitimacy of
U.S. 1251 (2000). The second and third             the County’s articulated purposes, see
tests, however, are both relevant to this          Edwards v. Aguillard, 482 U.S. 578, 585
case. The second, the “Lemon” test, is a           (1987) (stating that “[t]he purpose prong
three-prong approach to be used when               of the Lemon test asks whether
analyzing government action challenged             government's actual purpose is to endorse
under the Establishment Clause. Lemon,             or disapprove of religion” (quotation
403 U.S. at 612-13. Under Lemon, the               omitted)), the purpose inquiry in the
challenged action is unconstitutional if (1)       endorsement test looks to “what viewers
it lacks a secular purpose, (2) its primary        may fairly understand to be the purpose of
effect either advances or inhibits religion,       the display,” County of Allegheny v.
or (3) it fosters an excessive entanglement        ACLU,492 U.S. 573, 595 (1989)
of government with religion. Id.                   (quotation omitted).


                                               4
government endorsement or disapproval of                  In applying the endorsement test,
religion.”   Lynch, 465 U.S. at 692               we identified two factors as particularly
(O’Connor, J., concurring).            The        critical: first, the message that the
endorsement test cen ters on the                  “reasonable observer” receives from the
perceptions of the “reasonable observer”          display, i.e., whether the display sends a
when viewing a religious display. Capitol         message of government endorsement of
Square Review & Advisory Bd. v. Pinette,          religion; and second, the context in which
515 U.S. 753, 778 (1995). Thus, in                the religious display appears.
applying the endorsement test, we do not
                                                  [T]he reasonable observer in the
examine the County’s motivations in
                                                  endorsement inquiry must be deemed
displaying the Plaque, but consider the
                                                  aware of
Plaque’s effect on the reasonable observer,
determining whether the reasonable                the history and context of the community
observer would perceive it as an                  and forum in which the religious display
endorsement of religion.
                                                  appears. . . . Nor can the knowledge
 B. Freethought and the Endorsement               attributed to the reasonable observer be
Test
                                                  limited to the information gleaned simply
        In Freethought, we began our              from viewing the challenged display. . . .
analysis of the constitutionality of the
                                                  [O]ur hypothetical observer also should
Chester County plaque by first considering
                                                  know the general history of the place in
which test should be applied to determine
whether the pla que v iolated the                 which the [object] is displayed. . . . An
Establishment Clause. We decided that             informed member of the community will
the correct test was not Lemon (which the
                                                  know how the public space in question has
district court had applied), but the
                                                  been used in the past.
endorsement test. In arriving at this
conclusion, we noted that the Supreme
Court had begun to rely increasingly on the
                                                  Capitol Square, 515 U.S. at 780
endorsement test in recent years and had
                                                  (O’Connor, J., concurring in part and
criticized Lemon as being vague and,
                                                  concurring in the judgment) (internal
consequently, unpredictable in its
                                                  citations omitted). Thus, the reasonable
application. Id. at 256-57 (citing County
                                                  observer is presumed to know the general
of Allegheny, 492 U.S. at 631 (O’Connor,
                                                  history of both the religious display and
J., concurring)); Lamb’s Chapel v. Ctr.
                                                  the community in which it is erected. The
Moriches Union Free Sch. Dist., 508 U.S.
                                                  reasonable observer is also “more
384, 398-99 (1993) (Scalia, J., concurring)
                                                  knowledgeable than the uninformed
(criticizing Lemon); Wallace, 472 U.S. at
                                                  passerby.” Freethought, 334 F.3d at 259.
108 (Rehnquist, J., dissenting); see also
Tenafly, 309 F.3d at 144.                                In addition, every Establishment

                                              5
Clause challenge requires a fact-specific,        superior court’s official seal depicting two
case-by-case analysis. See Lynch, 465             t a b l e t s r e p r e se n ti n g t h e T e n
U.S. at 678; County of Allegheny, 492             Commandments did not send a message of
U.S. at 629-30 (O’Connor, J., concurring).        endorsement because of various contextual
This is mainly due to the fact that the           factors surrounding the seal’s appearance
particular context in which a basically           and use).
religious display appears can alter the
                                                         Acco rdingly, the C ourt in
message of this display such that it is no
                                                  Freethought considered various facts
longer endorsing religion, but merely
                                                  concerning the context of the plaque,
acknowledging it. See Lynch, 465 U.S. at
                                                  including its history and age, its status as a
6 9 2 ( O ’ C onn o r , J ., concurring).
                                                  long-standing fixture on an historic
Adm ittedly, the text of the Ten
                                                  monument, and the fact that it was
Commandments contains an “inherently
                                                  displayed by itself. The Court held that
religious message.” Freethought, 334 F.3d
                                                  “the reasonable observer must certainly be
at 262 (citing Stone v. Graham, 449 U.S.
                                                  presumed to know that the plaque has been
39, 41 (1980)). However, posting the
                                                  affixed to the Courthouse for a long time,”
Commandments can still, under certain
                                                  and would therefore view the plaque itself
circumstances, be considered a secular
                                                  (rather than the text of the Ten
display. In Edwards v. Aguillard, 482 U.S.
                                                  Commandments “in the abstract”) as a
578 (1987), the Supreme Court stated that
                                                  reminder of historical events in Chester
a prior “decision forbidding the posting of
                                                  County rather than as an endorsement of
the Ten Commandments did not mean that
                                                  religion by county officials. Freethought,
no use could ever be made of the Ten
                                                  334 F.3d at 265. The Court also created a
Comm andments, or that the Ten
                                                  model of the reasonable observer. It found
Commandments played an exclusively
                                                  that the reasonable observer in that case
religious role in the history of Western
                                                  would know the approximate age of the
Civilization.” Edwards, 482 U.S. at 593-
                                                  plaque, and the fact that Chester County
94. Thus, it is well-established that the
                                                  had not moved, maintained or highlighted
context in which an otherwise religious
                                                  the plaque since it was erected in 1920.
display appears can change the reasonable
                                                  The reasonable observer would also be
observer’s perception of it. See Lynch,
                                                  “aware of the general history of Chester
465 U.S. at 692 (O’Connor, J.,
                                                  County.” Id. at 260.
concurring); County of Allegheny, 492
U.S. at 630 (O’Connor, J., concurring)
(stating that the “history and ubiquity” of              The Court found that, based on this
a government action contributes to the            knowledge, the reasonable observer would
context that affects the reasonable               conclude that the decision to leave the
observer’s perception of endorsement); see        plaque in place was significantly
also King v. Richmond County, 331 F.3d            motivated by a desire to preserve the
1271 (11th Cir. 2003) (holding that a             plaque as an historical artifact. Id. at 265.

                                              6
Also, a reasonable observer would                   neutrality toward the plaque and its text.”
understand that over time additions to              Id. at 270 (Bright, J., concurring). Thus,
historic buildings such as the courthouse,          the Freethought Court held that the
which is included in the National Register          reasonable observer would not believe that
of Historic Places, can become part of the          Chester County commissioners were
monument and its history. Id. at 266.               attempting to endorse religion by refusing
Considering Chester County’s interest in            to remove the plaque.
historical preservation, and the reasonable
                                                     C. Application of the Lemon Test in
observer’s understanding of the plaque’s
                                                                Freethought
significance to the courthouse’s history,
we concluded that the county’s refusal to                      Although the Court decided the
remove the plaque did not send a message            case under the endorsement test, it also
of endorsing religion. Such a refusal to            applied the Lemon test, as the Supreme
remove an historical artifact presents a            Court could still potentially review the
very different scenario than, for example,          issue under Lemon. Id. at 250. We
attempting to install a new monument                disagreed with the district court’s analysis
incorporating the Ten Commandments. Id.             under Lemon insofar as it gave relatively
at 265. In the latter instance, a reasonable        little weight to the actions and viewpoints
observer is much more likely to conclude            o f t he c ur re n t C h e st e r C o u n ty
that the government is attempting to                commissioners who declined to remove
endorse the religious message contained in          the plaque, instead focusing primarily on
the text of the Commandments because no             the motivations of the 1920 county
legitimate secular motivation for erecting          officials who accepted the plaque.
the monument (such as historic                      Freethought, 334 F.3d at 267. Thus, we
preservation) is apparent.                          concluded that the relevant government
                                                    action was the decision not to remove the
        In addition, Chester County took no
                                                    p l a q u e , and, in exam ining th e
steps to highlight or celebrate the plaque or
                                                    government’s motivations, that courts
its contents. In fact, the entranceway
                                                    should consider both time periods with the
nearest the plaque had been closed,
                                                    primary emphasis on recent events. It
making its presence less prominent, and
                                                    would have made little sense to attempt to
supporting a perception that, by leaving
                                                    analyze the allegedly offensive effect of
the plaque affixed to the façade in its
                                                    the plaque on current Chester County
original historical location, Chester County
                                                    residents, while only examining the
was not attempting to endorse its religious
                                                    original purpose for erecting it. See id.
content. Id. at 266-67. “In not changing
the location of the plaque to the main                    Considering the purpose prong of
entrance or otherwise actively drawing              Lemon, the Court found that Chester
attention to the plaque, Chester County             County had expressed a legitimate secular
and its Commissioners’ conduct indicates            purpose for refusing to remove the plaque


                                                7
(i.e., a desire to retain an historical element                           A. Description of the
of an historical building). As the Court              Allegheny Plaque
noted, the proffered reason for the decision
                                                             The Allegheny County Courthouse
need not be “exclusively secular,” and the
                                                      occupies a full city block in downtown
purpose prong only requires the reviewing
                                                      Pittsburgh. It borders on four main roads
court to find that the articulated secular
                                                      (Grant Street, Fifth Avenue, Ross Street,
purpose is not a “sham.” Id. at 267 (citing
                                                      and Forbes Avenue), and is built around an
Edwards, 482 U.S. at 585-87). Thus, the
                                                      interior courtyard.     The Courthouse
Court accepted Chester County’s reason,
                                                      complex was designed by world-renowned
citing testimony from Chester County
                                                      architect Henry Hobson Richardson and
commissioners expressing their views of
                                                      was completed in 1888. In 1968, the
the plaque as having historical and secular,
                                                      Pittsburgh History and Landmark
as well as religious, significance. Id.
                                                      Foundation designated the Courthouse an
Chester County also supported these views
                                                      historical landmark. On March 7, 1973, it
with case law and legal treatises
                                                      was placed on the National Register of
suggesting that the Ten Commandments
                                                      Historic Places, and on M ay 11, 1976, it
“have an independent secular meaning in
                                                      was named a N ational Historical
our society because they are regarded as a
                                                      Landmark.
significant basis of American law and the
American polity.” Id. While the Court did                    The Plaque, a bronze tablet entitled
not specifically consider the Lemon                   “THE COMMANDM ENTS,” is four feet
question of whether the primary effect of             high by three feet wide. It displays the text
retaining the plaque was to advance or                of the Ten Commandments, largely from
inhibit religion, it held that question to be         the King James version of Exodus and
encompassed in its endorsement test                   Deuteronomy. It reads:
analysis and, therefore, concluded that
                                                          THOU SHALT HAVE                      NO
Chester County’s refusal to remove the
                                                      OTHER GODS BEFORE ME.
plaque was constitutional under both the
purpose and effect prongs of Lemon.                   THOU SHALT NOT MAKE UNTO
Additionally, the Court noted that Lemon’s            THEE ANY GRAVEN IMAGE, OR ANY
entanglement prong was an aspect of the               LIKENESS OF ANY THING THAT IS
effect inquiry and, as such, was also                 IN HEAVEN ABOVE, OR THAT IS IN
encompassed by its endorsement test                   THE EARTH BENEATH, OR THAT IS
analysis. Id. at 258 (citing Agostini v.              IN THE WATER UNDER THE EARTH:
Felton, 521 U.S. 203, 233 (1997)).                    THOUGH SHALT NOT BOW DOWN
                                                      THYSELF TO THEM, NOR SERVE
       III. DISCUSSION
                                                      THEM:
                                                             F OR I THE L ORD THY G OD AM A
                                                             JEALOUS G OD , VISITING THE



                                                  8
      INIQUITY OF THE FATHERS UPON THE        GIVETH
      CHILDREN UNTO THE THIRD AND
                                                     THEE.
      FOURTH GENERATION      OF   THEM
      THAT HATE ME; AND SHEWING
      MERCY UNTO THOUSANDS OF THEM                   THOU SHALT NOT KILL.
      THAT LOVE ME, AND KEEP MY
                                                  THOU SHALT NOT COMM IT
      COMMANDMENTS.
                                              ADULTERY.
     THOU SHALT NOT TAKE THE
                                                     THOU SHALT NOT STEAL.
NAME OF THE LORD THY GOD IN
VAIN:                                              THOU SHALT NOT BEAR
                                              FALSE WITNESS AGAINST THY
       F OR THE L ORD WILL NOT HOLD HIM
                                              NEIGHBOUR.
GUILTLESS THAT TAKETH H IS NAME IN
VAIN .                                               THOU SHALT NOT COVET
                                                     THY NEIGHBOUR’S HOUSE.
      REMEMBER THE SABBATH
                                                     THOU SHALT NOT COVET
      DAY, TO KEEP IT HOLY. SIX
                                                     THY NEIGHBOUR’S WIFE, NOR
      DAYS SHALT THOU LABOR
                                                     HIS MANSERVANT, NOR HIS
      AND DO ALL THY WORK: BUT
                                                     MAIDSERVANT, NOR HIS OX,
      THE SEVENTH DAY IS THE
                                                     NOR HIS ASS, NOR ANY
      SABBATH OF THE LORD THY
                                                     THING THAT IS THY
      GOD: IN IT THOU SHALT NOT
                                                     NEIGHBOUR’S.
      DO ANY W ORK, THOU, NOR
      THY SON, NOR THY
      D A U G H T E R ,   T H Y
                                              Below the Commandments is additional
      MANSERVA N T, NOR TH Y
                                              language from the Book of Matthew in the
      MAIDSERVANT, NOR THY
                                              New Testament.          It is headed
      CATTLE, NOR THY STRANGER
                                              “SUM MARY,” and reads:
      THAT IS WITHIN THY GATES:
                                                     THOU SHALT LOVE THE LORD
      F OR IN SIX DAYS THE L ORD MADE
                                                     THY GOD WITH ALL THINE
      HEAVEN AND EARTH, THE SEA, AND
                                                     HEART, AND WITH ALL THY
      ALL THAT IN THEM IS, AND RESTED
                                                     SOUL AND WITH ALL THY
      THE SEVENTH DAY: WHEREFORE THE
                                                     MIND.
      L ORD BLESSED THE SABBATH DAY,
      AND HALLOWED IT .                            THOU SHALT LOVE                THY
                                              NEIGHBOUR AS THYSELF.
     HONOR THY FATHER AND
THY MOTHER:
     T HAT THY DAYS MAY BE LONG UPON                 The Plaque was a gift to the County
THE LAND WHICH THE L ORD THY G OD             in 1918 from a religious organization, the

                                          9
International Reform Bureau, which was a            Veterans of Foreign Wars association, the
Christian lobby whose mission was to                Cou nty’s bicentennial celebration,
introduce religious principles into public          National P.O.W.-M.I.A. Recognition Day,
life. At the bottom of the Plaque, in               the Pledge of Allegiance, and memorials
smaller type, is a phrase noting that it was        for private individuals. Id. at 685-713,
donated by this organization. At the                158-63. Above the Grand Staircase of the
Plaque’s dedication ceremony in 1918,               courthouse, there is a mural depicting the
Judge John D. Shafer stated that, in                Goddess of Justice and an etching
accepting the Plaque, the County was                referring to the courthouse as a “Temple of
r e c o g n i zi n g t h e r o le o f t h e         Justice.” Id. at 608. Other plaques also
Commandments in the formation of our                note aspects of the County’s history, such
laws and the sacrifices made in World War           as a tablet commemorating W illiam Pitt,
I. See County Br. at 4.                             for whom the City of Pittsburgh was
                                                    named, and markers describing the
        The Plaque hangs on a rounded
                                                    formation of the County and the origins of
wall that forms part of the entrance to the
                                                    Pittsburgh. Three other plaques note the
interior courtyard of the courthouse. It
                                                    courthouse’s inclusion in city, state, and
hangs on the Fifth Avenue side of the
                                                    national historical landmark registers. Id.
courthouse at approximately eye-level. On
                                                    at 685-713. The Plaque was originally
the opposite wall of the courtyard entrance
                                                    affixed to the main façade of the
is a plaque of about the same size
                                                    courthouse (on Grant Street), but was
commemorating an 18th century Polish
                                                    moved to its present location sometime
trader, Anthony Sadowski. App. at 685-
                                                    before May 11, 1976, when it was entered
713. A public sidewalk is immediately
                                                    into the registry of National Historical
adjacent to the walls, with metal chains
                                                    Landmarks. Neither party to this case has
separating pedestrians from the plaques. A
                                                    suggested a reason for this move. See
passerby could easily read the Plaque as he
                                                    Dist. Ct. Op. at 43.
approaches it. Someone walking on the
other side of Fifth Avenue could see the                    Given the fact-specific inquiry
Plaque, but would probably not be able to           required under both the endorsement test
read its contents. In the same vicinity are         and the Lemon test, and the District
administrative signs (pertaining to parking         Court’s finding that this case is
and other courthouse information).                  indistinguishable from Freethought, the
Located on the other exterior facades of            factual similarities between the display of
the courthouse, courtyard walls and arched          the Plaque in this case and the Chester
passages leading into the courtyard are             County display are crucial to our decision.
plaques commemorating various historic              We, therefore, provide a description of the
events, people and organizations, for               Chester County plaque. As in this case,
example, a victory during the French and            the Chester County plaque was affixed to
Indian War, a Civil War protest, the                the exterior wall of the county courthouse,


                                               10
which was listed in the National Register                 B. Application of the Tests
of Historic Places. The plaque was a gift
from an organization known as the
Religious Education Council. Chester                      Following our reasoning in
County commissioners accepted the plaque           Freethought, although we find the
in 1920 in a public dedication ceremony            endorsement test to be the appropriate
described as having both secular and               standard by which to scrutinize the Plaque,
religious overtones. The Chester County            we will apply both the endorsement test
plaque measures 50 inches tall by 39               and the Lemon test, in case a higher court
inches wide (approximately the same size           prefers to apply the traditional Lemon test.
as the Plaque in the instant case) and             See Freethought, 334 F.3d at 261.
contains text from the Old and New
                                                            1. The Endorsement Test
Testaments identical to that of the Plaque
on the Allegheny courthouse. The Chester                   It is important as an initial matter to
County plaque was hung near the original           describe the knowledge that we believe is
main entrance to the Chester County                attributable to the reasonable observer in
courthouse. In order for someone passing           this case. We base this description on the
by to read any text other than the heading         model for the reasonable observer set forth
on the plaque, it would be necessary to            by Justice O’Connor in County of
climb the steps leading to the original            Allegheny, and later applied by this Circuit
entrance, which was closed in 2001. In             in Freethought.2
addition to the plaque, the side of the
Chester County courthouse on which it
hangs contains several signs providing                2
                                                         Accordingly, the subjective feelings
administrative information. Also on that           expressed by Modrovich and Moore of
façade are plaques noting the courthouse’s         having been “offended” by the sight of the
inclusion in registers of county and               Plaque on the courthouse are not relevant
national historic places. Unlike in this           to the endorsement analysis. “[W]e do not
case, there are no other plaques containing        ask whether there is any person who could
historical, political, or philosophical            find an endorsement of religion, whether
images or messages on the same side of             some people may be offended by the
the building where the Chester County              display, or whether some reasonable
plaque hangs. However, other areas of the          person might think [the State] endorses
courthouse contain displays, including             religion.” Capitol Square, 515 U.S. at 780
monuments to World War II and Civil War            (O’Connor, J., concurring) (internal
veterans, an historic Chester County               citations omitted) (emphasis and
marker, and a plaque with an historical            alterations in original).     Rather, the
description of the original courthouse that        endorsement analysis requires a specific,
stood on the site. Freethought, 334 F.3d at        fact-based inquiry to determine if a
251-54.                                            reasonable observer, aware of various

                                              11
        Bearing in mind that the reasonable          tablets hung a longside the T en
observer is an informed citizen who is               Commandments Plaque. As Freethought
more knowledgeable than the average                  noted, “[a] reasonable observer must be
passerby, the reasonable observer is                 presumed to know the history of the
deemed to know the history of the                    Courthouse,” particularly since “a marker
Allegheny Plaque, the general history of             noting the historic nature of the
Allegheny County, and the fact that the              Courthouse is actually affixed to the same
Plaque has been affixed to the courthouse            east f a ç a de to w h i ch t he T en
for many years. Id. at 259, 260, 265-66.             Commandments plaque is affixed.” Id. at
With this knowledge base, the observer               266.      Further, the circumstances
can glean other relevant facts about the             surrounding the Plaque’s donation and
Plaque and its history from viewing it and           acceptance, including the secu lar
its surrounding context. The reasonable              motivations for its acceptance articulated
observer is aware that the Plaque is one of          by Judge Shafer on behalf of the County in
approximately twenty other historical and            1918, are a matter of public record. See
cultural displays erected in the courthouse          App. at 674 (citing Speakers Discuss War
over the past hundred years and that it is           at Tablet Dedication, T HE G AZETTE
not given any preferential treatment over            T IMES, Apr. 9, 1918, at 11-18). Thus, the
other displays.        Although Allegheny            reasonable observer is aware that, although
County moved the Plaque at one point, the            the Plaque was donated by a religious
observer would recognize that it has not             organization, the County expressed secular
taken steps to maintain or restore it. Id. at        reasons for accepting it given the social
260. The reasonable observer is also                 conditions at the time (i.e., wartime). We
deemed to know the history of the                    note that the District Court set forth a
courthouse, its architectural significance,          substantially similar description of the
and its place on three state and national            reasonable observer in this case and that
registers for historic landmarks. These              Modrovich and M oore do not contest it
presumptions are not unreasonable as such            here. See Dist. Ct. Op. at 33.
historical facts are actually commemorated
on the courthouse walls in plaques and
                                                            Still, Modrovich and Moore point
                                                     out various context-related factors
                                                     concerning the Allegheny Plaque that, they
contextual factors, would be offended for            argue, would lead the reasonable observer
the particular reason that the Plaque sends          to perceive an endorsement of religion by
a message of government endorsement of               Allegheny County. Modrovich and Moore
religion.    Here, we found that the                 attempt to distinguish this case from
reasonable observer would not view                   Freethought, first arguing that the Plaque
Allegheny County’s retention of the                  is displayed more prominently than the
Plaque as government endorsement, but as             Chester County plaque. They contend that
an effort to preserve an historical relic.

                                                12
“[s]everal hundred people walk by the               including the Plaque’s age, its history, and
Allegheny Plaque, and dozens go into the            the fact that it is one of several historical
Courthouse archway entrance near it,                plaques displayed at the courthouse.
during a typical ninety-minute period on a
regular business morning.” Appellant Br.
                                                            Modrovich and Moore cite the
at 47. It is true that the Chester County
                                                    Supreme Court’s decision in County of
plaque is in an unobtrusive location, next
                                                    Allegheny, 492 U.S. at 599-600, and this
to an entrance that has been permanently
                                                    Court’s decision in ACLU of N.J. v.
closed, and that it is not legible from the
                                                    Schundler, 104 F.3d 1435, 1446 (3d Cir.
sidewalk. However, we do not agree that
                                                    1997), to argue that the prominence of a
the Allegheny Plaque is displayed any
                                                    religious display is a factor weighing
more prominently than the Chester County
                                                    against allowing the display. While, as
plaque. It does not hang in any pre-
                                                    discussed above, prominence is indeed a
eminent place, but is affixed to a side
                                                    factor in the endorsement analysis, the
entrance on Fifth Avenue (as opposed to
                                                    facts of these cases support our view that
the main courthouse entrance on Grant
                                                    the Allegheny Plaque was not in an
Street). The Plaque is not protected from
                                                    especially prominent location.             In
the weather and hangs at street level,
                                                    Schundler, the display at issue was a 12 by
unprotected from potential vandalism. See
                                                    18 foot nativity scene located on the front
Dist. Ct. Op. at 35. The Allegheny Plaque
                                                    lawn of City Hall in Jersey City, New
is no larger than the Chester Plaque, and in
                                                    Jersey. As the Court noted, the “[c]ity
neither case can the text be viewed from
                                                    placed the display such that all visitors to
across the street. In both cases, the text
                                                    City Hall were confronted with prominent
can be read when walking immediately
                                                    religious symbols.” 104 F.3d at 1446.
past the plaque, with the only difference
                                                    Similarly, in County of Allegheny, a
being that pedestrians are less likely to
                                                    nativity scene was placed on the Grand
pass the Chester Plaque because it hangs at
                                                    Staircase of the county courthouse. The
the top of a staircase near a closed
                                                    Grand Staircase was described as the
entrance. We do not find this minor
                                                    “main,” “most beautiful,” and “most
difference in the placement of the plaques
                                                    public” part of the courthouse, and the
to distinguish the cases. Even if one were
                                                    nativity “occupied a substantial amount of
to concede that the Allegheny Plaque is in
                                                    space” on the staircase. 492 U.S. at 580.
a slightly more prominent location, the
                                                    In comparison, the location of the
Allegheny Plaque’s location is certainly
                                                    Allegheny Plaque could not be considered
not prominent enough to send a message to
                                                    prominent. It does not hang in a main part
the reasonable observer that the County is
                                                    of the courthouse and, as it is at a side
endorsing religion. This is particularly
                                                    entrance, would never be viewed by all
true considering the other contextual
                                                    visitors to the courthouse as the displays in
factors that must be examined in addition
                                                    Schundler and County of Allegheny were.
to location under the endorsement test,

                                               13
        Modrovich and Moore go on to                 [Chester] County has not taken any action
assert that, unlike in Chester County,               to highlight or celebrate the plaque since it
Allegheny County officials have taken                was installed reinforces the view of the
actions to highlight the Plaque. In Chester          reasonable observer that the County
County, officials had done nothing to call           Commissioners maintained the plaque to
attention to the plaque (or taken any action         preserve a longstanding plaque” rather
whatsoever with respect to the plaque)               than endorse the religious message of its
since it was erected.           In contrast,         text. Freethought, 334 F.3d at 267.
Modrovich and Moore suggest that                     Furthermore, Chester County showed a
Allegheny County’s moving the Plaque                 neutral attitude toward the plaque by “not
from the Grant Street side of the                    changing the location of the plaque to the
courthouse to its current location was an            main entrance or otherwise actively
effort to call attention to it because “[t]he        drawing attention to the plaque.” Id. at
County could have placed the Plaque in an            270 (Bright, J., concurring) (emphasis
obscure location after a reason to move it           added).      Similarly, we believe that
arose, but instead the County relocated the          Allegheny County did nothing to actively
Plaque to the prominent place where it is            draw attention to the Plaque.
now.” Appellant Br. at 49. We disagree
                                                             Modrovich and Moore also attempt
with the assertion that moving the Plaque
                                                     to distinguish this case from Freethought
shows an effort to make its presence more
                                                     by pointing out that the Chester County
prominent.       Neither party offers an
                                                     courthouse had no plaques on its exterior
explanation as to why it was moved.
                                                     walls, other than the Commandments
There is no evidence in the record that the
                                                     plaque, that had “any substantive
County made the move because it
                                                     historical, political, or philosophical
considered the Fifth Avenue entrance more
                                                     content.”    Appellant Br. at 52.       As
prominent than the Grant Street entrance.
                                                     described above, the Allegheny courthouse
Dist. Ct. Op. at 43. In fact, the Plaque’s
                                                     displayed several commemorative plaques.
current location near a side entrance is less
                                                     Modrovich and Moore argue that these
prominent than its previous location near
                                                     displays would lead a reasonable observer
t h e c o u r thouse’s main entra nc e.
                                                     to conclude that the County endorses the
Furthermore, the fact that the Plaque was
                                                     substantive content of each of the plaques
only moved once in nearly one hundred
                                                     because each one contains a specific
years supports our view that the County
                                                     message honoring an event, person, place
has made no special efforts to highlight or
                                                     or text. Appellant Br. at 53. However, as
celebrate it. The County has not even
                                                     discussed above, the reasonable observer
taken action to maintain the Plaque, having
                                                     is aware of the one hundred year history of
neither made any effort nor expended any
                                                     the courthouse and the fact that a wide
funds to repair, clean or polish it since
                                                     variety of events, people and philosophical
1918. Chester County showed similar
                                                     tenets has been commemorated during that
inaction towards its plaque. “The fact that

                                                14
time through displays on its walls. As the          652-53). Further, the Freethought Court
County points out, “the reasonable                  held that, even though the Chester County
observer would no more believe that [it]            courthouse did not contain several other
has endorsed the Old Testament by                   displays, the plaque’s age and history
displaying the Plaque than he or she would          alone provided sufficient context to
believe that the County has endorsed the            prevent the reasonable observer from
pantheistic religions of ancient Greece and         viewing an otherwise religious plaque as
Rome by displaying the mural of Lady                an endorsement of religion. Id. at 264.
Justice in the Grand Staircase.” County             Thus, Freethought found that, despite the
Br. at 38.                                          absence of additional secular displays, the
                                                    Chester County plaque had a non-religious
        The fact that the Chester County
                                                    context because of its age and history.
courthouse lacks similar displays is a weak
                                                    Under this reasoning, the perception that
ground on which to attempt to distinguish
                                                    the Allegheny Plaque does not endorse
this case from Freethought. This is
                                                    religion is only strengthened by the
particularly true since the context of a
                                                    existence of other displays on the
religious display can alter the display’s
                                                    courthouse, in addition to the Plaque’s age
message such that a reasonable observer
                                                    and history.
would not perceive it as endorsing
religion. See Lynch 465 U.S. at 692                         Modrovich and Moore also contend
(O’Connor, J., concurring) (stating that “a         that the inscription on the Plaque showing
typical museum setting, though not                  the name of the group that donated it
neutralizing the religious content of a             distinguishes it from the Chester County
religious painting, negates any message of          plaque because this group was a “radical
endorsement of that content”). Following            religious organization” and, although the
this reasoning, we held that a religious            Chester County plaque was also donated
display is more likely to be perceived as an        by a religious organization, the Chester
endorsement of religion “where there is             County plaque did not contain an
nothing else in the context of the display          inscription naming its donor. Appellant
that would change the views of the                  Br. at 53. Modrovich and Moore assert
reasonable observer.” Freethought, 334              that a reasonable observer, knowing the
F.3d at 265. As an example of such a                Plaque was donated by this Christian
context, we cited “the frieze in the                group, would have more reason to view
courtroom of the U.S. Supreme Court,                the continued display of the Plaque as a
which portrays Moses carrying the Ten               government endorsement of religion. We
Commandments alongside depictions of                disagree with this assertion. First, the
other figures who have impacted modern              primary focus under both the endorsement
law, such as John Marshall, William                 and Lemon tests is the events of the time at
Blackstone, and Caesar Augustus.” Id.               which the County refused to remove the
(citing County of Allegheny, 492 U.S. at            Plaque rather than the events of 1918 when


                                               15
the display was erected. Freethought, 334           an endorsement of religion” or “some
F.3d at 267. Arguing that the inscription           people may be offended” by it. Capitol
establishes the County’s endorsement                Square, 515 U.S. at 780 (O’Connor, J.,
improperly places the focus on the events           concurring) (internal citations omitted)
of 1918, rather than on present events and          (emphasis and alterations in original). Our
the County’s secular motivations for                country’s history is steeped in religious
retaining the Plaque. Furthermore, the              traditions. The fact that government
reasonable observer, aware of the Plaque’s          buildings continue to preserve artifacts of
history, would be presumed to know the              that history does not mean that they
identity of the Plaque’s donor (or at least         necessarily support or endorse the
that the donor was a religious                      particular messages contained in those
organization) with or without an                    artifacts.
inscription specifically naming it. This is
p articular ly true here since th e
circumstances surrounding the Plaque’s
donation are a matter of public record.
                                                             2. The Lemon Test
Thus, this case cannot be distinguished
from Freethought on the basis of an                          The purpose prong of the Lemon
inscription on the Allegheny Plaque.                test is discussed below. As explained, this
                                                    prong simply requires that the County
       Our country’s interests in historical
                                                    articulate some legitimate secular purpose
preservation and recognizing the roots of
                                                    for refusing to remove the Plaque. See
modern law present secular goals that
                                                    Freethought, 334 F.3d at 267. Examining
strongly weigh against compelling the
                                                    the motivations behind the decision, we
removal of the Plaque even though its
                                                    are only required to find that the legitimate
content is religious. Considering, from a
                                                    secular purpose articulated by the County
practical standpoint, the remedy sought by
                                                    for retaining the Plaque is not a “sham.”
Modrovich and Moore (removal of the
                                                    Edwards, 482 U.S. at 585-87.              As
Plaque), we should not be swayed by
                                                    Freethought noted, this is a “low
parties’ subjective feelings of affront or
                                                    threshold,” and courts are generally
insult at the sight of a religious display
                                                    deferential to the government’s proffered
when, as here, the facts surrounding the
                                                    secular purpose as long as it is legitimate.
display do not support a finding of
                                                    334 F.3d at 267 (citing Edwards, 482 U.S.
unconstitutional endorsement by the
                                                    at 585-87).
government. Given our national interest in
historical preservation, we believe we                    In making their argument under the
would set a dangerous precedent if we               endorsement test, Modrovich and Moore
were to hold that any relic containing a            point out various statements made by
religious message should be removed                 Allegheny County officials that they claim
merely because “any person . . . could find         to show endorsement of religion.


                                               16
However, this evidence of the County’s               District Court’s conclusion that the record
purpose in refusing to remove the Plaque             shows legitimate secular motivations
more properly goes to the purpose prong              behind Roddey’s decision to retain the
of Lemon. They cite, for example, a                  Plaque. These motivations stem largely
deposition statement by Chief County                 from a desire to preserve an historical
Executive Roddey that “the [P]laque,                 artifact and from a view of the
itself, represents an ethic and a standard           Commandments as being one of the bases
for society that I believe that the people of        of modern law. As Roddey explained:
this community would generally agree to.”
                                                     The [P]laque was an important part of the
Appellant Br. at 49. They also argue that
                                                     heritage and tradition of an historic
the statements of various County officials
                                                     building; . . . [it] was really a part of the
over a broad period of time provide a
                                                     history of the courthouse and we thought it
fuller picture of the County’s desire to
                                                     would be inappropriate to take it down. . .
advance the religious message of the
                                                     . [F]rom what I have read, and what I
Plaque. For example, Modrovich and
                                                     understand, the people that were
Moore cite a public statement made seven
                                                     responsible for putting up the [P]laque felt
years before the commencement of this
                                                     that [the Commandments] represented a
action by a judge on the Court of Common
                                                     celebration of the rule of law, and the
Pleas of Allegheny County that a lawyer in
                                                     foundation of the rule of law that was an
the County should “go over to the
                                                     alternative to war, and other types of
courthouse and read the Ten
                                                     national strife.
Commandments and follow them.” Id. at
18. Similarly, Modrovich and M oore
assert that numerous County residents
                                                             Roddey Depo. at 14, 20-21.
expressed religious motivations for
                                                     Roddey conceded at his deposition that he
retaining the Plaque through letters written
                                                     had distributed a press release in which he
to County officials in support of its
                                                     sta te d his beli ef t ha t t h e T en
continued display.
                                                     Commandments represented “a single
      In considering the County’s                    statement of values, vital to citizens at the
purpose, our focus is on the motivations of          crest of the last century and so meaningful
the current County officials who have                to so many at the dawn of this new
power over the decision of whether to                millennium.” Id. at 20-21. However, as
remove the Plaque. The ultimate decision-            he explains this statement: “They [the
maker here was the then-Chief Executive              1918 County officials] had just come out
of Allegheny County, James Roddey.                   of . . . World War I. . . . The principle
Roddey arrived at his conclusion to retain           value that I was referring to . . . [w]as just
the Plaque after consulting both the                 general rules of civilized society.” Id.
County Solicitor and the President of the            Here, Roddey offers legitimate, secular
County Council. We agree with the                    motivations for his decision.          These


                                                17
motivations are based in historical                         Here, Roddey’s statements express
preservation and in a recognition of the            sufficient secular motivations for his
role of the Commandments in both                    decision. These include the fact that the
Allegheny County history and American               Plaque is part of the heritage of an
law. Even if one did not accept his                 historical building, as well as Roddey’s
explanation of the statement in his press           belief that the County has an obligation to
release, the purpose of the display need not        respect the com munity’s historical
be exclusively secular. See Edwards, 482            decision during World War I to
U.S. at 585-87. Even if the Plaque is               commemorate the value of the rule of law
assumed to incorporate religious meaning            over war. See Roddey Depo. at 20-21
or values, the County is not prohibited             (stating that the County has an “obligation
from displaying such symbols or required            to respect the wishes of the people that
to convey only secular messages. The                [have] gone before us, and the people of
Supreme Court has simply required that              the community before us” to “keep the
the display not be “motivated wholly by             [P]laque as they expected it to be”). Thus,
religious considerations.” Lynch, 465 U.S.          considering that a display need not be
at 680 (emphasis added). 3                          motivated by exclusively secular purposes
                                                    under the Lemon analysis, we find that
                                                    Roddey’s articulations contain sufficient
   3
     Notwithstanding all of this evidence,          legitimate secular purposes to pass muster.
the dissent contends that a genuine dispute         See Lynch, 465 U.S. at 680.
of fact exists as to whether Roddey’s                       Additionally, we are not convinced
stated secular motivations are sincere or           that statements made by other County
simply a “fig leaf” to cover his religious          officials (such as the Court of Common
purposes. See Dissent, p. 5, line 108.              Pleas judge) or by other County residents
However, as noted, the purpose prong of             through letters are relevant to the Lemon
Lemon has a “low threshold,” simply                 purpose analysis.        None of these
requiring a legitimate secular purpose that         individuals was the decision-maker for the
is not a sham. Freethought, 334 F.3d at             County with respect to the Plaque.
267. We believe that no reasonable jury             Therefore, their motivations are not
could find that the historical purpose
articulated by Roddey was merely a sham.
Anderson v. Liberty Lobby, Inc., 477 U.S.
242, 248 (1986). While the dissent may be
correct in suggesting that Roddey’s
motivations are not entirely clear from the         F.3d at 262 (concluding that “the
record, it is undisputed that he asserted           articulation of a legitimate secular purpose
certain secular purposes, and his asserted          for declining to remove the plaque in 2001
historical purpose clearly is not a sham, as        would satisfy the first prong of Lemon”
understood in light of Freethought. 334             (emphasis added)).

                                               18
relevant to the inquiry. 4 In our view, the           contained many monuments and displays
record in this case contains sufficient               pertaining to the history of Texas. These
evidence that Allegheny County retained               displays included, for example, an Aztec
the Plaque for the secular reasons of                 religious symbol, a Confederate plaque, a
historic preservation and commemoration               plaque commemorating the war with
of the rule of law, rather than solely for the        Mexico, and a tribute to African American
religious reasons voiced by some members              legislators. The Court held that the Ten
of the community.                                     Commandments monument did not have a
                                                      primary effect of advancing or inhibiting
        The effect and entanglement prongs
                                                      religion, as seen from the eyes of a
of Lemon are encompassed by the
                                                      reasonable observer, because the grounds
endorsement test, and, accordingly, we
                                                      were designated as a National Historical
incorporate our earlier discussion of the
                                                      Landmark and contained seventeen
endorsement test. See Freethought, 334
                                                      monuments depicting symbols of Texan
F.3d at 269. Thus, we hold that the
                                                      identity. Id. at 175-76. In addition, the
County’s refusal to remove the Plaque
                                                      monument’s location between the Texas
does not violate either the endorsement
                                                      Supreme Court building and the capitol
test, as discussed in Part III.B.1, or the
                                                      building was chosen to reflect the
Lemon test.
                                                      Commandments’ role in the making of
  IV. OTHER CIRCUIT COURT                             law. Id. at 181.
CASES
                                                                 Similarly, in King v. Richmond
         Several other Courts of Appeal               County, the Eleventh Circuit held that a
have recently considered the issue of                 superior court’s official seal depicting two
w h e t h e r d i s p l a ys o f t h e T e n          t a b l e t s r e p r e se n t i n g th e T e n
Commandments on government property                   Commandments did not send a message of
violate the Establishment Clause. At least            endorsement because of various contextual
two of these decisions, from the Fifth and            factors surrounding the seal’s appearance
Eleventh Circuits, support our holding                and use. 331 F.3d at 1286. These
here. In Van Orden v. Perry, 351 F.3d 173             included the fact that the seal had been
(5th Cir. 2003), the Fifth Circuit held that          used by the court for over 130 years for
a Ten Commandments monument on                        secular, legal documentation purposes.
Texas state capitol grounds did not                   Other relevant contextual factors included
endorse religion where the capitol grounds            the seal’s relatively small size, the absence
                                                      of text on the tablets (although they did
                                                      contain Roman numerals I through X,
  4
    In addition, the record shows that most           clearly representing the Commandments),
of the correspondence from County                     and the fact that the seal depicted a sword
residents was actually received after                 (a symbol of secular law) intertwined with
Roddey’s decision was made. Roddey                    the tablets. Id. at 1283-84. Thus, this
Depo. at 71.

                                                 19
decision supports our standpoint that the          however, this was a new display, not an
overall context of a basically religious           historical monument and, therefore, this
depiction can affect whether a reasonable          decision has no persuasive effect on our
observer perceives the display as                  holding here.
endorsing religion.
                                                            In Adland v. Russ, 307 F.3d 471
        Other Circuits have held that              (6th Cir. 2002), cert. denied, 538 U.S. 999
postings of the Ten Commandments                   (2003), the Sixth Circuit held that a
violate the Establishment Clause.                  monument displaying a “nonsectarian”
However, each of these decisions is                version of the Ten Commandments,
distinguishable from the instant case and          donated in 1971 but moved to storage in
is, therefore, neither persuasive nor              1980, could not be placed on the state
apposite. In ACLU of Ohio Foundation,              capitol grounds. Once again, this case
Inc. v. Ashbrook, 375 F.3d 484 (6th Cir.           involved a new placement, not a refusal to
2004), the Sixth Circuit held that an Ohio         r e m o v e a l o n g s ta n d i n g p l aq u e .
Common Pleas Court judge violated the              Additionally, the proposed display in
Establishment Clause by displaying a               Adland would have been in a prominent
framed poster of the Ten Commandments,             location on state capitol grounds, unlike
which he created himself on his computer,          the Allegheny Plaque, which hangs
in his courtroom across from a similarly           discretely on the side of the courthouse.
styled framed poster of the Bill of Rights,        Books v. City of Elkhart, 235 F.3d 292
which he also created. This case is                (7th Cir. 2000), cert. denied, 532 U.S.
distinguishable from the instant case as it        1058 (2001), involved a monument similar
involves a new display rather than an              to that in Adland in that it also displayed a
historical artifact.                               nonsec tarian versio n of the
                                                   Commandments and was placed on the
       In another distinguishable case,
                                                   lawn in front of a local municipal building.
ACLU of Kentucky v. McCreary County,
                                                   The Seventh Circuit found this display to
354 F.3d 438 (6th Cir. 2003), the Sixth
                                                   violate the Establishment Clause, but this
Circuit held that a courthouse’s posting of
                                                   decision does not influence our holding
the Ten Commandments, hung in a
                                                   here for the same reasons that Adland is
museum-like setting with other postings
                                                   unpersuasive. See also Ind. Civil Liberties
designed to display the foundations of
                                                   Union v. O’Bannon, 259 F.3d 766 (7th
American law, violated the Establishment
                                                   Cir. 2001), cert. denied, 534 U.S. 1162
Clause. The Court held that, despite the
                                                   (2002) (following Elkhart and holding that
secular context, the text of the Ten
                                                   the state’s intention to erect a monument
Commandments sent the message of
                                                   depicting the Ten Commandments on the
endorsing religion because the county did
                                                   park-like grounds of the statehouse would
not make clear in the display that it was
                                                   violate the Establishment Clause).
attempting to create an exhibit concerning
the origins of law. Id. at 448-49. Again,                  Finally,    in    ACLU       Nebraska

                                              20
Foundation v. City of Plattsmouth, 358               King] that given the context in which the
F.3d 1020 (8th Cir. 2004), the Eighth                pictograph of the Ten Commandments
Circuit held that the city’s display of a Ten        appeared on the Seal, a reasonable
Commandments monument in a public                    observer would not believe that the Seal
p a r k s i n c e 1 9 6 5 a m o u n te d t o         was an endorsement of religion.” Id. at
unconstitutional government endorsement.             1298-99 (internal citations omitted).
This case also addresses a relatively new
                                                                V. CONCLUSION
monument, not an historical relic. Further,
the Plattsmouth monument stands alone in                    For the foregoing reasons, we
a city park. It therefore lacks the kind of          believe that the Ten Commandments
historical context that we believe makes             Plaque affixed to the Allegheny County
the reasonable observer unlikely to                  Courthouse does not constitute an
perceive the Allegheny Plaque as an                  endorsement of religion in violation of the
endorsement of religion.5                            Establishment Clause, nor does it violate
                                                     the test first articulated in Lemon. Thus,
      The Eleventh Circuit also reiterated
                                                     the District Court’s grant of summary
the importance of context in
                                                     judgment to Allegheny County and denial
Glassroth v. Moore, 335 F.3d 1282 (11th              of summary judgment to Modrovich and
Cir. 2003), in which it held that a two-and-         Moore will be affirmed.
one-half ton monument of the Ten
Commandments, placed in the rotunda of
an Alabama State Courthouse by the Chief             Modrovich v. Allegheny County
Justice of the Alabama Supreme Court,
                                                     No. 03-3571
violated the Establishment Clause. As
with the cases above, this case involved a
new and far more prominent display than
                                                     GIBSON, Circuit Judge, dissenting.
the Allegheny Plaque.          Further, the
Eleventh Circuit distinguished Glassroth
from its holding in King, a case much
                                                            I respectfully dissent.
more factually similar to the instant case,
stating that “he constitutionality of a
government’s use of a predominantly
                                                             In my view the decision of the
religious symbol depends on the context in
                                                     district court is based upon factual findings
which it appears, and we concluded [in
                                                     where there is conflicting evidence,
                                                     particularly with respect to the present
                                                     intent of County officials. The court
  5
    Additionally, we note that Plattsmouth           followed the teaching of this court's earlier
is no longer binding precedent, as the               decision in Freethought Society of Greater
city’s petition for rehearing en banc was            Philadelphia v. Chester County, 334 F.2d
granted on April 6, 2004.

                                                21
247 (3d Cir. 2003), but overlooks the              Id. at 1363 (citations omitted). Relying
differing procedural posture of that case.         upon Anderson v. Liberty Lobby, Inc., 477
This court in Freethought reviewed a               U.S. 242, 249-251 (1986), we stated that
permanent injunction ordering the removal          the summary judgment standard has been
of the Ten Commandments Plaque based               likened to the "'reasonable jury' directed
on testimony the district court found              verdict standard," and "at the summary
believable and the legal conclusions based         judgment stage the judge's function is not
upon these findings. Id. at 255. In                . . . to weigh the evidence to determine the
contrast, the case before us is an appeal          truth of the matter, but to determine
from a grant of summary judgment.                  whether there is a genuine issue for trial."
                                                   Big Apple BMW, 974 F.2d at 1362-63.
        Consistently with the teaching of
                                                   We concluded:
the Supreme Court, decisions of other
circuits, and Federal Rule of Civil                       In practical terms, if the
Procedure 56, we have stated, "Summary                    opponent has exceeded the
judgment should be granted where no                       "mere scintilla" threshold
genuine issue of material fact exists for                 and is offered a genuine
resolution at trial and the moving party is               issue of material fact, then
entitled to judgment as a matter of law."                 the court cannot credit the
Big Apple BMW , Inc. v. BMW of North                      movant's version of events
America, Inc., 974 F.2d 1358, 1362 (3d                    against the opponent's, even
Cir. 1992). We explained:                                 if the quantity of the
                                                          m ovant's evidence far
       When deciding a motion for
                                                          outweighs that of its
       summary judgment . . . a
                                                          opponent. It thus remains
       c o u r t ' s r o l e re m a i n s
                                                          the province of the fact
       circumscribed in that it is
                                                          finder to ascertain the
       inappropriate for a court to
                                                          believablity and weight of
       resolve factual disputes and
                                                          the evidence.
       to make credibility
       d eterm in ations. . . .
       Inferences should be drawn
                                                   Id. at 1363.
       in the light most favorable
       to the non-moving party,                           The district court, in following
       and where the non-moving                    Freethought, engaged in weighing of the
       party's evidence contradicts                evidence and fact finding contrary to the
       the movant's, then the non-                 teaching of Big Apple BMW and
       movant's must be taken as                   Anderson. The district court based its
       true.                                       decision on the conclusion that officials
                                                   were "sincere" when they articulated
                                                   secular reasons for keeping the Plaque in

                                              22
place:                                            low threshold required by the purpose
                                                  prong of Lemon [v. Kurtzman, 403 U.S.
         With regard to the current
                                                  602, 612-13 (1971)],'" citing Freethought,
         dispute over retention of the
                                                  334 F.3d at 267. The district court
         Plaque, the reasonable
                                                  continued by observing that Roddey had
         observer would know that
                                                  consulted with the County Solicitor and
         the County Executive, Mr.
                                                  President of the County Council, and their
         Roddey, with support from
                                                  joint conclusion was that "the plaque was
         County Council, decided to
                                                  an important part of the heritage and
         not to [sic] remove the
                                                  tradition of an historic building; . . . [it]
         Plaque because he believed
                                                  was really a part of the history of the
         it represented "an important
                                                  courthouse and we thought it would be
         part of the heritage and
                                                  inappropriate to take it down." The district
         tradition of an historic
                                                  court observed that Roddey had conceded
         building" and that the
                                                  at his deposition that he had distributed a
         Plaque commemorated the
                                                  press release stating his belief that the Ten
         rule of law, as opposed to
                                                  Commandments represented a single
         war.
                                                  statement of "values" vital to citizens "at
                   Based    on    the             the crest of the last century and so
         cumulative knowledge of                  meaningful to many at the dawn of this
         the reasonable observer, I               new millennium." At the same time, the
         find that he or she could not            court accepted Roddey's explanation that
         conclude that continued                  by "values" he meant that the people that
         d i s p la y o f t h e T e n             were responsible for putting up the Plaque
         C o m man dm ents Plaque                 felt that The Commandments represented
         reflects an intent by the                a celebration of the rule of law, and the
         current county officials to              foundation of the rule of law that was an
         promote or favor one                     alternative to war, and was "just general
         religion over another or                 rules of civilized society." The district
         indeed even to promote                   court then stated:          "Mr. Roddey's
         religion over non-religion.              explanations appear to be sincere and
                                                  consistent with the facts pertaining to the
                                                  building, its history, the age of the Plaque,
       The district court particularly            and the County's intention to respect the
concluded that the County Executive,              past and preserve the artifacts for future
James Roddey, expressed legitimate,               generations."
secular reasons for refusing to remove the
                                                         But the record contains other
Plaque, "analogous to those given by the
                                                  statements by Roddey that cast a much
Chester County Commissioners whose
                                                  different light on his motivations. In a
explanation had satisfied the 'relatively

                                             23
press release Roddey stated, "Perhaps the            motion, Vince Gastgeb,6 stated, "There's
citizens of Allegheny County place a value           values and traditions here in this County
on the family, on the church and on                  that people have fought for, and as elected
religion that is vastly different than those         representatives, we should fight to
who dwell in Washington, D.C. But my                 continue that moving forward." Gastgeb
heart and my instinct tell me to keep 'The           concluded his speech by stating, "We have
Commandments' and I intend to follow                 to have faith." He later stated to the press,
them."        Presumably, the reasonable             "I'd rather see ten religious expressions in
observer reads local newspapers as well as           the courthouse than none."          Another
local history books, so this statement has           Council member, Richard Olasz, stated
to be entered into the mix in deciding what          during Council debate, "Maybe some of
that observer would think. Furthermore, in           these people that object to [the Plaque]
his deposition Roddey stated that "the               ought to go back and remember that there
plaque, itself, represents an ethic and a            are no atheists in foxholes, and to
standard for society that I believe the              remember the old sign on the tombstone:
people of this community would generally             All Dressed Up and Nowhere to Go."
agree to."       This statement could be
                                                            There was also in evidence a
understood to amount to an adoption of
                                                     statement by the president judge of the
official religious precepts by majority rule,
                                                     Allegheny County Common Pleas Court
t h e r e b y sending a "mess a g e to
                                                     that in giving an ethics seminar for the
nonadherents that they are outsiders, not
                                                     County bar association, "I told them to go
full members of the political community,
                                                     over to the courthouse and read the Ten
and an accompanying message to
                                                     Commandments and follow them."
adherents that they are insiders, favored
members of the political community."                         The district court made no reference
Freethought, 334 F.3d at 260 (quoting                to an expert's affidavit stating that the text
Capitol Square Review & Advisory Bd. v.              of the Commandments Plaque is a
Pinette, 515 U.S. 753, 773 (1995)).                  particu lar Christian Protestant one
                                                     differing in many ways from that accepted
       And had the reasonable observer
                                                     under the Jewish, Roman Catholic, and
attended the Allegheny County Council
                                                     Lutheran traditions.
meeting of January 16, 2001, he or she
would have heard the debate when the                        There is thus significant record
Council passed a "sense of Council"
motion stating, "'The Commandments'
                                                        6
reflect values that are important to this                Gasteb said that the sense of Council
community today as they were in the early            motion was desirable because the Council
part of the century." The sponsor of the             has "control over the courthouse," which
                                                     suggests an unresolved issue as to whether
                                                     the Council had some authority over the
                                                     decision to retain the Plaque.

                                                24
evidence that the decision to keep the              A finder of fact could well come to the
Plaque stemmed predominantly from                   same conclusion that the district court
religious impulses and would have been so           arrived at. However, the district court was
perceived by a reasonable observer. Even            not sitting as finder of fact, but was
though under the Lemon test, the purpose            considering a summary judgment motion.
of the display does not have to be                  These disputed fact issues should not have
exclusively secular, in this case the               been decided as a question of law.8
evidence would support a finding that the
                                                           In my view, we should remand for
secular purpose was a fig leaf. See
                                                    further consideration of the issues in this
Edwards v. Aguillard, 482 U.S. 578, 586-
                                                    case.
87 (1987) (purpose prong of Lemon
requires that assertion of secular purpose
be "sincere and not a sham"). Moreover,
the statements of religious purpose were
made in public in circumstances that may
well have given rise to an appearance of
endorsement of religion by responsible
county officials.
       Perhaps the district court simply
considered this case to be governed by
Freethought.7 Any such reliance makes
even more significant the distinction in the
procedural postures between Freethought
and this case, for in Freethought we dealt
with factual findings made after a hearing
in support of an order granting preliminary
injunction and here we deal with the far
different standard for summary judgment.


   7
    King v. Richmond County, 331 F.3d
                                                      8
1271 (11th Cir. 2003), was recognized by               I am aware that this court in Bender v.
Freethought, but distinguished. 334 F.3d            Williamsport Area Sch. Dist., 741 F.2d
at 263. The county seal of Richmond                 538 (3d Cir. 1984), vacated on other
County depicted a tablet with Roman                 grounds, 475 U.S. 534 (1986), reversed a
numerals I-X, but without the text of the           summary judgment in a school prayer case,
Ten Commandments. Because the text                  but carefully noted there were no material
was not reproduced, the reasonable                  disputes of fact that would preclude
observer was therefore not "induced to              consideration of the merits of the case on
read or venerate sacred text." Id.                  summary judgment. Id. at 542 n.3.

                                               25
