        RECOMMENDED FOR FULL-TEXT PUBLICATION
             Pursuant to Sixth Circuit Rule 206           2   ACLU, et al. v. McCreary County, et al.        No. 01-5935
    ELECTRONIC CITATION: 2003 FED App. 0447P (6th Cir.)
                File Name: 03a0447p.06                    Louisville, Kentucky, for Appellees. ON BRIEF: Mathew
                                                          D. Staver, Erik W. Stanley, LIBERTY COUNSEL,
                                                          Longwood, Florida, Johnnie L. Turner, LAW OFFICES OF
UNITED STATES COURT OF APPEALS                            JOHNNIE L. TURNER, Harlan, Kentucky, for Appellants.
                                                          David A. Friedman, AMERICAN CIVIL LIBERTIES
              FOR THE SIXTH CIRCUIT                       UNION OF KENTUCKY, Louisville, Kentucky, for
                _________________                         Appellees. David R. Huggins, NATIONAL LEGAL
                                                          FOUNDATION, Virginia Beach, Virginia, for Amicus
 AMERICAN CIVIL LIBERTIES         X                       Curiae.
 UNION OF KENTUCKY , et al.,       -
                                                            CLAY, J., delivered the opinion of the court. GIBBONS,
           Plaintiffs-Appellees, -                        J. (pp. 43-44), delivered a separate concurring opinion.
                                   -   No. 01-5935
                                   -                      RYAN, J. (pp. 45-80), delivered a separate dissenting
            v.                      >                     opinion.
                                   ,
                                   -                                          _________________
 MCCREARY COUNTY,                  -
 KENTUCKY , et al.,                -                                              OPINION
       Defendants-Appellants. -                                               _________________
                                   -
                                  N                         CLAY, Circuit Judge. Defendants, two Kentucky counties
      Appeal from the United States District Court        and a county school district, as well as three officials of these
     for the Eastern District of Kentucky at London.      governmental entities, appeal from the district court’s order
          Nos. 99-00507; 99-00508; 99-00509—              granting Plaintiffs’ motion for a supplemental preliminary
           Jennifer B. Coffman, District Judge.           injunction prohibiting Defendants from displaying copies of
                                                          the Ten Commandments in three separate displays on the
               Argued: December 4, 2002                   basis that Plaintiffs showed a strong likelihood of succeeding
                                                          on their claim that Defendants’ displays violated the
         Decided and Filed: December 18, 2003             Establishment Clause of the First Amendment. For the
                                                          reasons set forth below, we AFFIRM.
 Before: RYAN, CLAY, and GIBBONS, Circuit Judges.
                                                                                     I.
                  _________________                                             BACKGROUND

                       COUNSEL                            A. Procedural History

ARGUED: Mathew D. Staver, LIBERTY COUNSEL,                  On November 18, 1999, seven individuals in three
Longwood, Florida, for Appellants. David A. Friedman,     Kentucky counties (McCreary County, Harlan County, and
AMERICAN CIVIL LIBERTIES UNION OF KENTUCKY,               Pulaski County) along with the American Civil Liberties

                            1
No. 01-5935 ACLU, et al. v. McCreary County, et al.                       3    4   ACLU, et al. v. McCreary County, et al.       No. 01-5935

Union (“ACLU”) filed three lawsuits in the United States                       injunctive relief; the court ordered that the displays be
District Court for the Eastern District of Kentucky, alleging                  removed and that no similar displays be erected. Defendants
that these counties had erected displays consisting of framed                  filed a notice of appeal to this Court, and a motion to stay the
copies of the Ten Commandments in the county courthouses                       injunction pending appeal. The district court denied the
of McCreary and Pulaski Counties, as well as in the schools                    motion to stay, as did this Court.
of the Harlan County School District, in violation of the
Establishment Clause of the First Amendment.1 Plaintiffs                         Defendants allegedly obtained new counsel and then filed
sought a declaration that the displays were unconstitutional,                  a motion to clarify the district court’s preliminary injunction
as well as preliminary and permanent injunctive relief                         as to all Defendants regarding the court’s prohibition against
enjoining the counties from continuing their display of the                    erecting “similar displays.” The district court denied the
Ten Commandments.                                                              motion for clarification on September 15, 2000, stating that
                                                                               “the injunction speaks for itself.” (J.A. at 119.)
  Shortly after the complaint was filed, Defendants modified
the displays to include secular historical and legal documents,                  Defendants, allegedly acting on the belief that a display
some of which were excerpted, and then filed respective                        containing the Ten Commandments could be erected within
motions to dismiss. Following a hearing held on April 20,                      the parameters of the Constitution, voluntarily dismissed their
2000, the district court issued an order on May 5, 2000 in                     appeal to this Court and erected new displays containing
each of the three cases which denied Defendants’ motions to                    several additional secular historical and legal documents in
dismiss and granted Plaintiffs’ motions for preliminary                        their entirety, along with the Ten Commandments. The
                                                                               courthouse displays contained an explanation entitled the
                                                                               “Foundations of American Law and Government Display”
    1                                                                          which explained that the displays included various documents
      The three lawsuits were considered as one by the district court, and     that played a significant role in the founding of the American
are so considered on appeal. See ACLU o f Ky. v. McCreary County, Ky.,
96 F. Supp. 2d 679, 682 n.2 (E.D. Ky. 2000) (“This is one of three
                                                                               system of law and government. The school district displays
companion cases, simultaneously filed, which attack such d isplays. Any        contained similar documents to the courthouse displays,
minimal variances among the three displays possess no legal significance       except instead of the “Foundations of American Law and
for the purpose of the motions now pending before the court. Having            Government Display” explanation, the School Board displays
observed that the case records also share similar complaints, memoranda,       contained a School Board Resolution. The Resolution
and motions and that the three cases share identical lead counsel on b oth
sides, the court combined the three for oral argument and today enters
                                                                               addressed the historical context of the displays and opened a
virtually identical opinions— w ith necessary but slight factual               forum for the community to post an unlimited number of
variations— in all three.”). The three opinions of which the district court    additional historical documents.
spoke are as fo llows: ACLU of Ky. v. McCreary County, Ky., 96 F. Supp.
2d 679 (E.D . Ky. 2000) (“McCreary I”); ACLU of Ky v. Pulaski County,            As a result of these new displays, Plaintiffs filed a motion
Ky., 96 F. Sup p. 2d 691 (E.D . Ky. 2000 ); Doe v. Harlan County Sch.          to hold Defendants in contempt for violating the district
Dist., 96 F . Supp. 2d 667 (E.D . Ky. 2000 ). The district court ev entually
consolidated the three cases under case number 99-507. All Defendants
                                                                               court’s preliminary injunction or, in the alternative, to enter
filed a single notice of appeal from the district court’s June 22, 2001,       a supplemental preliminary injunction order. Defendants
order granting Plaintiffs’ motion for a supplemental preliminary               responded to Plaintiffs’ motion by arguing that the new
injunction. ACLU o f Ky. v. McCreary County, Ky., 145 F. Supp. 2d 845          displays were not similar to the previous displays, and
(E.D. Ky. 2001) (“McCreary II) (order granting Plaintiffs’ motion for          contended that the “purpose for the display is to educate
supplemental preliminary injunction).
No. 01-5935 ACLU, et al. v. McCreary County, et al.             5    6    ACLU, et al. v. McCreary County, et al.      No. 01-5935

citizens of the county regarding some of the documents that          displayed copies of a version of the Ten Commandments in
played a significant role in the foundation of our system of         their classrooms which, like the courthouse displays, initially
law and government.” (J.A. at 151.)                                  consisted of “framed copies of one version of the Ten
                                                                     Commandments which were not part of larger educational,
   A hearing was held on March 30, 2001, at which time the           historical or retrospective exhibits.” Harlan, supra note 1, at
district court denied Plaintiffs’ motion for contempt, and on        671.
April 2, 2001, the court entered a corresponding order
denying the motion for contempt, while urging the parties to           After Plaintiffs filed suit, Defendants amended the
settle the matter. The court noted in the order, however, that       respective displays “in an attempt to bring the display[s]
if the parties could not reach a settlement by April 30, 2001,       within the parameters of the First Amendment and to insulate
the court would rule upon Plaintiffs’ motion for a                   themselves from suit.” McCreary I, supra note 1, at 684.
supplemental preliminary injunction. The parties failed to           Specifically, the Courthouse displays were modified to
reach a settlement, and the district court then issued an order      consist of:
granting Plaintiffs’ motion for a supplemental preliminary
injunction on June 22, 2001. It is from the district court’s             (1) an excerpt from the Declaration of Independence;
order granting Plaintiffs’ motion for a supplemental                     (2) the Preamble to the Constitution of Kentucky; (3) the
preliminary injunction that Defendants now appeal.                       national motto of “In God We Trust”; (4) a page from the
                                                                         Congressional Record of Wednesday, February 2, 1983,
B. Facts                                                                 Vol. 129, No. 8, declaring it the Year of the Bible and
                                                                         including a copy of the Ten Commandments; (5) a
   In 1999, McCreary County erected a display of the Ten                 proclamation by President Abraham Lincoln designating
Commandments in the McCreary County Courthouse                           April 30, 1863 a National Day of Prayer and
consisting of “at least one framed copy of one version of the            Humiliation; (6) an excerpt from President Lincoln’s
Ten Commandments and [which] was not part of any larger                  “Reply to Loyal Colored People of Baltimore upon
educational, historical, or retrospective exhibit.” McCreary             Presentation of a Bible” reading, “The Bible is the best
I, supra note 1, at 684. The display was erected pursuant to             gift God has ever given to man.”; (7) a proclamation by
an order signed by Defendant Jimmie Greene, McCreary                     President Ronald Reagan marking 1983 the Year of the
County Judge Executive. Id. Likewise, Pulaski County                     Bible; and (8) the Mayflower Compact.
officials erected a copy of the Ten Commandments in the
Pulaski County courthouse in the same fashion. Pulaski,              Id. (footnote omitted); see also Pulaski, supra note 1, at 695-
supra note 1, at 695. The Pulaski display was erected by             96. The School Board display was modified to include those
Defendant Darrell Beshears, Pulaski County Judge Executive.          documents included in the modified courthouse displays,
Id. The courthouse displays, both in their initial and later in      along with the addition of “a recently enacted Kentucky
their modified forms, were “readily visible to the plaintiffs        statute, K.R.S. 158.195, which the defendants allege permits
and the other county citizens who use the courthouse to              the posting of the Ten Commandments; and …a Harlan
conduct civic business, to obtain or renew driver’s licenses         County School Board resolution permitting the posting of the
and permits, to register cars, to pay local taxes, and to register   Ten Commandments.” Harlan, supra note 1, at 672. Also
to vote.” McCreary I, supra note 1, at 684; Pulaski, supra           common to all three modified displays was the fact that while
note 1, at 695. The schools in Harlan County School District         some of the added documents were “displayed in their
No. 01-5935 ACLU, et al. v. McCreary County, et al.                       7    8    ACLU, et al. v. McCreary County, et al.               No. 01-5935

entirety, the defendants [] excerpted a small portion of others                document entitled “The Foundations of American Law and
to include only that document’s reference to God or the Bible                  Government Display.” (J.A. 161-74.) The prefatory
with little or no surrounding text.” McCreary I, supra note 1,                 description states that the “display contains documents that
at 684; Pulaski, supra note 1, at 696; Harlan, supra note 1, at                played a significant role in the foundation of our system of
672.                                                                           law and government.” (J.A. at 161.) With regard to the Ten
                                                                               Commandments, the prefatory description states:
  Despite the modifications, Plaintiffs sought a preliminary
injunction from the district court to enjoin Defendants from                       The Ten Commandments have profoundly influenced the
displaying the modified exhibits, and the district court granted                   formation of Western legal thought and the formation of
the preliminary injunction as to all three displays. See                           our country. That influence is clearly seen in the
McCreary I, supra note 1, at 691. The district court found                         Declaration of Independence, which declared that, “We
that “the amended displays failed the ‘purpose’ and ‘effect’                       hold these truths to be self-evident, that all men are
prongs of the three-part test set out in Lemon v. Kurtzman,                        created equal, that they are endowed by their Creator
403 U.S. 602 (1971), in that they lacked a secular purpose and                     with certain unalienable Rights, that among these are
had the effect of endorsing religion.” McCreary II, supra                          Life, Liberty, and the pursuit of Happiness.” The Ten
note 1, at 846 (footnotes omitted). The court ordered that the                     Commandments provide the moral background of the
displays be removed “immediately” and further ordered that
“similar displays” could not be erected in the future.
McCreary I, supra note 1, at 691.
                                                                                    Thou sha lt not take the nam e of the L OR D thy G od in vain: for the
  Defendants then posted a third version of the displays,                           LOR D will not hold him guiltless that taketh his name in vain.
presuming that the modified displays were in conformity with
the law as set forth in the district court’s opinions. The new                      Rem emb er the sabba th day, to keep it holy.
courthouse displays consisted of the entire Star Spangled                           Hono ur thy father and mother: that thy days may be long upon the
Banner, the Declaration of Independence, the Mayflower                              land which the LORD thy God giveth thee.
Compact, the Bill of Rights, the Magna Carta, the National
Motto, the Preamble to the Kentucky Constitution, the Ten                           Thou sha lt not kill.
Commandments2, Lady Justice and a one-page prefatory
                                                                                    Thou sha lt not commit adultery.

   2
                                                                                    Thou sha lt not steal.
       This version of the Ten Com mandments read s as follows:
                                                                                    Thou shalt not bear false witness against thy neigbour.
   Thou shalt have no other gods before me.
                                                                                    Thou shalt not covet thy neighb our’s house, thou shalt not covet thy
   Thou sha lt not make unto thee any graven image, or any likeness of              neighb our’s wife, nor his manservant, nor his maidservant, nor his
   any thing that is in heaven above, or that is in the earth beneath, or           ox, nor his ass, nor any thing that is thy neighbour’s.
   that is in the water underneath the earth: Thou shalt not bow down
   thyself to them , nor serve them: for I the LORD thy God am a                                                    Exodus 20: 3-17
   jealous God, visiting the iniquity of the fathers upo n the children unto                                        King James Version
   the third and fourth generation of them that hate me.
                                                                               (J.A. 1 69.)
No. 01-5935 ACLU, et al. v. McCreary County, et al.                     9    10 ACLU, et al. v. McCreary County, et al.       No. 01-5935

  Declaration of Independence and the foundation of our                      posting of historical displays and a School Board Resolution
  legal tradition.                                                           (“the Resolution”). (J.A. at 198-208.) The Resolution stated,
                                                                             in part:
Id. There is no other discussion of the Ten Commandments
and how it purportedly relates to any of the other documents                   We believe these … documents positively contribute to
in the display.                                                                the educational foundations and moral character of
                                                                               students in our schools. … [I]t is our opinion that these
  The new School Board displays consisted of the entire Star                   … documents, taken as a whole, are valuable examples
Spangled Banner, the Declaration of Independence, the                          of documents that may instill qualities desirable of the
Mayflower Compact, the Bill of Rights, the Magna Carta, the                    students in our schools, and have had particular historical
National Motto, the Preamble to the Kentucky Constitution,                     significance in the development of this country.
an excerpt of the Congressional Record containing the Ten
Commandments,3 Kentucky Statute § 158.195 regarding the                      (J.A. at 198.) The Resolution also contained a procedure that
                                                                             would permit any person to request the posting of other
                                                                             historical documents with the permission of the Harlan
      3
                                                                             County Board of Education. (J.A. at 198-99.)
      The Ten C omm andments are included in a statement of
Represen tative Philip M. Crane of Illinois in which he discusses a Joint      The district court, after recognizing the Supreme Court’s
Resolution authorizing then-President Reagan to declare 1983 to be the       approval of “two constitutionally permissible uses of the Ten
“Year of the Bible.” See (J.A. 2 08.) (statement of R ep. C rane; q uoting
H.J. Res. 487, 98th Cong. (198 3)). Representative Crane’s version of the    Commandments within the public arena,” found that the new
Ten Com mandments read s:                                                    displays were “clearly outside the bounds of these permissible
                                                                             uses and [were] violative of the Establishment Clause.”
      1.   I am the Lord thy God, thou shalt have no other gods before me.   McCreary II, supra note 1, at 852-53 (citing County of
                                                                             Allegheny v. ACLU, 492 U.S. 573 (1989) and Stone v.
      2.   Thou shalt not make unto thee any graven image.
                                                                             Graham, 449 U.S. 39 (1980)). The district court thus
      3.   Thou shalt not take the name of the Lord thy God in vain.         enjoined Defendants from continuing with the new displays
                                                                             and ordered all three to be removed immediately from their
      4.   Rem emb er the Sabb ath day to keep it holy.                      respective locations. McCreary II, supra note 1, at 853.
      5.   Hono r thy father and mother.
                                                                                                        II.
      6.   Thou sha lt not kill.                                                                    DISCUSSION
      7.   Thou sha lt not commit adultery.                                  A. Standard of Review
      8.   Thou sha lt not steal.                                              A preliminary injunction is an extraordinary measure that
      9.   Tho u shalt not bear false witness.
                                                                             has been characterized as “one of the most drastic tools in the
                                                                             arsenal of judicial remedies.” Hanson Trust PLC v. ML SCM
      10. Thou sha lt not covet.                                             Acquisition Inc., 781 F.2d 264, 273 (2d Cir. 1986) (citation
                                                                             omitted); see also Detroit Newspaper Publishers. Ass’n v.
Id.
No. 01-5935 ACLU, et al. v. McCreary County, et al.          11    12 ACLU, et al. v. McCreary County, et al.       No. 01-5935

Detroit Typographical Union No. 18, 471 F.2d 872, 876 (6th         dispositive of the issue.” See In re DeLorean Co., 755 F.2d
Cir. 1972) (emphasizing that a preliminary injunction is the       1223, 1228 (6th Cir. 1985).
strong arm of equity which should not be extended to cases
which are doubtful or do not come within well-established             In Elrod v. Burns, 427 U.S. 347, 373 (1976), the Supreme
principles of law). This Court reviews the district court’s        Court held that when reviewing a motion for a preliminary
decision to grant a preliminary injunction for an abuse of         injunction, if it is found that a constitutional right is being
discretion while giving great deference to the district court’s    threatened or impaired, a finding of irreparable injury is
determination; however, this Court’s deference to the district     mandated. In other words, the first factor of the four-factor
court is not absolute. Mascio v. Pub. Employees Ret. Sys.,         preliminary injunction inquiry—whether the plaintiff shows
160 F.3d 310, 312-13 (6th Cir. 1998). The injunction will be       a substantial likelihood of succeeding on the merits—should
disturbed if the district court relied upon clearly erroneous      be addressed first insofar as a successful showing on the first
findings of fact, improperly applied the governing law, or         factor mandates a successful showing on the second
used an erroneous legal standard. See Blue Cross & Blue            factor—whether the plaintiff will suffer irreparable harm. See
Shield Mut. v. Blue Cross & Blue Shield Ass’n, 110 F.3d 318,       id.; see also Connection Distrib. Co. v. Reno, 154 F.3d 281,
322 (6th Cir. 1997). “A finding is ‘clearly erroneous’ when        288 (6th Cir. 1998) (finding that “[w]hen a party seeks a
although there is evidence to support it, the reviewing court      preliminary injunction on the basis of the potential violation
is left with the definite and firm conviction that a mistake has   of the First Amendment, the likelihood of success on the
been committed.” See United States v. United States Gypsum,        merits often will be the determinative factor”).
Co., 333 U.S. 364, 395 (1948).
                                                                     1.   Strong Likelihood of Success on the Merits
B. Analysis
                                                                      The Establishment Clause of the First Amendment provides
   In the exercise of its discretion with respect to a             that “Congress shall make no law respecting an establishment
  motion for preliminary injunction,                               of religion.” U.S. Const., amend. I. This clause is made
                                                                   applicable to the states through the Fourteenth Amendment.
  a district court must give consideration to four factors:        See Everson v. Bd. of Educ., 330 U.S. 1, 8 (1947). As the
  “(1) whether the movant has a strong likelihood of               Supreme Court has recognized, “[t]he Establishment Clause,
  success on the merits; (2) whether the movant would              at the very least, prohibits government from appearing to take
  suffer irreparable injury without the injunction;                a position on questions of religious beliefs or from ‘making
  (3) whether issuance of the injunction would cause               adherence to a religion relevant in any way to a person’s
  substantial harm to others; and (4) whether the public           standing in the political community.’” County of Allegheny
  interest would be served by issuance of the injunction.”         v. Am. Civil Liberties Union, 492 U.S. 573, 593-94 (1989)
  Rock & Roll Hall of Fame & Museum, Inc. v. Gentile               (quoting Lynch v. Donnelly, 465 U.S. 668 (1984)).
  Prods., 134 F.3d 749, 753 (6th Cir. 1998).
                                                                      While sitting en banc, this Court recently observed that
Mascio , 160 F.3d at 312-13. Federal Rule of Civil Procedure       although individual Supreme Court justices have expressed
52(c) “requires a district court to make specific findings         reservations regarding the test set forth in Lemon v.
concerning each of these four factors, unless fewer are            Kurtzman, 403 U.S. 602 (1971) for determining whether a
                                                                   particular government action violates the Establishment
No. 01-5935 ACLU, et al. v. McCreary County, et al.          13    14 ACLU, et al. v. McCreary County, et al.       No. 01-5935

Clause, see Am. Civil Liberties Union of Ohio v. Capital           Commandments in the displays was a “purposeful or
Square Review & Advisory Bd., 243 F.3d 289, 306 & n.15             surreptitious effort to express some kind of subtle
(6th Cir. 2001) (en banc) (collecting cases), this Court, as an    governmental advocacy of a particular religious message.”
intermediate federal court, is bound to follow the Lemon test      Lynch, 465 U.S. at 680. To satisfy this prong of the Lemon
until the Supreme Court explicitly overrules or abandons it.       test, Plaintiffs must show that Defendants’ predominate
Adland v. Russ, 307 F.3d 471, 479 (6th Cir. 2002) (citing          purpose for the displays was religious. See Adland, 307 F.3d
Grutter v. Bollinger, 288 F.3d 732, 743 (6th Cir. 2002)).          at 480 (“Although a totally secular purpose is not required, it
                                                                   is clear that the secular purpose requirement is not satisfied
   The Lemon test, as originally formulated, required              . . . by the mere existence of some secular purpose, however
reviewing courts to consider whether (1) the government            dominated by religious purposes.”) (internal quotation marks
activity in question has a secular purpose; (2) whether the        and citations omitted). See also Stone, 449 U.S. at 41
activity’s primary effect advances or inhibits religion; and       (examining “pre-eminent purpose for posting the Ten
(3) whether the government activity fosters an excessive           Commandments on schoolroom walls”); Aguillard, 482 U.S.
entanglement with religion. Lemon, 403 U.S. at 612-13.             at 599 (Powell , J., concurring) (“A religious purpose alone is
Although this remains the original formulation of the Lemon        not enough to invalidate an act of a state legislature. The
test, this Court has recognized in recent years that the           religious purpose must predominate.”) (citations omitted).
Supreme Court has applied what is known as the
“endorsement” test, which looks to whether a reasonable              As noted by the district court below, Defendants herein
observer would believe that a particular action constitutes an     articulated the following purposes for the latest versions of
endorsement of religion by the government. See Adland, 307         the displays:
F.3d at 479 (citing Granzeier v. Middleton, 173 F.3d 568, 573
(6th Cir. 1999) (collecting cases) and Hawley v. City of             (1) to erect a display containing the Ten Commandments
Cleveland, 24 F.3d 814, 822 (6th Cir. 1994)). Accordingly,           that is constitutional;
this Court has held that the endorsement test “should be             (2) to demonstrate that the Ten Commandments were
treated ‘as a refinement of the second Lemon prong.’” Baker          part of the foundation of American Law and
v. Adams County/Ohio Valley Sch. Bd., 310 F.3d 927, 929              Government;
(6th Cir. 2002) (quoting Adland, 307 F.3d at 479). If a              (3) [to include the Ten Commandments] as part of the
plaintiff establishes a violation of any prong of the Lemon          display for their significance in providing “the moral
test, then the government action is unconstitutional. See, e.g.,     background of the Declaration of Independence and the
Edwards v. Aguillard, 482 U.S. 578, 583 (1987).                      foundation of our legal tradition;”
                                                                     (4) to educate the citizens of the county regarding some
    a.   “Purpose” Prong of the Lemon Test                           of the documents that played a significant role in the
                                                                     foundation of our system of law and government; and
  Although a government’s stated purposes for a challenged           (5) [as stated by the Harlan County School Board] to
action are to be given some deference, it remains the task of        create a limited public forum on designated walls within
the reviewing court to “distinguis[h] a sham secular purpose         the school district for the purpose of posting historical
from a sincere one.” Santa Fe Indep. Sch. Dist. v. Doe, 530          documents which played a significant role in the
U.S. 290, 308 (2000). Specifically, it is up to this Court to        development, origins or foundations of American or
determine whether Defendants’ inclusion of the Ten                   Kentucky law. . . .
No. 01-5935 ACLU, et al. v. McCreary County, et al.           15    16 ACLU, et al. v. McCreary County, et al.                 No. 01-5935

McCreary II, supra note 1, at 848 (citations to record and          Defendants’ motivation for creating the displays; at most, this
footnotes omitted). The district court found that the first three   purpose explains certain alterations Defendants made to the
purposes were, “on their face, religious in nature and              displays, but not the raison d’etre of the displays.4
therefore impermissible,” and that “the history of the display      Accordingly, the first stated purpose does not constitute a
belies the secular intentions of the other two.” Id. at 848-49.     secular purpose as a matter of law. See Adland, 307 F.3d at
We agree with the district court’s ultimate conclusion that the     482 (finding that government had failed to articulate a secular
predominate purpose of the displays was religious. We do            explanation for Ten Commandments display where “its
take issue, however, with some of the district court’s              asserted secular justification is intended merely to avoid
reasoning underpinning that conclusion.                             Establishment Clause liability rather than to actually further
                                                                    a legitimate secular purpose”); Books v. City of Elkhart, Ind.,
  The district court reasoned that the first three articulated      235 F.3d 292, 304 (7th Cir. 2000) (“… [W]e shall not accept
purposes were “facially” unconstitutional under the Supreme         a stated purpose that merely seeks to avoid a potential
Court’s holding in Stone v. Graham, inasmuch as “that case          Establishment Clause violation.”)
established that a state’s desire to proclaim the Ten
Commandments’ foundational value for American law and                  This Court also disagrees with the district court’s
government is a religious, rather than secular, purpose.”           pronouncement about the second and third stated purposes,
McCreary II, supra note 1, at 849. The court went on to note        based on the Supreme Court’s decision in Stone, that “a
that in Stone, the Commonwealth of Kentucky sought to post          state’s desire to proclaim the Ten Commandments’
the Ten Commandments along with the following notation:             foundational value for American law and government is a
“‘The secular application of the Ten Commandments is                religious, rather than secular, purpose.” McCreary II, supra
clearly seen in its adoption as the fundamental legal code of       note 1, at 849. In Stone, a state statute required the posting of
Western Civilization and the Common Law of the United               the Ten Commandments on the wall of each public school
States.’” Id. (quoting Stone, 449 U.S. at 41). The court            classroom. Underneath the last Commandment appeared the
opined that this “putatively secular purpose” in Stone was          following disclaimer: “The secular application of the Ten
rejected by the Supreme Court, and “is fundamentally the            Commandments is clearly seen in its adoption of the
same as the defendants’ first three articulated purposes” in the    fundamental legal code of Western Civilization and the
matter at hand. Id.                                                 Common Law of the United States.” Id. at 40 n.1. The Court
                                                                    held that the “pre-eminent purpose for posting the Ten
   This Court disagrees. On its face, the first articulated         Commandments on schoolroom walls is plainly religious in
purpose – to erect a constitutional display of the Ten              nature” because the Commandments “are undeniably a sacred
Commandments – has nothing to do with the state’s desire to         text in the Jewish and Christian faiths.” Id. at 41. The Court
proclaim the Ten Commandments’ foundational contribution            rejected the “supposed” secular purpose of teaching the
to American law and government. Rather, the facial purpose          foundational role the Ten Commandments played in our
is simply to comport governmental conduct (i.e., the displays)
with the law. Nevertheless, the first statement of purpose
does not satisfy Defendants’ burden of articulating a secular           4
purpose for the displays, because this statement merely begs              The first stated p urpo se migh t not be question-be gging if
the ultimate legal question of whether Defendants’ conduct is       Defendants had created the displays in the co ntext of a legal discussion in
                                                                    order to illustrate the constitutional limits of religious expression by
constitutional. This avowed purpose fails to shed any light on      gove rnmental entities. T his is clearly not the case.
No. 01-5935 ACLU, et al. v. McCreary County, et al.            17    18 ACLU, et al. v. McCreary County, et al.         No. 01-5935

civilization and legal system because merely posting the Ten         government.” Aguillard, 482 U.S. at 606-07 (Powell, J.,
Commandments fulfilled no “educational function.” Id. at 42.         concurring) (discussing the Bible generally).
The Court further opined that the outcome of the case may
have been different had the Ten Commandments been                       To comply with Stone, however, a purported historical
“integrated into the school curriculum … in an appropriate           display must present the Ten Commandments objectively and
study of history, civilization, ethics, comparative religion, or     integrate them with a secular message. When such a display
the like.” Id. (citation omitted).                                   consists almost entirely of reading material posted in a public
                                                                     school, the most logical way of achieving this goal is by
   Stone established no per se rule that displaying the Ten          integrating the Ten Commandments with a secular
Commandments in an educational setting is unconstitutional.          curriculum, such as through the objective study of history,
See also Aguillard, 482 U.S. at 607-08 (Powell, J.,                  ethics or comparative religion. See Stone, 449 U.S. at 42;
concurring) (“[I]t is worth noting that the Establishment            Abington Sch. Dist. v. Schempp, 374 U.S. 203, 225 (1963)
Clause does not prohibit per se the educational use of               (“… [S]tudy of the Bible or of religion, when presented
religious documents in public school education.”); Lynch,            objectively as part of a secular program of education, may …
465 U.S. at 678-79 (“… [A]n absolutist approach in applying          be effected consistently with the First Amendment.”).
the Establishment Clause is simplistic and has been uniformly        Several factors are relevant when assessing whether the Ten
rejected by the Court. … In each case, the inquiry calls for         Commandments have been presented objectively and
line drawing; no fixed, per se rule can be framed.”).                integrated with a secular message: the content of the displays,
Moreover, contrary to the district court’s conclusion, Stone         the physical setting in which the Ten Commandments are
announced no per se prohibition against displaying the Ten           displayed and any changes that Defendants have made to the
Commandments for the purpose of demonstrating a                      displays since their inception. See Santa Fe Indep. Sch.
connection with the structure of American law or government.         Dist., 530 U.S. at 315 (holding that school’s original policy
In fact, several courts have indicated that a display for such a     on student-led prayer, which “unquestionably violated the
purpose may be permissible. See Aguillard, 482 U.S. at 593-          Establishment Clause,” was relevant to determining
94 (“[T]he Court acknowledged in Stone that its decision             constitutionality of modified policy because the Court’s
forbidding the posting of the Ten Commandments did not               inquiry “not only can, but must, include an examination of the
mean that no use could ever be made of the Ten                       circumstances surrounding its enactment”); Adland, 307 F.3d
Commandments, or that the Ten Commandments played an                 at 481 (in assessing state’s avowed secular purpose in
exclusively religious role in the history of Western                 displaying Ten Commandments monument, Court looked to
Civilization.”) (citing Stone, 449 U.S. at 42); Books, 235 F.3d      linguistic content of the statute authorizing the display and the
at 302 (“The text of the Ten Commandments no doubt has               intended physical context of the display).
played a role in the secular development of our society and
can no doubt be presented by the government as playing such            The animating principle of Stone applies equally in a
a role in our civic order.”) Similarly, it is conceivable that the   courthouse setting: the government must present the Ten
Ten Commandments could be incorporated into a                        Commandments objectively and must integrate them with a
comparative religion course or a study of “the nature of the         secular message. The government achieves this goal by
Founding Father’s religious beliefs and how these beliefs            ensuring that the symbols, pictures and/or words in the
affected the attitudes of the times and the structure of our         display share a common secular theme or subject matter. See
                                                                     Adland, 307 F.3d at 481 (applying Stone to display of Ten
No. 01-5935 ACLU, et al. v. McCreary County, et al.          19    20 ACLU, et al. v. McCreary County, et al.       No. 01-5935

Commandments on State’s capitol grounds; expressing                Compact, the Bill of Rights, the Magna Carta, the National
approval of the frieze on the wall of the Supreme Court,           Motto and the Preamble to the Kentucky Constitution was
which depicts Moses carrying the Ten Commandments                  accompanied by a School Board Resolution (“the
alongside Confucius, Mohammed, Caesar Augustus, William            Resolution”), the only document that purported to explain the
Blackstone, Napoleon Bonaparte and John Marshall because           significance of the documents. The Resolution stated, in part:
it does not convey the message that the Ten Commandments
are the only precedent legal code of the State) (citing              We believe these … documents positively contribute to
Allegheny, 492 U.S. at 652-53 (Stevens, J., concurring in part       the educational foundations and moral character of
and dissenting in part) (noting that Supreme Court’s friezes         students in our schools. … [I]t is our opinion that these
convey a message of “respect not for great proselytizers but         … documents, taken as a whole, are valuable examples
for great lawgivers”)). Accordingly, a court examines the            of documents that may instill qualities desirable of the
same factors (content, context and the evolution of the              students in our schools, and have had particular historical
displays) to assess the nature of the governmental purpose,          significance in the development of this country.
regardless of whether the display is in a school building or a
courthouse.                                                        The Resolution provided the sole source of commentary about
                                                                   the documents in the display.
   The district court failed to apply these legal standards to
Defendants’ second and third articulated purposes, dismissing        Even a generous reading of the Resolution reveals that the
them without sufficient analysis. Nevertheless, as discussed       Ten Commandments are not integrated with a secular study
below, the undisputed evidence in the record concerning the        of American law or government. The Resolution merely
content and context of the displays, as well as the evolution      asserts, without further elaboration, the School Board’s
of the displays, demonstrates that the district court did not      “belie[f]” and “opinion” that the documents, including the
clearly err in finding that Defendants’ actual purposes were       Ten Commandments, have educational and moral value, as
religious. Further, although the district court’s legal analysis   well as historical significance. It is difficult to determine
of Defendants’ fourth and fifth articulated purposes was more      what subject, if any, the display even purports to study.
substantive, it, too, was incomplete. Again, however, any
flaws in the district court’s reasoning were not outcome-             Moreover, the Resolution in no way connects the Ten
determinative because the displays’ content, particularly when     Commandments with the other historical documents. The
viewed in light of Defendants’ past attempts to display the        likely explanation for this phenomenon is that the “Ten
Ten Commandments in a blatantly religious manner, showed           Commandments are undeniably a sacred text in the Jewish
that Defendants’ predominate purpose for the displays was          and Christian faiths,” Stone, 449 U.S. at 41, and the other
religious.                                                         historical documents are not. As the Supreme Court has
                                                                   observed, “the first part of the Commandments concerns the
       i. Content of the displays                                  religious duties of believers: worshipping the Lord God
                                                                   alone, avoiding idolatry, not using the Lord’s name in vain,
         a) School displays                                        and observing the Sabbath Day.” Id. at 42 (citing Exodus 20:
                                                                   1-11; Deuteronomy 5: 6-15). None of the other historical
  The School Board’s display of, inter alia, the Star Spangled     documents concern the religious duties of those who believe
Banner, the Declaration of Independence, the Mayflower             in God. Nor do these documents discuss the Ten
No. 01-5935 ACLU, et al. v. McCreary County, et al.        21    22 ACLU, et al. v. McCreary County, et al.       No. 01-5935

Commandments’ requirement to honor parents or the                  recognition of both the formative influence the Bible has
prohibitions against killing, committing adultery, stealing,       been for our nation, and our national need to study and
bearing false witness and coveting.                                apply the teaching of the Holy Scriptures.”
   The Ten Commandments themselves are contained in an           (J.A. 208.) In short, Defendants’ public school displays of the
excerpt from the Congressional Record, which reprints a Joint    Ten Commandments are contained within a text that exhorts
Resolution of Congress declaring 1983 to be “Year of the         Americans to acknowledge the Bible as “the Word of God ”
Bible.” (J.A. 208.) The fact that the Ten Commandments           and to apply the teachings of the Bible to their lives. The
appear in a historical governmental publication, such as the     message is patently religious and in no way resembles an
Congressional Record, however, does not “secularize” the         objective study of the role that the Ten Commandments, or
Ten Commandments. Rather, the question is whether the            even the Bible generally, played in the foundation of the
language of the Congressional Record excerpt integrates the      American government.
Ten Commandments with an objective discussion of a secular
subject matter. It clearly does not. The excerpt, like the                b) Courthouse displays
School Board’s Resolution, asserts an opinion (that of a
Representative) that “it would serve an educational purpose        The courthouse displays of the Star Spangled Banner, the
for our citizens to become familiar with the important role      Declaration of Independence, the Mayflower Compact, the
which the Bible and Ten Commandments have played in              Bill of Rights, the Magna Carta, the National Motto, the
molding our American traditions and laws.” (J.A. 208.) The       Preamble to the Kentucky Constitution, the Ten
excerpt, however, never explains the connection between the      Commandments and Lady Justice were preceded by a one-
Ten Commandments and American traditions. The Joint              page prefatory description of the documents entitled “The
Resolution itself makes assertions about the role of the Bible   Foundations of American Law and Government Display.”
in forming the United States and inspiring the Declaration of    The prefatory description of the Ten Commandments is
Independence and the Constitution of the United States. It       limited to the following:
then concludes with the following statements:
                                                                   The Ten Commandments have profoundly influenced the
  Whereas the history of our Nation clearly illustrates the        formation of Western legal thought and the formation of
  value of voluntarily applying the teachings of the               our country. That influence is clearly seen in the
  Scriptures in the lives of individuals, families, and            Declaration of Independence, which declared that, “We
  societies;                                                       hold these truths to be self-evident, that all men are
  …                                                                created equal, that they are endowed by their Creator
  Whereas that renewing our knowledge of and faith in              with certain unalienable Rights, that among these are
  God through Holy Scriptures can strengthen us as a               Life, Liberty, and the pursuit of Happiness.” The Ten
  Nation and a people; Now, therefore, be it                       Commandments provide the moral background of the
                                                                   Declaration of Independence and the foundation of our
  Resolved by the Senate and House of Representatives of           legal tradition.
  the United States of America in Congress assembled,
  That the President is authorized and requested to              Although a bit different in form from the school displays, the
  designate 1983 as a national “Year of the Bible” in            courthouse displays of the Ten Commandments suffer from
No. 01-5935 ACLU, et al. v. McCreary County, et al.          23    24 ACLU, et al. v. McCreary County, et al.          No. 01-5935

the same fundamental flaw – the lack of a demonstrated                The problem with this evidence and Defendants’
analytical or historical connection with the other documents.      accompanying argument is two-fold. One, the evidence does
                                                                   not appear in the actual display of the Ten Commandments,
   As noted, the prefatory document asserts a connection           so an observer would not actually be made aware of these
between the Ten Commandments and “the formation of our             facts – a phenomenon equally relevant to the discussion of the
country” and “our legal tradition.” To support this thesis, the    “endorsement” issue below. Two, even assuming that the Ten
preface cites to the “clear[]” influence that the Ten              Commandments are the sole or primary source of some laws
Commandments had on the Declaration of Independence. It            codified by certain Colonies and State legislatures, this “fact”
is not facially apparent, and the preface offers no explanation,   is irrelevant to the fundamental assertion in the display that
how the quotation from the Declaration is in any way               the Ten Commandments clearly influenced the creation of the
connected with the Ten Commandments, which say nothing             Declaration of the Independence and, thus, the formation of
about men being created equal and with the rights to life,         our country and legal tradition. The dissent expends a
liberty and the pursuit of happiness. The only facial similarity   considerable amount of effort discussing “the influence of
between the two documents is that they both recognize the          religion upon American law.” We have no reason to doubt
existence of a deity. The concept of a deity, however, is by       the existence of such an influence, but that is not the issue in
no means unique to the Ten Commandments or even the                this case. Even granting that religion in general influenced
Judeo-Christian tradition. Thus, this solitary similarity hardly   the development of our country and our legal traditions, we
demonstrates how the Ten Commandments in particular                cannot simply take judicial notice of the very different and
influenced the writing of the Declaration and, hence, the          very specific claim that the Ten Commandments profoundly
foundation of our country and legal tradition.                     influenced the drafting of the Declaration of Independence.
                                                                   An assertion of such a connection is not evidence of such a
   To buttress this alleged connection, Defendants have            connection. Thus, the dissent’s discussion, like Defendants’
proffered evidence that each of the Ten Commandments was           evidence, simply misses the mark.
codified, to one extent or another, into the legal codes of some
American Colonies, and that some of the Commandments                 The Court finds it significant that neither Defendants nor
(such as prohibitions against stealing, perjury and killing)       the dissent have attempted to buttress the historical claim that
persist to this day in American legal codes. Specifically,         the prefatory document makes about the Ten
Defendants cite to a 1610 Virginia law requiring its leaders to    Commandments’ foundational role in the drafting of the
give “allegiance” to God; a 1680 New Hampshire law                 Declaration of Independence. To be sure, “[t]he fact that the
barring idolatry; a 1610 Virginia law and a 1639 Connecticut       Founding Fathers believed devotedly that there was a God
law against taking God’s name in vain; laws from the 1600's        and that the unalienable rights of man were rooted in Him is
and 1700's recognizing the Sabbath; a 1642 Connecticut law         clearly evidenced in their writings, from the Mayflower
exhorting children to honor their parents; laws prohibiting        Compact to the Constitution itself.” Abington Sch. Dist., 374
killing; laws from the 1600's and 1700's prohibiting adultery;     U.S. at 213. There is by no means a consensus, however, that
laws against stealing; and anti-perjury laws that prohibit         the source of Thomas Jefferson’s belief in divinely-bestowed,
bearing “false witness.” Defendants cite to no particular law      unalienable rights, to the extent this belief inspired the writing
that prohibits “coveting.”
No. 01-5935 ACLU, et al. v. McCreary County, et al.                      25     26 ACLU, et al. v. McCreary County, et al.                  No. 01-5935

of the Declaration,5 was the Ten Commandments or even the                       Defendants have not cited the Court to a single historical
Bible. One historian has noted that Jefferson believed in the                   source in support of the proposition that the Ten
“watchmaker God of deism … who established the laws of                          Commandments inspired the drafting of the Declaration of
nature in the material universe at the time of creation and then                Independence.
left it alone.” Allen Jayne, Jefferson’s Declaration of
Independence: Origins, Philosophy and Theology 24 (1998).                          Although this Court has neither the ability nor the authority
He therefore posits that the “Nature’s God” Jefferson                           to determine the “correct” view of American history, it is our
referenced in the Declaration was not the God of the Bible                      role to recognize that (a) Defendants’ displays provided the
(and thus the Ten Commandments), but the God of deism.6                         viewer with no analytical or historical connection between the
Further, several historians have concluded that Jefferson was                   Ten Commandments and the other historical documents; and
most inspired by contemporaneous political writings as well                     (b) Defendants have made no attempt in this litigation to
as the musings of European philosophers and writers.7                           support the displays’ historical assertions with relevant and
                                                                                credible evidence. The Court’s reference to historical sources
                                                                                is intended merely to illuminate these fundamental
    5
      The Continental Congress appointed a committee of five to decide          deficiencies in Defendants’ argument and to suggest that an
who would write the Declaration. Pauline Maier, Am erican S cripture 99         objective presentation of the Ten Commandments would at
(1998). The committee assigned Jefferson the task of drafting the               least take into account the abundant historical evidence
doc ument. Id. at 100. The draft was revised based on comments from             regarding the sources that influenced the drafters of the
Benjamin Franklin and John Ada ms. Id. at 100-02 . After incorporating          Declaration of Independence.8 Contrary to the dissent’s
their comments, Jefferson reported the revised draft to the Co ngress. Id.
at 100. Once in Congress, the Declaration was revised by other men. Id.
at 105.

    6
                                                                                the English and S cottish writers John Lo cke, D avid H ume, Franc is
      Id. at 19 (“Jefferson’s heterodox religious views were founded on         Hutcheson, and H enry St. John Bo lingbro ke, or such English poets as
an Enlightenment outlook in general and the writings of Henry St. John,         Defoe”); Maier, supra note 5, at 104 (noting evidence that Jefferson
Lord Viscount B olingb roke, in particu lar. It is the God of his heterodoxy    hastily produced a draft of the Declaration in a day or two and adapted
that appears in the Declaration of Independence rather than the God of the      two texts to complete a draft in this short time-frame: the preamble to the
Bib le.”); id. at 38 (“Jefferson’s God of the Declaration is … antithetical     Virginia Constitution, “which was itself based on the English Declaration
to any G od w ho wo uld manifest partiality by choosing one people or           of Rights,” and a preliminary version of the Virginia Declaration of
nation over others, as did the God o f the Old Te stament.”). Jayne also        Rights that had been drafted by George M ason); id. at 136 (noting that the
quotes a letter written by Jefferson in which he expressed doubt about the      Declaratio n’s reference to “the laws of nature and nature’s god” parallels
origin and authenticity of the Ten Commandme nts. Id. at 34 (“‘[T]he            the laws applicable to “individua ls in a state of nature, a point,
whole history of these books [containing the Ten Co mmandments] is so           incidentally, that John Locke made explicitly in his Second Treatise of
defective and d oub tful, that it seems vain to attemp t minute inquiry into    Government”); Carl Becker, The Declaration of Independence: A Study
it; and su ch tricks have b een p layed w ith their text, and w ith the other   in the History of Ideas 79 (1922) (noting that with respect to “the political
texts of other bo oks relating to them, that we have a right from that cause    philosophy of Nature and natural rights” referenced in the Declaration that
to entertain much doubt what parts of them are genuine.’”) (quoting             the “lineage is direct: Jefferson copied Lo cke”); Jayne, supra, at 44
January 24 , 182 4, letter fro m Jefferson to John Ada ms).                     (noting “the similarity of many of the provisions of [Locke’s] Second
                                                                                Treatise with those of the Declaration, which clearly shows that Jefferson
    7                                                                           not only had extensive knowledge of Locke’s work b ut put it to use in
      See David M cCullough, John Ada ms 121 (2001) (noting that
Jefferson bo rrowed from his previous writings, as well as the writings of      drafting the Declaration”).
George Mason and Pennsylvania delegate James W ilson; further noting                8
that Jefferso n was “d rawing on lon g familiarity with the seminal works of            See, e.g., note 7 , supra.
No. 01-5935 ACLU, et al. v. McCreary County, et al.          27    28 ACLU, et al. v. McCreary County, et al.       No. 01-5935

assertion, we do not “envision a display that contains a           foundations of the laws of the Commonwealth.” Id. at 474-
recounting of the history of the nation’s founding [or] a          75. In finding that the stated purpose of the law, “to remind
summary of American constitutional law and history.” We do         Kentuckians of the Biblical foundations of the laws of the
envision, however, a display that does not go out of its way to    Commonwealth,” failed the secular purpose prong of the
stress the proposition that the Ten Commandments formed the        Lemon test, this Court concluded that “this avowed secular
foundation of the Declaration of Independence while utterly        purpose, which is essentially the same secular purpose that
ignoring (and implicitly denying) all other influences. It is up   the Commonwealth of Kentucky put forth in Stone, is
to Defendants to determine the most efficient manner of            insufficient, standing alone, to satisfy the secular purpose
integrating the Ten Commandments with an objective                 requirement.” Id. at 481 (citing Stone, 449 U.S. at 42). The
historical display.                                                Court further opined:
         c)   Summary                                                While the Commonwealth need not commemorate every
                                                                     arguable historical influence on the laws of the
  In sum, the very text in which the Ten Commandments are            Commonwealth or keep current with the views of every
contained in the schoolhouse displays manifests a patently           scholar to ensure compliance with the Establishment
religious purpose. Defendants’ courthouse displays also              Clause, we cannot ignore its decision to focus only on the
manifest a religious purpose because they utterly fail to            “Biblical foundations” of the law. … [I]n addressing the
integrate the Ten Commandments with a secular subject                Commonwealth’s avowed secular purpose for displaying
matter. When distilled to their essence, the courthouse              an overtly religious symbol such as the Ten
displays demonstrate that Defendants intend to convey the            Commandments, we cannot ignore the Commonwealth’s
bald assertion that the Ten Commandments formed the                  adoption of a view that emphasizes a single religious
foundation of American legal tradition. The Supreme Court            influence to the exclusion of all other religious and
has held, however, that “such an ‘avowed’ secular purpose is         secular influences.
not sufficient to avoid conflict with the First Amendment”
when no effort has been made to integrate the Ten                  Id. at 481-82 (citation omitted).
Commandments with a discussion or display of a secular
subject matter. Stone, 449 U.S. at 41. Since Defendants’             Like the display in Adland, Defendants’ courthouse
displays make no such effort, the district court correctly         displays assert that the Ten Commandments provide “the
concluded that Defendants’ primary purpose was religious.          moral background of the Declaration of Independence and the
                                                                   foundation of our legal tradition.” (J.A. 161) (emphases
  This Court’s decision in Adland, which was rendered after        added). The displays emphasize a single religious influence,
the district court’s decision, further supports its conclusion.    with no mention of any other religious or secular influences.
In Adland, a Kentucky law directed the Department for              This fact confirms the rectitude of the district court’s
Facilities Management to “relocate the monument inscribed          conclusion that Defendants’ purposes were religious.
with the Ten Commandments which was displayed on the
Capital grounds for nearly three decades to a permanent site              ii. Context of the displays
on the Capital grounds near Kentucky’s floral clock to be
made part of a historical and cultural display including the         The “intended physical context” of the Ten Commandment
display of [the law] to remind Kentuckians of the Biblical         displays also is relevant to a determination of the primary
No. 01-5935 ACLU, et al. v. McCreary County, et al.              29    30 ACLU, et al. v. McCreary County, et al.        No. 01-5935

purpose behind them. Adland, 307 F.3d at 481. Here, the                       iii. Evolution of the displays
displays did not provide undue physical emphasis to the Ten
Commandments. In both the school and courthouse displays,                Defendants’ conduct from the time it created the Ten
the Ten Commandments appeared on a single piece of paper,              Commandments displays throughout the time it modified the
the same size as that containing the secular documents. With           displays is relevant to determining their primary purpose.
that said, sandwiching the Ten Commandments between                    The Supreme Court made this legal principle abundantly clear
secular texts does not necessitate a finding that the primary          in Santa Fe Indep. Sch., supra. That case involved a
purpose of the displays is secular. See Indiana Civil Liberties        challenge to a policy of student-led prayer at high school
Union v. O’Bannon, 259 F.3d 766, 771 (7th Cir. 2001)                   football games. Prior to 1995, the school district’s policy
(“[T]he display of secular texts along with the Ten                    authorized a student elected as “Student Chaplain” to deliver
Commandments does not automatically lead to a finding that             a prayer over the public address system before each game.
the purpose in erecting the monument is primarily secular.”).          After several students and their parents filed suit challenging
Thus, where the content of the displays otherwise indicates a          the policy under the Establishment Clause, the school district
predominate religious purpose, the fact that the Ten                   adopted a different policy in August 1995. The policy,
Commandments are not physically prominent is not                       entitled “Prayer at Football Games,” authorized two student
dispositive.                                                           elections, the first to determine whether “invocations” and
                                                                       “benedictions” should be delivered at games, and the second
  A finding of religious purpose is militated by the blatantly         to select the spokesperson to deliver them. Santa Fe Indep.
religious content of the displays. The displays do not present         Sch., 530 U.S. at 297. The policy omitted any requirement
a “passive symbol” of religion like a crèche, which, when              that invocations and benedictions be nonsectarian and
accompanied by secular reminders of the holiday season, has            nonproselytising, but contained a fallback provision that
come to be associated more with the public celebration of              automatically added the provision if the preferred policy
Christmas, rather than that holiday’s religious origins. Lynch,        should be enjoined. Id. The policy was changed again in
465 U.S. at 686. Instead, the Ten Commandments are an                  October 1995 to omit the word “prayers” from the title, and
active symbol of religion because they “concern[] the                  to refer to “messages” and “statements” as well as
religious duties of believers: worshipping the Lord God                “invocations.” Id. at 298.
alone, avoiding idolatry, not using the Lord’s name in vain,
and observing the Sabbath Day.” Stone, 449 U.S. at 42                    In holding that the school district had run afoul of the
(Biblical citations omitted). The Ten Commandments “are                Establishment Clause by sponsoring a religious message, the
undeniably a sacred text in the Jewish and Christian faiths,”          Court looked, among other things, to “the evolution of the
id. at 41, and, therefore, are “still an inherently religious text.”   current policy from the long-sanctioned office of ‘Student
Indiana Civil Liberties Union, 259 F.3d at 771. As such,               Chaplain’ to the candidly titled ‘Prayer at Football Games’
Defendants had to exercise special care to present the Ten             regulation.” Id. at 309. The Court held that “[t]his history
Commandments objectively and as an integral part of a non-             indicates that the District intended to preserve the practice of
religious message. As discussed above, Defendants failed in            prayer before football games.” Id. Later in its decision, the
this endeavor.                                                         Court held that the school district’s history of noncompliance
                                                                       with the Establishment Clause not only could be considered,
                                                                       but had to be considered, in determining whether the school
No. 01-5935 ACLU, et al. v. McCreary County, et al.          31    32 ACLU, et al. v. McCreary County, et al.       No. 01-5935

district’s latest iteration of the challenged policy was           F.3d at 474-75. The statute was silent with regard to any
constitutional. As the Court stated:                               other contents of the display. In the course of litigation,
                                                                   Kentucky “clarifie[d]” that the display would consist of other
  This case comes to us as the latest step in developing           “markers, signs and monuments,” including a sign
  litigation brought as a challenge to institutional practices     commemorating a Civil War event, a “Welcome to Kentucky”
  that unquestionably violated the Establishment Clause.           plaque, a prisoner of war marker and markers for other civic
  One of those practices was the District’s long-established       leaders. Id. at 477. The Court found Kentucky’s litigation-
  tradition of sanctioning student-led prayer at varsity           inspired “clarification” to its Ten Commandments display,
  football games. The narrow question before us is whether         which originally consisted only of the Ten Commandments
  implementation of the October policy insulates the               monument and a clock, to be probative of the
  continuation of such prayers from constitutional scrutiny.       Commonwealth’s religious purpose:
  It does not. Our inquiry into this question not only can,
  but must, include an examination of the circumstances              [T]he Commonwealth did not reveal the contents of this
  surrounding its enactment. . . . Our discussion in the             display until it was in the midst of litigation. In our
  previous sections . . . demonstrates that in this case the         view, this indicates that the other components of the
  District’s direct involvement with school prayer exceeds           display are an afterthought, at best, secondary in
  constitutional limits.                                             importance to the Ten Commandments, and suggests that
  The District, nevertheless, asks us to pretend that we do          the Commonwealth acted with a predominantly religious
  not recognize what every Santa Fe High School student              purpose.
  understands clearly—that this policy is about prayer. The
  District further asks us to accept what is obviously             Id. at 481.
  untrue: that these messages are necessary to “solemnize”
  a football game and that this single-student, year-long             Contrary to Defendants’ argument, this Court’s decision in
  position is essential to the protection of student speech.       Granzeier, supra, does not deem Defendants’ past
  We refuse to turn a blind eye to the context in which this       unconstitutional displays of the Ten Commandments
  policy arose, and that context quells any doubt that this        irrelevant to the primary purpose behind the latest version of
  policy was implemented with the purpose of endorsing             the displays. The issue in Granzeier was whether the closing
  school prayer.                                                   of county and state courts and offices on Good Friday
                                                                   violated the Establishment Clause. At one point, an employee
Id. at 315.                                                        of one of the county defendants, “acting without knowledge
                                                                   or authorization of any defendant, made signs bearing an
  This Court similarly has held that a government’s earlier        image of the Crucifixion and announcing that the building
policies or practices involving religious speech are relevant      would be closed ‘for observance of Good Friday.’”
when determining the primary purpose behind a revised              Granzeier, 173 F.3d at 571. When the county was sued, it
policy that ostensibly is designed to address earlier violations   removed the signs from the courthouse and put up new signs
of the Establishment Clause. In Adland, this Court was faced       announcing that the building would be closed; at the time of
with a Kentucky statute that compelled the location of a           the litigation, the defendants referred to the Friday before
monument inscribed with the Ten Commandments on the                Easter as “Spring Holiday.” Id. The plaintiffs argued that the
grounds of the state capitol, near a floral clock. Adland, 307     original sign showed that the defendants intention to close for
No. 01-5935 ACLU, et al. v. McCreary County, et al.                   33    34 ACLU, et al. v. McCreary County, et al.          No. 01-5935

a Spring holiday on the Friday before Easter was a “sham.”                  court found it “significant” that Defendants’ original displays,
Id. at 574.                                                                 containing only the Ten Commandments, “were erected in
                                                                            violation of the Supreme Court’s clear ruling in Stone.” Id. at
  This Court rejected the plaintiffs’ argument because it saw               849-50 (footnote omitted). “This defiance,” according to the
“no reason that Defendants’ policy here, if otherwise                       district court, “imprinted the defendants’ purpose, from the
constitutional, should not remain so after an unauthorized                  beginning, with an unconstitutional taint observed not only by
employee posted an unconstitutional sign for a few days.” Id.               this court, but by anyone acquainted with this litigation.” Id.
(emphasis added). The sign did not permanently taint all                    at 850 (footnote omitted). The district court’s finding is
future closings for a Spring holiday because the evidence                   consistent with the Supreme Court’s decision in Santa Fe
showed that the recognition of Good Friday as a secular                     Indep. Sch., which compels courts to consider the
Spring holiday was “otherwise constitutional.”9 Importantly,                government’s past violations of the Establishment Clause
Granzeier did not hold that evidence of past unconstitutional               when evaluating its present conduct, and with this Court’s
conduct is never probative evidence of present                              Adland decision, which authorizes courts to rely on evidence
unconstitutional conduct. Rather, it held that where the                    of such prior violations as proof that subsequently-added,
remaining evidence shows that the government policy is                      secular components of an otherwise-unconstitutional display
“otherwise constitutional,” past unconstitutional conduct does              are an “afterthought.”
not preclude a finding of constitutionality. This holding is
consistent with the Supreme Court’s direction in Santa Fe                     The district court further noted that Defendants’ amended
Indep. Sch. that courts can, and must, look to prior                        displays (which were the subject of the court’s original
unconstitutional practices when determining the primary                     preliminary injunction) “accentuated the defendants’ religious
purpose behind the government’s present practices.                          purpose, rather than diminishing it, by posting the
                                                                            Commandments along with “specific references to
  In looking to the context and history of Defendants’ Ten                  Christianity and texts that, while promulgated by the federal
Commandments displays, the court below found that “the                      government, were chosen solely for their religious
history of these displays indicates that the defendants’ overall            references.” McCreary II, supra note 1, at 850 (citing
purpose is religious in nature: to display the Ten                          Pulaski, 96 F. Supp. 2d at 699). Again, the district court was
Commandments.” McCreary II, supra note 1, at 849. The                       correct in concluding that the evolution of Defendants’ Ten
district court, therefore, held that Defendants fourth and fifth            Commandments displays bore directly on the primary
purported secular purposes (to educate citizens regarding                   purpose behind the ultimate versions of the displays.
some of the documents that played a significant role in the
foundation of the American and Kentucky systems of law and                    Based on “the history of the government’s involvement in
government) were primarily religious. Id. at 850. The district              these displays,” the district court held that the final version of
                                                                            the displays which portrayed the Ten Commandments
                                                                            alongside the full text of various historical documents and
    9                                                                       was erected allegedly “to educate the citizens of McCreary
      The evidence showed that G ood Friday had b ecome a holida y with
significant “secular effects” (e.g., absent school children, high traffic   and Pulaski Counties and the schoolchildren of Harlan
volume from vacationers, and low activity at public offices and courts)     County regarding the history of this nation’s law and
and, therefore, the recognition of Good Friday as a secular holiday was     government,” actually was done for a non-secular purpose.
perm issible in the same way that Christmas Day and Than ksgiving are so
recognized . Id. at 574-76.
                                                                            Id. The Court agrees with the district court insofar as the
No. 01-5935 ACLU, et al. v. McCreary County, et al.           35    36 ACLU, et al. v. McCreary County, et al.                 No. 01-5935

history of Defendants’ involvement with the displays strongly       viewed under the “totality of the circumstances surrounding
indicated that the primary purpose was religious. This Court        the display.” Books, 235 F.3d at 304. As a result, the Court
is concerned, however, that the district court appeared to          must “look to both the specific content of the display and the
afford exclusive weight to Defendants’ past conduct without         context of its presentation.” Adland, 307 F.3d at 484 (citing
addressing the specific content of the revised displays.            Allegheny, 492 U.S. at 598).
Nevertheless, as discussed in detail above, the content of the
modified displays patently evidence a religious purpose, and           The Supreme Court decisions involving Christmas-time
the district court recognized as much in its subsequent             crèche displays demonstrate how the failure to integrate
discussion of the “endorsement” prong. See id. at 851.              religious symbols with an overall secular theme can result in
Accordingly, the district court did not clearly err in finding      the impermissible endorsement of religion. In Allegheny,
that Defendants’ fourth and fifth avowed secular purposes –         supra, the Court noted that “the crèche itself is capable of
to educate citizens regarding some of the documents that            communicating a religious message.” Allegheny, 492 U.S. at
played a significant role in the foundation of the American         598. The Court struck down a courthouse crèche display
and Kentucky systems of law and government – fail the first         because nothing in the context of the display detracted from
prong of the Lemon test. For the same reasons, the district         the crèche’s religious message. Id. The Court distinguished
court did not clearly err in finding that Defendants’ first three   the display from the one at issue in Lynch, supra, which had
avowed secular purposes, which specifically mention the Ten         been composed of a “series of figures and objects, each group
Commandments, were predominated by a religious purpose.             of which had its own focal point.” Id. The Lynch display had
                                                                    included numerous purely secular symbols, such as a Santa
  Although the inquiry into the constitutionality of the            Claus house, a lighted Christmas tree, a “talking” wishing
displays could end here, inasmuch as failure under any one of       well, a miniature village, a banner proclaiming “SEASONS
the Lemon prongs deems governmental action violative of the         GREETINGS,” and candy-striped poles. Lynch, 465 U.S. at
Establishment Clause, see Edwards, 482 U.S. at 583, we shall        671. In Allegheny, by contrast, “the crèche [stood] alone: it
address the “endorsement” prong of Lemon because the                [was] the single element of the display” in the courthouse,
district court addressed the second prong as well.                  thereby sending “an unmistakable message that [the county]
                                                                    supports and promotes the Christian praise to God that is the
    b. “Endorsement” Prong of the Lemon Test                        crèche’s religious message.” Allegheny, 492 U.S. at 598-99.
                                                                    Thus, the crèche display in Lynch was permissible because
  In determining whether Defendants’ displays impermissibly         the symbols shared a common secular link – the holiday
endorse religion, this Court must ask “whether an objective         season10 – and the arrangement of the symbols conveyed that
observer, acquainted with the text, legislative history, and        link to the display’s observers. This secular link overcame
implementation” of the displays would view them as state            any religious message that any one component of the display
endorsement of religion. Santa Fe Indep,. Sch. Dist., 530           (i.e., the crèche) might otherwise have conveyed on its own.
U.S. at 308 (citations omitted); Capital Square Review &
Advisory Bd., 243 F.3d at 302. “In making this inquiry, [this
Court] do[es] not allow a state ‘to hide behind the application
of formally neutral criteria and remain studiously oblivious to         10
the effects of its actions.’” Adland, 307 F.3d at 484 (quoting             Cf. Alleghen y, 492 U.S. at 596 (noting that Christmas is “a holiday
Pinette, 515 U.S. at 777). In addition, the inquiry must be         with strong secular elements”) (citing Lynch, 465 U.S. at 692 (O’Co nnor,
                                                                    J., concurring)).
No. 01-5935 ACLU, et al. v. McCreary County, et al.        37    38 ACLU, et al. v. McCreary County, et al.       No. 01-5935

  The dissent appears to read Lynch and Allegheny to hold          shared history as citizens; a reasonable person would
that a symbol which is wholly or partially religious no longer     perceive this message as endorsement.
conveys its religious message when it is physically
surrounded by wholly secular symbols. This overly-               McCreary II, supra note 1, at 851 (footnotes omitted). We
simplistic reading of the case law ignores the requirements      agree with the district court’s conclusion.
that (a) the symbols be interconnected in a manner that is
facially apparent to the observer and (b) the interconnection        In Books, the Seventh Circuit held that “the placement of
be secular in nature. For example, if Defendants in this case    the American Eagle gripping the national colors at the top of
had substituted the Ten Commandments with a depiction of         the [Ten Commandments] monument hardly detracts from the
the Crucifixion or a religious sermon exhorting the citizenry    message of endorsement; rather, it specifically links religion
to worship God and abide by the Ten Commandments, the            . . . and civil government.” Books, 235 F.3d at 307. See also
religious messages would not have been subordinate to an         Adland, 307 F.3d at 486-87 (agreeing with the Seventh
overall secular theme simply because the religious document      Circuit’s holding in Books that “the inclusion of an American
would have been surrounded by secular documents, such as         eagle gripping the national colors at the top of the monument,
the Declaration of Independence and the Magna Carta.             serves to heighten the appearance of government endorsement
Instead of blending in with an overall secular theme, the        of religion”). Here, the same can be said of Defendants’
religious document, although physically contiguous, would        transparent attempt to “secularize” the displays by
have stood apart from the rest from a thematic point of view.    surrounding the Ten Commandments with other patriotic
                                                                 documents and symbols, such as the Bill of Rights and the
  As to the composition of the displays in this case, the        Preamble to the Kentucky Constitution. See Indiana Civil
district court opined:                                           Liberties Union, 259 F.3d at 773 (holding that display
                                                                 consisting of Bill of Rights, Preamble to Indiana Constitution
    The composition of the current set of displays               and Ten Commandments would signal to the reasonable
  accentuates the religious nature of the Ten                    observer “that the state approved of such a link, and was
  Commandments by placing them alongside American                sending a message of endorsement”) (citing Books, 235 F.3d
  historical documents. Given the religious nature of this       at 307).
  document, placing it among these patriotic and political
  documents, with no other religious or moral codes of any         Ultimately, the displays convey a message of religious
  kind, imbues it with a national significance constituting      endorsement because of the complete lack of any analytical
  endorsement. The Ten Commandments are completely               connection between the Ten Commandments and the other
  different from the remainder of the displays. The              patriotic documents and symbols. A reasonable observer of
  reasonable observer will see one religious code placed         the displays cannot connect the Ten Commandments with a
  alongside eight political or patriotic documents, and will     unifying historical or cultural theme that is also secular. All
  understand that the counties promote that one religious        of the other documents relate in some fashion to Western
  code as being on a par with our nation’s most cherished        European or American culture since 1215; several of the
  secular symbols and documents.                  This is        documents are legal in nature, one is an American symbol,
  endorsement. . . . [T]he current set of displays conveys       one is an American slogan and one is an American song. The
  the counties’ comment on the Ten Commandments’ (and            Ten Commandments are several thousands of years old, were
  consequently, religion’s) foundational value to our            not a product of European or American culture and, many
No. 01-5935 ACLU, et al. v. McCreary County, et al.         39    40 ACLU, et al. v. McCreary County, et al.       No. 01-5935

believe, are the word of God. See Baruch J. Schwartz, Ten         State exerts through mandatory attendance requirements, “and
Commandments, in The Oxford Dictionary of the Jewish              because of the students’ emulation of teachers as role models
Religion, 683 (1997) (noting that in both Biblical accounts of    and the children’s susceptibility to peer pressure.” Id.
the revelation of the Ten Commandments at Sinai, “[t]he ‘Ten      (footnote and citations omitted). Thus, the presence of these
Words’ were inscribed by God on the first set of Tablets          displays in the schools enhances the underlying message of
given to Moses.”) A reasonable observer would not be able         religious endorsement contained in the displays. As the
to link all of these texts to the foundation of American law      Supreme Court has commented, if such displays “are to have
and government; the displays’ mere assertion of such a link       any effect at all, it will be to induce the schoolchildren to
does not cure the problem any more than a disclaimer stating      read, meditate upon, perhaps to venerate and obey, the
that the Ten Commandments has been “adopt[ed] as the              Commandments. However desirable this might be as a matter
fundamental legal code of Western Civilization and the            of private devotion, it is not a permissible state objective
Common Law of the United States.” Stone, 449 U.S. at 40           under the Establishment Clause.” Stone, 449 U.S. at 42.
n.1 (holding that such a disclaimer is not sufficient to avoid
a conflict with the First Amendment). See also Adland, 307          The citizenry exhibits a similar impressionability in the
F.3d at 488 (noting that “‘no sign can disclaim an                setting of a county courthouse, where the government carries
overwhelming message of endorsement’”) (quoting                   out one of its quintessential functions – the enforcement of
Allegheny, 492 U.S. at 619). Upon seeing the Ten                  the civil and criminal laws. Typically, citizens are at the
Commandments, which sticks out in the displays like a             courthouse by necessity –whether they are on trial for a crime,
proverbial “sore thumb,” a “reasonable person will think          have been subpoenaed as witnesses, are seeking to vindicate
religion, not history.” Indiana Civil Liberties Union , 259       their civil rights, have been called to jury duty or are simply
F.3d at 773 (holding that reasonable observer would not be        contesting parking tickets, registering to vote or renewing
able to make an analytical connection between Ten                 their driver’s licenses. County courthouses also exude a
Commandments, Bill of Rights and Preamble to Indiana              coercive pressure, ranging from compulsory jury service to
Constitution).                                                    bench warrants to judicial decrees. Accordingly, a courthouse
                                                                  display of the Ten Commandments that conveys a religious
   The district court further found that the location of the      message is nothing like a similar display in “a typical
displays – in the McCreary and Pulaski County courthouses         museum setting[;] though not neutralizing the religious
and Harlan County public schools – had “the effect of             content …, [the museum setting] negates any message of
advancing religion.” McCreary II, supra note 1, at 852. We        endorsement of that content.” Lynch, 465 U.S. at 692
agree. With regard to the school displays, it is noteworthy       (O’Connor, J., concurring). As in Books, Defendants’
that the Supreme Court “has been particularly vigilant in         courthouse displays posted at the seat of government, which
monitoring compliance with the Establishment Clause in            “‘is so plainly under government ownership and control’ that
elementary and secondary schools.” Aguillard, 482 U.S. at         every display on its property is marked implicitly with
583-84. This is because the public schools hold a position of     government approval.” Books, 235 F.3d at 306 (quoting Am.
trust that parents condition “on the understanding that the       Jewish Congress v. City of Chicago, 827 F.2d 120, 128 (7th
classroom will not purposely be used to advance religious         Cir. 1987)).
views that may conflict with the private beliefs of the student
and his or her family.” Id. at 584. Public school students are      Finally, the district court found that the history of the
especially impressionable due to the coercive power that the      displays bolstered the reasonable observer’s perception of the
No. 01-5935 ACLU, et al. v. McCreary County, et al.                   41     42 ACLU, et al. v. McCreary County, et al.   No. 01-5935

state endorsement of religion inasmuch as the observer is                    Pulaski County courthouses and from the Harlan County
charged with knowing the history of the respective displays,                 schools is AFFIRMED.
and in each case the history indicates that the displays were
originally intended to enshrine the Ten Commandments; it
was only upon fear of litigation that the displays were
modified to include secular material in the hope of rendering
the displays constitutional. McCreary II, supra note 1, at 852.
We agree with the district in this regard as well. See Santa Fe
Indep,. Sch. Dist., 530 U.S. at 308 (crediting the objective
observer with being “acquainted with the text, legislative
history, and implementation” of the displays). As a result,
this Court concludes that the district court did not clearly err
in finding that the displays have the impermissible effect of
endorsing religion.11
     2.    Other Preliminary Injunction Factors
  As Plaintiffs note in their brief, Defendants do not address
the other three preliminary injunction factors on appeal and,
therefore, have abandoned any argument as to these factors.
However, because Plaintiffs have demonstrated a likelihood
of succeeding on the merits of their Establishment Clause
claim, the other three preliminary factors follow in favor of
granting the injunction. See Connection Distrib. Co., 154
F.3d at 288 (finding that “[w]hen a party seeks a preliminary
injunction on the basis of a potential violation of the First
Amendment, the likelihood of success on the merits often will
be the determinative factor”).
                              III.
                          CONCLUSION

  For the above-stated reasons, the district court’s order
requiring the removal of the displays from the McCreary and

    11
       The district court did not address the third Lemon factor and,
therefore, neither shall we. As stated, failure under any one of the Lemon
factors invalidates the challenged governmental action, and thus the third
factor need not be addressed . See Edwards, 482 U.S. at 583.
No. 01-5935 ACLU, et al. v. McCreary County, et al.         43    44 ACLU, et al. v. McCreary County, et al.       No. 01-5935

                 _____________________                            the displays violate the “effect/endorsement” prong of the
                                                                  Lemon test.
                    CONCURRENCE
                 _____________________                              Finally, I offer two further observations relating to the
                                                                  dissenting opinion. First, the dissent concludes that the
  JULIA SMITH GIBBONS, Circuit Judge, concurring. The             majority opinion questions a link between religion and our
district court’s decision to grant plaintiffs-appellees’ motion   laws and government. In my view, the majority opinion says
for a supplemental preliminary injunction enjoining the           nothing whatsoever about this topic. Its subject is the
continued exhibition of the current displays was proper. With     application of the Lemon test to this particular case, and the
respect to the “secular purpose” prong of the test used to        only discussion to which the dissent could possibly refer in
determine the constitutionality of the current displays, as set   reaching this conclusion concerns defendants’ failure to
forth by the Supreme Court in Lemon v. Kurtzman, 403 U.S.         include in the displays any support for their conclusory
602 (1971), the majority opinion appropriately follows            assertion about the relationship between the Ten
controlling precedent, and I generally agree with its             Commandments and the Declaration of Independence.
application of the law to the facts of this case.
                                                                    Second, the dissent seeks to characterize the majority
   In light of the inherently religious nature of the Ten         opinion’s descriptions of the facts on which its conclusion
Commandments, defendants-appellants’ failure to articulate        rests as statements of broad rules. For example, the dissent
a facially secular purpose until after litigation had             says that the majority opinion creates rules that the
commenced, the “overtly religious” quality of the second          government may display the Ten Commandments in a public
display, Am. Civil Liberties Union of Kentucky v. McCreary        building only if they are integrated into a secular curriculum
County, Kentucky, 145 F.Supp.2d 845, 850 n.19 (E.D. Ky.           and that any display must include a narration of proof of the
2001), the absence of any evidence in the record indicating       relationship between religion and the foundation of American
that the Ten Commandments have been or will be integrated         law. In my view, this reading of the majority opinion is
into the school curriculum as part of an appropriate program      unjustified. Rather, the majority considers the lack of
of study, the absence of any discussion integrating the Ten       integration of the displays into a secular curriculum and the
Commandments into a secular subject matter other than a           lack of recited proof of a relationship between the Ten
conclusory assertion about the Declaration of Independence,       Commandments and the Declaration of Independence as
and the emphasis on the Ten Commandments as the only              factors that support a lack of secular purpose in this case and
religious text in the displays, plaintiffs-appellees have shown   considers these factors, along with other evidence in this
a strong or substantial likelihood of success on the merits of    record, in reaching its result.
their claim that the displays lack a secular purpose. I
therefore concur in the result. I write separately, however, to
emphasize that, as the majority opinion notes, “the inquiry
into the constitutionality of the displays could end here,
inasmuch as failure under any one of the Lemon prongs
deems governmental action violative of the Establishment
Clause.” Consequently, I express no opinion as to whether
No. 01-5935 ACLU, et al. v. McCreary County, et al.           45    46 ACLU, et al. v. McCreary County, et al.      No. 01-5935

                      ______________                                                              I.

                         DISSENT                                      As the majority has correctly said, the controlling law in
                      ______________                                this case is the three-part “Lemon test” found in Lemon v.
                                                                    Kurtzman, 403 U.S. 602 (1971), as refashioned, it should be
   RYAN, Circuit Judge, dissenting. The majority holds that         added, in Lynch v. Donnelly, 465 U.S. 668, and County of
the displays mounted on the walls of the county courthouses         Allegheny v. ACLU, 492 U.S. 573. The Lemon test has
in McCreary and Pulaski counties and in the school buildings        proved difficult to apply in many Establishment Clause cases
in Harlan County, Kentucky, offend the Establishment Clause         because its three elements are frequently ill-suited to ever
of the First Amendment of the United States Constitution, and       more imaginative Establishment Clause challenges. Indeed,
it affirms the district court’s order that the displays be          the Supreme Court has cautioned against mechanically
removed. I disagree and, with respect, must dissent.                applying the test to every Establishment Clause case, Lynch,
                                                                    465 U.S. at 679, and has variously criticized, modified, and
  The defendants’ displays comport with the requirements of         even ignored it. See, e.g., Lamb’s Chapel v. Ctr. Moriches
the Constitution in every respect, as is clearly indicated by the   Sch. Dist., 508 U.S. 384, 398-99 (1993) (Scalia, J.,
Supreme Court’s two landmark cases permitting the use of            concurring) (citing cases).
religious symbols on public property: Lynch v. Donnelly, 465
U.S. 668 (1984), and County of Allegheny v. ACLU, 492 U.S.            Of the current members of the Supreme Court, six have
573 (1989). Rather than address these authorities in a              criticized the Lemon test. For example, in Wallace v. Jaffree,
meaningful fashion, the majority conjures a rule from the case      472 U.S. 38 (1985), then-Justice Rehnquist stated:
of Stone v. Graham, 449 U.S. 39 (1980), a two-page, per
curiam decision of the Court that preceded both Lynch and             [T]he Lemon test has no more grounding in the history of
Allegheny, that was decided without the benefit of oral               the First Amendment than does the wall theory upon
argument or briefs on the merits, and that bears no factual           which it rests. The three-part test represents a
similarity to the case before us.                                     determined effort to craft a workable rule from a
                                                                      historically faulty doctrine; but the rule can only be as
   With one exception, the majority’s analysis fails to properly      sound as the doctrine it attempts to service.
apply the relevant Supreme Court precedent to the facts of the
case before us. Inasmuch as my colleagues have expressed            Id. at 110 (Rehnquist, J., dissenting). Justice O’Connor once
their disagreement with the reasoning that led the district         called the analysis under the Lemon test “problematic” and
court to conclude that the displays are unconstitutional, there     warned that there are “certain difficulties inherent in the
is no need to point out why that is an eminently correct            Court’s use of the test.” Corp. of the Presiding Bishop of the
judgment. Nevertheless, having rejected much of the district        Church of Jesus Christ of Latter-Day Saints v. Amos, 483
court’s analysis, the majority now affirms the judgment of          U.S. 327, 346 (1987) (O’Connor, J., concurring in the
that court by employing a wholly independent rationale that         judgment). Justice Stevens has lamented “the sisyphean task
was not developed below and not presented to this court for         of trying to patch together the ‘blurred, indistinct, and
review.                                                             variable barrier’ described in Lemon.” Comm. for Pub. Educ.
                                                                    & Religious Liberty v. Regan, 444 U.S. 646, 671 (1980)
No. 01-5935 ACLU, et al. v. McCreary County, et al.           47   48 ACLU, et al. v. McCreary County, et al.        No. 01-5935

(Stevens, J., dissenting). Also registering his dissatisfaction      the question is “what viewers may fairly understand to be
with Lemon, Justice Kennedy stated:                                  the purpose of the display.”
  I . . . do not wish to be seen as advocating, let alone          Allegheny, 492 U.S. at 595 (quoting Lynch, 465 U.S. at 692
  adopting, [the Lemon] test as our primary guide in this          (O’Connor, J., concurring)). The test has been further
  difficult area. Persuasive criticism of Lemon has                modified by “fold[ing] the entanglement inquiry into the
  emerged. Our cases often question its utility in providing       primary effect inquiry.” Zelman v. Simmons-Harris, 536 U.S.
  concrete answers to Establishment Clause questions,              639, 668 (2002) (O’Connor, J., concurring).
  calling it but a helpful signpos[t] or guidelin[e], to assist
  our deliberations rather than a comprehensive test.                In some cases, the Supreme Court has simply ignored the
  Substantial revision of our Establishment Clause doctrine        Lemon test. In Larson v. Valente, 456 U.S. 228 (1982), the
  may be in order.                                                 Court, holding that Minnesota’s charitable solicitation statute
                                                                   violated the Establishment Clause, stated that the “application
Allegheny, 492 U.S. at 655-56 (Kennedy, J., concurring in the      of the Lemon tests is not necessary to the disposition of the
judgment in part and dissenting in part) (internal quotation       case before us.” Id. at 252. Chief Justice Warren Burger,
marks and citations omitted). Finally, Justice Thomas joined       himself the author of Lemon, also declined to apply the test in
the refrain when he signed on to a dissent written by Justice      an Establishment Clause challenge to Nebraska’s practice of
Scalia, the Court’s severest critic of Lemon, who had this to      paying a chaplain to offer prayers at the opening of the state’s
say about the much-maligned test:                                  legislative sessions. See Marsh v. Chambers, 463 U.S. 783
                                                                   (1983).
    Our Religion Clause jurisprudence has become
  bedeviled (so to speak) by reliance on formulaic                    Not surprisingly, the Court has consistently emphasized
  abstractions that are not derived from, but positively           that the Lemon test is not the sine qua non of Establishment
  conflict with our long-accepted constitutional traditions.       Clause jurisprudence. In Mueller v. Allen, 463 U.S. 388
  Foremost among these has been the so-called Lemon test,          (1983), the Court stated that the Lemon test “provides ‘no
  which has received well-earned criticism from many               more than [a] helpful signpos[t]’ in dealing with
  Members of this Court.                                           Establishment Clause challenges.” Id. at 394 (quoting Hunt
                                                                   v. McNair, 413 U.S. 734, 741 (1973)). And in Lynch, citing
Lee v. Weisman, 505 U.S. 577, 644 (1992) (Scalia, J., joined       cases in which it did not utilize the Lemon test at all, the
by, inter alios, Thomas, J., dissenting) (citation omitted).       Court stated: “[W]e have repeatedly emphasized our
                                                                   unwillingness to be confined to any single test or criterion in
  The Court has also modified the Lemon test by adopting           this sensitive area.” 465 U.S. at 679. In the Lemon case
Justice O’Connor’s “endorsement test” from Lynch:                  itself, the Supreme Court grappled with the question whether
                                                                   statutes in Pennsylvania and Rhode Island that authorized
  [Justice O’Connor’s] concurrence articulates a method            limited state financial aid to church-related schools violated
  for determining whether the government’s use of an               the Establishment Clause. The Court said they did, because
  object with religious meaning has the effect of endorsing        neither statute could pass the new test Chief Justice Warren
  religion. The effect of the display depends upon the             Burger conjured, mid-opinion, which provides:
  message that the government’s practice communicates:
No. 01-5935 ACLU, et al. v. McCreary County, et al.         49    50 ACLU, et al. v. McCreary County, et al.         No. 01-5935

  First, the statute must have a secular legislative purpose;                                    II.
  second, its principal or primary effect must be one that
  neither advances nor inhibits religion; [and] finally, the         The majority opinion has partially misstated the proper
  statute must not foster an excessive government                 standard of review in this case. It is certainly true that we
  entanglement with religion.                                     review a district court’s decision to grant a preliminary
                                                                  injunction for an abuse of discretion. Sandison v. Mich. High
Lemon, 403 U.S. at 612-13 (internal quotation marks and           Sch. Athletic Ass’n, 64 F.3d 1026, 1030 (6th Cir. 1995).
citations omitted).                                               However, in determining whether the district court abused its
                                                                  discretion, we review its findings of fact for clear error and its
   Over the years, the Supreme Court has broadened the test       legal conclusions de novo. Id. Moreover, we will overturn a
to apply not only to legislative enactments, but to any           district court’s decision to grant a preliminary injunction “if
government action. For example, in Widmar v. Vincent, 454         the district court relied upon clearly erroneous findings of
U.S. 263 (1981), the Court applied the test to a university       fact, improperly applied the governing law, or used an
policy that excluded religious groups from a public forum.        erroneous legal standard.” Blue Cross & Blue Shield Mut. v.
After experiencing considerable difficulty applying the test to   Blue Cross & Blue Shield Ass’n, 110 F.3d 318, 322 (6th Cir.
various Establishment Clause challenges, especially its           1997). In this case, because the district court based its
second part which proscribes government action whose              decision to grant the injunction on the legal conclusion that
primary effect either advances or inhibits religion, the Court    the displays failed the purpose and effect prongs of the Lemon
modified that part of the test to prohibit government action      test, that conclusion should properly be reviewed de novo.
that has the principal or primary effect of “endorsing”
religion. Allegheny, 492 U.S. at 595 (citing Lynch, 465 U.S.                                    III.
at 691-94 (O’Connor, J., concurring)).
                                                                    What the district court and my colleagues have held
  While judges, lawyers, and constitutional law scholars          unconstitutional is an arrangement of ten framed documents
continue to criticize Lemon, and repeatedly urge the Supreme      on the courthouse lobby walls in McCreary and Pulaski
Court to fashion a new, more workable test for determining        counties and in the Harlan County school buildings.
whether a unit of government has made a “law respecting an
establishment of religion,” U.S. Const. amend. I, we (the           The courthouse displays consist of the following
lower federal courts) are stuck with the three-part Lemon test,   documents:
and we must apply it in this case.
                                                                    1.   The Star Spangled Banner;
  Having done so, I conclude that the three displays the
plaintiffs have challenged, easily and obviously pass the           2.   The Declaration of Independence;
Lemon test, and that, perforce, my colleagues’ conclusion to
the contrary is mistaken.                                           3.   The Mayflower Compact;
                                                                    4.   The Bill of Rights;
                                                                    5.   The Magna Carta;
No. 01-5935 ACLU, et al. v. McCreary County, et al.        51    52 ACLU, et al. v. McCreary County, et al.          No. 01-5935

  6.   The National Motto;                                       or Kentucky law.” ACLU v. McCreary County (McCreary
                                                                 II), 145 F. Supp. 2d 845, 848 (E.D. Ky. 2001) (internal
  7.   The Preamble to the Kentucky Constitution;                quotation marks and citations omitted). They argue that these
                                                                 purposes are entirely secular.
  8.   The Ten Commandments;
                                                                   The district court correctly summarized the defendants’
  9.   A printed figure of the Lady Justice; and                 secular purposes as follows:
  10. An explanatory sign identifying the foregoing                1.      To erect a display containing              the   Ten
      documents and stating that the entire display is of                  Commandments that is constitutional;
      “documents that played a significant role in the
      foundation of our system of law and government.”             2.      To demonstrate that the Ten Commandments are
                                                                           part of the foundation of American law and
  In addition, the courthouse displays are prominently                     government;
identified as:   “Foundations of American Law and
Government Display.”                                               3.      To include the Ten Commandments as part of the
                                                                           display for their significance in providing the moral
  The Harlan County School Board display is essentially                    background of the Declaration of Independence and
identical to the McCreary and Pulaski courthouse displays,                 the foundation of our legal tradition;
except that it is not identified as the “Foundations of
American Law and Government Display,” and the Lady                 4.      To educate the citizens of the county regarding some
Justice document and the explanatory sign are omitted. In                  of the documents that played a significant role in the
their places are the text of Kentucky Revised Statute                      foundation of our system of law and government;
§ 158.195, authorizing the posting of historical displays, and             and
a lengthy Harlan County School Board resolution, stating,
among other things, that the “many documents [comprising           5.      As designated by the Harlan School Board, to create
the display], taken as a whole, have special historical                    a limited public forum on designated walls within
significance to our community, our country, and our country’s              the school district for the purpose of posting
history.” No one of the framed documents in any of the                     historical documents that played a significant role in
displays has, by its size or location in the arrangement, any              the development, origins, or foundations of
greater prominence than any other.                                         American and Kentucky law.
  The defendants claim their purposes were to assemble and       See id.
post in the courthouse and school district buildings, an array
of historical documents that, taken together, have the                                           IV.
educational and patriotic value of illustrating some of the
ideas and influences that “were part of the foundation of          Inquiry into the constitutionality of the defendants’ displays
American Law and Government” and “played a significant           must begin, as I have said, with the Supreme Court case of
role in the development, origins or foundations of American      Lemon v. Kurtzman, 403 U.S. 602. That inquiry, of necessity,
                                                                 includes Lynch v. Donnelly, 465 U.S. 668, and County of
No. 01-5935 ACLU, et al. v. McCreary County, et al.          53    54 ACLU, et al. v. McCreary County, et al.       No. 01-5935

Allegheny v. ACLU, 492 U.S. 573, in which the Supreme              much less a sham. Neither the Supreme Court, nor this court,
Court directly addressed the issue of whether a government         nor any federal appellate court, insofar as I know, has ever
may display an inherently religious, even sectarian symbol,        suggested that displaying the Ten Commandments is an
on public property. The Court held in both Lynch and               impermissible objective under the Establishment Clause. In
Allegheny that a government may use a religious symbol to          fact, quite the contrary is true. As we stated on one occasion:
accomplish a secular purpose, if the symbol is displayed in a
way that does not create an impression of endorsement in the         [W]e believe that the Supreme Court’s opinion in Stone
mind of the reasonable observer. A review of the facts in this       and Justice Stevens’ statements in Allegheny not only
case indicates that the defendants have rigorously complied          acknowledge that the Ten Commandments may be
with the criteria established by the Court in both Lynch and         constitutionally displayed, they provide considerable
Allegheny, and that their displays in no way constitute an           guidance how they can be displayed.
establishment of religion.
                                                                   Adland v. Russ, 307 F.3d 471, 489 (6th Cir. 2002), cert.
                              A.                                   denied, 123 S. Ct. 1909 (2003).

   The first question we must consider under the Lemon test           Similarly, there is no reason to doubt the legitimacy of the
is whether the government’s display has a secular purpose.         second and third secular purposes for the displays, namely, to
Lemon, 403 U.S. at 612. “A statute or practice that is             demonstrate that the Ten Commandments were part of the
motivated in part by a religious purpose may satisfy the first     foundation of American law and government, and to
Lemon criterion so long as it is not motivated entirely by a       recognize the significance of the Ten Commandments in
purpose to advance religion.” ACLU v. City of Birmingham,          providing the moral and cultural background of the
791 F.2d 1561, 1565 (6th Cir. 1986).                               Declaration of Independence and the foundation of our legal
                                                                   tradition. With respect to these two iterations of the
  Furthermore, the Supreme Court has informed us that we           defendants’ secular purposes, the majority singles out the
have “no license to psychoanalyze . . . legislators” and that we   Declaration of Independence and complains that “[t]here is by
must refrain from ascribing improper motives to legislators        no means a consensus . . . that the source of Thomas
who “express[] a plausible secular purpose.” Wallace, 472          Jefferson’s belief in divinely-bestowed, unalienable rights, to
U.S. at 74. If the government offers an explanation of its         the extent this belief inspired the writing of the Declaration,
purpose, that explanation is owed deference by the judiciary       was the Ten Commandments or even the Bible.” Maj. op. at
unless and until shown to be a “sham,” for “[w]e must be           25. In fact, the majority seems to hold that no government
cautious about attributing unconstitutional motives to state       could ever plausibly proclaim the religious heritage of this
officials.” Chaudhuri v. Tennessee, 130 F.3d 232, 236 (6th         nation because the prevailing view among historians is that
Cir. 1997).                                                        our founders were primarily inspired by secular influences.
                                                                   See id. Not only is this observation a complete non sequitur,
  Five legitimate secular purposes motivated the defendants        it is highly debatable as an historical matter. But more
to erect the displays in their current format. First, the          significantly, the source of Thomas Jefferson’s “belief in
defendants desired to erect a display of the Ten                   divinely-bestowed, unalienable rights” proclaimed in the
Commandments that is constitutional. I find in this stated         Declaration of Independence is utterly immaterial, because it
desire nothing that even hints at a primarily religious purpose,   does not resolve the real issue before us today, which is
No. 01-5935 ACLU, et al. v. McCreary County, et al.          55    56 ACLU, et al. v. McCreary County, et al.        No. 01-5935

whether the defendants’ avowed secular purposes are shams.           [E]nlightened by a benign religion, professed, indeed,
The Declaration of Independence is not the sole source of            and practiced in various forms, yet all of them
evidence that religion, of which the Ten Commandments are            inculcating honesty, truth, temperance, gratitude, and the
a nearly universal symbol, was a significant influence upon          love of man; acknowledging and adoring an overruling
the foundation of American law and government. My                    Providence, which by all its dispensations proves that it
colleagues’ interesting diversion about Thomas Jefferson, the        delights in the happiness of man here and his greater
Declaration of Independence, and the Bible offers no basis           happiness hereafter—with all these blessings, what more
whatever to conclude, as a matter of law, as my colleagues           is necessary to make us a happy and a prosperous
do, that the defendants’ avowed secular purposes are shams.          people?
  The influence of religion upon American law and                  Thomas Jefferson, First Inaugural Address (Mar. 4, 1801), in
government is a fact of American history and politics that has     id. 140, 141.
been widely recognized by scholars, jurists, legislators,
presidents, and, not least, the Founders themselves.                 In fact, in recognition of religion’s foundational role in our
                                                                   law and government, both Thomas Jefferson and Benjamin
   In his Farewell Address to the nation, George Washington        Franklin independently proposed that the new American seal
stated that religion was not only a part of the foundation of      depict Moses leading Israel through the wilderness under the
our law and government, it was a necessity:                        protection of God, with the motto, “Rebellion to Tyrants is
                                                                   Obedience to God.” James H. Hutson, Religion and the
     Of all the dispositions and habits which lead to              Foundation of the American Republic 50-51 (1998).
  political prosperity, Religion and morality are                  Although the Continental Congress never accepted
  indispensable supports. In vain would that man claim the         Jefferson’s and Franklin’s proposals, it did adopt a seal with
  tribute of Patriotism, who should labour to subvert these        numerous religious references. “What is unmistakable . . . is
  great Pillars of human happiness, these firmest props of         the theistic framework in which the Continental Congress
  the duties of Men and citizens. The mere Politician,             sought to have the world understand the creation of the
  equally with the pious man ought to respect and to               American republic.” Derek H. Davis, Religion and the
  cherish them. A volume could not trace all their                 Continental Congress, 1774-1789: Contributions to Original
  connections with private and public felicity. . . .              Intent 144 (Oxford Univ. Press 2000).
  Whatever may be conceded to the influence of refined
  education on minds of peculiar structure, reason and               Like Washington, the Continental Congress also drew the
  experience both forbid us to expect that National                connection between religion and government. On October
  morality can prevail in exclusion of religious principle.        11, 1782, in a Thanksgiving proclamation near the end of the
                                                                   Revolutionary War, the Congress asked Americans
George Washington, Farewell Address (Sept. 19, 1796), in 1
The Founder’s Constitution 681, 684 (Philip B. Kurland &             to testify their gratitude to God for his goodness, by a
Ralph Lerner eds., 1987). Similarly Thomas Jefferson, in his         cheerful obedience to his laws, and by promoting . . . the
First Inaugural Address, listed religion as one of the necessary     practice of true and undefiled religion, which is the great
sources of our nation’s prosperity:                                  foundation of public prosperity and national happiness.
No. 01-5935 ACLU, et al. v. McCreary County, et al.            57   58 ACLU, et al. v. McCreary County, et al.       No. 01-5935

23 Journals of the Continental Congress, 1774-1789, 647               United States themselves look upon religious belief. I do
(Gaillard Hunt ed., Government Printing Office 1914). These           not know whether all Americans have a sincere faith in
same sentiments were expressed by the Congress the day after          their religion—for who can search the human
the First Amendment was proposed when it urged President              heart?—but I am certain that they hold it to be
Washington to proclaim “‘a day of public thanksgiving and             indispensable to the maintenance of republican
prayer, to be observed by acknowledging with grateful hearts          institutions.
the many signal favours of Almighty God.’” See Davis,
supra at 89 (citation omitted).                                     Alexis de Tocqueville, Democracy in America 305-06 (Alfred
                                                                    A. Knopf, Inc. 1972) (1835). De Tocqueville’s observation
  President John Adams likewise described the importance of         is confirmed by historical scholarship:
religion to the American system of government:
                                                                        As intellectual heirs of a tradition which had entwined
     As the safety and prosperity of nations ultimately and           republicanism and Christian theism, New Englanders in
  essentially depend on the protection and the blessing of            the last two decades of the [eighteenth] century were
  Almighty God, and the national acknowledgment of this               unable to perceive religion as free from matters of civil
  truth is not only an indispensable duty which the people            government. From ancient history they were convinced
  owe to Him, but a duty whose natural influence is                   that “the state cannot stand without religion” and from
  favorable to the promotion of that morality and piety               their own experience that “Rational Freedom cannot be
  without which social happiness can not exist nor the                preserved without the aid of Christianity.”
  blessings of a free government be enjoyed.
                                                                    Nathan O. Hatch, The Sacred Cause of Liberty: Republican
John Adams, Fast Day Proclamation (Mar. 23, 1798), in A             Thought and the Millennium in Revolutionary New England
Compilation of the Messages and Papers of the Presidents,           168 (Yale Univ. Press 1977) (footnotes and citations omitted).
1789-1897, 268, 268-69 (James D. Richardson ed., 1899).             The distinguished jurist and professor of law, Thomas M.
                                                                    Cooley, also recognized the close relationship between
  These are only a few of the numerous statements by our            religion and American law:
early political leaders drawing the same conclusion as did the
defendants in this case: that religion played a foundational          It was never intended that by the Constitution the
role in American law and government. This is a conclusion,            government should be prohibited from recognizing
incidentally, that is widely accepted by scholars. As one of          religion . . . . The Christian religion was always
the earliest observers of American political life, Alexis de          recognized in the administration of the common law; and
Tocqueville recognized, religion is an essential component of         so far as that law continues to be the law of the land, the
American government:                                                  fundamental principles of that religion must continue to
                                                                      be recognized in the same cases and to the same extent as
    Religion in America takes no direct part in the                   formerly.
  government of society, but it must be regarded as the first
  of the political institutions; for if it does not impart a        Thomas M. Cooley, The General Principles of Constitutional
  taste for freedom, it facilitates the use of it. Indeed, it is    Law in the United States of America 205-06 (The Lawbook
  in this same point of view that the inhabitants of the            Exchange 2000) (1880).
No. 01-5935 ACLU, et al. v. McCreary County, et al.           59   60 ACLU, et al. v. McCreary County, et al.          No. 01-5935

  Relevant to our purposes here, the Supreme Court has             American law and government and, consequently, has
repeatedly stated that there is a crucial link between religion    declared that such displays can have a secular purpose.
and our laws and government, for “[w]e are a religious people
whose institutions presuppose a Supreme Being.” Zorach v.            Most recently, the Fifth Circuit in Van Orden v. Perry, No.
Clauson, 343 U.S. 306, 313 (1952). This link has been              02-51184, 2003 WL 22664490 (5th Cir. Nov. 12, 2003),
consistently celebrated by our political leaders from the          approved of a granite monument inscribed with the Ten
founding to the present day and nowhere has this practice          Commandments and displayed at the Texas Capitol. Having
been questioned as fiercely as the majority does today. In         concluded that the State had a valid secular purpose for the
fact, the majority’s incredulity as to the avowed relationship     display, the court also affirmed the relationship between the
between religion and our public life is unprecedented:             Ten Commandments and American law:

    There is an unbroken history of official                         To say this is not to diminish the reality that it is a sacred
  acknowledgment by all three branches of government of              text to many, for it is also a powerful teacher of ethics, of
  the role of religion in American life from at least                wise counsel urging a regimen of just governance among
  1789. . . .                                                        free people. The power of that counsel is evidenced by
                                                                     its expression in the civil and criminal laws of the free
    Our history is replete with official references to the           world. No judicial decree can erase that history and its
  value and invocation of Divine guidance in deliberations           continuing influence on our laws--there is no escape from
  and pronouncements of the Founding Fathers and                     its secular and religious character.
  contemporary leaders.
                                                                   Id. at *7.
Lynch, 465 U.S. at 674-75.
                                                                     In Freethought Society v. Chester County, 334 F.3d 247 (3d
  With regard to the Ten Commandments, the legitimacy of           Cir. 2003), the Third Circuit upheld the display of a bronze
the defendants’ view of American history as expressed in           plaque inscribed with the Ten Commandments that hung
their displays is supported by the Supreme Court’s own             alone on the exterior of a county courthouse. The county
appraisal of its Establishment Clause precedent:                   commissioners had stated at trial that they wanted to maintain
                                                                   the plaque, in part, because they believed that the Ten
  [I]n Stone . . . [our] decision forbidding the posting of the    Commandments contributed to the development of American
  Ten Commandments did not mean that no use could ever             law. The court held that this was a “‘non-sham’ secular
  be made of the Ten Commandments, or that the Ten                 purpose” and that there was a
  Commandments played an exclusively religious role in
  the history of Western Civilization.                               well documented history . . . to the effect that the Ten
                                                                     Commandments have an independent secular meaning in
Edwards v. Aguillard, 482 U.S. 578, 593-94 (1987).                   our society because they are regarded as a significant
                                                                     basis of American law and the American polity.
  Moreover, every one of our sister circuits that has
considered a challenge to the public display of the Ten            Id. at 267.
Commandments has recognized its foundational role in
No. 01-5935 ACLU, et al. v. McCreary County, et al.          61    62 ACLU, et al. v. McCreary County, et al.        No. 01-5935

  The Eleventh Circuit recently approved of a court clerk seal       that the monument, as it stands, is more than a depiction
that included an outline of two stone tablets inscribed with the     of a historically important monument with both secular
Roman numbers I through X, because the Ten                           and sectarian effects.
Commandments are a popularly recognized symbol of the
law. King v. Richmond County, Ga., 331 F.3d 1271, 1278             Id. at 33-34. Although Anderson predates the Supreme
(11th Cir. 2003). In its consideration of the seal’s secular       Court’s decisions in Stone, Lynch, and Allegheny, neither the
purpose, the court was satisfied “that during the 1870s the        Supreme Court nor the Tenth Circuit has overruled Anderson
outline of the Ten Commandments presumably would have              and it remains good law. See Summum v. Callaghan, 130
enabled illiterate citizens to recognize the legal validity of     F.3d 906, 912 n.8 (10th Cir. 1997).
documents displaying the Seal.” Id.
                                                                      Thus, in their reasoned judgment, our sister circuits that
  The Seventh Circuit, while striking down as                      have had the opportunity to consider this question have
unconstitutional a large granite monument bearing an               unanimously declared the validity of the very same premise
inscription of the Ten Commandments, situated on the               that the defendants advance here today: “The Ten
Elkhart, Indiana, City Hall grounds, nonetheless noted:            Commandments have profoundly influenced the formation of
                                                                   Western legal thought and the formation of our country.”
    The display of a religious symbol still may, under             This judgment is not precluded by any decision of this court,
  certain circumstances, have a secular purpose. The text          and, in fact, would seem to be welcomed by it. Having had
  of the Ten Commandments no doubt has played a role in            the opportunity to consider the place of the Ten
  the secular development of our society and can no doubt          Commandments in our public life, we have never rejected the
  be presented by the government as playing such a role in         historical relationship between the Ten Commandments and
  our civic order.                                                 our law and government. In Adland v. Russ, 307 F.3d 471,
                                                                   we struck down a Kentucky legislative resolution directing
Books v. City of Elkhart, 235 F.3d 292, 302 (7th Cir. 2000).       that a six-foot tall granite monument inscribed with the Ten
                                                                   Commandments be displayed on the lawn at the State Capitol.
  The Tenth Circuit, using the Lemon test, approved of the         The monument, which was totally different from the display
display of a granite Ten Commandments monument at a city-          at issue here, was essentially a stand alone piece, save for an
county courthouse in Salt Lake City. Anderson v. Salt Lake         accompanying clock and some small plaques nearby.
City Corp., 475 F.2d 29 (10th Cir. 1973). In doing so, the         Notwithstanding our objections to the monument in that case,
court stated that                                                  we explicitly acknowledged that the Commonwealth could
                                                                   cure the defects in the display. Although we declined to
  the Decalogue is at once religious and secular, as, indeed,      render an advisory opinion on the constitutionality of
  one would expect, considering the role of religion in our        alternative displays, we applauded the plaintiffs for proposing
  traditions. . . .                                                “to their credit, . . . a historical display showcasing the
                                                                   various influences on our law by both secular and religious
    It does not seem reasonable to require removal of a            sources.” Id. at 489-90 (emphasis added).
  passive monument, involving no compulsion, because its
  accepted precepts, as a foundation for law, reflect the            This collection of sources is not intended to settle the issue
  religious nature of an ancient era. . . . [W]e cannot say        of whether the Decalogue is in fact a foundational document
No. 01-5935 ACLU, et al. v. McCreary County, et al.         63    64 ACLU, et al. v. McCreary County, et al.       No. 01-5935

in American law and government, for that is not the question      defendants’ fourth articulated purpose: to educate the citizens
before us today. What we must decide is whether the displays      of the county regarding some of the documents that played a
were motivated by a secular purpose. In answering that            significant role in the foundation of our system of law and
particular question, our only concern is with the defendants’     government. The displays unquestionably contain numerous
subjective belief, because government action will fail the        documents in “a historical display showcasing the various
purpose prong of the Lemon test if the “government intends        influences on our law by both secular and religious sources.”
to convey a message of endorsement or disapproval of              Adland, 307 F.3d at 490. Lest there be any confusion about
religion.” Lynch, 465 U.S. at 691 (O’Connor, J., concurring).     the displays’ educative purpose, the defendants have posted
Specifically, given the defendants’ articulation of a secular     signs explaining that all the documents “played a significant
purpose, we must consider whether such a purpose is a sham,       role in the foundation of our system of law and government.”
i.e., whether the defendants subjectively believed that the       The signs go on to describe in considerable detail the
Decalogue was part of the foundation of American law and          significance of each document, including the Ten
government and that it provided the moral background of the       Commandments, which, the defendants assert, “provide[d] the
Declaration of Independence and the foundation of our legal       moral background of the Declaration of Independence and the
tradition.                                                        foundation of our legal tradition.” As my earlier discussion
                                                                  of the historical evidence indicates, the defendants’ purpose
   Not only is the record utterly devoid of any evidence that     of educating their citizens about the relationship between
the defendants subjectively intended to convey a message of       religion and the American system of law and government is
endorsement, but the historical evidence dispels any suspicion    grounded in clear and indisputable fact and, as such, cannot
that the defendants’ theory of American law and history is a      be justifiably characterized as a sham. In their assessment of
sham. In common, ordinary English usage, a sham means a           the relationship between religion and the Declaration of
fraud, a hoax, or an intentionally deceptive counterfeit. See     Independence, the defendants got it absolutely right:
15 Oxford English Dictionary 159 (2d ed. 1989). Given the
“unbroken history of official acknowledgment by all three           [T]he numerous references to God were enough to place
branches of government of the role of religion in American          the Declaration in an overall theistic framework so as to
life,” Lynch, 465 U.S. at 674, and the consistent view of the       satisfy virtually anyone who held a theistic worldview.
courts that “[t]he text of the Ten Commandments no doubt            Thus in drafting the Declaration of Independence,
has played a role in the secular development of our society,”       Thomas Jefferson and his congressional colleagues
Books, 235 F.3d at 302, it cannot plausibly be said that the        seized upon, and indeed helped to further shape, a bond
defendants’ desire to demonstrate the foundational role of the      between Enlightenment latitudinarianism and Christian
Ten Commandments is a fraud or hoax. The voluminous                 orthodoxy that made it possible to formally dissolve all
historical evidence, common sense, and the decisional law of        bonds with Great Britain and at the same time
the federal courts all lead to one inevitable conclusion in the     confidently assert “the protection of Divine Providence.”
case before us: that the defendants’ second and third
articulated purposes are not shams and should, therefore, be      Davis, supra at 109.
accepted by this court as legitimate secular purposes.
                                                                    Nevertheless, according to my colleagues, the displays in
  Similarly, there is no evidence in the record that would        this case are defective because they “provided the viewer with
justify this court in questioning the sincerity of the            no analytical or historical connection between the Ten
No. 01-5935 ACLU, et al. v. McCreary County, et al.          65    66 ACLU, et al. v. McCreary County, et al.          No. 01-5935

Commandments and the other historical documents,” maj. op.         cavalier summary reversal” having “no support beyond [the
at 27, and, thus, fail to prove conclusively the defendants’       Court’s] own ipse dixit.” Id. at 43, 47 (Rehnquist, J.,
thesis: that the Decalogue has a historical connection to          dissenting).
American law and government. The majority rejects the
evidence, as it appeared in the defendants’ brief, “that each of     Although they cite no authority, my colleagues are
the Ten Commandments were codified, to one extent or               apparently relying on Stone when they state that “a purported
another, into the legal codes of some American Colonies, and       historical display must present the Ten Commandments
that some of the Commandments . . . persist to this day in         objectively and integrate them with a secular message.” Maj.
American legal codes.” Maj. op. at 24. In doing so the             op. at 18. If this is, in fact, the rule that my colleagues glean
majority complains that this “evidence does not appear in the      from Stone, it is not the rule they apply to the facts of the case
actual display of the Ten Commandments, so an observer             before us. Rather, the defendants are faulted because they did
would not actually be made aware of these facts.” Maj. op. at      not choose to display the Ten Commandments in “the most
24. Thus, the majority seems to envision a display that            logical way,” which the majority defines as “integrating the
contains a recounting of the history of the nation’s founding,     Ten Commandments with a secular curriculum, such as
a summary of American constitutional law and history,              through the objective study of history, ethics or comparative
perhaps a syllogism incorporating the foregoing, and, I            religion.” Maj. op. at 18. This is the actual standard by
suppose, at least as much evidence as was presented to this        which my colleagues judge the defendants’ displays.
court in the official record of more than 200 pages.               Accordingly, my colleagues condemn the defendants’
                                                                   displays because “the Ten Commandments are not integrated
  In support of their reasoning, my colleagues cite Stone v.       with a secular study of American law or government,” maj.
Graham, 449 U.S. 39 (1980) (per curiam), a case that the           op. at 21 (emphasis added), and because of “the lack of a
majority has both misapplied and misinterpreted and that,          demonstrated analytical or historical connection with the
nevertheless, bears no factual relation to the case before us.     other documents [in the displays],” maj. op. at 23 (emphasis
Stone was a case about the constitutionality of a Kentucky         added). These criticisms demonstrate that my colleagues
statute mandating the posting of a copy of the Ten                 think that it is no longer sufficient for a display to serve a
Commandments, standing alone, in every school classroom            secular purpose, for the majority now demands that such a
in Kentucky. Acting upon a petition for a writ of certiorari,      display be “integrat[ed] . . . with a secular curriculum.” Maj.
and without benefit of oral argument or briefing on the merits,    op. at 18.
the Court, in a two-page, per curiam opinion from which four
justices dissented, summarily reversed the Kentucky Supreme           It should first be observed that there is no obligation to
Court’s judgment of constitutionality, stating:                    display the Ten Commandments in an otherwise secular
                                                                   exhibit in a way that appeals to the logic of scrutinizing
  We conclude that Kentucky’s statute requiring the                federal judges. I am not aware of any authority that would
  posting of the Ten Commandments in public                        require us to condemn a government display simply because
  schoolrooms had no secular legislative purpose, and is           it did not choose “the most logical way” of conveying a
  therefore unconstitutional.                                      message. Furthermore, insofar as the majority relies on Stone
                                                                   for guidance in forming its rule that “a purported historical
Id. at 41. Noting that the Court’s holding was without             display must present the Ten Commandments objectively and
precedent, then-Justice Rehnquist called the decision “a           integrate them with a secular message,” maj. op. at 18, it is
No. 01-5935 ACLU, et al. v. McCreary County, et al.           67    68 ACLU, et al. v. McCreary County, et al.         No. 01-5935

better to quote this portion of Stone in full. What the Court       surprising given the fact that the Court has never even
actually said in Stone was the following:                           suggested that there is any validity to the rules my colleagues
                                                                    have crafted today: that a government may display the Ten
     This is not a case in which the Ten Commandments are           Commandments in a public building only if they are
  integrated into the school curriculum, where the Bible            integrated into a secular curriculum, and that the display must
  may constitutionally be used in an appropriate study of           include a narration of the proof of the relationship between
  history, civilization, ethics, comparative religion, or the       religion and the ideas and impulses that contributed to the
  like.                                                             foundation of American law and government.
Stone, 449 U.S. at 42. Clearly, this statement by the Court is        In Lynch, the Court approved of the use of a crèche in a
a gratuitous hypothetical, describing one possible scenario in      Christmas display that contained other symbols of the holiday
which the Kentucky legislature could have mandated the use          such as a Santa Claus house and reindeer, even though the
of the Ten Commandments in the classroom. But this                  display contained no signs explaining the secular purpose of
hypothetical simply does not establish a rule that all efforts to   the display and the defendants made no attempt to
post the Ten Commandments on public property must                   demonstrate the link between the crèche and the celebration
integrate them into a curriculum of study. If that were the         of Christmas. Despite the defendant’s failure to integrate the
case, the Court would have to condemn its own display of            crèche into “a secular curriculum, such as . . . the study of
Moses, who, bearing the Ten Commandments, is represented            history, ethics or comparative religion,” see maj. op. at 18, the
among other historical figures in a frieze on the south wall of     Court held that the defendant had nonetheless achieved its
the Supreme Court courtroom:                                        purpose of “tak[ing] note of a significant historical religious
                                                                    event long celebrated in the Western World.” Lynch, 465
  Placement of secular figures such as Caesar Augustus,             U.S. at 680.
  William Blackstone, Napoleon Bonaparte, and John
  Marshall alongside [Moses, Confucius, and Mohammed],                Similarly in Allegheny, where the Court approved of a
  however, signals respect not for great proselytizers but          Christmas display containing a Christmas tree, a menorah,
  for great lawgivers. It would be absurd to exclude such           and a sign bearing the phrase “Salute to Liberty,” there is not
  a fitting message from a courtroom, as it would be to             even a hint of the need to integrate the menorah into a secular
  exclude religious paintings by Italian Renaissance                curriculum. The only other message at the menorah display
  masters from a public museum.                                     was the following: “‘During this holiday season, the city of
                                                                    Pittsburgh salutes liberty. Let these festive lights remind us
Allegheny, 492 U.S. at 652-53 (footnote omitted) (Stevens, J.,      that we are the keepers of the flame of liberty and our legacy
concurring in part and dissenting in part).                         of freedom.’” Allegheny, 492 U.S. at 582 (citation omitted).
                                                                    Justice Blackmun concluded that this “sign serves to confirm
   Rather than attempting to divine a rule from Stone, this         what the context [of the display] already reveals: that the
court should apply the actual rules from the Supreme Court’s        display of the menorah is not an endorsement of religious
landmark decisions approving the government’s use of                faith but simply a recognition of cultural diversity.” Id. at
religious symbols: Lynch and Allegheny. It is revealing that        619 (Blackmun, J., concurring). Thus, the defendant was able
my colleagues are unable to offer any meaningful citation to        to achieve the secular purpose of recognizing cultural
either of these cases to support their reasoning. This is not       diversity merely through the context of the display, and not
No. 01-5935 ACLU, et al. v. McCreary County, et al.            69    70 ACLU, et al. v. McCreary County, et al.       No. 01-5935

by integrating the menorah into a secular curriculum.                Court’s landmark decisions of Lynch and Allegheny. In
Moreover, the defendant’s sign confirmed that same secular           Lynch, the Court approved the display of the crèche despite
purpose even though it made no mention of diversity and,             the fact that the crèche has “special meaning to those whose
therefore, required the reader to make an inferential step in        faith includes the celebration of religious Masses.” Lynch,
order to draw the connection between “our legacy of                  465 U.S. at 685. In Allegheny, the Court approved of the
freedom” and the “recognition of cultural diversity.”                display containing the menorah even though it also concerned
                                                                     certain religious duties of the Jewish faith:
   Thus, neither Lynch, nor Allegheny, nor any other decision,
and certainly not Stone, support the majority’s rule that a            [T]he Talmud prescribes that it is a mitzvah (i.e., a
government that wishes to use a religious symbol in a public           religious deed or commandment) . . . for Jews to place a
display must integrate that symbol into a secular curriculum.          lamp with eight lights just outside the entrance to their
As if the absence of authority were not enough, common                 homes or in a front window during the eight days of
sense militates against such a rule. Government monuments              Chanukah.
and displays appear in a context in which the displays must
speak for themselves, for they do not present an opportunity         Allegheny, 492 U.S. at 583 (emphasis added) (footnote
to attach lengthy disclaimers and statements of purpose.             omitted). In both cases, the Court held that these religious
However, in order to integrate the Ten Commandments into             icons, which necessarily concerned the religious duties of
a secular curriculum in a manner that would satisfy the              believers, were also symbols of a holiday that had both
majority’s new rule, the defendants would have to append to          secular and religious meaning. See Lynch, 465 U.S. at 680;
their displays a library of learned treatises and court briefs, or   Allegheny, 492 U.S. at 613-14. Therefore, simply because the
perhaps audio or video accompaniment, explaining beyond all          Ten Commandments may prescribe religious duties for Jews
reasonable doubt and in great detail what most Americans             and Christians, that fact alone does not detract from its place
already know and the courts have expressly recognized: that          as a symbol of the religious origins of our law and
“the Ten Commandments no doubt has played a role in the              government.
secular development of our society.” Books, 235 F.3d at 302.
Significantly, the majority has dismissed out of hand the signs        Finally, there is no evidence that would undermine the
accompanying the displays, which, among other things                 defendants’ fifth articulated purpose: to create a limited
explain that “[t]he Ten Commandments have profoundly                 public forum on the walls of the Harlan County school
influenced the formation of Western legal thought and the            buildings for the purpose of posting historical documents that
formation of our country.” This statement succinctly                 played a significant role in the development, origins, or
describes the secular purposes for the displays and, under           foundations of American and Kentucky law.                “The
Lynch and Allegheny, is more than sufficient.                        establishment of a public forum is a laudable goal, and part of
                                                                     a worthy tradition dating back to the Greek agora and the
   In its review of the context of the defendants’ displays, the     Roman forum.” Americans United for Separation of Church
majority objects that the displays are “blatantly religious”         & State v. City of Grand Rapids, 980 F.2d 1538, 1543 (6th
because they contain an “active symbol of religion”                  Cir. 1992). There is simply no indication in the record that
“‘concern[ing] the religious duties of believers.’” Maj. op. at      the defendants have manipulated the forum in any way or
30 (quoting Stone, 449 U.S. at 42). This, again, is a novel          have excluded other speakers from using the forum in a
statement of the law that finds no support in the Supreme            manner that would cause us to believe that this purpose is a
No. 01-5935 ACLU, et al. v. McCreary County, et al.           71    72 ACLU, et al. v. McCreary County, et al.       No. 01-5935

sham. See Capitol Square Review & Advisory Bd. v. Pinette,          districts.” Metzl v. Leininger, 57 F.3d 618, 623-24 (7th Cir.
515 U.S. 753, 766 (1995) (plurality opinion).                       1995).
   The majority raises an objection to the “evolution” of the         If a unit of government’s past unconstitutional conduct
displays. In doing so, it adopts the reasoning of the district      forever taints its actions in the future, we would not have
court, which held that the history of the defendants’ earlier       advised the defendants in Adland, 307 F.3d 471, that they
attempts to erect constitutionally invalid displays                 could cure the constitutional defects in their Ten
conclusively “imprinted the defendants’ purpose, from the           Commandments display by changing its composition.
beginning, with an unconstitutional taint[.]” McCreary II,
145 F. Supp. 2d at 850. This theory of indelible,                     While we cannot pass on the merits of plaintiffs’
unconstitutional “taint” not only offends common sense, it is         proposals [to amend the display], we are nevertheless
also contrary to the law of this circuit.                             confident that with careful planning and deliberation, and
                                                                      perhaps consultation with the plaintiffs, the
   We have explicitly rejected the idea that the government’s         Commonwealth can permissibly display the [Ten
past unconstitutional conduct forever taints its actions in the       Commandments] monument in question.
future. In Granzeier v. Middleton, 173 F.3d 568 (6th Cir.
1999), we considered whether closing government offices on          Id. at 490 (emphasis added).
Good Friday was done for a religious purpose, violating the
Establishment Clause. The county’s claimed secular purpose            Our sister circuits have likewise rejected the idea that a
was that Good Friday had become part of an extended spring          prior unconstitutional display forever taints a subsequent
weekend in which many people took a short vacation and              display as religious. In ACLU v. Schundler, 168 F.3d 92 (3d
very little business was conducted. As evidence that this           Cir. 1999), the Third Circuit approved a city’s Christmas
explanation was a sham, the plaintiffs produced a government        display that had been modified in response to an
sign the defendant had previously posted that depicted a            Establishment Clause challenge:
crucifix and stated that the offices were being closed in
observance of Good Friday. We rejected the plaintiffs’                The mere fact that Jersey City’s first display was held to
contention that the defendant’s earlier religious purpose             violate the Establishment Clause is plainly insufficient to
forever tainted the secular purpose it proffered at trial. “[T]he     show that the second display lacked a secular legislative
fact that a particular closing was once constitutionally suspect      purpose, or that it was intend[ed] to convey a message of
does not prevent it from being reinstated in a constitutional         endorsement or disapproval of religion.
form.” Id. at 574.
                                                                    Id. at 105 (internal quotation marks and citations omitted). In
  We noted our agreement with Judge Posner of the Seventh           fact, in Books, 235 F.3d 292, the Seventh Circuit actually
Circuit who reasoned in a case factually similar to Granzeier,      imposed on the defendant an affirmative duty to modify an
that “Illinois can accomplish much the same thing either by         unconstitutional display:
officially adopting a ‘spring weekend’ rationale for the law,
in place of the governor’s proclamation of a state religious          [T]he district court must ensure that, although the
holiday, or by moving to a system of local option for school          condition that offends the Constitution is eliminated, [the
                                                                      city] retains the authority to make decisions regarding the
No. 01-5935 ACLU, et al. v. McCreary County, et al.            73    74 ACLU, et al. v. McCreary County, et al.         No. 01-5935

  placement of the monument. In making those decisions,              a modified policy, or display, cannot be used as a shield to
  [the city] has the right and, indeed, the obligation to take       prevent litigation. However, Santa Fe does not state that a
  into consideration the religious sensibilities of its people       history of unconstitutional displays can be used as a sword to
  and to accommodate that aspect of its citizens’ lives in           strike down an otherwise constitutional display.
  any way that does not offend the strictures of the
  Establishment Clause.                                                 Based on the record before us, there is abundant evidence
                                                                     to conclude that the defendants’ declared purposes for
Id. at 307 (emphasis added).                                         erecting these displays were primarily secular, a complete
                                                                     lack of evidence that their purpose was primarily religious,
   The U.S. Supreme Court’s holding in Santa Fe Independent          and, therefore, no evidence whatever that the defendants’
School District v. Doe, 530 U.S. 290 (2000), did not overrule        declared purposes constitute a hoax or fraud upon this court.
these cases; nor does it require us to find that the defendants’     I conclude that the defendants’ displays do not violate the first
displays are unconstitutional merely due to some past                prong of the Lemon test.
constitutional violation. In Santa Fe, the plaintiffs challenged
a school district practice that permitted students to deliver                                       B.
invocations and benedictions at graduation ceremonies and
football games through the elected office of student council           The second element of the Lemon test, as modified in
chaplain. In response, the defendants modified their policy in       Lynch, is whether a reasonable observer would believe that
order to permit students, “with the advice and counsel of the        the challenged government action constitutes an
senior class principal” to decide by vote whether to have an         “endorsement” of religion. Lynch, 465 U.S. at 691-94
invocation at graduation. Id. at 296 (internal quotation marks       (O’Connor, J., concurring). Incidentally, the opinions of my
and citation omitted). Later, the District drafted another           brother, Judge Clay, on this issue, are his own and do not
policy entitled “Prayer at Football Games” that permitted            represent those of the majority of the panel.
students to decide whether to have an invocation at football
games. Id. at 297. The final iteration of the policy, the              The first thing that must be said about the Lemon
“October policy,” permitted students to vote whether they            endorsement test, is that it asks whether a “reasonable
wanted to have a student-led “invocation and/or message” at          observer”—not a proselytizing religious zealot committed to
football games, and, if so, who should give the invocation or        the establishment of a state religion, or, on the other hand, an
message. Id. at 298 & n.6. It was the October policy that was        indefatigable professional litigant dedicated, in the name of
at issue in Santa Fe.                                                civil liberty, to expunging God, religion, and all reference to
                                                                     religion from the public square—would understand these
  Significantly, the Court announced its holding by stating          displays as having a primarily religious purpose and the
that “the text of the October policy alone reveals that it has an    principal or primary effect of endorsing religion.
unconstitutional purpose.” Id. at 314 (emphasis added).
Thus, while the Court discussed the evolution of the District’s        As it did with respect to the secular purpose issue, Justice
prayer policy, see id. at 315, it expressly limited its holding to   O’Connor’s concurrence in Lynch “provides a sound
“[t]he narrow question . . . [of] whether implementation of the      analytical framework for evaluating governmental use of
October policy insulates the continuation of such prayers            religious symbols” to decide the endorsement issue.
from constitutional scrutiny.” Id. At most, Santa Fe held that       Allegheny, 492 U.S. at 595. Lynch, the reader will recall,
No. 01-5935 ACLU, et al. v. McCreary County, et al.        75    76 ACLU, et al. v. McCreary County, et al.         No. 01-5935

upheld a Christmas display that included a crèche, a Santa         The Supreme Court returned to the issue of government use
Claus house, reindeer, clowns, an elephant, a teddy bear,        of religious symbols and the endorsement issue in Allegheny,
colored lights, and a sign bearing the phrase “Seasons           when it considered the legality of two separate holiday
Greetings.” Lynch, 465 U.S. at 671. Justice O’Connor             displays. The Court held that the first display, a crèche that
concluded that although the crèche was an inherently             stood alone in a prominent location inside the county
religious symbol, a reasonable observer would not view the       courthouse, violated the Establishment Clause because
overall display as an endorsement of religion:                   “nothing in the context of the display detracts from the
                                                                 crèche’s religious message.” Allegheny, 492 U.S. at 598. The
  Although the religious and indeed sectarian significance       Court found it significant that, unlike the crèche in Lynch, the
  of the crèche, as the District Court found, is not             Allegheny County crèche was not accompanied by other
  neutralized by the setting, the overall holiday setting        secular symbols of Christmas. However, the Court approved
  changes what viewers may fairly understand to be the           the second challenged display—a Christmas tree, a menorah,
  purpose of the display—as a typical museum setting,            and a sign entitled “Salute to Liberty”—which was located at
  though not neutralizing the religious content of a             the city-county building. Justice Blackmun concluded that
  religious painting, negates any message of endorsement         the second display, in which a religious symbol, the menorah,
  of that content.                                               stood alongside two secular symbols, the Christmas tree and
                                                                 the sign, would not be perceived by the reasonable observer
Id. at 692 (O’Connor, J., concurring).                           as an endorsement of religion: “[F]or purposes of the
                                                                 Establishment Clause, the city’s overall display must be
   Justice O’Connor cited “legislative prayers . . . ,           understood as conveying the city’s secular recognition of
government declaration of Thanksgiving as a public holiday,      different traditions for celebrating the winter-holiday season.”
printing of ‘In God We Trust’ on coins, and opening court        Id. at 620 (Blackmun, J., concurring) (emphasis added).
sessions with ‘God save the United States and this honorable
court,’” as examples of “government acknowledgments of              Applying the analysis from Lynch and Allegheny, this court
religion” rather than endorsements of it. Id. at 693 (internal   in Adland found that a reasonable observer would perceive a
citations omitted). She stated: “[The] history and ubiquity      six-foot granite monument of the Ten Commandments as an
[of] those practices are not understood as conveying             endorsement of religion and that nothing in the overall
government approval of particular religious beliefs.” Id.        display, which included a clock and several small plaques,
They                                                             reduced or diluted this message of endorsement. The court
                                                                 said it came to that conclusion largely because the monument
  serve, in the only ways reasonably possible in our             “physically dominate[d]” the display and “‘dwarf[ed]’ all the
  culture, the legitimate secular purposes of solemnizing        other memorials . . . in the vicinity.” Adland, 307 F.3d at 487
  public occasions, expressing confidence in the future,         (internal quotation marks and citation omitted). But we
  and encouraging the recognition of what is worthy of           explicitly left the door open for the possibility that some other
  appreciation in society.                                       display that included the Ten Commandments, in addition to
                                                                 secular articles, might pass the Lemon endorsement test if the
Id.                                                              overall display conveyed “an easily discernible, unified theme
                                                                 to a reasonable observer.” Id. at 488.
No. 01-5935 ACLU, et al. v. McCreary County, et al.          77    78 ACLU, et al. v. McCreary County, et al.        No. 01-5935

  Without a unifying theme to hold the display together, a         of educational purpose that is part of each display, but instead
  reasonable observer could only view the monuments                focuses exclusively on the single framed copy of the Ten
  separately.     If a reasonable observer views the               Commandments and the history of the defendants’ repeated
  monuments separately, unconnected by a common                    efforts to assemble a display that would satisfy even federal
  context, his or her attention is naturally drawn to the Ten      judges.
  Commandments monument, the largest monument in the
  display, and its accompanying religious message.                    My colleague makes much of the fact that the Ten
                                                                   Commandments have a “‘religious nature.’” Maj. op. at 38
Id.                                                                (quoting McCreary II, 145 F. Supp. 2d at 851). This
                                                                   indisputable characterization of the Ten Commandments,
   But that is not this case. Here, the exhibition of ten          however, has nothing to do with the issue of our endorsement
documents, one religious and the rest secular, all of identical    inquiry, which asks “‘what viewers may fairly understand to
size, none having a position of prominence greater than            be the purpose of the display.’” Allegheny, 492 U.S. at 595
another, and the whole labeled as contributing to “the             (emphasis added) (quoting Lynch, 465 U.S. at 692
foundation of American Law and Government,” possesses a            (O’Connor, J., concurring)). In both Lynch and Allegheny,
“unifying theme” that “hold[s] the display together” and           the Supreme Court approved of displays that contained
conveys a single secular message that is spelled out in each       inherently religious, even sectarian, symbols: the crèche and
display. No reasonable observer would ignore the nine              the menorah. The crucial fact of both of those cases was not
secular documents in the display, including the one explicitly     that the symbols were religious, but that they were
declaring the secular purpose for the display, and focus           accompanied by secular symbols that, taken together,
exclusively on the single religious document in order to           conveyed no message of endorsement. See Lynch, 465 U.S.
conclude that the display is an endorsement of religion.           at 679-81; Allegheny, 492 U.S. at 613-14. By focusing on the
                                                                   religious aspect of only one part of the defendants’ displays,
   Just like the menorah, the Christmas tree, and the “Salute      my colleague conducts precisely the same analysis that the
to Liberty” sign in Allegheny, and the crèche, the reindeer, the   Supreme Court rejected in Lynch:
Santa Claus house, and related secular paraphernalia in
Lynch, and in each display in this case, it is the documents in      The District Court plainly erred by focusing almost
their totality that comprise the defendants’ displays.               exclusively on the crèche. When viewed in the proper
Therefore, it is the documents in their totality, their unifying     context of the Christmas Holiday season, it is apparent
theme, that must be assessed to determine whether a                  that, on this record, there is insufficient evidence to
reasonable observer would see them as having the “principal          establish that the inclusion of the crèche is a purposeful
or primary effect” of endorsing religion.                            or surreptitious effort to express some kind of subtle
                                                                     governmental advocacy of a particular religious message.
  My colleague rejects as “transparent” the defendants’              In a pluralistic society a variety of motives and purposes
“attempt to ‘secularize’ the displays by surrounding the Ten         are implicated.
Commandments with other patriotic documents and
symbols.” Maj. op. at 39. Thus, contrary to the directives of      Lynch, 465 U.S. at 680. My colleague’s error may be
the Supreme Court on this issue, my colleague refuses to           summed up as follows: “Focus exclusively on the religious
evaluate the displays in their totality, including the statement
No. 01-5935 ACLU, et al. v. McCreary County, et al.           79    80 ACLU, et al. v. McCreary County, et al.        No. 01-5935

component of any activity would inevitably lead to its              Commandments from the collage of documents the
invalidation under the Establishment Clause.” Id.                   defendants labeled “part of the foundations of American Law
                                                                    and Government,” would have been historically inaccurate.
  In concluding that a reasonable observer would understand         No reasonable observer would consider the defendants’
these displays, in their totality, as conveying a message of        displays to have the “principal or primary effect” of endorsing
endorsement of religion, because of the religious “taint”           religion.
imparted by the Ten Commandments, my colleague attributes
to reasonable observers an utter lack of common sense, a                                          V.
profound ignorance of American history, and, arguably, an
outright hostility to religion in our nation’s public life. In my      My colleagues’ reasoning and conclusions are faithful
judgment, no reasonable observer, gazing at these displays in       neither to the language and meaning of the Establishment
McCreary, Pulaski, and Harlan counties could fail to                Clause nor to the Supreme Court’s interpretation of it. What
appreciate what, apparently, my colleague does not: that from       the Supreme Court said about the Christmas display in Lynch
the founding of the republic, religion was and always has           is perfectly applicable to the historical document displays in
been, an inherent component of the law and culture of our           this case:
pluralistic society, and that saying so in the public square
acknowledges religion, but does not endorse it.                          The Court has acknowledged that the fears and
                                                                      political problems that gave rise to the Religion Clauses
   The Supreme Court itself has declared that “religion has           in the 18th century are of far less concern today. We are
been closely identified with our history and government.”             unable to perceive the Archbishop of Canterbury, the
Abington Sch. Dist. v. Schempp, 374 U.S. 203, 212 (1963).             Bishop of Rome, or other powerful religious leaders
It is uncontested that depictions of the Ten Commandments             behind every public acknowledgment of the religious
and Moses appear in secular context in, among other places,           heritage long officially recognized by the three
the United States House chamber, the entrance to the national         constitutional branches of government. Any notion that
archives, and in three separate locations in the United States        these symbols pose a real danger of establishment of a
Supreme Court, as well as numerous courtrooms and legal               state church is far-fetched indeed.
settings across the country.
                                                                    Lynch, 465 U.S. at 686 (internal quotation marks and citations
  The history and ubiquity of the Ten Commandments in               omitted) (emphasis added).
public buildings throughout the country and the universal
practice of courts and legislatures publicly invoking God’s           The district court erred in the legal analysis it applied and
blessing and guidance each day, before beginning the public’s       clearly erred in its findings of fact in holding that these
business, confirm the obvious: The inclusion of the Ten             displays violate the Establishment Clause. Therefore, it also
Commandments in these displays did nothing more than                erred in its conclusion that the plaintiffs have a likelihood of
acknowledge the indisputable historical role of religion, and       success on the merits of their claim, and perforce, abused its
especially the canons of the Decalogue, as one of many              discretion in issuing its preliminary injunction.
principles, ideas, values, and impulses that, taken together,
influenced the founders of this republic in shaping our law           I would reverse the district court’s judgment and set aside
and government.        Indeed, to have omitted the Ten              the preliminary injunction.
