         RECOMMENDED FOR FULL-TEXT PUBLICATION
              Pursuant to Sixth Circuit Rule 206                   2    ACLU of KY, et al. v. McCreary              No. 01-5935
     ELECTRONIC CITATION: 2004 FED App. 0089P (6th Cir.)                County, KY, et al.
                 File Name: 04a0089p.06
                                                                     The panel has further reviewed the petition for rehearing
                                                                   and concludes that the issues raised in the petition were fully
UNITED STATES COURT OF APPEALS                                     considered upon the original submission and decision of the
                FOR THE SIXTH CIRCUIT                              case. Accordingly, the petition is denied.
                  _________________                                           ENTERED BY ORDER OF THE COURT

 AMERICAN CIVIL LIBERTIES         X
 UNION OF KENTUCKY , et al.,       -
                                                                                  /s/ Leonard Green
           Plaintiffs-Appellees, -                                            _________________________________
                                   -   No. 01-5935
                                   -                                                   Clerk
            v.                      >
                                   ,
                                   -
 MCCREARY COUNTY,                  -
 KENTUCKY , et al.,                -
      Defendants-Appellants. -
                                   -
                                  N
      Appeal from the United States District Court
     for the Eastern District of Kentucky at London.

                   Filed: March 23, 2004

 Before: RYAN, CLAY, and GIBBONS, Circuit Judges.
                    _________________
                         ORDER
                    _________________
  The court having received a petition for rehearing en banc,
and the petition having been circulated not only to the original
panel members but also to all other active judges of this court,
and less than a majority of the judges having favored the
suggestion, the petition for rehearing has been referred to the
original panel.

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

  CLAY, Circuit Judge, concurring in denial of rehearing                 Lynch support the view that the government’s presentation of
en banc, joined by Martin, J.                                            the Ten Commandments, or religious messages generally, is
                                                                         constitutional so long as the religious messages are presented
  In Stone v. Graham, 449 U.S. 39 (1980)(per curiam), the                objectively and as an integral component of an overarching
Supreme Court held that it was patently insufficient for the             secular subject matter.
government to justify schoolhouse displays of the Ten
Commandments merely by asserting that “[t]he secular                        This view is manifested even in those Supreme Court
application of the Ten Commandments is clearly seen in its               decisions upholding governmental displays containing
adoption as the fundamental legal code of Western                        patently religious symbols, including the cases cited by the
Civilization and the Common Law of the United States.” Id.               dissent – Lynch, supra, and County of Allegheny v. ACLU,
at 40 n.1. The Court reasoned that posting the Ten                       supra.2 Lynch approved of a Christmastime display of a
Commandments with only this disclaimer served no                         creche because that symbol, as a matter of fact in that case,
“educational function.” Id. at 42.                                       shared a common secular link – the holiday season – with the
                                                                         numerous other secular symbols included in the display. The
   The Court further opined that the display may have been               display was permissible because the secular connection
permissible had the Ten Commandments been “integrated                    between the symbols rendered “indirect, remote and
into the school curriculum…in an appropriate study of                    incidental” the religious message that the creche would have
history, civilization, ethics, comparative religion, or the like.”       conveyed standing alone.         Lynch, 465 U.S. at 683.
Id. (citation omitted). This statement was a critical                    Consistently, the Court struck down a creche display in
component of the Court’s holding. Indeed, the Supreme                    County of Allegheny because the creche was the display’s
Court expressly endorsed this statement in Lynch v. Donnelly,            solitary element. County of Allegheny, 492 U.S. at 599
465 U.S. 668 (1984). See id. at 679 (expressing approval of              (holding that “nothing in the context of the display detracts
Stone and noting that the Stone decision “carefully pointed              from the creche’s religious message”). In contrast, through a
out that the Commandments were posted purely as a religious              series of fractured opinions, a majority of the Court in County
admonition, not ‘integrated into the school curriculum, where            of Allegheny approved the display of a menorah, alongside a
the Bible may constitutionally be used in an appropriate study
of history, civilization, ethics, comparative religion, or the
like’”) (quoting Stone, 449 U.S. at 442.). The Court further
elaborated that study of the Bible or of religion, “‘when                religious beliefs.…For the same reason, posting the T en Comm andments
                                                                         on the wall of a public-school classroom violates the Establishment
presented objectively as part of a secular program of                    Clause.”) (citing Stone, supra; other citations omitted).
education,’” may be effected consistently with the First
Amendment. Id. at 679-80 (quoting Abbington Sch. Dist. v.                    2
                                                                               The dissent’s citation to Capitol Square Review & Advisory Bd. v.
Schempp, 374 U.S. 203, 225 (1963)).1 Thus, both Stone and                Pinette, 515 U.S. 753 (1995) is baffling. That case is irrelevant because,
                                                                         there, the disp lay of a cross involved priva te speech, not government
                                                                         speech as in the case at b ar. Id. at 760, 765 (“There is a crucial difference
    1
                                                                         between government speech endorsing religion, which the Establishment
     The Court also discussed Stone with approval in County of           Clause forbids, and priva te speech endorsing religion, which the Free
Allegheny v. ACLU, 492 U.S. 573, 590-91 n.40 (1989) (“[T]he content of   Speech and Free Exercise Clauses protect.”) (internal quotation m arks,
a public school’s curriculum may not be based on a desire to promote     punctuation and citation omitted).
No. 01-5935                 ACLU of KY, et al. v. McCreary                5    6     ACLU of KY, et al. v. McCreary               No. 01-5935
                                        County, KY, et al.                           County, KY, et al.

Christmas tree and an explanatory sign, because the overall                    secular. Moreover, neither Defendants’ displays, nor their
theme conveyed by the display was one of diversity,                            legal briefs, provided a shred of evidence to support the
secularism, the holiday season and/or freedom. These                           principal assertion in the courthouse displays that the Ten
decisions demonstrate that the manner in which a display’s                     Commandments profoundly influenced the drafting of the
religious and secular elements integrate with one another is                   Declaration of Independence. Defendants’ schoolhouse
highly relevant to the inquiry concerning the government’s                     displays did not even purport to cite to objective historical
purpose behind the display.3                                                   evidence, instead relying on the Harlan County School
                                                                               Board’s subjective “belief” and “opinion” that the displays
  Using this approach, the panel concluded that the                            will “positively contribute to the …moral character of
documents and symbols in Defendants’ displays utterly                          students” and “instill qualities desirable of the students in
lacked a unifying secular theme. The dissent has not disputed                  [their] schools.” Like the display of the Ten Commandments
this conclusion. Under Stone, Defendants’ mere assertion of                    in Stone, the schoolhouse displays, as a matter of fact, served
such a unifying theme did not render the displays’ purpose                     no educational mission, as might have been the case had the
                                                                               Ten Commandments been integrated into the objective study
                                                                               of a secular subject matter. Defendants’ posting of the Ten
    3
      A hypothetical from Justice Stevens illustrates how the them atic        Commandments served no purpose but as a religious
integration of the T en Comm andments with secular symbols or m essages,       admonition. Accordingly, the content of the displays
or the lack thereof, can render a display containing the Ten                   sufficiently demonstrated that Defendants’ true purpose for
Commandments religious or non-religious in nature:                             the displays was religious.
    … [A] carving of Moses holding the Ten Commandments, if that
    is the only adornment on a courtroom wall, conveys an
                                                                                  The dissent suggests that as long as the Ten
    equivocal message, perhaps of respect for Judaism, for religion            Commandments are displayed “as part of an array containing
    in general, or for law. T he add ition of carvings depic ting              eight or nine otherwise secular, historical documents,” further
    Confucius and Mohammed may honor religion, or particular                   inquiry into Defendants’ purpose must cease. This is wrong.
    religions, to an extent that the First Amendment does not tolerate         Neither the Supreme Court nor this Court has ever adopted
    any more than it does “the permanent erection of a large Latin
    cross on the roof of city hall.” See post [492 U.S. at 661]
                                                                               such a facile approach to the Establishment Clause. The
    (KENNEDY, J., concurring in judgment in part and dissenting                determination of an Establishment Clause violation is a
    in part). Cf. Stone v. Graham, 449 U.S. 39, 101 S. Ct. 192, 66             highly fact-specific inquiry that requires a court to pay careful
    L.Ed.2d 199 (198 0) (per curiam). Placement of secular figures             attention to the content and context of the display containing
    such as Caesar Augustus, William Blackstone, Napoleon                      a religious symbol. See, e.g., County of Allegheny, 492 U.S.
    Bonaparte, and J ohn M arshall alongside these three religious             at 597 (stating that the Court’s task was “to determine
    leade rs, however, signals respect not for great proselytizers but
    for great lawgivers. It would be absurd to exclude such a fitting          whether the display of the creche and the menorah, in their
    message from a courtroom, as it would to exclude religious                 respective ‘particular physical settings,’” has the effect of
    paintings by Italian Renaissance masters from a public museum.             endorsing or disapproving religious beliefs”); Adland v. Russ,
    Cf. Lynch, 465 U.S., at 712-713, 717, 104 S. Ct., at 1379-1380,            307 F.3d 471, 481 (6th Cir. 2002) (looking at the “intended
    1382 (B REN NAN , J., dissenting).                                         physical context” of the Ten Commandments display). The
County of Allegheny, 492 U.S. at 65 2-53 (S tevens, J., concurring, in part,   dissent’s approach would require courts to ignore
and dissenting, in part).                                                      disingenuous governmental attempts to convey religious
No. 01-5935                 ACLU of KY, et al. v. McCreary                 7    8    ACLU of KY, et al. v. McCreary              No. 01-5935
                                        County, KY, et al.                           County, KY, et al.

messages whenever it has included secular elements in its                       A careful reading of the panel’s opinion does not support the
speech, no matter how unrelated those secular elements are to                   dissent’s attempt to conjure a conflict with Granzeier v.
the religious elements. If followed to its logical conclusion,                  Middleton, 173 F.3d 568 (6th Cir. 1999).
the dissent’s approach would justify a classroom display of a
crucifix or the Lord’s Prayer, so long as surrounded by the                        Finally, the dissent argues that “the lead opinion
Magna Carta, the Declaration of Independence, the Star                          erroneously applies the heightened Establishment Clause
Spangled Banner and, perhaps, excerpts from the Internal                        standards for public schools to other public buildings such as
Revenue Code.                                                                   courthouses.” This argument is incorrect and misleading.
                                                                                First, the discussion of the public school and courthouse
   The dissent inaccurately refers to the panel’s “sympathetic                  settings appeared in my separate discussion of the
treatment of the district court’s conclusion that the history of                “endorsement” prong of the three-part test under Lemon v.
the defendants’ earlier attempts to erect ‘constitutionally                     Kurtzman, 403 U.S. 602 (1971). Judge Gibbons did not join
invalid displays’ had “imprinted the defendants’ purpose,                       this aspect of my opinion and, therefore, the discussion was
from the beginning, with an unconstitutional taint[.]””                         not adopted by a majority of the panel. It would have been
(quoting ACLU v. McCreary County, 354 F.3d 438, 457 (6th                        inappropriate for the entire Court to review this non-binding
Cir. 2003) (quoting ACLU v. McCreary County, 145 F. Supp.                       opinion.
2d 845, 850 (E.D. Ky. 2001)). In fact, the panel explicitly
rejected the district court’s heavy reliance on past conduct,                     Second, my opinion did not equate the public school and
instead concluding that “the history of Defendants’                             courthouse settings for all Establishment Clause purposes.
involvement with the displays strongly indicated that the                       Rather, the opinion observed that citizens typically conduct
primary purpose was religious.” McCreary County, 354 F.3d                       business at a courthouse by necessity, many times subject to
at 348 (emphasis added; disagreeing with the district court’s                   the coercive powers of the court, and, therefore, they are a
decision “to afford exclusive weight to Defendants’ past                        captive audience, similar to public school students, who are
conduct without addressing the specific content of the revised                  subject to mandatory attendance requirements. Further, the
displays”). Although not dispositive of the issue, Defendants’                  fact that a courthouse is so plainly the seat of government
prior unconstitutional conduct (initially displaying the Ten                    requires courts to exercise special care to ensure that a
Commandments alone, in clear violation of Stone, then                           governmental display containing religious symbols is not
subsequently displaying the Ten Commandments alongside                          tantamount to governmental endorsement of those symbols.
documents excerpted solely for their religious content),                        See McCreary County, 354 F.3d at 461.
combined with the fact that Defendants added secular
material only after this litigation ensued, was relevant                          Third, my opinion never suggested that the same concerns
evidence of their purpose behind the displays’ final iteration.4                about governmental coercion and endorsement apply to all
                                                                                public buildings. As the authorities cited above hold, the
                                                                                inquiry into an alleged Establishment Clause violation is a
    4
                                                                                highly fact-specific inquiry that depends, in part, on the
     This holding was justified b y San ta Fe Indep. Sch. D ist. v. Do e, 530   particular physical setting of the speech at issue. I expressed
U.S. 290, 309, 315 (2000) (looking at the “evolution” of the student-led        no opinion about a display containing the Ten
prayer policy to determine whether an Establishment Clause violation had
occurred ).
                                                                                Commandments outside of a public school or a courthouse.
No. 01-5935           ACLU of KY, et al. v. McCreary      9    10    ACLU of KY, et al. v. McCreary               No. 01-5935
                                  County, KY, et al.                 County, KY, et al.

  For the foregoing reasons, I concur in the decision of the      BOGGS, Chief Judge, dissenting from the denial of
en banc Court denying review of the panel opinion.             rehearing en banc, joined by Batchelder, J. The core
                                                               question in this case is whether the district court and the panel
                                                               majority erred in holding, as a matter of law, that despite the
                                                               statement of historical and patriotic secular purpose included
                                                               in each display at issue here, and despite the five separate
                                                               secular purposes for the displays articulated by the defendants
                                                               in the district court, they nonetheless have an essentially
                                                               religious purpose because the Ten Commandments appear
                                                               beside eight or nine otherwise indisputably secular
                                                               documents.
                                                                  This court has held that in Establishment Clause cases
                                                               federal courts must defer to the government’s articulation of
                                                               a secular purpose unless the stated purpose is shown to be a
                                                               “sham.” Chaudhuri v. Tenn., 130 F.3d 232, 236 (6th Cir.
                                                               1997). That rule has been misapplied by the panel majority.
                                                                  In coming to the conclusion that the defendants’ carefully
                                                               articulated secular purposes are a sham, the court ignores the
                                                               First Amendment principles laid out in County of Allegheny
                                                               v. ACLU, 492 U.S. 573 (1989), and Lynch v. Donnelly, 465
                                                               U.S. 668 (1984). It establishes a new and heightened standard
                                                               of proof, holding that the displays lacked a secular purpose
                                                               because they “provided the viewer with no analytical or
                                                               historical connection between the Ten Commandments and
                                                               the other historical documents.” ACLU of Ky. v. McCreary
                                                               County, 354 F.3d 438, 453 (6th Cir. 2003). Neither the
                                                               Supreme Court nor this court has ever adopted such a
                                                               standard. On the contrary, the Supreme Court has upheld
                                                               displays of a cross, Capitol Square Review & Advisory Bd. v.
                                                               Pinette, 515 U.S. 753, 766 (1995) (plurality opinion), a
                                                               creche, Lynch, 465 U.S. 668, and a menorah, County of
                                                               Allegheny, 492 U.S. 573, none of which made explicit an
                                                               “analytical or historical connection” between the religious
                                                               item and other, secular items in the displays.
No. 01-5935            ACLU of KY, et al. v. McCreary       11    12       ACLU of KY, et al. v. McCreary                      No. 01-5935
                                   County, KY, et al.                      County, KY, et al.

  The implication of the court’s decision is that the presence    1999), we held that the government could close its offices on
of the Ten Commandments, in an array containing                   Good Friday without violating the Establishment Clause by
indisputably historical and patriotic secular documents,          adopting a “spring weekend” rationale, even though there was
converts the whole into a display having a primarily religious    evidence that the government’s purpose was originally
purpose. The panel majority appears to have drawn this rule       religious, including a poster put up by a government
from Stone v. Graham, 449 U.S. 39 (1980), a brief, per            employee depicting the Crucifixion. We stated that “the fact
curiam disposition that preceded both Lynch and Donnelly,         that a particular closing was once constitutionally suspect
and that bears no meaningful factual resemblance to this case.    does not prevent it from being reinstated in a constitutional
Stone struck down a Kentucky statute that mandated the            form.” Id. at 574. Our holding in Granzeier reflects an
posting of the Ten Commandments, standing alone, in every         important principle of equal treatment that is slighted by the
classroom in the Commonwealth. In dicta, the Court stated         panel’s opinion. In general, governmental bodies, like other
that the Ten Commandments “may constitutionally be used in        litigants, should be free to take instruction from prior
an appropriate study of history, civilization, ethics,            decisions or arguments, and thus to eschew, or move away
comparative religion, or the like.” 449 U.S. at 42 (citing Sch.   from, practices that are contrary to law.5
Dist. of Abington Township v. Schempp, 374 U.S. 203, 225
(1963)) (emphasis added). I do not believe this language can        Finally, the lead opinion erroneously applies the heightened
be read as an attempt to state binding limits on all future       Establishment Clause standards for public schools to other
constitutionally valid displays. And even if it were to be read   public buildings such as courthouses. See McCreary County,
in that aggressive fashion, Stone certainly does not suggest      354 F.3d at 461. This ignores the reasons given by the
that a display that includes the Ten Commandments as part of      Supreme Court for creating a heightened constitutional
an array containing eight or nine otherwise secular, historical
documents, violates the First Amendment unless the display
                                                                       5
also provides an explicit analytical or historical connection            The holding and reasoning of Granzeier are co nsistent with the
between the clearly secular and the arguably religious items.     Supreme Court’s dec ision in Santa Fe Independent School District v. Doe,
                                                                  530 U.S. 290 (2000), relied upon by the panel. While the Santa Fe
                                                                  majo rity considered both the “text and history” of the school policy at
   Another troubling aspect of the majority opinion concerns      issue in that case, which authorized a student-elected speaker to make an
its sympathetic treatment of the district court’s conclusion      “invocation” to “solemnize ” hom e football gam es, id. at 298 & n.6, 315,
that the history of the defendants’ earlier attempts to erect     it also made clear tha t the po licy was, in fact, invalid on its face. Id. at
“constitutionally invalid displays” had “‘imprinted the           306-07, 314-15; see id. at 315 (“The narrow question before us is whether
defendants’ purpose, from the beginning, with an                  implementation of the October policy insulates the continuation of such
unconstitutional taint[.]’” McCreary County, 354 F.3d at 457      prayers from constitutional scrutiny.”). M oreo ver, the e vidence of a
                                                                  “continuous” Establishment Clause violation, as well as other troubling
(quoting ACLU of Ky. v, McCreary County, 145 F. Supp. 2d          aspects of the case’s history, were far stronger in Santa Fe than in this
845, 850 (E.D. Ky. 2001)). I think the history of the             case, where the counties have serio usly retho ught and reo rganiz ed their
defendants’ displays is entitled to considerably less weight      displays in response to constitutional concerns. Cf. id. at 294-98
than the majority gives it. Our court has previously expressed    (detailing variou s cosm etic alterations made to school district’s
great reluctance to allow a government’s past actions to taint    longstanding policy of pregame and graduation prayers, which were
                                                                  frequently explicitly Christian in nature; also noting that the record
its future actions from the standpoint of the Establishment       suggested that there had been official harassment and intimidation of the
Clause. In Granzeier v. Middleton, 173 F.3d 568 (6th Cir.         Santa Fe plaintiffs during the litigation).
No. 01-5935            ACLU of KY, et al. v. McCreary        13
                                   County, KY, et al.

standard in public schools, namely that young children are
impressionable and that the state exercises coercive power
through mandatory school attendance requirements. Edwards
v. Aguillard, 482 U.S. 578, 584 (1987). By applying these
heightened requirements to courthouses and other public
buildings, the lead opinion not only misapplies the law, it also
invites a new round of First Amendment challenges to
religious texts and symbols that are nearly ubiquitous in non-
schoolhouse public buildings throughout the nation,
particularly courthouses.
  The court’s decision, that the Ten Commandments’ text is
impermissible as one of ten otherwise secular documents,
gives no further guidance. Would it be permissible as one of
twenty other texts, or one of one hundred? Would it make a
difference if the display involved a pictorial representation,
rather than a text?
  I have seen at one institution what seemed to me a possible
solution to some controversies of this type. There was a
representation of two tablets, bearing only the Roman
numerals from “I” to “X.” This left it to all observers to
decide what exact text they wished to impose on that symbol.
But under the court’s decision, I have no idea if even this
display could pass muster.
  Believing the panel’s decision to be both draconian and
legally unsupported, I would rehear this case, so that the full
court could give it more nuanced consideration. I therefore
respectfully dissent from the denial of rehearing en banc.
