In the
United States Court of Appeals
For the Seventh Circuit

No. 00-1114

WILLIAM A. BOOKS and
MICHAEL SUETKAMP,

Plaintiffs-Appellants,

v.

CITY OF ELKHART, INDIANA,

Defendant-Appellee.



Appeal from the United States District Court
for the Northern District of Indiana, South Bend
Division.
No. 98 C 230--Allen Sharp, Judge.


ARGUED MAY 12, 2000--DECIDED DECEMBER 13, 2000



  Before RIPPLE, MANION and WILLIAMS, Circuit
Judges.

  RIPPLE, Circuit Judge. On the lawn of
the City of Elkhart’s Municipal Building
stands a monument inscribed with the Ten
Commandments. William A. Books and
Michael Suetkamp, residents of Elkhart,
object to the display of this monument on
government property. They brought this
action in the district court, claiming
that the display of the monument by the
City of Elkhart violates the
Establishment Clause of the First
Amendment to the Constitution of the
United States. The district court granted
summary judgment for the City of Elkhart.
For the reasons set forth in the
following opinion, we reverse the
judgment of the district court and remand
for proceedings consistent with this
opinion.

I
BACKGROUND
A. Facts

  A monument inscribed with the Ten
Commandments is located on the lawn in
front of the Municipal Building of the
City of Elkhart ("the City" or
"Elkhart"). The plaintiffs, residents of
Elkhart, object to the presence of this
monument in this location. We therefore
must determine whether this presence of
the monument violates the Establishment
Clause of the Constitution of the United
States, which has been made applicable to
the states through the Fourteenth
Amendment./1 This task requires that we
examine the history of the monument’s
placement and maintenance as well as the
physical characteristics of the monument
and of the surrounding area.

1.

  In the 1940s, a juvenile court judge in
Minnesota, E. J. Ruegemer, inaugurated
the Youth Guidance Program. Disheartened
by the growing number of youths in
trouble, he sought to provide them with a
common code of conduct. He believed that
the Ten Commandments might provide the
necessary guidance. Judge Ruegemer
originally planned to post paper copies
of the Ten Commandments in juvenile
courts, first in Minnesota and then
across the country. To help fund his
idea, he contacted the Fraternal Order of
Eagles ("FOE"), a service organization
dedicated to promoting liberty, truth,
and justice. At first, FOE rejected Judge
Ruegemer’s idea because it feared that
the program might seem coercive or
sectarian. In response to these concerns,
representatives of Judaism,
Protestantism, and Catholicism developed
what the individuals involved believed to
be a nonsectarian version of the Ten
Commandments because it could not be
identified with any one religious group.
After reviewing this version, FOE agreed
to support Judge Ruegemer’s program.

  Around this same time, motion picture
producer Cecil B. DeMille contacted Judge
Ruegemer about the program. DeMille, who
was working to produce the movie "The Ten
Commandments," suggested that, rather
than posting mere paper copies of the Ten
Commandments, the program distribute
bronze plaques. Judge Ruegemer replied
that granite might be a more suitable
material because the original Ten
Commandments were written on granite.
DeMille agreed with Judge Ruegemer’s
suggestion, and the judge thereafter
worked with two Minnesota granite
companies to produce granite monuments
inscribed with the Ten Commandments.
Local chapters of FOE financed these
granite monuments and then, throughout
the 1950s, donated them to their local
communities. The Elkhart chapter of FOE
donated its version of the Ten
Commandments monument to the City of
Elkhart in 1958.

  Elkhart’s newspaper, The Elkhart Truth,
published an article about the dedication
of the Ten Commandments monument to the
City of Elkhart. See R.29, Ex.A,
Ceremonies Pay Tribute in Memorial Day
Rite; City Given Decalogue, The Elkhart
Truth, May 31, 1958, at 1. The dedication
was a part of the City’s Memorial Day
ceremonies, and the participants in the
dedication included: Robert Long, city
controller; Mahlon Hull, past president
of the Elkhart Chapter of FOE; Dale
Swihart, lodge secretary for FOE; the
Reverend William Gieranowski, assistant
pastor of St. Vincent’s Catholic Church;
the Reverend W. W. Kenhell, outgoing
president of the Elkhart Ministerial
Association; and Rabbi M. E. Finkelstein
of Temple Israel.

  According to the newspaper, Reverend
Kenhell spoke at the ceremony, imparting
the message that "Americans have
inherited moral power from the founding
fathers of our country, . . . and if they
will accept the precepts of the Ten
Commandments, it will provide their
redemption from today’s strife and fear."
Id. Father Gieranowski also spoke at the
ceremony and stated that moral law does
not change and that the Ten Commandments
should be engraved not only in stone but
in the hearts, minds, and consciences of
everyone. See id. Finally, the newspaper
noted, Rabbi Finkelstein explained that
the dedication of the monument "should be
an occasion for dedication of everyone to
the high ideals inherent in the American
way of life." Id.

2.

  As we have noted earlier, Elkhart’s Ten
Commandments monument is located on the
lawn in front of the City’s Municipal
Building. The Municipal Building,
situated on the corners of Second and
High Streets in downtown Elkhart,
contains the mayor’s office, the City’s
legal and human relations departments,
the city court, the prosecutor’s office,
and the offices of the Common Council.
Above the main entrance to the Municipal
Building is a bas relief of an elk’s
head. Directly to the left of the elk’s
head is the word "DEDICATVM," and on the
immediate right of the elk’s head is the
word "JVSTITIAM."/2 R.29 & 31, Ex.14-
16.

  The lot for the Municipal Building
contains the building itself, sidewalks,
and a parking area. Between the building
and the sidewalks is a grass lawn that is
approximately 25 feet wide. Within this
lawn are three monuments. The City
maintains this lawn surrounding the
monuments but does not contribute any
time, money, or effort to the maintenance
of the monuments themselves.

  On the southeast corner of the
building’s lot--the corner nearest the
intersection--are the Revolutionary War
Monument and the Freedom Monument. The
Revolutionary War Monument, closest to
the street, is a large stone, which bears
a plaque and is surrounded by a bed of
flowers. See R.29 & 31, Ex.23-24. The
plaque explains that the monument was
donated by the Daughters of the American
Revolution in honor of the Revolutionary
War soldiers buried in Elkhart County.
Behind the Revolutionary War Monument is
the Freedom Monument. The Freedom
Monument is a brick pillar with a light
on its top. A plaque on the pillar reads:
"BEHOLD FRIEND, YOU ARE NOW ON HALLOWED
GROUND FOR HERE BURNS FREEDOMS HOLY
LIGHT." R.29 & 31, Ex.25. Collectively,
the Revolutionary War Monument and the
Freedom Monument are referred to as the
War Memorial.

  On the northeast corner of the lot is
the Ten Commandments monument./3 The
Ten Commandments monument is made of
granite and stands six feet high and
three and one-half feet wide. The largest
portion of the monument is consumed by
the text of the Ten Commandments. The
face of the monument reads as follows:

    the Ten Commandments

    I AM the LORD thy God.

Thou shalt have no other gods before me.

Thou shalt not make to thyself any graven
images.
Thou shalt not take the Name of the Lord
thy God in vain.

Remember the Sabbath day, to keep it
holy.

Honor thy father and thy mother, that thy
days may be long upon the land which the
Lord thy God giveth thee.

Thou shalt not kill.

Thou shalt not commit adultery.

Thou shalt not steal.

Thou shalt not bear false witness against
thy neighbor.

Thou shalt not covet thy neighbor’s
house.

Thou shalt not covet thy neighbor’s wife,
nor his manservant, nor his maidservant,
nor his cattle, nor anything that is thy
neighbor’s.

R.29 & 31, Ex.5. This text, as stated
previously, is an amalgamation of Jewish,
Protestant, and Catholic versions of the
Ten Commandments.

  At the top of the monument, there are
two small tablets that contain ancient
Hebrew script. Surrounding both of these
tablets is a floral design, and between
the two tablets is an eye within a
pyramid--an all-seeing eye./4
Immediately below the all-seeing eye is
an American Eagle grasping the American
flag. Below the text on the monument are
two small Stars of David. In the center
of the two stars is a similarly sized
symbol representing Christ: two Greek
letters, Chi and Rho, superimposed upon
each other. At the base of the monument
is a small scroll, which reads as
follows:

PRESENTED TO
THE CITY OF ELKHART, IND.
BY
ELKHART AERIE NO. 395
FRATERNAL ORDER OF EAGLES
MAY, 1958

Id.

  Photos of the Ten Commandments monument
and of the front of the Municipal
Building were included in the trial
record and are attached as appendices to
this opinion.

3.

  Insofar as this record shows, the
presence of the Ten Commandments monument
on the lawn of the Elkhart Municipal
Building produced no controversy until
1998. In that year, the City’s mayor was
informed that, unless the monument was
removed, a lawsuit would be filed. After
this warning was received, the Common
Council of the City of Elkhart convened
on May 4, 1998, and adopted a resolution
"regarding the display of the Ten
Commandments on public property." R.29,
Ex.B. According to this resolution, the
monument and the symbols on its face
recognize the historical and cultural
significance of the Ten Commandments. The
Common Council noted in its resolution
that numerous other historical and
cultural plaques are inside the Municipal
Building. The Common Council further
emphasized that "the Ten Commandments
have had a significant impact on the
development of the fundamental legal
principles of Western Civilization." Id.
Finally, the Common Council concluded
that, because the Ten Commandments
monument "is a historical and cultural
monument that reflects one of the
earliest codes of human conduct," it was
proper for the monument to remain. Id.
Because the Common Council did not remove
the monument, two residents of Elkhart
filed this action against the City of
Elkhart.

4.

  Plaintiff William Books is a resident of
Elkhart County and has resided in Elkhart
since the early 1980s. In Mr. Books’
affidavit, he states that "[t]o the
extent that I must, or wish to, go to the
Municipal Building to participate as a
citizen of Elkhart I must come into
direct and unwelcome contact with the
[Ten Commandments] monument." R.24,
Attachment 1, at 2. Mr. Books explains
that, in the past, he has gone to the
Municipal Building to pay a traffic
ticket and to attend City Council
meetings when the issues discussed were
ones that interested him. Also, notes Mr.
Books, his deposition for this case was
conducted in the City Attorney’s office
in the Municipal Building. As Mr. Books
explains, although he could use the
Municipal Building’s side entrance
instead of its main entrance in order to
avoid the monument, he "know[s] the Ten
Commandments monument is there whether
[he] see[s] it or not." Id. at 3.

  Mr. Books further explains that he
passes the monument in his daily
activities, including: riding his bicycle
on a route that passes the Municipal
Building; patronizing the Elkhart Public
Library, which is located across the
street from the Municipal Building; and
visiting his landlord’s office and his
cousin’s house, both of which are located
near the Municipal Building. He states
that, in order to avoid seeing the Ten
Commandments monument, he "would have to
assume the special burden of altering
[his] daily routine so as to avoid this
direct and unwelcome contact." Id. at 2.

  Plaintiff Michael Suetkamp is also a
resident of Elkhart County and has lived
in Elkhart since the early 1990s. In his
affidavit, Mr. Suetkamp states that he is
an atheist and is offended deeply by the
placement of the Ten Commandments
monument on the property of the City of
Elkhart. He states that he must come in
direct and unwelcome contact with the
monument to participate as a citizen of
Elkhart. As he explains, he has entered
the Municipal Building to pay a traffic
ticket, to attend a City Council meeting,
to talk to the City Council’s Clerk, and
to have his deposition taken by the City
Attorney in this case.

  Mr. Suetkamp also avers that he comes in
direct and unwelcome contact with the
monument in his daily activities. For
example, he states that the route he
takes to return home from work passes the
Municipal Building and that he sometimes
sees the monument when entering the
Elkhart Public Library. Although he
passes the monument frequently, Mr.
Suetkamp admits that he does not look di
rectly at it every time, but he states
that "[e]ven if I don’t see it, I
certainly know it is there." R.24,
Attachment 4, at 2.

B.   Proceedings in the District Court

  The district court held that the
placement of the Ten Commandments
monument on the lawn of the Elkhart
Municipal Building did not violate the
Establishment Clause. When analyzing the
placement of the monument under the test
set out in Lemon v. Kurtzman, 403 U.S.
602 (1971), the court examined (1)
whether the City had a secular purpose in
maintaining the monument, (2) whether the
primary effect of the monument was to
advance religion, and (3) whether the
City’s action fostered an excessive
entanglement of government with religion.
See id. at 612-13. After stating that the
third prong did not apply, the court
found that Elkhart had a secular purpose
for the monument. According to the court,
the City’s purpose in accepting the
monument, promoting morality in youths,
is a legitimate aim of government and is
a traditional part of the police powers
of the state. Also, the court stated, the
City’s purpose in continuing to display
the monument, to maintain exhibits of
cultural and historical significance on
City property, is also secular.

  The court also discussed whether the
monument had the effect of endorsing
religion. It noted that this question is
asked from the perspective of a
reasonable observer who is charged with
knowledge of the history and context of
the display. The court stated that a
reasonable observer looking at the
monument would know that the Ten Command
ments has both religious and historical
significance and would acknowledge the
significance of the religious symbols on
the monument as signs of the major
religions of this country at the time of
the monument’s donation. The court next
pointed out that a reasonable observer
would view the Ten Commandments monument
as part of the City’s overall collection
of displays of historical and cultural
significance. As the court explained, the
lawn in front of the Municipal Building
is small, and the City could not be
expected to put all of its displays in
one place. The court then held that it
does not violate the Establishment Clause
for the City of Elkhart to acknowledge
the importance of the Ten Commandments in
the legal and moral development of the
nation by displaying the monument on the
lawn of the Municipal Building./5

II
DISCUSSION
A.   Standard of Review

  We review de novo the decision of the
district court to grant summary judgment.
See Wright v. Illinois Dep’t of
Corrections, 204 F.3d 727, 729 (7th Cir.
2000). Summary judgment is proper when
the "pleadings, depositions, answers to
interrogatories, and admissions on file,
together with the affidavits, if any,
show that there is no genuine issue as to
any material fact and that the moving
party is entitled to a judgment as a
matter of law." Fed. R. Civ. P. 56(c);
Celotex Corp. v. Catrett, 477 U.S. 317,
322-23 (1986). In determining whether a
genuine issue of material fact exists, we
must review the record in the light most
favorable to the plaintiffs and make all
reasonable inferences in their favor. See
Anderson v. Liberty Lobby, Inc., 477 U.S.
242, 255 (1986). Here, the parties do not
dispute the material facts, so we shall
review de novo the district court’s
conclusions of law. See Freedom From
Religion Found., Inc. v. City of
Marshfield, 203 F.3d 487, 490 (7th Cir.
2000).

B.   Standing
1.

  Under Article III of the Constitution of
the United States, a plaintiff must have
standing to bring an action before a
federal court. To have standing, the
Supreme Court has explained, the
plaintiff must allege (1) that he has
suffered an injury in fact (2) that is
fairly traceable to the action of the
defendant and (3) that will likely be
redressed with a favorable decision. See
Lujan v. Defenders of Wildlife, 504 U.S.
555, 560-61 (1992). Here, the dispute
centers on the first element: whether the
plaintiffs suffered an injury in fact by
the City’s display of the Ten
Commandments on government property.

  To allege adequately an injury in fact,
a plaintiff must show "an invasion of a
legally protected interest which is (a)
concrete and particularized and (b)
actual or imminent, not conjectural or
hypothetical." Id. at 560 (citations and
quotation marks omitted). In the context
of the Establishment Clause, our cases
have required that, to allege properly
that a plaintiff has suffered an injury
in fact from the display of a religious
object, the individual may show he has
undertaken a special burden or has
altered his behavior to avoid the
offensive object. See, e.g., Freedom From
Religion Found., 203 F.3d at 489 (avoids
using the park); Gonzales v. North
Township, 4 F.3d 1412, 1416-17 (7th Cir.
1993) (avoids area of the park); Harris
v. City of Zion, 927 F.2d 1401, 1405 (7th
Cir. 1991) (alters travel routes); Doe v.
Village of Crestwood, 917 F.2d 1476, 1478
(7th Cir. 1990) (will stay away from
festival); American Civil Liberties Union
v. City of St. Charles, 794 F.2d 265, 269
(7th Cir. 1986) (alters behavior by
detouring); Doe v. Small, 726 F. Supp.
713, 718-19 (N.D. Ill. 1989), rev’d en
banc on other grounds, 964 F.2d 611 (7th
Cir. 1992) (avoids using park).

  The district court here, however, relied
on Doe v. County of Montgomery, 41 F.3d
1156 (7th Cir. 1994), to determine
whether the plaintiffs had suffered an
injury in fact even though they had not
altered their behavior to avoid the Ten
Commandments monument. In Doe, a
permanent metal sign, hanging over the
main entrance of the county’s courthouse,
read: "THE WORLD NEEDS GOD." The
plaintiffs were residents of the county
and wished to avoid the sign; however, in
order to participate as citizens of their
county and to fulfill certain legal
obligations, they needed to use the
courthouse. They alleged that they had to
come in direct and unwelcome contact with
the sign when using the courthouse. In
that case, we held that the plaintiffs’
allegations that they must come in direct
and unwelcome contact with the religious
display to participate fully as citizens
of their county and to fulfill their
legal obligations were sufficient to show
that they had suffered an injury in fact.
See id. at 1159. As we stated, "direct
and unwelcome exposure to a religious
message cannot be distinguished from the
’injuries’ of other plaintiffs who have
had standing to bring claims under the
Establishment Clause." Id. at 1159. We
then noted that both the Supreme Court
and this court have found standing for
constitutional challenges to religious
conduct when the plaintiffs did not
assume a special burden or alter their
behavior. See Lee v. Weisman, 505 U.S.
577 (1992) (student and parent objected
to planned invocations and benedictions
at non-mandatory graduation ceremonies);
Wallace v. Jaffree, 472 U.S. 38 (1985)
(school children and parents objected to
one-minute period of silence); Stone v.
Graham, 449 U.S. 39 (1980) (per curiam)
(students and parents objected to posting
of Ten Commandments); School Dist. of
Abington Township v. Schempp, 374 U.S.
203, 205, 224 n.9 (1963) (school children
and parents objected to reading of Bible
in school although students could chose
to be absent at time or to not
participate); Berger v. Rensselaer Cent.
Sch. Corp., 982 F.2d 1160, 1164 n.4 (7th
Cir. 1993) (parent of school children
objected to distribution of Gideon Bibles
in the schools); Sherman v. Community
Consol. Sch. Dist. 21 of Wheeling
Township, 980 F.2d 437, 441 (7th Cir.
1992) (student objected to recitation of
Pledge of Allegiance).

  The district court followed the holding
of Doe and noted that the plaintiffs had
alleged that they must come in direct and
unwelcome contact with the Ten
Commandments monument to participate
fully as citizens of Elkhart and to
fulfill their legal obligations. The
court questioned whether the plaintiffs
had to look at the monument to enter the
Municipal Building, as the plaintiffs in
Doe had to see the sign over the main
entrance to enter the county courthouse,
but found that the facts were
sufficiently close to fit within the rule
of Doe. Therefore, the plaintiffs had
standing to challenge the placement of
the monument in front of the Municipal
Building.

2.

  The plaintiffs bear the burden of
establishing that they have standing to
bring this action. See Doe, 41 F.3d at
1159. To meet that burden, plaintiffs
Books and Suetkamp both allege that they
must come in direct and unwelcome contact
with the Ten Commandments monument to
participate fully as citizens of Elkhart
and to fulfill certain legal duties.
Moreover, they each allege specific
examples in which they have entered the
Municipal Building to participate as a
citizen of Elkhart or to fulfill a legal
obligation.

  According to the City, the plaintiffs
must alter their behavior to avoid the
Ten Commandments monument before they can
allege that they have suffered an injury
in fact. In Doe, the City submits, the
plaintiffs wished to avoid the religious
sign above the courthouse’s main entrance
but could not do so if they wished to use
the courthouse and to participate as
citizens of the county. Here, the City
argues, the plaintiffs could have entered
the Municipal Building through
alternative entrances, or, even if
entering through the main entrance, they
could have passed along the back of the
Ten Commandments monument. Because of
these two options, the City contends, the
plaintiffs did not need to come in direct
and unwelcome contact with the text on
the Ten Commandments monument in order to
participate as citizens of Elkhart or to
fulfill their legal obligations. Thus,
the City asserts, the plaintiffs have not
alleged that they suffered an injury in
fact by the placement of the Ten
Commandments monument on the lawn of the
Municipal Building.

3.

  As this court discussed in Doe, the
Supreme Court has addressed the
requirements for standing when a
plaintiff must view a religious symbol in
his daily routine or when he is forced to
come in contact with religious conduct
through participation in school or in
government. See Doe, 41 F.3d at 1160. As
we demonstrated in Doe, our holding in
that case is grounded firmly in the
precedent of the Supreme Court.
Therefore, we must conclude that the
plaintiffs have standing to challenge the
placement of the Ten Commandments
monument on the lawn of the Municipal
Building.

  We agree with the district court that
there is no principled distinction
between the facts of Doe and the facts
presented here. In Doe, the plaintiffs
were required to come in direct and
unwelcome contact with the religious
display in order to participate fully in
government and to fulfill their legal
obligations. Here, the plaintiffs must do
the same. Although it is true that the
plaintiffs here could have altered their
path into the Municipal Building to avoid
the monument, an act that would have
given them standing under Seventh Circuit
precedent, see, e.g., Freedom From
Religion Found., 203 F.3d at 489; City of
St. Charles, 794 F.2d at 269, they were
not obligated to do so to suffer an
injury in fact, see Doe, 41 F.3d at 1160-
61. Moreover, because the plaintiffs are
aware of the words written on the front
of the monument, merely walking behind it
will not eradicate the injury they
allegedly suffered by passing the
TenCommandments monument. We therefore
conclude that a plaintiff may allege an
injury in fact when he is forced to view
a religious object that he wishes to
avoid but is unable to avoid because of
his right or duty to attend the
government-owned place where the object
is located. See Doe, 41 F.3d at 1159-61.
Therefore, the plaintiffs have alleged
sufficient facts to demonstrate that they
suffered an injury in fact by the
placement of the Ten Commandments
monument on the lawn of the Municipal
Building.

C.   Governing Principles and Application

  Although various members of the Supreme
Court of the United States have
criticized it,/6 the test first
enunciated by the Court in Lemon v.
Kurtzman, 403 U.S. 602 (1971), remains
the prevailing analytical tool for the
analysis of Establishment Clause claims.
As an intermediate federal appellate
court, we are obliged by the doctrines of
stare decisis and precedent to employ
that methodology unless instructed
otherwise by the Supreme Court./7 See,
e.g., Freedom From Religion Found., 203
F.3d at 493 (emphasizing Lemon test in
Establishment Clause analysis);
Bridenbaugh v. O’Bannon, 185 F.3d 796,
797 (7th Cir. 1999) (same); Tanford v.
Brand, 104 F.3d 982, 986 (7th Cir. 1997)
(same); Kerr v. Farrey, 95 F.3d 472, 476-
80 (7th Cir. 1996) (same); Fleischfresser
v. Directors of Sch. Dist. 200, 15 F.3d
680, 685-86 (7th Cir. 1994) (same);
Sherman, 8 F.3d at 1163-64 (same). Under
the approach mandated by Lemon, we must
consider: (1) whether the government
activity in question has a secular
purpose, (2) whether the activity’s
primary effect advances or inhibits
religion, and (3) whether the government
activity fosters an excessive
entanglement with religion. See Lemon,
403 U.S. at 612-13. Governmental action
is violative of the constitutional
prohibition against the establishment of
religion if it violates any one of these
three prongs. See Edwards v. Aguillard,
482 U.S. 578, 583 (1987). In this case,
the plaintiffs do not contend that the
display of the monument involves an
excessive entanglement with religion;
therefore, we shall confine our
discussion to the first two prongs of the
analysis.

  Before turning to the situation before
us, we also note that, in more recent
cases, the Supreme Court has, on
occasion, articulated these first two
prongs in terms of an "endorsement" test.
See County of Allegheny v. American Civil
Liberties Union, Greater Pittsburgh
Chapter, 492 U.S. 573, 592 (1989)
(formally accepting the endorsement test
and stating that "[i]n recent years, we
have paid particularly close attention to
whether the challenged governmental
practice either has the purpose or effect
of ’endorsing’ religion, a concern that
has long had a place in our Establishment
Clause jurisprudence"); see also Santa Fe
Indep. Sch. Dist. v. Doe, 120 S. Ct.
2266, 2278 (2000) (asking whether the
state endorsed religion by allowing a
student to lead a prayer to open high
school football games); Capitol Square
Review & Advisory Bd. v. Pinette, 515
U.S. 753, 763-65 (1995) (acknowledging
endorsement test but stating that it did
not apply in the case at hand because the
correct analysis for private religious
speech in a public forum was under the
Free Speech Clause). As we noted recently
in Freedom From Religion Foundation,
"[u]nder this test, ’the effect prong
asks whether, irrespective of
government’s actual purpose, the practice
under review in fact conveys a message of
endorsement or disapproval.’" 203 F.3d at
493 (quoting Lynch v. Donnelly, 465 U.S.
668, 690 (1984) (O’Connor, J.,
concurring)).

1.

  The first part of our inquiry must be to
determine whether the display of this
tablet by the City of Elkhart has the
primary purpose of "advancing or
inhibiting religion." Agostini v. Felton,
521 U.S. 203, 222-23 (1997). As the Court
has explained, "’The purpose prong of the
Lemon test asks whether the government’s
actual purpose is to endorse or
disapprove of religion.’" Aguillard, 482
U.S. at 585 (quoting Lynch, 465 U.S. at
690 (O’Connor, J., concurring)). In
determining whether this particular
display of the Ten Commandments can be
said to have a valid secular purpose, we
must evaluate the totality of the
circumstances surrounding the placement
and maintenance of the monument.

  As a starting point, we do not think it
can be said that the Ten Commandments,
standing by themselves, can be stripped
of their religious, indeed sacred,
significance and characterized as a moral
or ethical document. Indeed, the Supreme
Court made this point clear in Stone v.
Graham, 449 U.S. 39 (1980), when it noted
that a simple reading of the Ten
Commandments does not permit us to ignore
that they transcend "arguably secular
matters, such as honoring one’s parents,
killing or murder, adultery, stealing,
false witness, and covetousness. Rather,
the first part of the Commandments
concerns the religious duties of
believers: worshipping the Lord God
alone, avoiding idolatry, not using the
Lord’s name in vain, and observing the
Sabbath Day." Id. at 41-42 (citations
omitted). Indeed, when one goes beyond
the text itself and regards this
particular display, the religious nature
of the document is emphasized by the very
format of the monument. Notably, the
prefatory words "I am the Lord thy God"
are set out in large lettering at the top
of the text. R.29 & 31, Ex.5. This
religious format is enhanced, not
detracted from, by the etchings at the
bottom of the tablet of the Stars of
David and the Chi Rho symbol, a
distinctive Christian symbol. It cannot
be doubted, therefore, that this monument
bearing the Ten Commandments possesses a
religious nature.

  The display of a religious symbol still
may, under certain circumstances, have a
secular purpose. The text of the Ten
Commandments no doubt has played a role
in the secular development of our society
and can no doubt be presented by the
government as playing such a role in our
civic order. For example, on the wall of
the Supreme Court there is a frieze that
contains Moses holding the Ten
Commandments. The frieze contains
depictions of two other religious
figures, Confucius and Mohammed, but it
also includes Caesar Augustus, William
Blackstone, Napoleon Bonaparte, and John
Marshall. Justice Stevens has stated that
the placement of all of these historic
figures together on the frieze signals a
respect for great lawgivers, not great
proselytizers. See County of Allegheny,
492 U.S. at 652 (Stevens, J., concurring
in part and dissenting in part). This is
a fitting message, he tells us, for the
wall of a courtroom. See id. at 653. A
display is unconstitutional, according to
Justice Stevens, "only when its message,
evaluated in the context in which it is
presented, is nonsecular." Id. at 652.
Indeed, the Court in Stone emphasized
that the challenged statute that required
the posting of the Ten Commandments on
schoolroom walls did not present "a case
in which the Ten Commandments are
integrated into the school curriculum,
where the Bible may constitutionally be
used in an appropriate study of history,
civilization, ethics, comparative
religion, or the like." 449 U.S. at 42.

  The Supreme Court has stressed the
importance of the context of a clearly
religious symbol in determining whether
the purpose in displaying the symbol is
religious or secular. We also have
emphasized that religious symbols should
not be considered in the abstract;
instead, courts must ask "whether the
particular display at issue, considered
in its overall context, could be said to
advance religion." American Jewish
Congress v. City of Chicago, 827 F.2d
120, 125 (7th Cir. 1987).

  Here, the record discloses no
significant attempt by the City of
Elkhart to present the text of the Ten
Commandments in a way that might diminish
its religious character./8 Indeed, the
history of the City’s involvement in the
placement of this particular monument
serves to emphasize a religious purpose
in its display. As we have noted already,
the original impetus behind the
proliferation of the Ten Commandments
monuments was Judge Ruegemer’s desire to
provide youths with a common code of
conduct that they could use to govern
their actions. In accepting the monument,
the City also aimed to provide a code of
conduct for the citizens of Elkhart to
follow. The code chosen, however, was a
religious code that focuses not only on
subjects that are the legitimate concern
of civil authorities, but also subjects
that are beyond the ken of any government
and that address directly the
relationship of the individual human
being and God. That the purpose was to
endorse, through governmental
sponsorship, a code of religious values
is further established by the program of
speakers at the dedication of the
monument: a Protestant minister, a
Catholic priest, and a Jewish rabbi. When
these religious leaders spoke, the first
speaker urged Americans to accept the
precepts of the Ten Commandments because
they could provide redemption from strife
and fear. The second speaker stated that
the Ten Commandments should be engraved
not only in stone but in the hearts,
minds, and consciences of everyone.
Finally, the last speaker recommended
that the dedication of the monument
should be an occasion for the dedication
of everyone to the high ideals inherent
in the American way of life. The
participation of these influential
members of several religious
congregations makes it clear that the
purpose for displaying the monument was
not only to provide youths with a common
code of conduct to guide their
participation in the civil community but
also to urge the people of Elkhart to em
brace the specific religious code of
conduct taught in the Ten Commandments.
Thus, in applying the purpose prong of
Lemon, the inherently religious nature of
the Ten Commandments is strengthened by
the circumstances surrounding the display
of the monument. We cannot escape the
conclusion that the purpose in displaying
this monument was to promote religious
ideals.

  Moreover, nothing in the subsequent
history of the monument can be said to
have in any way transformed that
religious purpose. The City’s resolution,
issued on the eve of this litigation and
proclaiming a secular purpose for the
monument’s presence by recognizing the
historical and cultural significance of
the Ten Commandments, ought to be
accorded no more weight than the avowed
secular legislative purpose articulated
by the Kentucky legislature in Stone. In
Stone, the Kentucky statute required the
following language at the bottom of each
Ten Commandments display: "’The secular
application of the Ten Commandments is
clearly seen in its adoption as the
fundamental legal code of Western
Civilization and the Common Law of the
United States.’" 449 U.S. at 41 (quoting
1978 Ky. Acts 436, sec. 1, Ky. Rev. Stat.
Ann. sec. 158.178 (1980)). The Supreme
Court responded to this statement of
purpose by stating that "such an ’avowed’
secular purpose is not sufficient to
avoid conflict with the First Amendment."
Id.; see also Santa Fe Indep. Sch. Dist.,
120 S. Ct. at 2278 (reiterating that a
governmental entity’s professed secular
purpose for an arguably religious policy
is entitled to some deference but that it
is the duty of the courts to ensure that
the purpose is sincere); Aguillard, 482
U.S. at 586-87 (stating that courts
should normally defer to a state’s
articulation of a secular purpose, but
the statement of such purpose must be
sincere). As we noted in Gonzales, 4 F.3d
at 1419, although this court "will defer
to a municipality’s sincere articulation
of a religious symbol’s secular purpose,"
we shall not accept a stated purpose that
merely seeks to avoid a potential
Establishment Clause violation.
Similarly, we hold that the City of
Elkhart’s avowed secular purpose of
recognizing the historical and cultural
significance of the Ten Commandments,
issued on the eve of litigation, "is not
sufficient to avoid conflict with the
First Amendment." Stone, 449 U.S. at 41.
We therefore hold that the purpose
ofdisplaying the Ten Commandments
monument was not secular. The display of
the monument, consequently, violates the
first prong of the Lemon test and cannot
survive Establishment Clause scrutiny.

2.

  Even if we were to ignore the primary
purpose behind displaying the Ten
Commandments monument, we would have to
conclude that this particular display has
the primary or principal effect of
advancing religion. In County of
Allegheny, the Court noted that, under
this prong, courts have a special
responsibility to ensure that a
government-sponsored display does not
have the purpose or the effect of
endorsing a religion. See 492 U.S. at
592. As we noted recently in Freedom of
Religion Foundation, "[u]nder this test,
’the effect prong asks whether,
irrespective of government’s actual
purpose, the practice under review in
fact conveys a message of endorsement or
disapproval.’" 203 F.3d at 493 (quoting
Lynch, 465 U.S. at 690 (O’Connor, J.,
concurring)). When employing this
analytical approach, we are charged with
the responsibility of assessing the
totality of the circumstances surrounding
the display to determine whether a
reasonable person would believe that the
display amounts to an endorsement of
religion. See County of Allegheny, 492
U.S. at 597 (stating that "the
government’s use of religious symbolism
is unconstitutional if it has the effect
of endorsing religious beliefs, and the
effect of the government’s use of
religious symbolism depends on its
context").

  In County of Allegheny, the plaintiffs
challenged the recurring holiday displays
of a creche placed on the Grand Staircase
inside the county courthouse and of a
Chanukah menorah placed outside the city-
county building. The Court held that the
placement of the creche violated the
Establishment Clause. The creche in
question was surrounded on three sides by
a wooden fence. Along the fence sat
poinsettias, and on each of the two ends
of the fence was a small evergreen tree.
A plaque was attached to the fence that
announced that the display had been
donated by the Holy Name Society. The
creche was used as the setting for
weekday Christmas caroling by local
musical groups. The Court noted that the
creche was capable of communicating a
religious message, but then explained
that "the effect of a creche display
turns on its setting" because "the
context of the display [could] detract[ ]
from the creche’s religious message." Id.
at 598. In assessing the context
surrounding the creche in County of
Allegheny, the Court determined that
nothing detracted from its religious
message. The floral border drew one’s
attention to the display, and the fact
that traditional Christmas flowers were
used further contributed to the
perception of the endorsement of religion
by the government. The sign disclosing
ownership by a Catholic organization
further enhanced the perception that the
government was promoting a religious
message. The Court also noted that the
creche was displayed on the main and most
beautiful part of the building and that
the building served as the seat of
government. According to the Court, "[n]o
viewer could reasonably think that it
occupies this location without the
support and approval of the government."
Therefore, concluded the Court, "by
permitting the ’display of the creche in
this particular physical setting,’ the
county sends an unmistakable message that
it supports and promotes the Christian
praise to God that is the creche’s
religious message." Id. at 599-600
(quoting Lynch, 465 U.S. at 692
(O’Connor, J., concurring)). The Court
therefore held that the creche display
violated the Establishment Clause.

  In County of Allegheny, a majority of
the Court also held that the menorah
placed in front of the city-county
building did not violate the
Establishment Clause. The menorah was
placed next to a 45-foot pine tree that
was decorated with lights and ornaments.
At the foot of the tree rested a sign
that bore the mayor’s name and a text
that was entitled "Salute to Liberty."
The Court held that this particular
display was not a violation of the
Establishment Clause because its specific
setting did not have the primary effect
of endorsing religion. Instead, the Court
stated that the combination of the now-
secularized Christmas tree with a sign
extolling liberty and the giant menorah
tended to promote the winter-holiday
season. The display, held the Court, did
not violate the Establishment Clause.

 In fulfilling our responsibility to
apply faithfully the Establishment Clause
jurisprudence of the Supreme Court of the
United States, we have subjected to
particularly careful scrutiny displays at
the seat of government. We have taken
this course because "[a]n important
concern of the effects test is . . .
’whether the symbolic union of church and
state effected by the challenged
governmental action is sufficiently
likely to be perceived by adherents of
the controlling denominations as an
endorsement, and by the nonadherents as a
disapproval, of their individual
religious choices.’" American Jewish
Congress, 827 F.2d at 127 (quoting Grand
Rapids Sch. Dist. v. Ball, 473 U.S. 373,
390 (1985)). In American Jewish Congress,
the City of Chicago had displayed a
creche during the holiday season in the
lobby of the city-county building. We
noted that the seat of government is "a
setting where the presence of government
is pervasive and inescapable." Id. at
126. We then held that the display
violated the second prong of Lemon
"[b]ecause City Hall is so plainly under
government ownership and control, every
display and activity in the building is
implicitly marked with the stamp of
government approval." Id. at 128. In that
case, the presence of the creche in the
lobby of the seat of government created
"a clear and strong impression that the
local government tacitly endorse[d]
Christianity." Id.

  We reiterated this principle in Harris
v. City of Zion, 927 F.2d 1401 (7th Cir.
1991). In City of Zion, the plaintiffs
challenged the seal of two cities because
they contained symbols of Christianity,
the Latin cross. We stated that the
cities’ seals containing the Latin cross
presented unambiguous endorsements of
religion in violation of the
Establishment Clause. See id. at 1412.
"Depicting these patently religious
symbols on a corporate seal that is
wholly owned and controlled by the City
connotes the City’s approval for the
message conveyed." Id. at 1414. This
endorsement, we held, violated the
Establishment Clause. Moreover, we noted,
the finding of a constitutional violation
was even more compelling in this
situation because the seals were "a
permanent statement that [was] viewed
year-round." Id. at 1412.

  In assessing the situation before us, we
must ask whether an objective observer
familiar with the history and placement
of the Ten Commandments monument would
perceive it as a state endorsement of
religion. See Santa Fe Indep. Sch. Dist.,
120 S. Ct. at 2278. We note first that
the monument is displayed at the seat of
government. As we have just explained,
the seat of government "is so plainly
under government ownership and control"
that every display on its property is
marked implicitly with governmental
approval. American Jewish Congress, 827
F.2d at 128. Here, in front of the
building that houses the governmental
departments of the City, stands a
religious message. This granite monument
is a permanent fixture on the grounds of
the seat of government. As viewed by the
passer-by or by an individual approaching
the building, the monument certainly
cannot be fairly characterized as a
component of a comprehensive display of
the cultural heritage of the people of
Elkhart. Rather, it stands, as the City
intended it to be when it dedicated the
monument on Memorial Day in 1958, as a
sole and stark reminder of the specific
injunctions contained in the
Commandments. Indeed, the surrounding
area enhances the dignity and the primacy
of the Commandments. Above the door of
the Municipal Building are the Latin
words "Dedicatum Justitia." Those who
view the Ten Commandments are thus
informed that the role of the government
in that location is to do justice; the
only "law" displayed for doing justice is
the monument bearing the Ten
Commandments. The only other display on
the lawn of the Municipal Building is the
War Memorial that reminds the onlooker
that the space in front of the Municipal
Building is "hallowed ground." R.29 & 31,
Ex.25./9 The person approaching the
seat of government is thus informed that,
at that location, the government goes
about the business of doing justice, that
the only "law" displayed is the
Commandments, and that these Commandments
are displayed on land designated by the
government as "hallowed ground."

  The format of the monument itself hardly
dilutes its religious message. Indeed,
this monument impermissibly suggests
that, in this community, there are "ins"
and "outs." The monument contains the
Stars of David and the symbol of Christ,
representing respectively Judaism and
Christianity, two of the religions no
doubt particularly represented in the
Elkhart community, but by no means the
total of all those who depend on the City
of Elkhart as their local government. The
Supreme Court has cautioned that
government "sponsorship of a religious
message is impermissible because it sends
the ancillary message to members of the
audience who are nonadherents ’that they
are outsiders, not full members of the
political community, and the accompanying
message to adherents that they are
insiders, favored members of the
political community.’" Santa Fe Indep.
Sch. Dist., 120 S. Ct. at 2279 (quoting
Lynch, 465 U.S. at 688 (O’Connor, J.,
concurring)).

  In this regard, the placement of the
American Eagle gripping the national
colors at the top of the monument hardly
detracts from the message of endorsement;
rather, it specifically links religion,
or more specifically these two religions,
and civil government. See City of Zion,
927 F.2d at 1412 (holding that a Latin
cross surrounded by other symbols of city
life on the city’s corporate seal only
served to show that the city approved of
certain aspects of city life, among them
Christianity).

  Finally, we cannot say that the
monument’s acknowledgment of two
religious traditions, rather than one,
renders the situation before us in
compliance with the strictures of the
Constitution. "The simultaneous
endorsement of Judaism and Christianity
is no less constitutionally infirm than
the endorsement of Christianity alone."
County of Allegheny, 492 U.S. at 615.
Although Elkhart’s Ten Commandments
monument does not endorse Christianity
only, it confines its approval to the
Judeo-Christian faiths. As the Supreme
Court has stated, the First Amendment is
"recognized as guaranteeing religious
liberty and equality to ’the infidel, the
atheist, or the adherent of a non-
Christian faith such as Islam or Judaism.’"
Id. (quoting Wallace, 472 U.S. at 52).
Accordingly, we hold that the primary
effect of the Ten Commandments monument
on the property of the City of Elkhart’s
Municipal Building is to advance or
endorse religion. The display,
consequently, fails the second prong of
the Lemon test and violates the
Establishment Clause.

3.

  This case was decided by the district
court on cross-motions for summary
judgment. Now that we have reversed the
district court’s grant of summary
judgment for the defendants, the district
court ought to enter summary judgment for
the plaintiffs. The district court must
then turn to the question of remedy. In
fashioning a remedy, the district court
must be guided by the basic rule that the
nature of the remedy ought to be
determined by the nature and the scope of
the constitutional violation. See
Milliken v. Bradley, 433 U.S. 267, 280
(1977). It must also proceed in a manner
that respects the interests of state and
local authorities to manage their own
affairs in a manner consistent with the
Constitution of the United States. See
id. at 280-81.

  In crafting equitable relief to comply
with our judgment today, the district
court must ensure that, although the con
dition that offends the Constitution is
eliminated, Elkhart retains the authority
to make decisions regarding the placement
of the monument. In making those
decisions, Elkhart has the right and,
indeed, the obligation to take into
consideration the religious sensibilities
of its people and to accommodate that
aspect of its citizens’ lives in any way
that does not offend the strictures of
the Establishment Clause. Cf. Zorach v.
Clausen, 343 U.S. 306, 313 (1952) ("We
are a religious people whose institutions
presuppose a Supreme Being. We guarantee
the freedom to worship as one chooses. We
make room for as wide a variety of
beliefs and creeds as the spiritual needs
of man deem necessary. We sponsor an
attitude on the part of government that
shows no partiality to any one group.").
Arriving at a realistic solution that
comports with the strictures of the
Establishment Clause will no doubt take
some time, and the district court ought
to ensure that Elkhart authorities have a
reasonable time to address in a
responsible and appropriate manner the
task of conforming to the letter and
spirit of the constitutional mandate.

Conclusion

  Cases involving religion pose difficult
questions for courts. "Since undoubtedly
we are a ’religious people whose
institutions presuppose a Supreme Being,’
deep feelings are aroused when aspects of
that relationship are claimed to violate
the injunction of the First Amendment
that government may make ’no law
respecting an establishment of religion,
or prohibiting the free exercise thereof.’"
Schempp, 374 U.S. at 230 (Brennan, J.,
concurring) (citation omitted). This is
especially true of cases that require
enforcement of the Establishment Clause
because that Clause often requires a
restriction on religious activity on the
part of a government entity and is
therefore misperceived as restricting the
ability of the community to acknowledge
the religious commitment of its people.
As our discussion today makes clear, the
scope of our Establishment Clause
jurisprudence is far more circumscribed.
Rather, the Supreme Court’s cases, and
the decisions of our court in conformity
with those precedents of the High Court,
simply prevent government at any level
from intruding into the religious life of
our people by sponsoring or endorsing a
particular perspective on religious
matters. It prevents, as Justice O’Connor
has pointed out, government from creating
among our people "ins" and "outs" on the
basis of religion. In this latter
respect, it acknowledges the very unique
religious nature of our people. Few of us
can look too far back in our personal
histories--and the Country certainly
cannot ignore the circumstance of its own
birth--without acknowledging that our
ancestors were people who suffered
significantly because of their religious
belief and who were ostracized by their
national communities or made to suffer
poverty or even worse because of their
religious beliefs. As one visitor to our
shores, himself a refugee from Nazi
tyranny, put it, Americans can all say,
"We are bruised souls." We each carry
"the wounds and sorrows of ancestors, and
that memory of the sufferings caused by
persecution and prejudice which they left
to their progeny" is our "spiritual
patrimony."/10 The Establishment
Clause acknowledges that "spiritual
patrimony" and requires that we exercise,
in our governmental manifestations of the
religious nature of our people, a self-
restraint that will prevent anyone from
becoming in the eyes of our governmental
system--an "out" on the basis of
religious beliefs.

  Accordingly, the judgment of the
district court is reversed, and the case
is remanded for proceedings in conformity
with this opinion.

REVERSED and REMANDED


/1 See County of Allegheny v. American
Civil Liberties Union, Greater
Pittsburgh Chapter, 492 U.S. 573,
588 (1989); Wallace v. Jaffrey, 472
U.S. 38, 48-55 (1985); School Dist.
of Abingdon Township v. Schempp,
374 U.S. 203, 215 (1963) (calling
the principle "decisively settled");
Cantwell v. Connecticut, 310 U.S.
296, 303 (1940).
/2 The bas relief also contains,
in smaller lettering, the words "INCORPO-
RATED 1875" on the far left of
the elk’s head and the words "ERECTED
1915" on the far right of the elk’s
head. R.29 & 31, Ex.16.

/3 Both the Ten Commandments monument
and the War Memorial are approxi-
mately the same distance from the
main entrance and from the sidewalks.
The Ten Commandments monument is 46
feet from the main entrance and 10
feet from the sidewalk, and the War
Memorial is 48 feet from the main
entrance and 10 feet from the sidewalk.
Both are partially shaded by
trees.

/4 The all-seeing eye on the monument
is similar to the one depicted on
the one-dollar bill.

/5 The district court also analyzed
the placement of the Ten Commandments
under several other "tests." Because
we believe that the Lemon test,
as refined by Supreme Court precedent,
stillcontrols our Establishment
Clause jurisprudence, we will not
discuss the other tests mentioned by
the district court.

/6 See, e.g., Santa Fe Indep. Sch.
Dist. v. Doe, 120 S. Ct. 2266, 2284-85
(2000) (Rehnquist, C.J., dissenting)
(stating that "Lemon has had a
checkered career in the decisional
law of this Court" and collecting
opinions criticizing Lemon); Lamb’s
Chapel v. Center Moriches Union
Free Sch. Dist., 508 U.S. 384, 398-99
(1993) (Scalia, J., concurring
in judgment) (comparing Lemon to
"some ghoul in a late-night horror
movie that repeatedly sits up in its
grave and shuffles abroad, after
being repeatedly killed and buried"
and then collecting opinions
criticizing Lemon); County of Allegheny,
492 U.S. at 655-56 (Kennedy,
J., concurring in the judgment
in part and dissenting in part) (stating
that, although he found the Lemon test
useful in judging the constitu-
tionality of holiday displays, he
did "not wish to be seen as
advocating, let alone adopting, that
test as our primary guide in this
difficult area"); Committee for Pub.
Educ. & Religious Liberty v.
Regan, 444 U.S. 646, 671 (1980) (Stevens,
J., dissenting) (desiring to
avoid "continuing with the sisyphean
task of trying to patch together
the ’blurred, indistinct, and variable
barrier’ described in Lemon"
(citation omitted)).

/7
See State Oil v. Kahn, 522 U.S. 3, 20
(1997) (stating that the "Court
of Appeals was correct in applying [the
doctrine of stare decisis]
despite disagreement with [a prior
Supreme Court opinion], for it is
this Court’s prerogative alone to
overrule one of its precedents");
Agostini v. Felton, 521 U.S. 203, 217
(1997) (reminding appellate
courts that "the views of five Justices
that [a] case should be
reconsidered or overruled cannot
be said to have effected a change in
Establishment Clause law"); see also
DeWalt v. Carter, 224 F.3d 607,
617 n.5 (7th Cir. 2000).


/8 Given the obvious religious nature
of the text itself, it falls to the
City of Elkhart to demonstrate that
it has taken steps to "obviate its
religious purpose." Gonzales v. North
Township, 4 F.3d 1412, 1421 (7th
Cir. 1993); see also Bridenbaugh v.
O’Bannon, 185 F.3d 796, 798 (7th
Cir. 1999); Metzl v. Leininger, 57
F.3d 618, 621 (7th Cir. 1995).

/9 As stated above, the Freedom Monument
reads: "BEHOLD FRIEND, YOU ARE
NOW ON HALLOWED GROUND FOR HERE
BURNS FREEDOMS HOLY LIGHT." R.29 & 31,
Ex.25.

/10 Jacques Maritain, Reflections
on America 83-84 (1958).


APPENDIX




  MANION, Circuit Judge,   concurring in part and
dissenting in part. The    court sets out an
accurate presentation of   the facts at issue in
this case. Suffice it to   say that in a Memorial
Day ceremony in 1958 the   Fraternal Order of the
Eagles presented to the City of Elkhart a stone
monument engraved with a version of the Ten
Commandments. The City placed it near the north
entrance of the City Hall building where it has
remained to this day. The plaintiffs claim that
the location of the monument is offensive to them
and an unconstitutional endorsement of religion
by the City.

  I agree with the court’s analysis regarding the
plaintiffs’ standing to challenge the
constitutionality of the placement of the Ten
Commandments monument. And while I also agree
with the court’s legal summary of the Lemon test,
I disagree with its application of Lemon to the
facts before us. Rather, applying Lemon and its
progeny should lead to the conclusion that the
City of Elkhart does not violate the
Establishment Clause by leaving undisturbed a
monument inscribed with the Ten Commandments that
was erected more than forty years ago. Moreover,
even if the monument did not satisfy the Lemon
test, the Supreme Court has upheld certain
religious practices which have become a part of
the fabric of our society. Leaving the Ten
Commandments monument where it now stands
comfortably falls within the historical context
of this country and is thus constitutional even
though it retains the unequivocal references to
God. I therefore CONCUR in part and DISSENT in part.


I.
A.
Lemon Test

  In Lemon v. Kurtzman, 403 U.S. 602 (1971), the
Supreme Court adopted a three-part test for
analyzing Establishment Clause cases. First, the
government’s challenged practice must have a
secular purpose. Second, the principal or primary
effect must be one that neither advances nor
inhibits religion. Third, the government’s
practice must not create an excessive
entanglement of religion. As noted by the court,
the third prong is not at issue. Accordingly, we
focus on the first two prongs of the Lemon test.


  1. Secular purpose.

  Under Lemon, the government’s challenged
practice must have a secular purpose. Thus, in
this case, we must ask whether a secular purpose
supports the City of Elkhart’s decision not to
remove the Ten Commandments monument. Elkhart
presented as evidence of its secular purpose the
resolution which its Common Council adopted on
May 4, 1998, following consideration of the
plaintiffs’ request that the City remove the 40-
year-old monument./1


  The Council’s resolution, which the Mayor of
Elkhart approved on May 13, 1998, identifies
several secular purposes justifying the City’s
decision not to remove the Ten Commandments
monument. First, as the City recognized, the Ten
Commandments represents one of the earliest codes
of human conduct and, as such, it "had a
significant impact on the development of the
fundamental legal principles of Western
Civilization." In fact, the Ten Commandments
served as a foundation for the formation of both
English Common Law and the Napoleonic Code, which
together laid the foundation for American
jurisprudence. See State of Colorado v. Freedom
From Religion Foundation, Inc., 898 P.2d 1013,
1018 (Col. 1995). See also, id. at 1026 (Ten
Commandments "monument represents the secular
objective intended at the outset, recognition of
a historical, jurisprudential cornerstone of
American legal significance").

  The Common Council’s resolution also noted that
"the Monument contains symbols that reflect the
cross cultural and historical significance of the
Ten Commandments," and that the monument serves
as a recognition of those roots and the
historical significance of the Ten Commandments.
These stated justifications are permissible
secular purposes even though a religious symbol
is used to accomplish them. Anderson v. Salt Lake
City Corp., 475 F.2d 29, 34 (10th Cir. 1973) (Ten
Commandments monument stands as "a depiction of
a historically important monument with both
secular and sectarian effects"). See, e.g., Lynch
v. Donnelly, 465 U.S. 668, 691 (1984) (O’Connor,
J., concurring) ("[c]elebration of public
holidays, which have cultural significance even
if they also have religious aspects, is a
legitimate secular purpose"); id. at 680 ("The
creche in the display depicts the historical
origins of the traditional event long recognized
as a National Holiday. . . . [T]he display is
sponsored by the City to celebrate the Holiday
and to depict the origins of that Holiday.");
American Jewish Congress v. City of Chicago, 827
F.2d 120, 126-27 (7th Cir. 1987) (recognizing
that a city’s tradition in "taking official note
of Christmas" and acknowledging public sentiment
in favor of the nativity scene are permissible
secular purposes justifying creche display). The
fact that the Ten Commandments refers to God, and
that all of the world’s major monotheistic
religions have the Ten Commandments as basic
tenets of their faith, does not alter the
monument’s secular purposes. See, e.g., American
Jewish Congress, 827 F.2d at 126 (to serve a
secular purpose, the government’s purpose need
not be unrelated to religion). Cf. Bridenbaugh v.
O’Bannon, 185 F.3d 796, 799-800 (7th Cir. 1999)
(the fact that a secular holiday coincides with
a day that has religious significance for
Christians does not defeat the secular purpose
justifying the state holiday).

  The court acknowledges the validity of Elkhart’s
asserted secular purposes, stating "[t]he text of
the Ten Commandments no doubt has played a role
in the secular development of our society and can
no doubt be presented by the government as
playing such a role in our civic order." Opinion
at 19. And in this case, Elkhart has explicitly
stated in its resolution that it was leaving
standing the Ten Commandments monument in order
to recognize their "significant impact on the
development of the fundamental legal principles
of Western Civilization." Yet the court concludes
that "the purpose in displaying the Ten
Commandments monument was not secular." Opinion
at 22. How can the court on one hand recognize
the legitimacy of this purpose and on the other
conclude that Elkhart lacks a legitimate secular
purpose for leaving the Ten Commandments monument
in place? Apparently, the court just doesn’t
believe that the City of Elkhart’s statement of
secular purposes is sincere and not a sham.
Edwards v. Aguillard, 482 U.S. 578, 586-87 (1987)
("While the Court is normally deferential to a
State’s articulation of a secular purpose, it is
required that the statement of such purpose be
sincere and not a sham.").

  But there is no evidence that the Common
Council’s resolution was a sham, and absent some
evidence that the Common Council’s stated reasons
for its decision not to remove the monument are
insincere, we should defer to those asserted
justifications. Cohen v. City of Des Plaines, 8
F.3d 484, 489 (7th Cir. 1993). See also American
Jewish Congress, 827 F.2d at 127 ("In the absence
of any evidence that the city’s stated purposes
behind the display of the nativity scene are
merely a sham, we must conclude that the 1985-86
display had no invidious purpose.") (internal
citation omitted). "This is in keeping with the
well settled maxim that courts are ’reluctan[t]
to attribute unconstitutional motives to the
States, particularly when a plausible secular
purpose for the State’s program may be discerned
from the face of the statute.’" Cohen, 8 F.3d at
489-90 (quoting Mueller v. Allen, 463 U.S. 388,
394-95 (1983)). "This is true whether the
governing body is a state legislature or a city
council." Cohen, 8 F.3d at 489. Accordingly,
rather than assume the Common Council is
insincere about its motivations, we are obligated
to do just the opposite--assume they are being
truthful.
  The court seemingly relies on the timing of the
resolution (noting that it was passed on the eve
of litigation) as evidence that the resolution
was insincere. But the timing is totally
reasonable. Before the plaintiffs objected to the
monument and threatened to sue the City, it had
rested unobtrusively on the lawn along with other
monuments for nearly forty years, so there was
never a need for the Common Council to declare
its reasons for allowing the monument to remain.
It was not until the plaintiffs demanded that
Elkhart remove the monument that it became an
issue. At that point the currently governing
Common Council convened to consider the
plaintiffs’ demands and decided against removing
the monument, stating its reasons in the
resolution. Given these circumstances, there is
nothing suspect about the timing. In fact, in
other Establishment Clause cases, this court has
relied on the secular purposes proffered during
litigation, notwithstanding the timing of the
state’s explanation. See Bridenbaugh, 185 F.3d
at 799 (relying on testimony offered during
litigation as to Indiana’s purpose for giving
employees a Good Friday holiday); American Jewish
Congress, 827 F.2d at 127 (relying on affidavit
of chief of staff as to the purpose behind creche
display and noting that in the absence of any
evidence that the city’s stated purpose behind
the display was a sham, the court would have to
conclude there was no invidious purpose). In
those cases we held that, absent any evidence
that the stated justification was a sham, we
would take the government at its word. Since
there is no evidence of an invidious motive here,
we should take the Common Council at its word, as
set forth in the resolution.

  Moreover, even if the City had a religious
purpose in displaying the Ten Commandments, that
would not destroy the City’s other valid secular
purposes. "A law that promotes religion may
nevertheless be upheld . . . because of the
secular purposes that the law also serves. . . ."
Metzl v. Leininger, 57 F.3d 618, 620 (7th Cir.
1995). Accordingly, Elkhart need have only one
secular purpose justifying its decision in order
to satisfy Lemon’s first prong. It has presented
several secular justifications. Therefore, even
if Elkhart, in part, wanted to promote the
religious aspects of the Ten Commandments, that
does not negate its other valid secular
justifications for leaving the monument alone.
Bridenbaugh, 185 F.3d at 800 ("[A] secular
purpose need not be the exclusive one; it was
sufficient if the government had ’a secular
purpose.’") (emphasis added). See also, Barghout
v. Bureau of Kosher Meat & Food Control, 66 F.3d
1337, 1345 (4th Cir. 1995) ("In determining
whether the [display] has a secular purpose, we
note that this first prong of the Lemon test is
a fairly low hurdle. A legislative enactment has
no secular purpose only if ’there [is] no
question that the [display] or activity was
motivated wholly by religious consideration.’")
(quoting Lynch, 465 U.S. at 680).

   The court highlights the speeches made when
the monument was dedicated in 1958 as proof of
Elkhart’s religious purpose in displaying the Ten
Commandments. While the speeches made by the
various religious leaders were solemn--in line
with the occasion--they did not evidence a
religious purpose. In fact, those speeches lacked
anything near the religious fervor of the
legislative statements made in connection with
other practices adopted in the 1950’s and upheld
by the various circuits notwithstanding the
sponsors’ overtly religious messages. See infra
at 59-62. Recall that the Elkhart monument was
unveiled on Memorial Day as part of the City’s
festivities. Participation in that celebration by
religious leaders with speeches that had a
religious tone is both understandable and
acceptable. As recently as 1998, Congress
recognized that Memorial Day is a day "during
which the people may unite in prayer for
permanent peace," and that the President should
call "on the people of the United States to
observe Memorial Day by praying, according to
their individual religious faith, for permanent
peace." 36 U.S.C. sec. 116 (1998). Furthermore,
even if the various religious leaders’ speeches
demonstrated that they gladly accepted Elkhart’s
decision to display the monument because of the
monument’s religious message, the religious
leaders were not the City, and it is only the
City’s intent that matters.

  The speeches, in short, provide little guidance
as to Elkhart’s original purpose in accepting the
monument donated by the Fraternal Order of
Eagles. To the extent that the original purpose
would matter, see infra at 43, the evidence
presented at the summary judgment stage indicates
that the City accepted the Ten Commandments
monument from the Eagles (a civic, non-religious
organization) in order to further the Eagles’
goal of providing "youths with a common code of
conduct that they could use to govern their
actions," and "showing these youngsters that
there were such recognized codes of behavior to
guide them." Providing youth with a common code
ofconduct is a valid secular purpose. See Freedom
From Religion Foundation, 898 P.2d at 1023 ("The
monument was donated as part of the National
Youth Guidance Program, whose purpose was secular
in nature. Such secular intent of the donation is
logical in light of the historical fact that the
Ten Commandments have served over time as a basis
for our national law.").

  The court claims that this purpose was not
secular because the City chose a religious code
to further its goal. But as the Supreme Court
recognized in Lynch, a religious symbol can be
used to further the secular goal of celebrating
both a religious and secular holiday, such as
Christmas. Likewise, Elkhart can permissibly
choose the Ten Commandments, which includes both
religious and secular rules of conduct, to
further its secular goal of providing youth with
an example of a code of conduct. In fact, it is
only logical that when Elkhart chose an example
of a "common code of conduct" to display, it
chose one that would be recognized by its
citizens, and especially children, and there can
be no doubt that the Ten Commandments is the most
well-known and recognizable code of conduct to
Americans, as opposed to, say, the Napoleonic
Code or the Code of Hammurabi./2

  In any event, the Ten Commandments monument was
donated to Elkhart over forty years ago. What
matters, however, is not the City’s purpose in
1958--when Elkhart could constitutionally have a
religious purpose--but the City’s purpose today.
Bridenbaugh, 185 F.3d at 799 (original reason for
choosing Good Friday as state holiday is not
dispositive); Metzl v. Leininger, 57 F.3d 618,
621 (7th Cir. 1995) (state’s religious purpose 53
years ago may accrue a secular justification and
essentially eliminate any purpose of promoting
religion); American Jewish Congress, 827 F.2d at
126 (Mayor’s comment in 1959 that "We are a
Christian Nation," and that "the more religion we
can get in politics, the better off we are,"
while relevant to the original purpose of
nativity scene reveals little about purpose
behind the 1985-86 display). In its resolution,
Elkhart explained its current reasons for leaving
undisturbed the Ten Commandments monument: to
recognize the historical and cross-cultural
significance of the Ten Commandments; to
acknowledge the significant impact the Ten
Commandments had on the development of the
fundamental legal principles of Western
civilization; and to retain an historical and
cultural monument that displays one of the
earliest codes of human conduct. Those reasons
are permissible secular justifications, see supra
at 37-39, and therefore Elkhart has satisfied
Lemon’s first prong.

 2. Principal or primary effect.

  The second prong of Lemon considers whether the
government’s practice has the principal or
primary effect of advancing or inhibiting
religion. Freedom of Religion Foundation v. City
of Marshfield, 203 F.3d 487, 493 (7th Cir. 2000).
Under this prong, the question is "irrespective
of government’s actual purpose, [does] the
practice under review in fact convey [ ] a
message of endorsement or disapproval." Id.
(internal quotations omitted). As the court
recognizes, to analyze this prong we must assess
the totality of the circumstances surrounding the
display to determine whether a reasonable person
would believe that the display amounts to an
endorsement of religion. This is a fact-specific
inquiry.

  The court’s conclusion that, based on all of
the circumstances, Elkhart’s decision to leave
standing the Ten Commandments monument
constitutes an endorsement of religion seems to
be at odds with the Supreme Court’s decisions in
Lynch and Allegheny. In Lynch v. Donnelly, 465
U.S. 668 (1984), the Supreme Court considered the
constitutionality of the city of Pawtucket, Rhode
Island’s display of a creche at Christmas. In
applying the second prong of the Lemon test, the
Court initially noted that the district court had
"plainly erred by focusing almost exclusively on
the creche." Lynch, 465 U.S. at 686. Rather,
according to the Court, the appropriate question
was whether the nativity scene, while religious,
could be said to advance religion. The Court held
that given the overwhelmingly secular character
of the Pawtucket display, "the inclusion of a
single symbol of a particular historic religious
event . . . [did not] so ’taint’ the city’s
exhibit as to render it violative of the
Establishment Clause." Id. The display in Lynch
included not just the creche, but also a Santa
Clause house, reindeer pulling Santa’s sleigh,
candy-striped poles, a Christmas tree, carolers,
cutout figures representing clowns, an elephant
and a teddy bear, hundreds of colored lights and
a banner reading "Season’s Greetings." Id. at
671.

  Five years later in County of Allegheny v.
American Civil Liberties Union, 492 U.S. 573
(1989), the Supreme Court again considered the
constitutionality of religious displays located
on public property. One was a creche placed on
the Grand Staircase inside a county courthouse in
downtown Pittsburgh. The creche was surrounded on
three sides by a wooden fence, decorated with
poinsettias and a sign proclaiming "Glory to God
in the Highest!" The other was a menorah
displayed in front of the courthouse. The menorah
stood next to a Christmas tree and a sign rested
below the tree with the words "Salute to
Liberty."

 The Court in Allegheny held that the creche
display violated the Establishment Clause because
"nothing in the content of the display detracts
from the creche’s religious message," as it
"stands alone; it is the single element of the
display on the Grand Staircase," which was "the
’main’ and ’most beautiful part’ of the
building." Id. at 598-99. The Court concluded
that based on this location, "no viewer could
reasonably think that it occupies this location
without the support and approval of the
government." Id. at 599-600. On the other hand,
the Supreme Court held that the menorah display
was constitutional. As Justice Blackmun
explained, the menorah stood next to a Christmas
tree and a sign saluting liberty, and thus
created an "overall holiday setting" which
neutralized the religious dimensions of the
menorah. Id. at 614 (Blackman, J., concurring).

  Together Lynch and Allegheny provide significant
guidance for our fact-specific analysis of the
second prong of Lemon. In those cases, the
Supreme Court upheld the constitutionality of
government displays of purely religious symbols--
a creche and a menorah--when those symbols were
part of a larger display. But where the religious
display--the creche in Allegheny--stood alone, it
violated the Establishment Clause. Here, the Ten
Commandments monument stands not alone, but as
part of Elkhart’s larger cultural and historical
outdoor display. As the court points out, in
addition to the Ten Commandments monument, the
small, twenty-five-foot-wide courtyard includes
a bas-relief of an elk’s head with the words
"DEDICATVM" and "JVSTITIAM" inscribed next to
this symbol of "Elk"hart; a Revolutionary War
Monument surrounded by a flower bed and bearing
a plaque explaining that the Daughters of the
American Revolution donated the monument in honor
of the Revolutionary War soldiers buried in
Elkhart County; and the Freedom Monument, which
consists of a light standing on top of a brick
pillar which reads "BEHOLD FRIEND, YOU ARE NOW ON
HALLOWED GROUND FOR HERE BURNS FREEDOM’S HOLY
LIGHT."/3

  These other displays place the Ten Commandments
monument in an historical context, and under
Lynch and Allegheny context is everything. Thus,
in Lynch, the Court held that a solely religious
symbol--a creche--was constitutionally
permissible because "[w]hen viewed in the proper
context," the creche "depicts the historical
origins of the traditional event long recognized
as a National Holiday." Lynch, 465 U.S. at 680.
Similarly, when viewed in the context of the
other monuments displayed outside Elkhart’s
municipal building, the Ten Commandments monument
"depicts the historical origins" of the United
States’ justice system. Moreover, while the
creche is solely a religious symbol, the text of
the Ten Commandments itself provides context to
the monument, as the monument includes not just
religious commands, but six rules of conduct that
have meaning in the secular world. The presence
of both secular and religious messages in the Ten
Commandments monument makes this a stronger case
than the creche at issue in Lynch.

  True, there were many more holiday displays
present in Lynch than are located in the 25-foot-
wide courtyard at issue here, but Elkhart’s
display still includes more than the total of
three involved in Allegheny. In Allegheny, in
addition to the menorah, there stood only a
Christmas tree and a sign stating "Salute to
Liberty." Compared to Allegheny’s constitutional
"salute to liberty" display, Elkhart’s cultural
and historical display more fully neutralizes the
religious dimension of the Ten Commandments. In
short, if the menorah was constitutional in
Allegheny, the Ten Commandments display must be
in this case. See, e.g., Freedom From Religion
Foundation, 898 P.2d 1013 (holding that Ten
Commandments monument on Colorado State Capitol
Complex was constitutional); Anderson, 475 F.2d
at 33 (upholding Ten Commandments monument
displayed on the lawn of a courthouse because it
had "substantial secular attributes");/4 Suhre,
55 F.Supp.2d 384 (holding display of Ten
Commandments in county courtroom did not violate
the Establishment Clause).


 In its discussion of Lynch and Allegheny, the
court does not distinguish these Supreme Court
opinions when it concludes that the Ten
Commandments monument constitutes an
establishment of religion. Rather, the court
focuses on the question of whether "an objective
observer familiar with the history and placement
of the Ten Commandments monument would perceive
it as a state endorsement of religion." Opinion
at 26. This is the appropriate question, but for
the answer we must consider comparable facts
underlying the Supreme Court’s cases involving
the Establishment Clause. That precedent leads to
the conclusion that a monument of the Ten
Commandments is constitutional when part of a
larger historical and cultural display. That is
what we have in this case./5

  This circuit’s decisions in American Jewish
Congress, 827 F.2d 120, and Harris v. City of
Zion, 927 F.2d 1401 (7th Cir. 1991), do not alter
the analysis. Harris applied Lemon to a challenge
to a religious symbol contained in two different
city seals. It is not helpful because it involved
two consolidated cases challenging the official
seals of two cities in Illinois. Here the
government’s display of a monument which served
as only one aspect of a larger historical display
has minimal similarity to an official seal
emblazoned on stationery, signs, and numerous
other official standards. American Jewish
Congress is more closely related as it involved
the constitutionality of a government-displayed
creche. But even the facts in American Jewish
Congress differ significantly from those involved
in this case. In American Jewish Congress, the
creche display, which this court held violated
the Establishment Clause, stood in isolation in
the center of the City-County building in
Chicago. It was the creche’s visual isolation
from the other holiday displays and its place of
honor that caused this court to hold that a
reasonable observer of the creche would believe
that Chicago was endorsing Christianity. See
American Jewish Congress, 827 F.2d 128.

  Conversely, in this case, the Ten Commandments
monument sits with other monuments on the lawn of
the Municipal Building, as opposed to being
prominently displayed alone in the center of day-
to-day county business. The Ten Commandments
monument is also not visually isolated, but rests
on one side of the walkway, while two other
monuments--the Freedom Monument and the
Revolutionary War monument--decorate the opposite
side. These monuments are equally distant from
both the entrance to the Municipal Building and
the sidewalk. Opinion at 5 n.3. And a fourth
monument of sorts--the Elk bas-relief-- adorns
the visual center of the walkway, hanging over
the building’s entranceway. Thus, compared to the
creche at issue in American Jewish Congress, the
Ten Commandments monument is not given special
placement by the City. Rather, the Ten
Commandments monument is one of multiple
monuments closely placed in the available, yet
small, walkway leading into the municipal
building./6

  The court also opines that "The format of the
monument itself hardly dilutes its religious
message. Indeed, this monument impermissibly
suggests that, in this community, there are ’ins’
and ’outs.’" Opinion at 27. This reasoning is
misplaced for two reasons. First, the inclusion
of Jewish, Catholic, and Protestant symbols
actually makes the monument more likely to pass
constitutional muster. See Freedom From Religion
Foundation, 898 P.2d at 1024 ("The juxtaposition
of the Christian Chi and Rho with the Jewish Star
of David reflect an acknowledgment of
reconciliation and diversity more than any
sentiment of intolerance . . . [and] the ’eternal
eye’ contains the pyramid, which is a symbol from
Egypt itself, indicating that ’it has a different
genesis than the three religions that use the Ten
Commandments.’"). See also, Allegheny, 492 U.S.
at 620 (Blackman, J., concurring) ("The Christmas
tree alone in the Pittsburgh location does not
endorse Christian belief; and on the facts before
us, the addition of the menorah ’cannot fairly be
understood to’ result in the simultaneous
endorsement of Christian and Jewish faiths.");
id. 492 U.S. at 635 (O’Connor, J., concurring)
(the display of a menorah and a secular symbol of
the Christmas holiday "did not endorse Judaism or
religion in general, but rather conveyed a
message of pluralism and freedom of belief. . .
."). Second, implicit in the court’s reasoning is
the belief that a display must include everyone’s
religious symbol to avoid constitutional
infirmity. We know from Allegheny and Lynch that
such is not the case; in Lynch, there was only
one religious symbol--that of Christians, a
creche--and in Allegheny there was only one
religious symbol--that of Jews, a menorah. Yet,
the Supreme Court upheld those religious displays
because any perceived endorsement of religion was
diluted by the secular symbols also displayed--
not because a religious symbol representing every
citizen’s beliefs was incorporated in the
display. Clearly if any display had to include
all potential "ins," all displays would be "out."

  The court also believes that the placement of
an American Eagle gripping the flag at the top of
the monument furthers the impression that Elkhart
is endorsing religion. Opinion at 27. On the
contrary, like the "Salute to Liberty" sign
placed by the menorah and Christmas tree in
Allegheny, here the presence of the American
Eagle, our flag and the All-Seeing Eye help place
the monument in context for the viewers by
reminding passers-by that the Ten Commandments
served an important role in our country’s legal
foundation. See, e.g., Allegheny, 492 U.S. at 619
("The [Salute to Liberty] sign further diminishes
the possibility that the tree and the menorah
will be interpreted as a dual endorsement of
Christianity and Judaism. The sign states that
during the holiday season the city salutes
liberty."). Coupled with the six clearly secular
commands, the flag, eagle and all-seeing eye
broadcast a secular message of justice and
patriotism, as does the inscription that the
monument was presented to the City by the
Fraternal Order of Eagles--a secular organization
dedicated to promoting "Liberty, Truth, Justice,
and Equality." But in any event, even to the
extent that the placement of American symbols on
the Ten Commandments monument does not dilute the
religious message contained in the first six
commands,/7 it is important to note that the
religious aspect of the Ten Commandments need not
be minimized; rather it is a message of possible
endorsement that must be sufficiently minimized
by its setting and context. See Lynch, 465 U.S.
at 692 (O’Connor, J., concurring) ("[A] typical
museum setting, though not neutralizing the
religious content of a religious painting,
negates any message of endorsement of that
content."). Thus, the overall context of a
display must overcome any message of endorsement,
and in this case when the Ten Commandments
monument is viewed in its park-like setting with
the other three artists’ secular renderings, any
possible view of religious endorsement is
sufficiently diluted to withstand constitutional
scrutiny.

  One final point: It is important to note that
while the two plaintiffs involved in this case
took offense to the Ten Commandments monument,
that is not dispositive because the question is
whether an "objective" observer would believe
that the display constituted an endorsement of
religion. Santa Fe Indep. Sch. Dist. v. Doe, 120
S.Ct. 2260, 2278 (2000). The fact that the
plaintiffs--and for that matter many citizens--
wrongly believe that the Constitution requires a
separation of Church and State, or ardently wish
that were the case, does not alter the test.
Lynch, 465 U.S. at 673 ("Nor does the
Constitution require complete separation of
church and state; it affirmatively mandates
accommodation, not merely tolerance, of all
religions, and forbids hostility toward any.").
Rather, the appropriate question is whether a
citizen knowing the totality of the facts and the
circumstances would believe that Elkhart seeks to
endorse religion. See Capitol Square Review and
Advisory Bd. v. Pinette, 515 U.S. 753, 780 (1995)
(O’Connor, J., concurring) ("[T]he reasonable
observer in the endorsement inquiry must be
deemed aware of the history and context of the
community and forum in which the religious
display appears."). See also, Gaylor v. United
States, 74 F.3d 214, 217 (10th Cir. 1996) (same).
An informed citizen would know that the Ten
Commandments monument was donated in the 1950’s--
and also know the historical context of those
times: that the Eagles who donated the monument
were not a religious group; that the original
purpose was to recognize general codes of conduct
and that the Ten Commandments is an historical
example of such a code; and that today Elkhart
leaves standing the monument out of recognition
for that history and in commemoration of the
legal roots of our country./8

  As the plaintiffs’ own testimony demonstrates,
they are not reasonably informed citizens, but
are demonstrating an outright hostility to
religion, even in private, non-governmental
settings. See, Books Deposition (stating that he
is offended by any reference by a private
organization to God); Suetkamp Deposition
(stating that he is offended when the Pledge of
Allegiance is said in a private setting). See,
e.g., Suhre, 55 F.Supp.2d at 398 ("In fact, the
Plaintiff’s angst results more from his own
intolerance of the rights of others than a desire
to protect his own atheistic convictions.");
Gaylor, 74 F.3d at 217 (the reasonable observer
inquiry is "not about the perceptions of
particular individuals or saving isolated non-
adherents from the discomfort of viewing symbols
of faith to which they do not subscribe")
(internal quotation omitted). Based on these
facts, a reasonable person would not believe that
Elkhart is endorsing religion (which perhaps
explains why, other than these two plaintiffs, no
one complained to Elkhart about the Ten
Commandments monument during the forty years it
stood outside the Municipal Building). For these
reasons, I conclude that the City’s decision to
leave standing the monument satisfies Lemon’s
second prong.

B. Stone v. Graham

  The court also relies on Stone v. Graham, 449
U.S. 39 (1980) (per curiam), to support its
conclusion that Elkhart’s decision to leave
standing the Ten Commandments monument
constitutes an unconstitutional establishment of
religion. In Stone, the Supreme Court (without
argument and in a 5-4 per curiam decision) held
that a Kentucky statute which required the
posting of the Ten Commandments on schoolroom
walls was unconstitutional. In concluding that
Elkhart had an impermissible religious purpose
when it decided to leave in place the Ten
Commandments monument, the court relies on the
Supreme Court’s statement in Stone that the Ten
Commandments transcends "arguably secular
matters, such as honoring one’s parents, killing
or murder, adultery, stealing, false witness, and
covetousness. Rather, the first part of the
Commandments concerns the religious duties of
believers: worshiping the Lord God alone,
avoiding idolatry, not using the Lord’s name in
vain, and observing the Sabbath Day." Id. at 41-
42. Without doubt that is true. But, as the court
also recognizes, the display of a religious
symbol may still have a secular purpose. Opinion
at 19. This point is extremely important when one
remembers that Stone was decided prior to Lynch
and Allegheny--cases in which displays of purely
religious symbols (as opposed to the Ten
Commandments which contains both religious and
secular rules) were upheld because of other
secular justifications. This is significant
because in Stone the Ten Commandments were posted
alone on school walls, while in this case the Ten
Commandments monument is part of a larger
historic display with a secular message. In fact,
the Supreme Court in rejecting the posting of the
Ten Commandments noted that they were to be
displayed in isolation, as opposed to
incorporated into "the study of history,
civilization, ethics, comparative religion, or
the like." Stone, 449 U.S. at 42. That factor
distinguishes Stone from the Ten Commandments
monument involved in this case, and makes this
case more analogous to Lynch and Allegheny.

  Stone is distinguishable for another and more
fundamental reason--it involved the mandated
posting of Ten Commandments in schools. Where
impressionable youths are involved the Supreme
Court has taken a harsher view of religion. See,
e.g., Lee v. Weisman, 505 U.S. 577, 592 (1992)
("[T]here are heightened concerns with protecting
freedom of conscience from subtle coercive
pressure in schools."); Edwards v. Aguillard, 482
U.S. 578, 583-84 (1987) ("The Court has been
particularly vigilant in monitoring compliance
with the Establishment Clause in elementary and
secondary schools."); Abington v. Schempp, 374
U.S. 203, 307 (1963) (Goldberg, J., concurring)
("The pervasive religiosity and direct
governmental involvement inhering in the
prescription of prayer and Bible reading in the
public schools, during and as part of the
curricular day, involving young impressionable
children whose school attendance is statutorily
compelled, and utilizing the prestige, power, and
influence of school administration, staff, and
authority, cannot realistically be termed simply
accommodation, and must fall within the
interdiction of the First Amendment."); Board of
Ed. of Westside Community Schools v. Mergens, 496
U.S. 226, 261-62 (Kennedy, J., concurring) ("The
inquiry with respect to coercion must be whether
the government imposes pressure upon a student to
participate in a religious activity. This
inquiry, of course, must be undertaken with
sensitivity to the special circumstances that
exist in a secondary school where the line
between voluntary and coerced participation may
be difficult to draw."). Thus, while the Supreme
Court has upheld the opening of legislative
sessions with prayer, Marsh v. Chambers, 463 U.S.
783, 786 (1983), it has declared unconstitutional
the opening of school sessions with prayer. Engel
v. Vitale, 370 U.S. 421 (1962). Likewise, whereas
the Supreme Court upheld the constitutionality of
the creche and menorah displays in Lynch and
Allegheny, the Court also noted that it would
have a different case if the displays arose in
the school setting. See, e.g., Allegheny, 492
U.S. at 620 n.69 ("This is not to say that the
combined display of a Christmas tree and a
menorah is constitutional wherever it may be
located on government property. For example, when
located in a public school, such a display might
raise additional constitutional considerations.
Cf. Edwards v. Aguillard, 482 U.S. at 583-584,
107 S.Ct., at 2577 (Establishment Clause must be
applied with special sensitivity in the
public-school context)."). Again, context is
critical, and the school context in Stone
dictated the result, as demonstrated by the
Court’s reliance on school prayer cases. See
Stone, 449 U.S. at 42, citing Abington School
District, 374 U.S. 203, and Engel, 370 U.S. 421.
Therefore, while Stone speaks for the school
setting--where student attendance is compulsory,
and pupils are particularly susceptible to
influence--it does not answer the question in the
context of an open courtyard where citizens may
divert their eyes, if confronted by a
discomforting reference to God, to one of the
other secular monuments forming the larger
historical display. See, e.g., Freedom From
Religion Foundation, 898 P.2d at 1022-23
(distinguishing Stone based on the school
setting, and upholding the constitutionality of
a Ten Commandments monument on state capital
grounds).

C. Historical Practices

  Given the factual similarities to the displays
constitutionally permitted in Lynch and
Allegheny, Elkhart’s decision to leave the Ten
Commandments monument standing should not violate
the Lemon test. But even if the Lemon test was
not met, where a religious symbol has meaning in
history and ubiquity, the Supreme Court has side-
stepped the strictures of Lemon because the
results would be contrary to the clear intent of
the Framers of the Constitution. For instance, in
Marsh v. Chambers, 463 U.S. 783 (1983), the Court
upheld the practice of Congress opening the
legislative session with prayer stating:

In light of the unambiguous and unbroken history
of more than 200 years, there can be no doubt
that the practice of opening legislative sessions
with prayer has become part of the fabric of our
society. To invoke Divine guidance on a public
body entrusted with making the laws is not, in
these circumstances, an "establishment" of
religion or a step toward establishment; it is
simply a tolerable acknowledgment of beliefs
widely held among the people of this country.

Id. at 792.

  Significantly, Marsh did not apply Lemon, but
in its holding recognized the fact that "[t]here
is an unbroken history of official acknowledgment
by all three branches of government of the role
of religion in American life from at least 1789."
Lynch, 465 U.S. at 674. In fact, that history
predates our three branches of government,
beginning with the proclamation in our
Declaration of Independence that all men "are
endowed by their Creator with certain unalienable
Rights," and continues even as recently as the
President’s call to Americans to "thank God today
for the lives, the character, and courage of the
crew of the USS Cole."

  The Supreme Court has long recognized the
constitutionality of such religious references.
For instance, the Court has acknowledged that its
own court proceedings open with an announcement
which concludes "God save the United States and
this Honorable Court." Marsh, 463 U.S. at 786.
The Court has also noted that the Establishment
Clause does not prohibit "[p]rayers in our
legislative halls; the appeals to the Almighty in
the messages of the Chief Executive; the
proclamations making Thanksgiving Day a national
holiday; ’so help me God’ in our courtroom oaths-
-these and all other references to the Almighty
that run through our laws, [and] our public
rituals . . . [including] the supplication with
which the Court opens each session: ’God save the
United States and this Honorable Court.’" Zorach
v. Clauson, 343 U.S. 306, 312-13 (1952). Likewise
in Lynch v. Donnelly, 465 U.S. at 674-75, Justice
O’Connor noted that "[o]ur history is replete
with official references to the value and
invocation of Divine guidance," and includes
"government practices embracing religion,
including Thanksgiving and Christmas holidays,
congressional and military chaplains and the
congressional prayer room, the motto, the Pledge
of Allegiance, and presidential proclamations for
a National Day of Prayer," thus implicitly
acknowledging the constitutionality of such
practices. As Justice O’Connor explained,
"Because of their history and ubiquity, those
practices are not understood as conveying
government approval of particular religious
beliefs." Id. at 693.

  Also informative are comments the Supreme Court
has made concerning the constitutionality of the
1932 artistic rendition of Moses and the Ten
Commandments contained in the frieze surrounding
the walls of the highest court. For instance in
Lynch, 465 U.S. at 676, in considering an
Establishment Clause challenge the Court noted
that "[t]he very chamber in which oral arguments
on this case were heard is decorated with a
notable and permanent--not seasonal--symbol of
religion: Moses with the Ten Commandments." See
also Allegheny, 492 U.S. at 652-53 (Stevens, J.,
concurring in part, dissenting in part) (noting
that it "would be absurd to exclude" the
inclusion of Moses, Confucius and Mohammed from
the Supreme Court’s frieze because they are
religious lawgivers). More recently, Chief
Justice Rehnquist justified the presence of
Muhammad in the north wall frieze in the
Courtroom, stating "’[t]he depiction of Muhammad
was intended only to recognize him, among many
other lawgivers, as an important figure in the
history of law; . . . It is part of an
architectural and aesthetic unit that has been in
place more than sixty years.’"). Suhre, 55
F.Supp.2d at 394 (quoting from a 1997 statement
of Chief Justice Rehnquist).
  The circuit courts have also accepted historical
references to the Deity, upholding our national
motto of "In God We Trust," and the same
inscription on our currency, O’Hair v. Murray,
588 F.2d 1144 (5th Cir. 1979) (upholding national
motto "In God We Trust"); Aronow v. United
States, 432 F.2d 242 (9th Cir. 1970) (accord), as
well as the constitutionality of the Pledge of
Allegiance’s reference to God. Sherman v.
Community Consol. Sch. Dist. 21 of Wheeling
Township, 980 F.2d 437 (7th Cir. 1992).

  The reference to God on the Ten Commandments
monument is much like these other references--an
acknowledgment of our religious roots. While the
display does not date back to our nation’s
founding, neither does the Pledge of Alliance’s
reference to God, or other such constitutionally
approved religious references, such as the "In
God We Trust" motto and inscription. Rather, many
of the Deity references find their roots in our
more recent history--the 1950’s--just as the Ten
Commandments monument in this case does.
Therefore, in looking at the monument that still
stands before Elkhart’s Municipal Building, it is
helpful to view it in light of the time it was
placed there.

  In the 50’s the Cold War was daunting, and our
country--as it often does in times of crisis--
acknowledged the importance of God. See 100 Cong.
Rec. 1700 (1954) ("[T]he fundamental issue which
is the unbridgeable gap between America and
Communist Russia is a belief in Almighty God.")
(statement of Rep. Rabaut). In 1952, Congress
established the "National Day of Prayer," H.R.J.
Res. 382, 82d Cong., 2d Sess. (1952), recognizing
that "the national interest would be much better
served if we turn aside for a full day to pray
for spiritual help and guidance from the Almighty
during these turbulent times." 98 Cong. Rec. 771
(1952) (statement of Rep. Brooks). That same
year, Justice Douglas, writing for the Supreme
Court in Zorach v. Clauson, 343 U.S. 306, 313
(1952), penned the now-famous line: "[w]e are a
religious people whose institutions presuppose a
Supreme Being." The following year, in 1953, the
House of Representatives voted to establish a
prayer room in the Capitol. H.R. Cong. Res. 60,
83d Cong., 99 Cong., 99 Cong. Rec. 9073 (1953).
The Bill’s sponsor explained that the
legislation’s purpose was to "provide a place of
retreat as an encouragement to prayer. . . ." 99
Cong. Rec. 9073 (1953) (statement of Rep. Hays).
Congressman Scrivner went further, explaining
that "[a]t this time in the world’s history, when
the materialistic ideology of the Communists is
. . . right in our own land, it is comforting to
know that the Congress of the United States goes
on record as believing in the spiritual values
taught by all religions, and also showing to the
world their belief in prayer and meditation as
opposed to the barbarous teachings that so many
nations have fallen prey to." 99 Cong. Rec. 9075
(1953) (statement of Rep. Scrivner).

  In 1954, Congress added the phrase "one Nation
under God" to the Pledge of Allegiance. This
amendment came in response to a sermon delivered
by the Reverend George M. Docherty at the New
York Avenue Presbyterian Church in Washington
D.C. at a service which President Eisenhower and
several Senators and Representatives had
attended. In his sermon, Reverend Docherty noted
that our Pledge of Allegiance was missing
something--something that would distinguish it
from the pledge "little Muscovites might repeat"
in a "pledge to their hammer-and-sickle flag in
Moscow." Steven B. Epstein, Rethinking the
Constitutionality of Ceremonial Deism, 96 Colum.
L. Rev. 2083, 2118-19 (1996). That something was
a recognition of God. After the President signed
this legislation, the new Pledge of Allegiance
was recited and a bugler played a rendition of
"Onward, Christian Soldiers." 100 Cong. Rec. 6348
(1954) (statement of Sen. Ferguson).

  The trend continued: In 1955 Congress mandated
the inscription of "In God We Trust" on all coins
and paper currency. The bill’s sponsor,
Representative Bennett, spoke on the bill’s
passage: "In these days when imperialistic and
materialistic communism seeks to attack and to
destroy freedom, it is proper for us to seek
continuously for ways to strengthen the
foundation of our freedom. At the base of our
freedom is our faith in God and the desire of
Americans to live by His will and His guidance.
As long as this country trusts in God, it will
prevail. To remind all of us of this self-evident
truth, it is proper that our currency should
carry these inspiring words, coming down to us
through our history: ’In God We Trust.’" 101
Cong. Rec. 4384 (1955) (statement of Rep.
Bennett). The following year, Congress codified
"In God We Trust" as our national motto. See Act
of July 31, 1956, Pub. L. No. 84-851 (codified at
36 U.S.C. sec. 186 (1994)). Two years later, in
1958, as part of its national project, the
Elkhart Eagles chapter donated the Ten
Commandments monument to the City of Elkhart.

  As a nation, we are thankful the Communist wall
of separation has fallen. And it is true that
following the Supreme Court’s Establishment
Clause jurisprudence beginning in the 60’s, our
governments are increasingly restricted in
invoking the name of God. We have numbed such
invocations with terms such as "rote repetition,"
moments of silence, and "ceremonial deism." Yet
that does not change the historical fact that the
Ten Commandments served as the foundation for our
country’s legal system. A monument displaying the
Decalogue acknowledges that fact without
endorsing it. The Ten Commandments monument also
serves as an historical headstone, not only for
our nation’s original foundation, but also for
the 1950’s, a religious time in America when as
a nation we turned to God. A time when divorce,
illegitimacy, drug abuse, murder, abortion, youth
violence, and the other crises of today were
still relatively rare.

  In sum, I believe the retention of the 40-year-
old Ten Commandments monument displayed outside
Elkhart’s Municipal Building is justified based
on our country’s early and more recent history as
a "tolerable acknowledgment of beliefs widely
held among the people of this country." Marsh,
463 U.S. at 783. Because of the Ten Commandments’
history and ubiquity, it should be treated just
as other accepted practices, such as the Supreme
Court’s frieze, the national Thanksgiving and
Christmas holidays, congressional and military
chaplains and the congressional prayer room, the
national motto, the Pledge of Allegiance,
presidential proclamations for a National Day of
Prayer, and our own court’s opening "God save the
United States and this Honorable Court."
Therefore, even if the Ten Commandments monument
would fail the strictures of the Lemon test
(which, in my view, it does not), I believe
Elkhart may constitutionally leave it standing.

D. Remedy

  Because I believe that Elkhart’s decision to
leave the Ten Commandments monument standing does
not constitute an "establishment of religion," I
would conclude that the monument’s placement and
design is fine as is. However, the court
concludes otherwise, and thus is correctly
concerned about the appropriate remedy. While I
have no doubt that the City can locate an obscure
hiding place for the monument, that should not be
necessary. Cemeteries are full of monuments
honoring times past. But this monument should not
be exiled to the equivalent of a graveyard.
Perhaps it could remain in place if it could be
sufficiently diluted with additional plaques and
memorials. I don’t think anyone would accept some
sort of redaction whereby the preliminary
references to God would be chiseled away or
otherwise defaced. There must be some other way
to minimize any perception of endorsement, and
many communities and the State of Indiana seek
guidance on where and how the Decalogue can be
prominently displayed without offending the
Constitution. Yet, if the court’s decision in
this case stands, there may be no remedy other
than removal because the court concludes that the
City lacked a secular purpose justifying its
decision to leave undisturbed the Ten
Commandments monument. Thus, it appears that
under the court’s reasoning, no matter what
Elkhart does to dilute the religious aspects of
the Ten Commandments, the monument will still be
unconstitutional because its fails Lemon’s first
prong by not having a secular purpose. And if
Elkhart cannot prove that it has a legitimate
secular purpose by passing a resolution forty
years after the monument was donated, there
doesn’t seem to be much else it could do to prove
that it has sanitized any religious motive that
has since become unconstitutional.

II.

  To this point, I have examined most of the
tests and distinctions set in place by the
Supreme Court. While I am confident this analysis
under Lemon is correct, I also recognize that
reasonable people can disagree. See Lemon, 403
U.S. at 612 ("Candor compels acknowledgment . .
. that we can only dimly perceive the lines of
demarcation in this extraordinarily sensitive
area of constitutional law."). This variance of
opinion is inevitable when one considers what
Lemon requires: We look to the number of
displays, their placement, their height, width,
and distance from other displays ("scrutiny more
commonly associated with interior decorators than
with the judiciary"). American Jewish Congress,
827 F.2d at 129 (Easterbrook, J., dissenting). We
question whether the symbol is religious, was
religious, could be religious, or is both
religious and secular. We try to look behind the
words of legislators and Common Council members
to measure their intent--history? God? Some of
each? Some frustrated Justices have been led to
discuss the absurdity of the Lemon test. See Lee
v. Weisman, 505 U.S. 577, 644 (1992) (Scalia, J.,
dissenting) (stating that Lemon "has received
well-earned criticism from many Members of this
Court," and collecting opinions criticizing
Lemon). See also, Lamb’s Chapel v. Center
Moriches Union Free School Dist., 508 U.S. 384,
398-99 (1993) (Scalia, J., concurring in
judgment) (collecting opinions criticizing
Lemon). But in the end there has to be a Lemon
test, or some other test now that the Court has
departed from the text and original understanding
of the Establishment Clause.

  The Establishment Clause reads that "Congress
shall make no law respecting an establishment of
religion." "The Framers intended the
Establishment Clause to prohibit the designation
of any church as a ’national’ one. The Clause was
also designed to stop the Federal Government from
asserting a preference for one religious
denomination or sect over others." Wallace v.
Jaffree, 472 U.S. 38, 113 (1985) (Rehnquist, J.,
dissenting). The Establishment Clause further
sought "to protect state establishments of
religion from federal interference." Lee, 505
U.S. at 641 (Scalia, J., dissenting) (emphasis
added). See also, American Jewish Congress, 827
F.2d at 129 (Easterbrook, J., dissenting) ("The
Establishment Clause was supposed to prevent the
federal government from taxing for the support of
a church or requiring religious observance.").
What the Establishment Clause did not intend to
do was to build a wall of separation, or to
mandate that the government treat religion and
irreligion equally. See, e.g., Wallace, 472 U.S.
38, 98 (Rehnquist, J., dissenting) (Madison "did
not see it as requiring neutrality on the part of
government between religion and irreligion.").
See generally, Wallace, 472 U.S. at 91-114
(Rehnquist, J., dissenting); Lee, 505 U.S. at
631-46 (Scalia, J., dissenting); American Jewish
Congress, 827 F.2d at 128-40 (Easterbrook, J.,
dissenting); Leonard W. Levy, The Establishment
Clause: Religion and the First Amendment (1986).

  History proves that, and "[t]he true meaning of
the Establishment Clause can only be seen in its
history." Wallace, 472 U.S. at 113 (Rehnquist,
J., dissenting). See also, Lee v. Weisman, 505
U.S. at 632 (Scalia, J., dissenting) ("Justice
Holmes’ aphorism that ’a page of history is worth
a volume of logic’ applies with particular force
to our Establishment Clause jurisprudence.")
(internal citation omitted). History shows that
"[f]rom our Nation’s origin, prayer has been a
prominent part of governmental ceremonies and
proclamations. The Declaration of Independence,
the document marking our birth as a separate
people, ’appeal[ed] to the Supreme Judge of the
world for the rectitude of our intentions’ and
avowed ’a firm reliance on the protection of
divine Providence.’" Id. at 633. In fact, George
Washington, in his first inaugural address,
"after swearing his oath of office on a Bible, .
. . deliberately made a prayer a part of his
first official act as President." Id. And when
Congress passed the first ten amendments to the
Constitution, "George Washington himself, at the
request of the very Congress which passed the
Bill of Rights, proclaimed a day of ’public
thanksgiving and prayer, to be observed by
acknowledging with grateful hearts the many and
signal favors of Almighty God.’" Id. at 635. As
Justice Rehnquist succinctly summarized: "History
must judge whether it was the Father of his
Country in 1789, or a majority of the Court which
has strayed from the meaning of the Establishment
Clause." Wallace, 472 U.S. at 113 (Rehnquist, J.,
dissenting).

  The Lemon "three-part test represents a
determined effort to craft a workable rule from
a historically faulty doctrine; but the rule can
only be as sound as the doctrine it attempts to
service." Id. at 110. Lemon’s view of the
Establishment Clause "is demonstrably incorrect
as a matter of history. And its repetition in
varying forms in succeeding opinions of the Court
can give it no more authority than it possesses
as a matter of fact; stare decisis may bind
courts as to matters of law, but it cannot bind
them as to matters of history." Id.

  For now, however, the history as viewed by
these dissenting jurists has been displaced by
the Lemon test. Until the Court returns to the
original understanding of the Establishment
Clause we are bound by Lemon, and we therefore
are left to measure the dilution of the religious
message and question the sincerity of the
government’s secular motive--neither task well
suited to the judiciary. Nonetheless, even under
these complicated standards, the Ten Commandments
monument does not constitute an establishment of
religion.

III.

  The Ten Commandments monument serves several
secular purposes, including a recognition of our
country’s legal, historical, and yes, religious
roots. Any perceived endorsement of religion is
diluted by Elkhart’s incorporation of secular
symbols on the monument--placing the Ten
Commandments in context of this country’s
history--and by the existence of other secular
monuments in Elkhart’s municipal building
parkway. Moreover, even if we were to conclude
that the monument fails the strictures of the
Lemon test, I believe that history and ubiquity
justify Elkhart’s decision to leave undisturbed
a monument which has rested unobtrusively and
undisturbed in front of its municipal building
for more than forty years in recognition of our
country’s religious and legal roots. I therefore
DISSENT from the court’s holding that Elkhart’s
decision to leave in place the Ten Commandments
monument constitutes an establishment of
religion, and its implicit mandate that it must
be removed.


/1 WHEREAS, the issue of the Ten Commandments
Monument outside Elkhart City Hall has been
raised by a person who is represented by the
Indiana Civil Liberties Union. The Indiana Civil
Liberties Union has contacted the Mayor of the
City of Elkhart and has stated that a lawsuit
will be filed if the Ten Commandments Monument is
not removed.

WHEREAS, in recognition of the historical
significance of the Ten Commandments, the
Fraternal Order of Eagles presented the Ten
Commandments monument to the City of Elkhart in
May, 1958. In addition to the Ten Commandments,
the Monument contains symbols that reflect the
cross cultural and historical significance of the
Ten Commandments.

WHEREAS, the Ten Commandments Monument has stood
outside in an unobtrusive location to the north
of the entrance of City Hall since 1958. There
are numerous other historical and cultural
plaques, memorials, and monuments located south
of the entrance of city hall, in the foyer just
inside the city hall entrance, at the first floor
open area of city hall, and at the second and
third floor open areas of city hall; and

WHEREAS, the Ten Commandments have had a
significant impact on the development of the
fundamental legal principles of Western
Civilization.

NOW, THEREFORE, BE IT RESOLVED BY THE COMMON
COUNCIL OF THE CITY OF ELKHART, INDIANA, THAT:

The Ten Commandments Monument is a historical and
cultural monument that reflects one of the
earliest codes of human conduct. It is proper for
the Ten Commandments Monument to remain and the
defense of this position is strongly endorsed.

/2 The frieze contained on the south wall of the
courtroom of the United States Supreme Court
includes a procession of great lawgivers of
history, including Hammurabi, the Babylonian king
who developed the Code of Hammurabi, and Napoleon
Bonaparte, Suhre v. Haywood County, N.C., 55
F.Supp.2d 384, 393, 395 (W.D.N.C. 1999), figures
possibly recognizable to the learned lawyers
arguing before the Supreme Court, but unlikely
familiar to many laypersons.

/3 The court is concerned that this monument could
have a religious meaning to someone approaching
the building because it uses the words "hallowed"
and "holy." Opinion at 26-27. Considering the
words in the context of the display and its
location, however, demonstrates that there is
nothing religious about the display. Rather, the
ground is "hallowed" because freedom’s "holy
light" burns "here," and "here" is the municipal
building where justice is served through the
county government. The choice of the words
"hallowed" and "holy" merely serve as a literary
device to honor freedom; the words in context do
not have a religious meaning. See Webster’s
Seventh New Collegiate Dictionary (G. & C.
Merriam Co. 1972), offering alternative
definitions for "hallow"--one religious, "to make
holy," and one secular, "to respect greatly."

/4 While Anderson was decided before Stone v.
Graham, 449 U.S. 39 (1980) (per curiam), Stone is
distinguishable because it involved the posting
of the Ten Commandments in the school setting.
See infra at 54-56. In fact, the five-Justice
majority in Stone did not even cite to Anderson--
the only circuit decision considering and
approving the constitutionality of a Ten
Commandments monument.

/5 Although the court insists "the monument
certainly cannot be fairly characterized as a
component of a comprehensive display of the
cultural heritage of the people of Elkhart," the
facts point to the opposite conclusion. Within
the very small 25-foot-wide courtyard rest four
historical displays, including a monument to
freedom, the Revolutionary War monument, the Ten
Commandments monument, and the Elk bas-relief.
These displays represent various aspects of our
country and Elkhart’s history, and encompass
themes relevant to the offices located inside the
Municipal Building, including not just the city
court, but also the mayor’s office, the human
relations department, and the offices of the
Common Council. Given the limited space
available, it is impossible to get much more
"comprehensive" than the current display. A more
compact layout could lose what Elkhart strived to
create--an aesthetically pleasing visual display,
centered by the Elk bas-relief and balanced by
the other monuments that flank the walkway. Nor
does a display have to be "comprehensive" to
dilute the religious aspect of one exhibit, as is
clear from the Supreme Court’s decisions in Lynch
and Allegheny--displays which were far from
comprehensive.

/6 In fact, the differences between the monument at
issue in this case and the display challenged in
American Jewish Congress are very similar to the
differences the Supreme Court faced in Allegheny:
the creche, which was unconstitutionally favored
by its prominent and solitary placement inside
the county courthouse, and the menorah, which was
constitutionally located outside the courthouse
near a Christmas tree and a sign saluting
liberty. As noted, the location proved
dispositive in Allegheny.

/7 The text of the Ten Commandments monument listed
twelve commands so as to serve as an amalgamation
of the Jewish, Protestant and Catholic versions
of the Ten Commandments. The first six commands
refer to God or the Sabbath, while the last six
do not. Opinion at 6.

/8 In this last regard, the Common Council’s
resolution not only explains its secular purpose,
but also serves to inform the citizenry that
Elkhart has no desire to endorse religion--it is
merely acknowledging religion’s role in our
country’s history. Or in the court’s language,
Elkhart in passing the resolution has "taken
steps to ’obviate its religious purpose.’"
Opinion at 20 n.8.
