                                                                                                                           Opinions of the United
2003 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


6-26-2003

Freethought Society v. Chester
Precedential or Non-Precedential: Precedential

Docket No. 02-1765




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"Freethought Society v. Chester" (2003). 2003 Decisions. Paper 398.
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                                  PRECEDENTIAL

                                             Filed June 26, 2003

           UNITED STATES COURT OF APPEALS
                FOR THE THIRD CIRCUIT


                           No. 02-1765


    FREETHOUGHT SOCIETY, of Greater Philadelphia;
                 SALLY FLYNN
                                 v.
          CHESTER COUNTY; COLIN A. HANNA;
      KAREN L. MARTYNICK; ANDREW E. DINNIMAN;
      each of whom is sued in their official capacities
         as CHESTER COUNTY COMMISSIONERS,
                                             Appellants

     On Appeal From the United States District Court
         For the Eastern District of Pennsylvania
                (D.C. Civ. No. 01-cv-5244)
        District Judge: Honorable Stewart Dalzell

                     Argued: April 7, 2003
          Before: BECKER,* BARRY and BRIGHT,**
                      Circuit Judges

                     (Filed: June 26, 2003)




* Judge Becker completed his term as Chief Judge on May 4, 2003.
** The Honorable Myron H. Bright, United States Circuit Judge for the
Eighth Circuit Court of Appeals, sitting by designation.
       2


WILLIAM M. MCSWAIN (ARGUED)
ALISON D. KEHNER
MICHAEL L. BERRY
Dechert
4000 Bell Atlantic Tower
1717 Arch Street
Philadelphia, PA 19103
WILLIAM M. JANSSEN (ARGUED)
SUSAN M. RABII
AMY S. KLINE
Saul Ewing LLP
Centre Square West
1500 Market Street, 38th Floor
Philadelphia, PA 19102
THOMAS C. ABRAHAMSEN
Office of the Chester County
 Solicitor
2 North High Street
Chester County Courthouse
Suite 150
West Chester, PA 19380
Counsel for Appellants
STEFAN PRESSER (ARGUED)
American Civil Liberties Union
 of Pennsylvania
125 South Ninth Street
Suite 701
Philadelphia, PA 19107
SETH KREIMER
3400 Sansom Street
Philadelphia, PA 19104
PETER GOLDBERGER
50 Rittenhouse Place
Ardmore, PA 19003
Counsel for Appellees
      3


ALFRED W. PUTNAM, JR. (ARGUED)
KIRKE D. WEAVER
D. ALICIA HICKOK
Drinker Biddle & Reath LLP
One Logan Square
18th and Cherry Streets
Philadelphia, PA 19103
Counsel for Amicus Chester County
Historic Preservation Network in
Support of Appellants
D. MICHAEL FISHER
CALVIN R. KOONS
JOHN G. KNORR, III
Office of Attorney General
Appellate Litigation Section
15th Floor, Strawberry Square
Harrisburg, PA 17120
Counsel for Amicus Commonwealth
of Pennsylvania in Support of
Appellants
ROBERT L. KNUPP
MARK A. MATEYA
Knupp, Kodak & Imblum, P.C.
PO Box 11848
407 North Front Street
Harrisburg, PA 17108
Counsel for Amicus County
Commissioners Association of
Pennsylvania in Support of
Appellants
FRANCIS J. MANION
American Center for Law and
 Justice
6375 New Hope Rd.
New Hope, KY 40052
Counsel for Amicus American Center
for Law and Justice in Support of
Appellants
      4


BURTON CAINE
Temple University School of Law
1719 N. Broad Street
Philadelphia, PA 19122
Counsel for Amici Americans for
Religious Liberty, The American
Humanist Association, The American
Ethical Union, The Philadelphia
Ethical Society, The Unitarian
Universalist Association, and The
Society for Humanistic Judaism in
Support of Appellees
MARC D. STERN
American Jewish Congress
15 East 84th Street
New York, NY 10028
NANCY WINKELMAN
STEWART M. WEINTRAUB
O. SCOTT BARBER
Schnader Harrison Segal &
  Lewis LLP
1600 Market Street
Philadelphia, PA 19103
Counsel for Amicus American Jewish
Congress in Support of Appellees
AYESHA N. KHAN
ALEX J. LUCHENITSER
Americans United for Separation
 of Church and State
518 C Street NE
Washington, DC 20002
                              5


                      STEVEN M. FREEMAN
                      STEVEN C. SHEINBERG
                      Anti-Defamation League
                      823 United Nations Plaza
                      New York, NY 10017
                      Counsel for Amici Americans United
                      For Separation of Church and State
                      and Anti-Defamation League in
                      Support of Appellees


                 OPINION OF THE COURT

BECKER, Circuit Judge.
   The Chester County Courthouse in West Chester,
Pennsylvania, erected in 1846, was designed by Thomas
Ustick Walter, renowned architect of the United States
Capitol. In 1920, following a public dedication ceremony
with both religious and secular overtones, the Chester
County Commissioners accepted a bronze plaque displaying
a Protestant version of the Ten Commandments for
placement on the Courthouse facade from a group of local
citizens who represented an organization known as the
Religious Education Council. The plaque was affixed near
what was then the entrance to the Courthouse. It has
remained there for over eight decades, but during that time
nothing has been done by the County to draw attention to,
celebrate or even maintain the plaque.
   Until a few years ago, visitors to the Courthouse would
walk past the plaque on their way in. However, that
entrance was closed, so visitors now enter via the modern
addition to the Courthouse, some seventy feet to the north.
While the title of the plaque, “The Commandments,” is
legible to a visitor walking along the sidewalk to or from the
north wing main entrance, a visitor would have to climb the
steps in front of the former entrance to read the rest of the
text.
  The present lawsuit was brought by Plaintiff Sally Flynn,
a Chester County resident who noticed the plaque as early
as 1960 but was apparently not bothered enough by it to
                              6


complain until 2001, and the Freethought Society of
Greater Philadelphia (of which Flynn is a member) after the
County Commissioners denied Flynn’s request to remove
the Ten Commandments plaque. Freethought, according to
its founder Margaret Downey, is “a forum for atheists,
agnostics, freethinkers to meet, socialize and exchange
ideas.” The defendants are Chester County and the Chester
County Commissioners, in their official capacities.
   The plaintiffs contend that the plaque’s placement is in
violation of the Establishment Clause of the First
Amendment because the Religious Education Council
donated the plaque (and the County accepted it) for
religious purposes and because the effect of the plaque is to
cause a reasonable observer to believe that the County is
endorsing religion. The defendants disagree. They maintain
that our focus should be on the Commissioners’ 2001
action, or more precisely inaction, in denying Flynn’s
request that the plaque be removed, rather than on the
original purpose for accepting the decalogue in 1920. They
also assert that the long history of the plaque, and the fact
that the County has not taken any action to highlight or
celebrate the plaque since its placement, change the overall
effect of the plaque so that when it is viewed in context, a
reasonable observer would not perceive it to be an
endorsement of religion by the County. The defendants also
contend that we should depart from the purpose/effect
inquiry used in religious display cases, first set forth in
Lemon v. Kurtzman, 403 U.S. 602, 612-613 (1971), and
craft an exception for historic artifacts such as this plaque.
   This appeal presents a number of important legal
questions that inform our ultimate analysis. We identify
two questions at this juncture: (1) what principles of
Establishment Clause jurisprudence should we use to
decide the case; and (2) whether we should focus on the
events of 1920 (when the plaque was erected) or the events
of 2001 (when the County Commissioners declined to
remove the plaque)? With respect to the first question, in
light of our decision in Tenafly Eruv Association, Inc. v.
Borough of Tenafly, 309 F.3d 144 (3d Cir. 2002), we believe
that Justice O’Connor’s modification of Lemon, known as
the “endorsement” test, applies in religious display cases of
                              7


this type. Under this approach, we collapse the “ ‘purpose’
and ‘effect’ prongs into a single inquiry: would a reasonable,
informed observer, i.e., one familiar with the history and
context . . . perceive the challenged government action as
endorsing religion?” Id. at 174. However, in an abundance
of caution, we will also analyze the case under the much
maligned Lemon test. While consideration of the effect of
the plaque is coextensive with our discussion of the
“endorsement” test, which focuses on the perceptions of the
reasonable observer, under Lemon, there must also be a
legitimate secular purpose for the County’s actions,
although the County’s purpose need not be “exclusively
secular.” Lynch v. Donnelly, 465 U.S. 668, 681 n. 6 (1984).
   With respect to the second question, we think that the
appropriate focus of our inquiry is on the events of 2001,
when the Commissioners declined to remove the plaque.
Applying the “endorsement” test, we conclude that: (1) the
reasonable observer would be aware of the approximate age
of the plaque and the fact that the County has done
nothing since it was erected to highlight or celebrate the
plaque; (2) because of the plaque’s age and its placement
on an historic Courthouse, the reasonable observer would
believe that the plaque itself is historic; and (3) the
reasonable observer would not believe that the County’s
inaction was motivated by a desire to endorse religion, or
some religious practice such as Sabbatarianism, but rather
by a desire to preserve a longstanding plaque. As such, the
overall effect of the display, when viewed in the context of
its history, does not appear to be an endorsement of
religion.
  Alternatively, applying the Lemon test, under which the
County must also have a legitimate secular purpose, we
note that the District Court found believable the testimony
of the Commissioners that they thought the Ten
Commandments plaque celebrated the significance of the
decalogue as a foundational legal document. We note too
that the Commissioners’ conclusions are buttressed by
some well documented history, presented by Chester
County and its amici, to the effect that the Ten
Commandments have an independent secular meaning in
our society because they are regarded as a significant basis
                            8


of American law and the American polity, including the
prohibitions against murder and blasphemy. Because the
purpose prong is subjective, it appears that the
Commissioners’ articulation of a secular purpose for
refusing to remove the plaque met the requirements of
Lemon.
  Based on the foregoing conclusions, on which we will
elaborate at length, we will reverse the judgment of the
District Court and vacate the permanent injunction
ordering the removal of the plaque.

            I.   Facts and Procedural History
  The plaque at issue was affixed to the east facade of the
Courthouse at a dedication ceremony on December 11,
1920, upon the initiative of the Religious Education
Council. The Council had appeared before the Chester
County Commissioners requesting permission to erect a
bronze plaque containing the text of the Ten
Commandments. The County accepted the donation of the
plaque, which was purchased exclusively with private
funds, “to the people of Chester County.” Samuel C. Hodge,
a Protestant Minister and a member of the Religious
Education Council, presided over the dedication ceremony,
at which both the religious and secular significance of the
Ten Commandments were stressed. In his address, entitled
“The    Relation   of    the   Ten    Commandments       to
Jurisprudence,” Judge J. Frank E. Hause, the keynote
speaker at the dedication ceremony, admonished those in
attendance:
    Have you remembered the Sabbath Day to keep it
    holy? If you disobey the commandments here and
    escape punishment, there is yet the punishment which
    will surely be meted out on the day of judgment.
But Judge Hause also told his audience “that with very few
exceptions every statute on our books can be traced to the
Ten Commandments, which are the foundation stone of all
civilized countries.”
  The Chester County Courthouse is the seat of
government in Chester County. It houses the County’s
                              9


judiciary, including the Adult Probation Department, and
the offices of the County Commissioners, Treasurer,
Controller, District Attorney, Public Defender, Sheriff,
Prothonotary, Clerk of Court, Register of Wills, and
Solicitor. It was estimated at trial that 250,000 people visit
the Courthouse each year for a variety of purposes, e.g., to
attend trials and to secure marriage licenses, dog licenses,
passports and deeds. There is no evidence in the record
suggesting that the County expended public funds to affix
the plaque to the side of the Courthouse, or to maintain it
since 1920.
  The plaque reads (a photograph is attached):
    THE COMMANDMENTS (in larger text)
    THOU SHALT HAVE NO OTHER GODS BEFORE ME.
    THOU SHALT NOT MAKE UNTO THEE ANY GRAVEN
    IMAGE, OR ANY LIKENESS OF ANY THING THAT IS IN
    HEAVEN ABOVE, OR THAT IS IN THE EARTH
    BENEATH, OR THAT IS IN THE WATER UNDER THE
    EARTH:
    THOU SHALT NOT BOW DOWN THYSELF TO THEM,
    NOR SERVE THEM:
    For I the Lord Thy God am a Jealous God, Visiting the
    Iniquity of the Fathers upon the Children unto the
    Third and Fourth Generation of Them that Hate me.
    And Shewing Mercy unto Thousands of Them that Love
    Me and Keep My Commandments
    THOU SHALT NOT TAKE THE NAME OF THE LORD
    THY GOD IN VAIN:
    For the Lord will not Hold him Guiltless that Taketh
    His Name in Vain.
    REMEMBER THE SABBATH DAY, TO KEEP IT HOLY.
    SIX DAYS SHALT THOU LABOR AND DO ALL THY
    WORK:
    BUT THE SEVENTH DAY IS THE SABBATH OF THE
    LORD THY GOD: IN IT THOU SHALT NOT DO ANY
    WORK, THOU, NOR THY SON, NOR THY DAUGHTER,
    THY MANSERVANT, NOR THY MAIDSERVANT, NOR
    THY CATTLE, NOR THY STRANGER THAT IS WITHIN
    THY GATES:
    For in Six Days the Lord Made Heaven and Earth, the
    Sea, and All That in Them is, and Rested the Seventh
                                   10


     Day, Wherefore the Lord Blessed the Sabbath Day, and
     Hallowed it.
     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 NEIGHBOUR.
     THOU SHALT NOT COVET THY NEIGHBOUR’S
     HOUSE.
     THOU SHALT NOT COVET THY NEIGHBOUR’S WIFE,
     NOR HIS MANSERVANT, NOR HIS MAIDSERVANT,
     NOR HIS OX, NOR HIS ASS, NOR ANY THING THAT IS
     THY NEIGHBOUR’S.
     SUMMARY
     THOU SHALT LOVE THE LORD THY GOD WITH ALL
     THINE HEART,
     AND WITH ALL THY SOUL AND WITH ALL THY MIND.
     THOU SHALT LOVE THY NEIGHBOUR AS THYSELF.
   The text of the Ten Commandments on the plaque is
taken from the King James version of the Bible, Exodus
20:2-17 and Deuteronomy 5:6-21; the Summary is also
from the King James version, Matthew 22:37 and 39.
Freethought Soc’y, 191 F.Supp. 2d 589, 591 (E.D. Pa.
2002). Although the Ten Commandments is a shared
Judeo-Christian text, the King James Bible, commissioned
in 1603 by King James I of England, is a Protestant version
of the Bible. While the Ten Commandments are taken from
the Old Testament, the “Summary” is taken from the New
Testament, which is not part of the Jewish Bible. Rabbi
Leonard Gordon testified that Jews would find this version
of the Ten Commandments objectionable.1 In contrast,

1. According to Rabbi Gordon, who is affiliated with Conservative
Judaism, Jews would object to the use of the phrase “thou shalt not kill”
as opposed to “thou shalt not murder.” Additionally, he views the
“Summary” as problematic for Jews, since it implies that certain
commandments are more important than others, and because it is taken
                                 11


Father Francis X. Meehan testified that nothing in this
version of the Ten Commandments would be offensive to
Roman Catholics. While he noted that the New American
Bible, the first edition of the Catholic scriptures in
American English to be translated from the original
languages, is the version of the Bible authorized for
Catholic liturgical use, he explained that “there are other
scriptures that are authorized for general reading and
praying.” He also commented that there is at least one
critical difference in the Catholic interpretation of the Ten
Commandments — the New American Bible uses the word
“idols” in place of “graven images.”
  The plaque is 50 inches tall and 39 inches wide; the
background of the plaque is dark in color. It is positioned
adjacent to the historic entrance to the Courthouse. The
Courthouse itself is an historically significant building. The
architect of the original Chester County Courthouse was
Thomas Ustick Walter, designer of the U.S. Capitol’s iron
dome. Walter also designed the celebrated Girard College
building in Philadelphia. The Courthouse, built in 1846,
has been placed on the National Register of Historic Places;
the Ten Commandments plaque, however, was not
mentioned on the application for that designation.
  There are six Corinthian columns in front of the facade of
the Courthouse upon which the plaque is affixed; from
certain angles, the columns obscure the plaque, though the
plaque is clearly visible when standing directly in front of it.
The portico in front of the east facade, where the Ten
Commandments plaque is displayed, spans 64 feet. Only
the title, “The Commandments,” is legible to a passerby on
the sidewalk in front of the Courthouse. Indeed,
Commissioner Dinniman observed that a passerby, reading
only “The Commandments,” would “not know whether
they’re the commandments of the Commissioners, the

from the New Testament. Finally, this version of the Ten Commandments
does not contain the First Commandment in Jewish tradition: “I am the
Lord your God who brought you out of the land of Egypt.” However,
Commissioner Dinniman, a practicing Reform Jew, disagreed with Rabbi
Gordon’s statement that Jews would be aware of these discrepancies, or
troubled by them.
                                  12


President Judge, or of Moses.” To read the text of the
Commandments, it is necessary to climb the steps leading
to the historic entrance (as the attached photographs
demonstrate). But since this entrance was closed in 2001
for security reasons and to cut costs (it would have been
very expensive to make the old entrance ADA-compliant),
and the new entrance is located further north along the
sidewalk, there is no reason for a visitor to the Courthouse
to climb these steps.
   There was testimony at trial that the esplanade in front
of the east facade of the Courthouse is sometimes used for
public gatherings, such as political rallies. However, it is
not clear where the public is positioned during these
gatherings, or the extent to which attendees can read the
Commandments’ text. Flynn testified that she saw the
plaque while attending political rallies in front of the
Courthouse, including while attending a “counter-protest”
against demonstrators protesting the anniversary of Roe v.
Wade. However, Commissioner Dinniman testified that at
most political rallies, the plaque is generally blocked from
the view of rally attendees by the placement of a podium
and flags at the top of the steps in front of the plaque.
  A number of other plaques, as well as signs, are affixed
to the east facade of the Courthouse, alongside the Ten
Commandments        plaque.    Adjacent     to    the   Ten
Commandments plaque is a no-smoking sign which
measures 24 inches tall and 17 inches wide and a small
West Chester Borough Historic Architecture Certification
Plaque. On the same facade, but on the other side of the
historic entrance door, there are: (1) three immediately
adjacent plaques concerning Courthouse hours and
building access which together measure 53 inches tall and
26 inches wide; (2) a small plaque stating that the property
has been placed on the National Register of Historic Places;
and (3) a no-skateboarding sign which measures 24 inches
tall and 17 inches wide.2 While the age of the Ten

2. There are various other plaques and monuments in the vicinity of the
Courthouse that are further away from the Ten Commandments plaque,
including: (1) a sundial on Market Street which is approximately 97 feet
from the Ten Commandments plaque; (2) a plaque commemorating
                                    13


Commandments plaque is not obvious from viewing the
plaque itself, it appears to be older than the administrative
plaques affixed to the building.
  The Ten Commandments plaque remained on display on
the Courthouse without incident until the events leading up
to the present lawsuit. Plaintiff Sally Flynn has been a
resident of Chester County since 1960, and has been
coming to the Courthouse since then, but never complained
about the plaque until 2001. She has had reason to go to
the Chester County Courthouse on many occasions since
she has lived in the area; e.g., to secure a license for her
dog, to appear for jury duty, to attend political rallies, and
to testify as a victim/witness in a criminal case.
  Flynn is a member of plaintiff Freethought Society of
Greater Philadelphia, a forum for atheists, agnostics and
other “freethinkers” to meet, socialize, and exchange ideas.
Flynn has considered herself an atheist since approximately
1996. Many members of Freethought reside in Chester
County, including the founder of Freethought, Margaret
Downey. Downey has viewed the Ten Commandments
plaque on numerous occasions as well, including: while
procuring a passport, attending a hearing in the
Courthouse, and while obtaining licenses to solemnize
marriages, in her capacity as a Secular Humanist celebrant.3

World War II veterans, approximately 59 feet from the Ten
Commandments (it is 20 inches by 16 inches wide); (3) a Civil War
veterans statute which is approximately 12 feet high and is located 50
feet from the Ten Commandments; (4) an historic Chester County
marker and horse watering trough approximately 64 and 72 feet,
respectively, from the Ten Commandments plaque; (5) a County time
capsule measuring 24 inches by 12 inches, embedded in the ground 56
feet from the Ten Commandments plaque; and (6) a plaque
commemorating the first County Courthouse, affixed to a pillar on the
north wing Courthouse annex approximately 78 feet from the Ten
Commandments plaque.
3. We do not find convincing the defendants’ argument that neither
Flynn individually nor Freethought as an organization has standing to
sue. We agree with the District Court that “[t]here seems to be little
question that plaintiff Sally Flynn has ‘suffered an injury in fact’ within
the meaning of Lujan v. Defenders of Wildlife, 504 U.S. 555, 560 (1992),”
                                   14


  On August 20, 2001, counsel for Flynn and Freethought
wrote to the Chester County Commissioners and requested
the removal of the Ten Commandments plaque. On August
23, 2001, the Commissioners responded that they would
not remove it. Freethought and Flynn then commenced the
present action in the District Court for the Eastern District
of Pennsylvania against Chester County and Colin A.
Hanna, Karen L. Martynick, and Andrew E. Dinniman in
their official capacities as Chester County Commissioners.
The plaintiffs alleged a violation of the First Amendment
pursuant to 42 U.S.C. § 1983. After a brief period of
discovery, the District Court conducted a two-day
evidentiary hearing.
  Two of the three County Commissioners were witnesses
at the evidentiary hearing. Neither was asked to explain
why he decided to leave the plaque in place. They were,
however, questioned as to their views of the plaque.
Commissioner Hanna responded that to him, it symbolized
the “two wing theory of our polity,” in which “faith and
reason . . . as a historical reality worked together to create
and maintain the American experiment.” Freethought Soc’y,
191 F.Supp. 2d at 597-98. Similarly, Commissioner
Dinniman testified:
     The Ten Commandments . . . is the story of people in
     the wilderness and coming out of the wilderness to find
     order, to find civilization through the law. . . . And I
     think that the Ten Commandments on the wall of the
     Courthouse symbolizes civilization. Symbolizes the
     desire for order. Symbolizes the desire for a just and
     orderly society. . . . It’s probably one of the best known
     stories of our society, and it’s used both religiously and
     secularly. . . . It’s a symbol of law. It’s a symbol of
     order in our society.

and that “[a]s an organization with members like Ms. Flynn from Chester
County, the Freethought Society also has associational standing under
Sierra Club v. Morton, 405 U.S. 727, 739 (1972).” Freethought Soc’y, 191
F.Supp. 2d at 593. Likewise, we do not believe that the defendants have
demonstrated that Flynn waived her right to bring this action (or that
the statute of limitations has expired) because she noticed the plaque in
the 1960s but did not bring an action until 2001.
                               15


The District Court found that both Commissioners were
“serious, reflective public officials who plainly did not lightly
come to their conclusions.” Freethought Soc’y, 191 F.Supp.
2d at 597.
   On March 6, 2002, the District Court filed an opinion
and entered an order declaring the plaque unconstitutional
based on the conclusion that it violated the Establishment
Clause of the First Amendment. The District Court also
filed a permanent injunction ordering the removal of the
plaque. The defendants timely appealed. Pending appeal,
the plaque has been concealed by a metal cover.
   The District Court had jurisdiction pursuant to 28 U.S.C.
§§ 1331 and 1343(3) and we have jurisdiction pursuant to
28 U.S.C. § 1291. We review the grant of a permanent
injunction for abuse of discretion, yet since an abuse of
discretion exists where a decision rests upon an erroneous
conclusion of law, we have plenary review over the District
Court’s underlying legal conclusions. ACLU of New Jersey
v. Black Horse Pike Reg’l Bd. of Educ., 84 F.3d 1471, 1476
(3d Cir. 1996).

   II.   The Correct Establishment Clause Framework
   We must first determine the appropriate framework to
use when analyzing whether the Ten Commandments
plaque violates the Establishment Clause, an inquiry that is
somewhat murky, even in light of the recent religious
display cases decided by the Supreme Court. In Lemon v.
Kurtzman, the Supreme Court set forth three factors that
should be considered when a violation of the Establishment
Clause is alleged: (1) whether the government practice had
a secular purpose; (2) whether its principal or primary
effect advanced or inhibited religion; and (3) whether it
created an excessive entanglement of the government with
religion. 403 U.S. 602, 612-613 (1971). That decision has
received much criticism. See, e.g., Lamb’s Chapel v. Center
Moriches Union Free Sch. Dist., 508 U.S. 384, 398-399
(1993) (Scalia, J., concurring) (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
                                   16


and buried” and collecting              opinions)    and    the    cases
identified in the margin.4
   Writing in a separate concurrence in Lynch v. Donnelly,
a case involving a nativity scene included in the defendant
city’s Christmas display, Justice O’Connor proposed a
clarification of the Lemon factors to be used in cases
involving the display of religious objects by private groups
on government property:
     The central issue in this case is whether [the
     defendant] has endorsed Christianity by its display of
     the creche. To answer that question, we must examine
     both what [the defendant] intended to communicate in
     displaying the creche and what message the city’s
     display actually conveyed. The purpose and effect
     prongs of the Lemon test represent these two aspects of
     the meaning of the city’s action.
     . . .

4. Other sitting Supreme Court Justices have also criticized Lemon,
suggesting that Lemon might be overruled if it were reconsidered. The
Court of Appeals for the Seventh Circuit laid out the criticisms of Lemon
made by current Supreme Court Justices in Books v. City of Elkhart, 235
F.3d 292, 301, n. 6 (2000); Santa Fe Indep. Sch. Dist. v. Doe, 530 U.S.
290, 319 (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); County of Allegheny v. ACLU, 492 U.S. 573,
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 constitutionality 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. Ed. & 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). Moreover, Justices Rehnquist, Scalia and Thomas dissented
from the denial of certiorari in Books v. City of Elkhart, criticizing the
Seventh Circuit for “applying the oft-criticized framework set out in
Lemon.” 532 U.S. 1058 (2001). However, since Lemon has not been
explicitly overruled, we are bound to follow either it or the subsequent
“endorsement” test which modifies and explains Lemon. See discussion
in text.
                                    17


     The purpose prong of the Lemon test requires that a
     government activity have a secular purpose. That
     requirement is not satisfied, however, by the mere
     existence of some secular purpose, however dominated
     by religious purposes. . . . The proper inquiry under
     the purpose prong of Lemon, I submit, is whether the
     government intends to convey a message of
     endorsement or disapproval of religion.
     . . .
     Focusing on the evil of government endorsement or
     disapproval of religion makes clear that the effect prong
     of the Lemon test is properly interpreted not to require
     invalidation of a government practice merely because it
     in fact causes, even as a primary effect, advancement
     or inhibition of religion. . . . What is crucial is that a
     government practice not have the effect of
     communicating a message of government endorsement
     or disapproval of religion.
465 U.S. 668, 690-92 (1984) (O’Connor, J., concurring).
   Justice O’Connor’s concurrence in Lynch is particularly
significant because it decided the outcome of the case;
without her vote the justices were split four to four.5 In a
later concurrence, Justice O’Connor explained that to
determine whether a display endorses religion, it is
necessary to ask whether “a reasonable observer would
view [the display] . . . as a disapproval of his or her
particular religious choices.” County of Allegheny v. ACLU,
492 U.S. 573, 631 (1989) (O’Connor, J., concurring).6

5. Chief Justice Burger delivered the opinion of the Court in Lynch,
which was joined by Justices White, Powell, Rehnquist and O’Connor.
Justice O’Connor filed a concurring opinion. Justice Brennan filed a
dissenting opinion which Justices Marshall, Blackmun and Stevens
joined. Justice Blackmun filed a dissenting opinion which Justice
Stevens joined.
6. Justice Blackmun announced the judgment of the Court in Allegheny
and delivered the opinion of the Court with respect to Parts III-A, IV, and
V, which Justices Brennan, Marshall, Stevens, and O’Connor joined, an
opinion with respect to Parts I and II, which Justices Stevens and
O’Connor joined, an opinion with respect to Part III-B, which Justice
                                  18


  The test originally proposed by Justice O’Connor in her
concurrence in Lynch, described above, has become known
as the “endorsement” test, and has been adopted by the
majority in other religious display cases. For example,
Justice Blackmun, writing the opinion for the Court in
Allegheny, a case involving the display of a creche and a
menorah, concluded:
     In 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.
     . . .
     [T]he concurrence [O’Connor’s in Lynch] articulates a
     method for determining whether the government’s use
     of an object with religious meaning has the effect of
     endorsing religion. The effect of the display depends
     upon the message that the government’s practice
     communicates: the question is “what viewers may fairly
     understand to be the purpose of the display.” That
     inquiry, of necessity, turns upon the context in which
     the contested object appears.
     . . .
     Since Lynch, the Court has made clear that, when
     evaluating the effect of government conduct under the
     Establishment Clause, we must ascertain whether “the
     challenged governmental action is sufficiently likely to
     be perceived by adherents of the controlling

Stevens joined, an opinion with respect to Part VII, which Justice
O’Connor joined, and an opinion with respect to Part VI. Justice
O’Connor filed an opinion concurring in part and concurring in the
judgment, in Part II which Justices Brennan and Stevens joined. Justice
Brennan filed an opinion concurring in part and dissenting in part,
which Justices Marshall and Stevens joined. Justice Stevens filed an
opinion concurring in part and dissenting in part, which Justices
Brennan and Marshall joined. Justice Kennedy filed an opinion
concurring in the judgment in part and dissenting in part, which Chief
Justice Rehnquist and Justices White and Scalia joined.
                                    19


     denominations as an endorsement, and by the
     nonadherents as a disapproval, of their individual
     religious choices.”
492 U.S. at 592-598 (internal citations omitted).
  In Capitol Square Review and Advisory Board v. Pinette,
Justice Scalia also acknowledged the use of the
“endorsement” test in religious display cases, although the
Court held in that case that the defendant city would not
violate the Establishment Clause by allowing a display of a
cross by the Ku Klux Klan in a public forum:
     Where we have tested for endorsement of religion, the
     subject of the test was either expression by the
     government itself, or else government action alleged to
     discriminate in favor of private religious expression or
     activity. The test petitioners propose, which would
     attribute to a neutrally behaving government private
     religious expression, has no antecedent in our
     jurisprudence, and would better be called a
     “transferred endorsement” test.
515 U.S. 753, 764 (1995) (internal citations omitted)
(emphasis in original).7
  In view of the foregoing, this Court has not surprisingly
concluded, based on the cited caselaw, that the relevant
inquiry in determining whether a religious display violates
the Establishment Clause is whether a reasonable observer
would perceive the display as a government endorsement of
religion:

7. In Capitol Square, Justice Scalia announced the judgment of the Court
and delivered the opinion of the Court with respect to Parts I, II, and III,
which Chief Justice Rehnquist and Justices O’Connor, Kennedy, Souter,
Thomas, and Breyer joined, and an opinion with respect to Part IV,
which Chief Justice Rehnquist and Justices Kennedy and Thomas
joined. Justice Thomas filed a concurring opinion. Justice O’Connor filed
an opinion concurring in part and concurring in the judgment, which
Justices Souter and Breyer joined. Justice Souter filed an opinion
concurring in part and concurring in the judgment, which Justices
O’Connor and Breyer joined. Justices Stevens and Ginsburg filed
dissenting opinions.
                                  20


     Recent Supreme Court decisions . . . have not applied
     the Lemon test. Instead, in cases involving
     Establishment Clause challenges to private individuals’
     use of government resources, the Court has applied the
     endorsement test developed by Justice O’Connor,
     which dispenses with the “entanglement” prong of the
     Lemon test and collapses its “purpose” and “effect”
     prongs into a single inquiry: would a reasonable,
     informed observer, i.e., one familiar with the history
     and context of private individuals’ access to the public
     money or property at issue, perceive the challenged
     government action as endorsing religion?
Tenafly Eruv Assoc., Inc. v. Borough of Tenafly, 309 F.3d
144, 174 (3d Cir. 2002).8
   Under the “endorsement” approach, the knowledge
attributed to the “reasonable observer” becomes critical.
Justice O’Connor describes her view (contrasting it with the
differing view of Justice Stevens):
     In my view, proper application of the endorsement test
     requires that the reasonable observer be deemed more
     informed than the casual passerby postulated by
     Justice Stevens.
     . . .
     I therefore disagree that the endorsement test should
     focus on the actual perception of individual observers,
     who naturally have differing degrees of knowledge.
     Under such an approach, a religious display is
     necessarily precluded so long as some passersby would
     perceive a governmental endorsement thereof. In my
     view, however, the endorsement test creates a more
     collective standard to gauge “the ‘objective’ meaning of
     the [government’s] statement in the community.” In
     this respect, the applicable observer is similar to the
     “reasonable person” in tort law, who “is not to be
     identified with any ordinary individual, who might
     occasionally do unreasonable things,” but is “rather a

8. In Agostini v. Felton, a school funding case, the Supreme Court held
that the “entanglement” prong of Lemon was “an aspect of the inquiry
into [the] effect.” 521 U.S. 203, 233 (1997).
                             21


    personification of a community ideal of reasonable
    behavior, determined by the [collective] social
    judgment.” Thus, “we do not ask whether there is any
    person who could find an endorsement of religion,
    whether some people may be offended by the display,
    or whether some reasonable person might think [the
    State] endorses religion.”
    . . .
    It is for this reason that the 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. As I explained in
    Allegheny, “the ‘history and ubiquity’ of a practice is
    relevant because it provides part of the context in
    which a reasonable observer evaluates whether a
    challenged governmental practice conveys a message of
    endorsement of religion.” Nor can the knowledge
    attributed to the reasonable observer be limited to the
    information gleaned simply from viewing the challenged
    display. . . . In my view, our hypothetical observer also
    should know the general history of the place in which
    the cross is displayed. Indeed, the fact that Capitol
    Square is a public park that has been used over time
    by private speakers of various types is as much a part
    of the display’s context as its proximity to the Ohio
    Statehouse. This approach does not require us to
    assume        an    “ ‘ultrareasonable  observer’    who
    understands the vagaries of this Court’s First
    Amendment jurisprudence.” An informed member of
    the community will know how the public space in
    question has been used in the past — and it is that
    fact, not that the space may meet the legal definition of
    a public forum, which is relevant to the endorsement
    inquiry.
Capitol Square, 515 U.S. at 779-781 (O’Connor, J.,
concurring in part and concurring in the judgment)
(internal citations omitted).
  This Court has adopted Justice O’Connor’s view that a
reasonable observer must be presumed to have an
understanding of the general history of the display and the
                                   22


community in which it is displayed; the reasonable observer
is more knowledgeable than the uninformed passerby. In
ACLU of New Jersey v. Black Horse Pike Regional Board of
Education, we held that “ ‘the “history and ubiquity” of a
practice is relevant because it provides part of the context
in which a reasonable observer evaluates whether a
challenged governmental practice conveys a message of
endorsement of religion.’ ” 84 F.3d 1471, 1486 (3d Cir.
1996) (quoting Allegheny, 492 U.S. at 630 (O’Connor, J.,
concurring)). And in ACLU v. Schundler, 168 F.3d 92, 107
(3d Cir. 1999), we cited favorably Justice O’Connor’s
concurrence in Capitol Square, set forth supra, and held
that “in evaluating the message conveyed by the modified
. . . display to a reasonable observer, the general scope of
[the city’s] practice regarding diverse cultural displays and
celebrations should be considered.” See also Tenafly, 309
F.3d at 174 (asking whether “a reasonable, informed
observer, i.e., one familiar with the history and context of
private individuals’ access to the public money or property
at issue, [would] perceive the challenged government action
as endorsing religion?”).
  Thus, when evaluating whether the Ten Commandments
plaque is an endorsement of religion by the County, we ask
whether the plaque “sends a message to nonadherents that
they are outsiders, not full members of the political
community, and an accompanying message to adherents
that they are insiders, favored members of the political
community.” Capitol Square, 515 U.S. at 773 (O’Connor, J.,
concurring in part and concurring in the judgment (citing
Lynch, 465 U.S. at 688 (O’Connor, J., concurring), and
Allegheny, 492 U.S. at 628 (O’Connor, J., concurring)).9 In

9. The County argues that if we do not reverse the decision of the
District Court, we should at least remand because the District Court did
not apply the “endorsement” test when evaluating the Ten
Commandments plaque; instead, the County maintains, the District
Court applied the Lemon test mechanically, inquiring into the purpose
and effect of the display. However, because “we may affirm a correct
decision of the district court on grounds other than those relied upon by
the district court,” Central Pennsylvania Teamsters Pensions Fund v.
McCormick Dray Line, Inc., 85 F.3d 1098, 1107 (3d Cir. 1996) (citing
University of Maryland v. Peat Marwick Main & Co., 923 F.2d 265, 275
(3d Cir. 1991)), we will simply consider whether the outcome was correct
(using the framework laid out in the text) and not whether the District
Court employed the wrong framework.
                                    23


so doing, we will assume that the reasonable observer is
informed about the approximate age of the plaque and the
fact that the County has done nothing with the plaque
since it was erected; we also conclude that the reasonable
observer is aware of the general history of Chester County.
We address (and reject) in the margin Chester County’s
argument that we should afford a presumption of
constitutionality for historic monuments and artifacts.10

10. Chester County maintains that this is a case of first impression
based on the fact that neither the Supreme Court nor this Court has
dealt with an Establishment Clause case involving an historic religious
display. The County notes that the cases in which the “endorsement”
test has been invoked involve recent displays (generally temporary
holiday displays). The County then suggests that we should afford a
presumption of constitutionality for historic monuments and artifacts;
under the County’s test, an historic artifact (like the Ten
Commandments plaque here) would violate the Establishment Clause
only if there was no secular purpose for erecting the plaque, or if the
display is accompanied by impermissible current government conduct. If
we decline to adopt such a presumption, the County maintains, courts
following this opinion will be forced to purge many longstanding religious
references.
  However, we are not persuaded by this “slippery slope” argument.
Indeed, Justice O’Connor in Allegheny responded to a similar criticism of
her “endorsement” test raised by Justice Kennedy:
    Justice Kennedy submits that the endorsement test is inconsistent
    with our precedents and traditions because, in his words, if it were
    “applied without artificial exceptions for historical practice,” it would
    invalidate many traditional practices recognizing the role of religion
    in our society. This criticism shortchanges both the endorsement
    test itself and my explanation of the reason why certain
    longstanding government acknowledgments of religion do not, under
    that test, convey a message of endorsement. Practices such as
    legislative prayers or opening Court sessions with “God save the
    United States and this honorable Court” serve the secular purposes
    of “solemnizing public occasions” and “expressing confidence in the
    future.” These examples of ceremonial deism do not survive
    Establishment Clause scrutiny simply by virtue of their historical
    longevity alone. Historical acceptance of a practice does not in itself
    validate that practice under the Establishment Clause if the practice
    violates the values protected by that Clause, just as historical
    acceptance of racial or gender based discrimination does not
    immunize such practices from scrutiny under the Fourteenth
    Amendment.
                                   24


  Under the “endorsement” approach, we do not consider
the County’s purpose in determining whether a religious
display has violated the Establishment Clause; instead, we
focus on the effect of the display on the reasonable
observer, inquiring whether the reasonable observer would
perceive it as an endorsement of religion. However, in view
of the possibility that a higher court may prefer to analyze
the constitutionality of this plaque under the traditional
Lemon purpose and effect inquiry, we will now briefly
consider how to evaluate the County’s purpose. See
Edwards v. Aguillard, 482 U.S. 578, 585 (1987) (“ ‘The
purpose prong of the Lemon test asks whether
government’s actual purpose is to endorse or disapprove of
religion.’ ” (quoting Lynch, 465 U.S. at 690) (O’Connor, J.,

    . . .
    Under the endorsement test, the “history and ubiquity” of a practice
    is relevant not because it creates an “artificial exception” from that
    test. On the contrary, the “history and ubiquity” of a practice is
    relevant because it provides part of the context in which a
    reasonable observer evaluates whether a challenged governmental
    practice conveys a message of endorsement of religion.
    . . .
    The question under endorsement analysis, in short, is whether a
    reasonable observer would view such longstanding practices as a
    disapproval of his or her particular religious choices, in light of the
    fact that they serve a secular purpose rather than a sectarian one
    and have largely lost their religious significance over time.
492 U.S. at 630-631 (O’Connor, J., concurring).
  Likewise, we conclude that by considering the history of a religious
display as part of the context in which the reasonable observer views the
display, we will ensure that courts following this opinion will not be
forced to hold that benign and longstanding religious references are
unconstitutional; instead courts should examine the age and relevant
history surrounding the use of the display as part of the context in
which the reasonable observer views it. At the same time, by stressing
that history is only part of the context of a display, and not giving a
presumption of constitutionality to historic artifacts or monuments, we
ensure that displays that do have the effect of endorsing religion are not
held to be constitutional simply because of their age.
                             25


concurring)). We also believe that this is a prudent
approach considering the fact that other Courts of Appeals
presented with similar issues have applied the Lemon test,
and considered the purpose as well as the effect of the
display. See, e.g., King v. Richmond County, 2003 U.S. App.
LEXIS 10943 (11th Cir. 2003); Adland v. Russ, 307 F.3d
471 (6th Cir. 2002), cert. denied, 71 U.S.L.W. 3568 and 71
U.S.L.W. 3678 (U.S. April 28, 2003) (No. 02-1241); Books v.
City of Elkhart, 235 F.3d 292 (7th Cir. 2000), cert. denied,
532 U.S. 1058 (2001).
  In our view, any inquiry into the County’s purpose would
require consideration not only of the County’s original
purpose for displaying the plaque in 1920, but also of the
Commissioners’ purpose for leaving the plaque in place in
2001, when Flynn requested that it be removed. There is
support for this view in other Courts of Appeals. See, e.g.,
Books, 235 F.3d at 302 (holding that although the
monument’s purpose was not secular, “[i]n determining
whether this particular display of the Ten Commandments
can be said to have a secular purpose, we must evaluate
the totality of the circumstances surrounding the
placement and maintenance of the monument.”) (emphasis
added).
   Since the purpose prong of Lemon only requires some
secular purpose, and not “that the purposes of the display
are ‘exclusively secular,’ ” Lynch, 465 U.S. at 681 n. 6, we
conclude that the articulation of a legitimate secular
purpose for declining to remove the plaque in 2001 would
satisfy the first prong of Lemon, the requirement that there
be a secular purpose for the display. See also Edwards,
482 U.S. at 586-87 (noting that courts “normally defer[ ]” to
“articulation of a secular purpose” that is “sincere and not
a sham”). Although the County’s original purpose for
affixing the plaque to the facade of the Courthouse would
certainly inform the determination of whether the stated
purpose for leaving it in place was a sham, we conclude
that the primary focus should be on the events of 2001,
when the County refused Flynn’s request. This is consistent
with our view of the “endorsement” test, in which we also
focus on the events of 2001; we presume that the
reasonable observer views the plaque in or around 2001
                             26


and is aware of the age and history of the plaque and the
fact that the County has done nothing to celebrate or
highlight it. It would not make sense for us to focus on the
present day effect of the plaque, and yet only consider the
original purpose for erecting the Ten Commandments
plaque.

              III.   Application of the Tests

              A.     The “Endorsement” Test
  We now turn to the question whether a reasonable
observer, aware of the history of the plaque, would view it
as an endorsement of religion by the County. As a
preliminary matter, we cannot ignore the inherently
religious message of the Ten Commandments. Indeed, the
Supreme Court acknowledged this explicitly in Stone v.
Graham, a case involving a Kentucky statute which
required the posting of a copy of the Ten Commandments
on the walls of every public school classroom:
    The pre-eminent purpose for posting the Ten
    Commandments on schoolroom walls is plainly
    religious in nature. The Ten Commandments are
    undeniably a sacred text in the Jewish and Christian
    faiths, and no legislative recitation of a supposed
    secular purpose can blind us to that fact.
449 U.S. 39, 41 (1980). However, we do not believe that
Stone holds that there can never be a secular purpose for
posting the Ten Commandments, or that the Ten
Commandments are so overwhelmingly religious in nature
that they will always be seen only as an endorsement of
religion; rather, we conclude that Stone is fairly limited to
its facts. Stone held that a statute, recently enacted,
requiring the posting of the Ten Commandments in school
classrooms is an endorsement of religion by the state,
considering the inherently religious nature of the Ten
Commandments. But as the Court itself observed in
Edwards, “in Stone [our] decision forbidding the posting of
the Ten Commandments did not mean that no use could
ever be made of the Ten Commandments, or that the Ten
                             27


Commandments played an exclusively religious role in the
history of Western Civilization.” 482 U.S. at 594.
  While the Ten Commandments are undeniably religious,
the Supreme Court has held that the context of an
otherwise religious display can render the message of the
overall display as not endorsing religion. In Lynch, the
Court concluded that while the display of a crèche was
religious, when viewed in the context of the entire display
(which included less religious items associated with
Christmas, such as Santa Claus and candy-striped poles,
and completely secular objects, such a clown and a teddy
bear) it sent the message that the city was simply
acknowledging religion and not endorsing it. 465 U.S. at
692 (O’Connor, J., concurring) (“Although the religious and
indeed sectarian significance of the crèche . . . is not
neutralized by the setting, the overall holiday setting
changes what viewers may fairly understand to be the
purpose of the display.”). In contrast, the Supreme Court
concluded in Allegheny that a crèche displayed by itself in
a county courthouse, with no surrounding secular objects
to change the message sent to the reasonable observer, was
an unconstitutional endorsement of religion. 492 U.S. at
598 (“There is no doubt, of course, that the crèche itself is
capable of communicating a religious message. . . . Under
the Court’s holding in Lynch, the effect of a crèche display
turns on its setting. Here, unlike in Lynch, nothing in the
context of the display detracts from the crèche’s religious
message.”).
   We find further support for the notion that context can
change the reasonable observer’s perception of an otherwise
religious display (indeed a depiction of the Ten
Commandments) in a recent case decided by the Court of
Appeals for the Eleventh Circuit, King v. Richmond County,
2003 U.S. App. LEXIS 10943 (11th Cir. 2003). The King
case involved the use of an official seal for more than 130
years by the Superior Court of Richmond County, Georgia,
depicting two rectangular tablets with rounded tops meant
to represent the Ten Commandments. The Court concluded
that the seal did not send a message of endorsement of
religion because of four factors contributing to its context:
(1) the seal serves the distinct secular purpose of
                                   28


authenticating legal documents; (2) the presence of a sword
intertwined with the tablets increases the probability that
the reasonable observer will view the tablets as a symbol of
secular law rather than as a religious symbol; (3) the seal
is relatively small and discreet; and (4) because the seal
does not contain the actual text of the Ten Commandments
(but the tablets do contain the Roman numerals I through
X), the reasonable observer is not induced to read or
venerate sacred text. Notwithstanding our comments in the
margin, we acknowledge that the King case involved a
different set of facts. It is nonetheless significant that
another Court of Appeals has concluded that a depiction of
the Ten Commandments can pass constitutional muster
when the context of its display causes the reasonable
observer to view it not as an endorsement of religion, but as
serving a secular purpose.11
  While the Ten Commandments plaque here is displayed

11. We note that the fact that the King panel held that the seal
authenticates legal documents supports our discussion of ceremonial
deism, such as “In God We Trust,” and “God save the United States and
this Honorable Court.” See discussion infra in text. History provides a
context which changes how the reasonable observer views a religious
phrase or symbol because over time, these phrases (and the seal) have
taken on a secular purpose; in the King case, the seal served the secular
purpose of identifying documents as authentic (however, it is also
arguable that by placing the seal on legal documents, the county is
reinforcing the link between church and state). We also note that, like
the seal, the plaque is somewhat discreet. The King panel found
significant “the size and placement” of the seal “near the bottom or on
the last page of legal documents” because the reasonable observer would
be less inclined to believe that the government was endorsing religion.
King, slip op. at 29. Here, the entrance near the plaque is now closed
and only the title “The Commandments” is legible from the sidewalk in
front of the courthouse. Thus, we think that the reasoning in King
supports our position.
  We are not impressed by the argument that the presence of the sword
increases the likelihood that the reasonable observer would focus on the
secular significance of the Ten Commandments and not their religious
meaning. As such, we do not believe that our case is weakened by the
absence of any similar secular symbols along with the plaque; the sword
no more suggests the secular purpose of the Ten Commandments than
the “no-smoking” sign next to the plaque here.
                              29


by itself (we do not believe that the surrounding
administrative plaques change the effect on the reasonable
observer), the age and history of the plaque provide a
context which changes the effect of an otherwise religious
plaque. See Allegheny, 492 U.S. at 630 (O’Connor, J.,
concurring) (“[T]he ‘history and ubiquity’ of a practice is
relevant because it provides part of the context in which a
reasonable observer evaluates whether a challenged
governmental practice conveys a message of endorsement of
religion.”). So the question is, would a passerby (generally
knowledgeable about the history of the plaque and Chester
County) who walked up the steps to read the text of the Ten
Commandments plaque reasonably believe that by declining
to remove the 82-year-old plaque, the County was
endorsing religion?
   Turning in more detail to the notion of history as context,
Justice O’Connor in Allegheny suggests that history
provides a context which can change the effect of a
religious display because the reasonable observer would
understand that the display has “largely lost [its] religious
significance over time,” 492 U.S. at 631, and taken on
“secular purpose[s].” Id. Of course, we agree that her
examples of “ceremonial deism” are not violations of the
Establishment Clause, e.g., the opening of court with the
introduction “God save the United States and this
Honorable Court” (used in this very Court), or the
inscription “In God We Trust” on U.S. coins. But we do not
think this is so because the phrases themselves have lost
their religious significance. Indeed, it is hard to imagine
that these two phrases invoking God would not be
perceived as religious. Yet, in context, the phrase “In God
We Trust” has taken on a secular meaning that changes the
effect on the reasonable viewer; it is a cultural tradition and
a well-known marker identifying money as authentic.
Similarly, over time, the opening words “God save the
United States and this Honorable Court” have taken on the
secular purpose of “solemnizing public occasions” and
“expressing confidence in the future.” Id. Thus, the
reasonable observer, aware of the history of these
invocations of God, views the religious language as
tempered by the secular meaning that has emerged over the
passage of time; the overall effect is that the reasonable
                             30


person would not perceive in these phrases a government
endorsement of religion (despite the clear use of the word
“God”).
   The language of the Ten Commandments is certainly
different from “In God We Trust” or other examples of
ceremonial deism; the Ten Commandments are sacred text,
words taken directly from the Bible. In contrast, phrases
such as “In God We Trust” and “God save the United States
and this Honorable Court” are non-sectarian and would not
be used as prayer themselves. We note this distinction
because the case has yet to be made that the Ten
Commandments themselves have lost their primary
religious significance or that they have taken on a primarily
secular purpose. Instead, as we now explain in more detail,
we think that this particular plaque displaying the Ten
Commandments (in contrast to the Ten Commandments in
the abstract) would not be perceived by the reasonable
observer as an endorsement of religion when viewed in the
context of its own history.
   As noted above, a reasonable observer of the Ten
Commandments plaque is presumed to be aware of the
history of the plaque. While the reasonable observer may
not know the exact date that the plaque was erected, the
reasonable observer must certainly be presumed to know
that the plaque has been affixed to the Courthouse for a
long time. (Indeed, Flynn was aware from her own
experience that the plaque had been a fixture in Chester
County for at least 40 years before she complained about
it.). As a result, while the reasonable observer may perceive
the Ten Commandments (in the abstract) as portraying a
religious message, he or she would view the plaque as a
reminder of past events in Chester County. Thus, history
provides a context which changes how the reasonable
observer would regard the plaque.
   The reasonable observer would perceive an historic
plaque as less of an endorsement of religion than a more
recent    religious display   not    because    the   Ten
Commandments have lost their religious significance, but
because the maintenance of this plaque sends a much
different message about the religious views of the County
than would a recently erected display of the Ten
                              31


Commandments. The reasonable observer, knowing the age
of the Ten Commandments plaque, would regard the
decision to leave it in place as motivated, in significant part,
by the desire to preserve a longstanding plaque. In
contrast, a contemporary decision to erect such a plaque
could not be motivated by historic preservation; rather it
would appear much more likely that the County
Commissioners were motivated by religion. As such, a new
display of the Ten Commandments is much more likely to
be perceived as an endorsement of religion by the County
(especially where there is nothing else in the context of the
display that would change the views of the reasonable
observer, such as exists in the frieze in the courtroom of
the United States Supreme Court, which portrays Moses
carrying the Ten Commandments alongside depictions of
other figures who have impacted modern law, such as John
Marshall, William Blackstone, and Caesar Augustus). See
Allegheny, 492 U.S. at 652-53 (Stevens, J., concurring in
part and dissenting in part).
  The issue is perhaps best framed by Marsh v. Chambers,
where the Supreme Court held that the Nebraska
Legislature’s practice of opening each legislative day with a
prayer by a chaplain paid by the state did not violate the
Establishment Clause. Chief Justice Burger explained:
    We do not doubt the sincerity of those, who like
    respondent, believe that to have prayer in this context
    risks the beginning of the establishment the Founding
    Fathers feared. But this concern is not well founded,
    for as Justice Goldberg aptly observed in his
    concurring opinion in Abington, 374 U.S. at 308
    [Abington School District v. Schempp, 374 U.S. 203
    (1963)]:
       “It is of course true that great consequences can
       grow from small beginnings, but the measure of
       constitutional adjudication is the ability and
       willingness to distinguish between real threat and
       mere shadow.”
    The unbroken practice for two centuries in the National
    Congress and for more than a century in Nebraska and
    in many other states gives abundant assurance that
    there is no real threat “while this Court sits.”
                              32


463 U.S. 783, 795 (quoting Panhandle Oil Co. v. Mississippi
ex rel. Knox, 277 U.S. 218, 223 (1928) (Holmes, J.,
dissenting)) (emphasis added).
While the Marsh Court found it significant that the use of
legislative prayer was contemporaneous with the drafting of
the Establishment Clause, noting that “three days after
Congress authorized the appointment of paid chaplains,
final agreement was reached on the language of the Bill of
Rights,” 463 U.S. at 788, it is nonetheless significant that
the Supreme Court has acknowledged the proposition that
history can transform the effect of a religious practice.
   For the reasons stated above, and in the prescient words
of Justice Goldberg, we believe the plaque, when viewed in
the context of its history, is not “real threat,” but is instead
“mere shadow.” The fact that the plaque is a longstanding
fixture on an historic monument, the Courthouse itself
(which has been placed on the National Register of Historic
Places), lends further support for the notion that the
context of the plaque changes the way in which the
reasonable observer views it. As counsel for amicus Chester
County Historic Preservation Network reasoned at oral
argument, over time, additions to historic monuments can
become part of the historic monuments themselves. While
the preservationist perspective would not militate in favor of
affixing the Ten Commandments plaque to this historic
Courthouse today, it opposes tearing down this plaque
because it has become part of the history of the Chester
County Courthouse, a monument significant to Chester
County. A reasonable observer must be presumed to know
the history of the Courthouse (a marker noting the historic
nature of the Courthouse is actually affixed to the same
east facade to which the Ten Commandments plaque is
affixed) and the fact that the plaque itself has become part
of this historic Courthouse. Thus, the reasonable observer
would perceive the plaque as a part of an historic
monument, namely the Courthouse itself. Viewed in this
context, the Commissioners’ refusal to remove the plaque
appears even less like an endorsement of religion and more
likely motivated by the desire to preserve a plaque that has
become part of the Courthouse.
                               33


  While the history of the plaque changes its effect, history
by itself may not be sufficient to change an otherwise
religious display into something that is not perceived by the
reasonable observer as an endorsement of religion.
Allegheny, 492 U.S. at 630 (O’Connor, J., concurring)
(“Historical acceptance of a practice does not in itself
validate that practice under the Establishment Clause if the
practice violates the values protected by that Clause.”). In
the case at bar, however, it is highly significant that there
is no evidence that the County has taken any action
involving the plaque since it was erected over 80 years ago.
We presume that the reasonable observer knows that the
County has not held a ceremony to commemorate the
anniversary of the plaque or even installed lights to draw
attention to the plaque at night. Indeed, the County has
actually closed the old entrance near the plaque, which has
detracted in a major way from the obviousness and
accessibility of the plaque. Though the entrance was closed
for “budgetary reasons and security reasons,” the County
could have moved the plaque to the new entrance if it
wanted to call attention to the plaque. The fact that the
County has not taken any action to highlight or celebrate
the plaque since it was installed reinforces the view of the
reasonable observer that the County Commissioners
maintained the plaque to preserve a longstanding plaque.

        B.   The Lemon Test (Purpose and Effect)
   Turning to the Lemon test, we conclude that the County
Commissioners had a legitimate secular purpose for
refusing to remove the plaque which, as we noted above, is
all that is required under the purpose prong of Lemon.
Although Commissioners Hanna and Dinniman were never
asked directly why they decided to leave the plaque in
place, and the District Court focused on the County’s
original purpose for accepting the plaque, noting that “the
views of the current officeholders are of little, if any, value,”
Freethought Soc’y, 191 F.Supp. 2d at 598, we nonetheless
believe that the record is unequivocal that the
Commissioners professed a “non-sham” secular purpose for
refusing to remove the plaque. For example, Commissioner
Hanna stated that he believed that the plaque symbolized
                              34


the “ ‘two wing theory of our polity,’ in which faith and
reason . . . as a historical reality worked together to create
and maintain the American experiment.” Id. at 597-98. He
also stated that “I believe [the Ten Commandments] have
both a secular purpose and a religious origin.” Likewise,
Commissioner Dinniman testified that “I think there’s no
doubt that there are a lot of traditions [contributing] to the
development of our system of law. The Ten Commandments
being one.”
  Based on this testimony, the District Court found that
the Commissioners were responding honestly and truthfully
about their perceptions of the plaque. Given the relatively
low threshold required by the purpose prong of Lemon (the
purpose of the display does not have to be exclusively
secular and courts normally defer to the stated purpose of
the display, see Edwards, 482 U.S. at 585-87), it would
appear that the Commissioners’ articulations are sufficient
to demonstrate a legitimate secular purpose.
    This conclusion is supported by some well documented
history, presented by Chester County and its amici, to the
effect that the Ten Commandments have an independent
secular meaning in our society because they are regarded
as a significant basis of American law and the American
polity, including the prohibitions against murder and
blasphemy. See, e.g., Bertera’s Hopewell Foodland, Inc. v.
Masters, 236 A.2d 197, 200-01 (Pa. 1967) (noting that the
Sunday closing laws “trace[ ] an ancestry back to the Ten
Commandments fulminated from the smoking top of Mt.
Sinai. . . . This divine pronouncement became part of the
Common Law inherited by the thirteen American colonies
and by the sovereign States of the American union.”);
Anderson v. Maddox, 65 So.2d 299, 301-302 (Fla. 1953)
(“ ‘Thou shalt not steal’ and ‘thou shalt not bear false
witness’ are just as new as they were when Moses brought
them down from the Mountain.”) (Terrell, J., concurring
specially); State v. Gamble Skogmo, Inc., 144 N.W.2d 749,
768 (N.D. 1966) (“Thus, for temporal purposes, murder is
illegal. And the fact that this agrees with the dictates of the
Judaeo-Christian religions while it may disagree with
others does not invalidate the regulation. So too with the
questions of adultery and polygamy. The same could be
                              35


said of theft, fraud., etc. because those offenses were also
proscribed in the Decalogue.”) (internal citations omitted).
   It would also appear that the commandment against
taking the Lord’s name in vain is reflected in the practice of
swearing to uphold the law with the phrase, “so help me
God.” See also Daniel J. Boorstin, The Mysterious Science of
the Law, at preface to Beacon Press Edition (1958) (noting
of Blackstone’s Commentaries on the Laws on England that
“[i]n the history of American institutions, no other book —
except the Bible — has played so great a role. . .”);
Blackstone identifies King Alfred as the founder of English
common law and the Laws of King Alfred start with the Ten
Commandments. Harold J. Berman, Individualistic And
Communitarian Theories of Justice: An Historical Approach,
21 U. Cal. Davis L.Rev. 549-575 (1988).
   Chester County also notes that members of the United
States Supreme Court have recognized the influence of the
Ten Commandments on the foundations of the American
legal system. See Stone, 449 U.S. at 45 (Rehnquist, J.,
dissenting) (“It is . . . undeniable . . . that the Ten
Commandments have had a significant impact on the
development of secular legal codes of the Western World.”);
McGowan v. Maryland, 366 U.S. 420, 462 (1961)
(Frankfurter, J., concurring) (“Innumerable civil regulations
enforce conduct which harmonizes with religious canons.
State prohibition of murder, theft and adultery reinforce
commands of the decalogue.”). Numerous American
Presidents have also made reference to the Ten
Commandments as a foundational legal document. See,
e.g., John Adams, 6 The Works of John Adams, Second
President of the United States 9 (Charles Francis Adams, ed.
1851) (“If ‘Thou shalt not covet’ and ‘Thou shalt not steal’
were not commandments of Heaven, they must be made
inviolable precepts in every society, before it can be civilized
or made free.”); Harry S. Truman, Public Messages,
Speeches and Statements by the President, Jan. 1. to Dec.
31, 1950 (Washington, D.C. U.S. Government Printing
Office, 1965) Item 37, p. 157 (“The fundamental basis of
this Nation’s laws was given to Moses on the Mount.”).
  Returning briefly to the “endorsement” inquiry, we note
that we did not consider whether the reasonable observer
                                   36


(in contrast to the Commissioners) would believe that the
Ten Commandments formed the basis of much of American
law and polity, a conclusion which would have given
additional support to our holding that the reasonable
viewer would not perceive the plaque as an endorsement of
religion. Instead, we discuss the Ten Commandments as a
foundational legal document only to the extent that it
informs our determination of the subjective inquiry into the
Commissioners’ purpose. Thus, in holding that the
Commissioners had a legitimate secular purpose for
refusing to remove the plaque (it appears that they honestly
believed it served the secular purpose of demonstrating one
of the key sources of American law), we express no opinion
about the objective inquiry into whether a reasonable
observer would perceive the Ten Commandments plaque as
celebrating a foundational legal document, although we
comment in the margin about this troubling and difficult
question.12

12. The plaintiffs and the amici in support of the plaintiffs question the
extent to which the laws of the United States are actually based upon
the Ten Commandments (a question which we have neither the desire
nor expertise to resolve). They also contend that the County’s examples
in no way suggest that the reasonable observer would believe that the
Ten Commandments are the basis for many modern laws; indeed, the
assumption, inherent in Chester County’s argument, that the reasonable
observer knows about, e.g., statements made by John Adams or the
holdings of state court cases seems highly questionable. Finally, the
plaintiffs note that the Ten Commandments is not the most significant
basis of American law and polity and that there is no reason why the
reasonable observer would believe that the plaque was posted to
celebrate the foundational significance of the decalogue and not its
religious message, especially where other foundational documents (such
as the Magna Carta or the Bill of Rights) are not displayed along with the
Ten Commandments.
  We acknowledge the intuitive force of the defendants’ secularization
arguments set forth in text, i.e., that the Ten Commandments have lost
their primary religious significance because of the perception that they
are a significant source of American law and polity. We also acknowledge
the great force of the plaintiffs’ reasoning in opposition to these
arguments both in their application and their doctrinal core. However,
we need not address these issues since we decide this case on narrower
grounds.
                                   37


  Since effect under the Lemon test is cognate to
endorsement, we simply incorporate our discussion of
endorsement in Part III. A supra, and given our conclusion
as to the legitimacy of their purpose, hold that the
Commissioners’ refusal to remove the plaque passes
constitutional muster under both the purpose and effect
prongs of Lemon.

                 IV.   Other Courts of Appeals
  In Part III. A, we noted that the Court of Appeals for the
Eleventh Circuit recently upheld the use of an official seal
depicting the Ten Commandments. King v. Richmond
County, No. 02-14146 (11th Cir. May 30, 2003). While the
Court did not discuss whether the seal’s history (it had
been used for over 130 years) could change what the
reasonable observer believed to be the purpose of the
tablets on the seal, instead focusing on factors such as the
absence of the text of the Ten Commandments, we
nonetheless find support in this opinion for our holding
that context can change how a display of the Ten
Commandments is perceived by the reasonable observer.
  However, we also acknowledge that two other Courts of
Appeals have recently considered private displays of the
Ten Commandments on government property and
concluded that those displays violated the Establishment
Clause.13 We find these cases neither apposite nor
persuasive. In Adland v. Russ, 307 F.3d 471 (6th Cir.
2002), cert. denied, 71 U.S.L.W. 3568 and 71 U.S.L.W.
3678 (U.S. April 28, 2003) (No. 02-1241), the Court of
Appeals for the Sixth Circuit held that a monument
displaying   a   “nonsectarian”  version   of  the   Ten

13. The Court of Appeals for the Tenth Circuit, however, concluded that
a display of the Ten Commandments did not violate the Establishment
Clause in Anderson v. Salt Lake City Corp., 475 F.2d 29 (10th Cir. 1973).
We do not find much support for our decision in that case since it was
decided prior to the Supreme Court’s discussion of the Ten
Commandments in Stone v. Graham, 449 U.S. 39 (1980), and the display
cases from which the “endorsement” test emerged. See, e.g., Lynch v.
Donnelly, 465 U.S. 668 (1984); County of Allegheny v. ACLU, 492 U.S.
573 (1989); Capitol Square Review Bd. v. Pinette, 515 U.S. 753 (1995).
                             38


Commandments (compiled by representatives of Judaism,
Protestantism and Catholicism) donated by the Fraternal
Order of Eagles in 1971, but moved to storage in 1980,
could not be placed on the state capitol grounds after a
2000 state resolution to take the monument out of storage.
That case of course involved a proposed placement of the
Ten Commandments, not the refusal to remove a
longstanding plaque. Moreover, the monument there was
not as old and was much more prominent than the plaque
at issue here. In Books v. City of Elkhart, 235 F.3d 292 (7th
Cir. 2000), cert. denied, 532 U.S. 1058 (2001), the Court of
Appeals for the Seventh Circuit, over a powerful dissent by
Judge Manion, concluded that a monument similar to the
one in Adland, displaying a “nonsectarian” version of the
Ten Commandments, donated by the Fraternal Order of
Eagles in 1958 and displayed on the lawn in front of a local
municipal building (a much more prominent placement
than is involved here), had the purpose and effect of
endorsing religion. See also Indiana Civil Liberties Union v.
O’Bannon, 259 F.3d 766 (7th Cir. 2001), cert. denied, 534
U.S. 1162 (2002) (following Books and holding that the
state’s acceptance of a monument containing the Ten
Commandments which would have been placed in a
prominent position on the Indiana Statehouse grounds to
replace a monument donated by the Fraternal Order of
Eagles in 1958 and destroyed in 1991 by a vandal would
violate the Establishment Clause). We are, of course, not
bound by these cases and we do not believe that either is
particularly instructive in the case at bar. Neither court
addressed the argument that history could provide a
context which could change the effect of the overall display
on a reasonable observer.

                      V.   Conclusion
   For all the foregoing reasons we believe, in Justice
Goldberg’s words, that the Ten Commandments plaque
affixed to the Chester County Courthouse in 1920 is today
not “real threat,” but “mere shadow.” Marsh, 463 U.S. at
795. The order of the District Court will be reversed and the
permanent injunction prohibiting the continued display of
the plaque will be vacated.
                             39


BRIGHT, Circuit Judge, concurring.
  I concur in Judge Becker’s excellent opinion but for
emphasis make a separate statement.
  A world of difference exists between the conduct of the
Chester County officials approving the placement of the
plaque at the then main entrance to the Chester County
Courthouse eighty-three years ago and the decision of
Chester County not to remove the plaque as of today.
   In my view, several crucial facts support our decision
today and give rise to a unique situation unlike any prior
case. First, when the Courthouse opened its new entrance
in 2001 for security and cost concerns, Chester County and
the Commissioners did not change the location of the
plaque. Moreover, in the many years the plaque has hung
on the Courthouse, the County has never taken any action
to commemorate, celebrate, or highlight it. With the closing
of the former entrance, the plaque is barely visible from the
street, and its text is mostly obscured. These facts can
hardly be construed as Chester County’s endorsement of
religion. In not changing the location of the plaque to the
main entrance or otherwise actively drawing attention to
the plaque, Chester County and its Commissioners’
conduct indicates neutrality toward the plaque and its text.
   I agree with the majority that we cannot read Stone v.
Graham, 449 U.S. 39 (1980), as requiring that any
government posting of the Ten Commandments be
construed as an endorsement of religion. Nonetheless, we
must be mindful of the Supreme Court’s recognition that
the decalogue is “undeniably a sacred text in the Jewish
and Christian faiths.” 449 U.S. at 41. In negotiating the
often    treacherous   path   of   Establishment   Clause
jurisprudence, I also turn to Justice Goldberg’s
concurrence in School Dist. of Abington Township v.
Schempp:
      The fullest realization of true religious liberty
    requires that government neither engage in nor compel
    religious practices, that it effect no favoritism among
    sects or between religion and nonreligion, and that it
    work deterrence of no religious belief. But devotion
    even to these simply stated objectives presents no easy
                             40


    course, for the unavoidable accommodations necessary
    to achieve the maximum enjoyment of each and all of
    them are often difficult of discernment. There is for me
    no simple and clear measure which by precise
    application can readily and invariably demark the
    permissible from the impermissible.
      It is said, and I agree, that the attitude of
    government toward religion must be one of neutrality.
    But untutored devotion to the concept of neutrality can
    lead to invocation or approval of results which partake
    not simply of that noninterference and noninvolvement
    with the religious which the Constitution commands,
    but of a brooding and pervasive devotion to the secular
    and a passive, or even active, hostility to the religious.
    Such results are not only not compelled by the
    Constitution, but, it seems to me, are prohibited by it.
374 U.S. 203, 305-06 (1963) (Goldberg, J., concurring).
  This case presents a scenario entirely distinct from the
cases    in    which    government      officials make     a
contemporaneous decision about a Ten Commandments
display. See, e.g., Adland v. Russ, 307 F.3d 471, 480 (6th
Cir. 2002); Books v. City of Elkhart, 235 F.3d 292, 304 (7th
Cir. 2000).
41
42
                            43




A True Copy:
        Teste:

                 Clerk of the United States Court of Appeals
                             for the Third Circuit
