Judge Ryan's Dissent
in American Civil Liberties Union of Kentucky v. McCreary County, Kentucky (2003)
[EDITOR'S NOTE: Sixth Circuit Court of Appeals Judge Ryan writes to uphold the constitutionality of the Ten Commandments in "Foundations of American Law and Government" displays, in a dissent to the court's holding (2-1 decision of a 3-judge panel) that such displays are unconstitutional.]
United States Court of Appeals
for the Sixth Circuit.
AMERICAN CIVIL LIBERTIES UNION OF KENTUCKY
v. McCREARY COUNTY, KENTUCKY
Argued: December 4, 2002.
Decided and Filed: December 18, 2003.
[* * * * *]
RYAN, Circuit Judge, dissenting.
The majority holds that the displays mounted on the walls of the county courthouses in McCreary and Pulaski counties and in the school buildings in Harlan County, Kentucky, offend the Establishment Clause of the First Amendment of the United States Constitution, and it affirms the district court's order that the displays be removed. I disagree and, with respect, must dissent.
The defendants' displays comport with the requirements of the Constitution in every respect, as is clearly indicated by the Supreme Court's two landmark cases permitting the use of religious symbols on public property: Lynch v. Donnelly, 465 U.S. 668 (1984), and County of Allegheny v. ACLU, 492 U.S. 573 (1989). Rather than address these authorities in a meaningful fashion, the majority conjures a rule from the case of Stone v. Graham, 449 U.S. 39 (1980), a two-page, per curiam decision of the Court that preceded both Lynch and Allegheny, that was decided without the benefit of oral argument or briefs on the merits, and that bears no factual similarity to the case before us.
With one exception, the majority's analysis fails to properly apply the relevant Supreme Court precedent to the facts of the case before us. Inasmuch as my colleagues have expressed their disagreement with the reasoning that led the district court to conclude that the displays are unconstitutional, there is no need to point out why that is an eminently correct judgment. Nevertheless, having rejected much of the district court's analysis, the majority now affirms the judgment of that court by employing a wholly independent rationale that was not developed below and not presented to this court for review.
As the majority has correctly said, the controlling law in this case is the three-part "Lemon test" found in Lemon v. Kurtzman, 403 U.S. 602 (1971), as refashioned, it should be added, in Lynch v. Donnelly, 465 U.S. 668, and County of Allegheny v. ACLU, 492 U.S. 573. The Lemon test has proved difficult to apply in many Establishment Clause cases because its three elements are frequently ill-suited to ever more imaginative Establishment Clause challenges. Indeed, the Supreme Court has cautioned against mechanically applying the test to every Establishment Clause case, Lynch, 465 U.S. at 679, and has variously criticized, modified, and even ignored it. See, e.g., Lamb's Chapel v. Ctr. Moriches Sch. Dist., 508 U.S. 384, 398-99 (1993) (Scalia, J., concurring) (citing cases).
Of the current members of the Supreme Court, six have criticized the Lemon test. For example, in Wallace v. Jaffree, 472 U.S. 38 (1985), then-Justice Rehnquist stated:
[T]he Lemon test has no more grounding in the history of the First Amendment than does the wall theory upon which it rests. The 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 (Rehnquist, J., dissenting). Justice O'Connor once called the analysis under the Lemon test "problematic" and warned that there are "certain difficulties inherent in the Court's use of the test." Corp. of the Presiding Bishop of the Church of Jesus Christ of Latter-Day Saints v. Amos, 483 U.S. 327, 346 (1987) (O'Connor, J., concurring in the judgment). Justice Stevens has lamented "the sisyphean task of trying to patch together the 'blurred, indistinct, and variable barrier' described in Lemon." Comm. for Pub. Educ. & Religious Liberty v. Regan, 444 U.S. 646, 671 (1980) (Stevens, J., dissenting). Also registering his dissatisfaction with Lemon, Justice Kennedy stated:
I ... do not wish to be seen as advocating, let alone adopting, [the Lemon] test as our primary guide in this difficult area. Persuasive criticism of Lemon has emerged. Our cases often question its utility in providing concrete answers to Establishment Clause questions, calling it but a helpful signpos[t] or guideline[e], to assist our deliberations rather than a comprehensive test. Substantial revision of our Establishment Clause doctrine may be in order.
Allegheny, 492 U.S. at 655-56 (Kennedy, J., concurring in the judgment in part and dissenting in part) (internal quotation marks and citations omitted). Finally, Justice Thomas joined the refrain when he signed on to a dissent written by Justice Scalia, the Court's severest critic of Lemon, who had this to say about the much-maligned test:
Our Religion Clause jurisprudence has become bedeviled (so to speak) by reliance on formulaic abstractions that are not derived from, but positively conflict with our long-accepted constitutional traditions. Foremost among these has been the so-called Lemon test, which has received well-earned criticism from many Members of this Court.
Lee v. Weisman, 505 U.S. 577, 644 (1992) (Scalia, J., joined by, inter alios, Thomas, J., dissenting) (citation omitted).
The Court has also modified the Lemon test by adopting Justice O'Connor's "endorsement test" from Lynch:
[Justice O'Connor's] concurrence 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."
Allegheny, 492 U.S. at 595 (quoting Lynch, 465 U.S. at 692 (O'Connor, J., concurring)). The test has been further modified by "fold[ing] the entanglement inquiry into the primary effect inquiry." Zelman v. Simmons-Harris, 536 U.S. 639, 668 (2002) (O'Connor, J., concurring).
In some cases, the Supreme Court has simply ignored the Lemon test. In Larson v. Valente, 456 U.S. 228 (1982), the Court, holding that Minnesota's charitable solicitation statute violated the Establishment Clause, stated that the "application of the Lemon tests is not necessary to the disposition of the case before us." Id. at 252. Chief Justice Warren Burger, himself the author of Lemon, also declined to apply the test in an Establishment Clause challenge to Nebraska's practice of paying a chaplain to offer prayers at the opening of the state's legislative sessions. See Marsh v. Chambers, 463 U.S. 783 (1983).
Not surprisingly, the Court has consistently emphasized that the Lemon test is not the sine qua non of Establishment Clause jurisprudence. In Mueller v. Allen, 463 U.S. 388 (1983), the Court stated that the Lemon test "provides 'no more than [a] helpful signpos[t]' in dealing with Establishment Clause challenges." Id. at 394 (quoting Hunt v. McNair, 413 U.S. 734, 741 (1973)). And in Lynch, citing cases in which it did not utilize the Lemon test at all, the Court stated: "[W]e have repeatedly emphasized our unwillingness to be confined to any single test or criterion in this sensitive area." 465 U.S. at 679. In the Lemon case itself, the Supreme Court grappled with the question whether statutes in Pennsylvania and Rhode Island that authorized limited state financial aid to church-related schools violated the Establishment Clause. The Court said they did, because neither statute could pass the new test Chief Justice Warren Burger conjured, mid-opinion, which provides:
First, the statute must have a secular legislative purpose; second, its principal or primary effect must be one that neither advances nor inhibits religion; [and] finally, the statute must not foster an excessive government entanglement with religion.
Lemon, 403 U.S. at 612-13 (internal quotation marks and citations omitted).
Over the years, the Supreme Court has broadened the test to apply not only to legislative enactments, but to any government action. For example, in Widmar v. Vincent, 454 U.S. 263 (1981), the Court applied the test to a university policy that excluded religious groups from a public forum. After experiencing considerable difficulty applying the test to various Establishment Clause challenges, especially its second part which proscribes government action whose primary effect either advances or inhibits religion, the Court modified that part of the test to prohibit government action that has the principal or primary effect of "endorsing" religion. Allegheny, 492 U.S. at 595 (citing Lynch, 465 U.S. at 691-94 (O'Connor, J., concurring)).
While judges, lawyers, and constitutional law scholars continue to criticize Lemon, and repeatedly urge the Supreme Court to fashion a new, more workable test for determining whether a unit of government has made a "law respecting an establishment of religion," U.S. Const. amend. I, we (the lower federal courts) are stuck with the three-part Lemon test, and we must apply it in this case.
Having done so, I conclude that the three displays the plaintiffs have challenged, easily and obviously pass the Lemon test, and that, perforce, my colleagues' conclusion to the contrary is mistaken.
The majority opinion has partially misstated the proper standard of review in this case. It is certainly true that we review a district court's decision to grant a preliminary injunction for an abuse of discretion. Sandison v. Mich. High Sch. Athletic Ass'n, 64 F.3d 1026, 1030 (6th Cir. 1995). However, in determining whether the district court abused its discretion, we review its findings of fact for clear error and its legal conclusions de novo. Id. Moreover, we will overturn a district court's decision to grant a preliminary injunction "if the district court relied upon clearly erroneous findings of fact, improperly applied the governing law, or used an erroneous legal standard." Blue Cross & Blue Shield Mut. v. Blue Cross & Blue Shield Ass'n, 110 F.3d 318, 322 (6th Cir. 1997). In this case, because the district court based its decision to grant the injunction on the legal conclusion that the displays failed the purpose and effect prongs of the Lemon test, that conclusion should properly be reviewed de novo.
What the district court and my colleagues have held unconstitutional is an arrangement of ten framed documents on the courthouse lobby walls in McCreary and Pulaski counties and in the Harlan County school buildings.
The courthouse displays consist of the following documents:
1. The Star Spangled Banner;
2. The Declaration of Independence;
3. The Mayflower Compact;
4. The Bill of Rights;
5. The Magna Carta;
6. The National Motto;
7. The Preamble to the Kentucky Constitution;
8. The Ten Commandments;
9. A printed figure of the Lady Justice; and
10. An explanatory sign identifying the foregoing documents and stating that the entire display is of "documents that played a significant role in the foundation of our system of law and government."
In addition, the courthouse displays are prominently identified as: "Foundations of American Law and Government Display."
The Harlan County School Board display is essentially identical to the McCreary and Pulaski courthouse displays, except that it is not identified as the "Foundations of American Law and Government Display," and the Lady Justice document and the explanatory sign are omitted. In their places are the text of Kentucky Revised Statute [section] 158.195, authorizing the posting of historical displays, and a lengthy Harlan County School Board resolution, stating, among other things, that the "many documents [comprising the display], taken as a whole, have special historical significance to our community, our country, and our country's history." No one of the framed documents in any of the displays has, by its size or location in the arrangement, any greater prominence than any other.
The defendants claim their purposes were to assemble and post in the courthouse and school district buildings, an array of historical documents that, taken together, have the educational and patriotic value of illustrating some of the ideas and influences that "were part of the foundation of American Law and Government" and "played a significant role in the development, origins or foundations of American or Kentucky law." ACLU v. McCreary County (McCreary II), 145 F.Supp.2d 845, 848 (E.D. Ky. 2001) (internal quotation marks and citations omitted). They argue that these purposes are entirely secular.
The district court correctly summarized the defendants' secular purposes as follows:
1. To erect a display containing the Ten Commandments that is constitutional;
2. To demonstrate that the Ten Commandments are part of the foundation of American law and government;
3. To include the Ten Commandments as part of the display for their significance in providing the moral background of the Declaration of Independence and the foundation of our legal tradition;
4. To educate the citizens of the county regarding some of the documents that played a significant role in the foundation of our system of law and government; and
5. As designated by the Harlan School Board, to create a limited public forum on designated walls within the school district for the purpose of posting historical documents that played a significant role in the development, origins, or foundations of American and Kentucky law.
Inquiry into the constitutionality of the defendants' displays must begin, as I have said, with the Supreme Court case of Lemon v. Kurtzman, 403 U.S. 602. That inquiry, of necessity, includes Lynch v. Donnelly, 465 U.S. 668, and County of Allegheny v. ACLU, 492 U.S. 573, in which the Supreme Court directly addressed the issue of whether a government may display an inherently religious, even sectarian symbol, on public property. The Court held in both Lynch and Allegheny that a government may use a religious symbol to accomplish a secular purpose, if the symbol is displayed in a way that does not create an impression of endorsement in the mind of the reasonable observer. A review of the facts in this case indicates that the defendants have rigorously complied with the criteria established by the Court in both Lynch and Allegheny, and that their displays in no way constitute an establishment of religion.
The first question we must consider under the Lemon test is whether the government's display has a secular purpose. Lemon, 403 U.S. at 612. "A statute or practice that is motivated in part by a religious purpose may satisfy the first Lemon criterion so long as it is not motivated entirely by a purpose to advance religion." ACLU v. City of Birmingham, 791 F.2d 1561, 1565 (6th Cir. 1986).
Furthermore, the Supreme Court has informed us that we have "no license to psychoanalyze ... legislators" and that we must refrain from ascribing improper motives to legislators who "express[ ] a plausible secular purpose." Wallace, 472 U.S. at 74. If the government offers an explanation of its purpose, that explanation is owed deference by the judiciary unless and until shown to be a "sham," for "[w]e must be cautious about attributing unconstitutional motives to state officials." Chaudhuri v. Tennessee, 130 F.3d 232, 236 (6th Cir. 1997).
Five legitimate secular purposes motivated the defendants to erect the displays in their current format. First, the defendants desired to erect a display of the Ten Commandments that is constitutional. I find in this stated desire nothing that even hints at a primarily religious purpose, much less a sham. Neither the Supreme Court, nor this court, nor any federal appellate court, insofar as I know, has ever suggested that displaying the Ten Commandments is an impermissible objective under the Establishment Clause. In fact, quite the contrary is true. As we stated on one occasion:
[W]e believe that the Supreme Court's opinion in Stone and Justice Stevens' statements in Allegheny not only acknowledge that the Ten Commandments may be constitutionally displayed, they provide considerable guidance how they can be displayed.
Adland v. Russ, 307 F.3d 471, 489 (6th Cir. 2002), cert. denied, 123 S.Ct. 1909 (2003).
Similarly, there is no reason to doubt the legitimacy of the second and third secular purposes for the displays, namely, to demonstrate that the Ten Commandments were part of the foundation of American law and government, and to recognize the significance of the Ten Commandments in providing the moral and cultural background of the Declaration of Independence and the foundation of our legal tradition. With respect to these two iterations of the defendants' secular purposes, the majority singles out the Declaration of Independence and complains that "[t]here is by no means a consensus ... that the source of Thomas Jefferson's belief in divinely-bestowed, unalienable rights, to the extent this belief inspired the writing of the Declaration, was the Ten Commandments or even the Bible." Maj. op. at 25. In fact, the majority seems to hold that no government could ever plausibly proclaim the religious heritage of this nation because the prevailing view among historians is that our founders were primarily inspired by secular influences. See id. Not only is this observation a complete non sequitur, it is highly debatable as an historical matter. But more significantly, the source of Thomas Jefferson's "belief in divinely-bestowed, unalienable rights" proclaimed in the Declaration of Independence is utterly immaterial, because its does not resolve the real issue before us today, which is whether the defendants' avowed secular purposes are shams. The Declaration of Independence is not the sole source of evidence that religion, of which the Ten Commandments are a nearly universal symbol, was a significant influence upon the foundation of American law and government. My colleagues' interesting diversion about Thomas Jefferson, the Declaration of Independence, and the Bible offers no basis whatever to conclude, as a matter of law, as my colleagues do, that the defendants' avowed secular purposes are shams.
The influence of religion upon American law and government is a fact of American history and politics that has been widely recognized by scholars, jurists, legislators, presidents, and, not least, the Founders themselves.
In his Farewell Address to the nation, George Washington stated that religion was not only a part of the foundation of our law and government, it was a necessity:
Of all the dispositions and habits which lead to political prosperity, Religion and morality are indispensible supports. In vain would that man claim the tribute of Patriotism, who should labour to subvert these great Pillars of human happiness, these firmest props of the duties of Men and citizens. The mere Politician, equally with the pious man ought to respect and to cherish them. A volume could not trace all their connections with private and public felicity .... Whatever may be conceded to the influence of refined education on minds of peculiar structure, reason and experience both forbid us to expect that National morality can prevail in exclusion of religious principle.
George Washington, Farewell Address (Sept. 19, 1796), in 1 The Founder's Constitution 681, 684 (Philip B. Kurland & Ralph Lerner eds., 1987). Similarly Thomas Jefferson, in his First Inaugural Address, listed religion as one of the necessary sources of our nation's prosperity:
[E]nlightened by a benign religion, professed, indeed, and practiced in various forms, yet all of them inculcating honesty, truth, temperance, gratitude, and the love of man, acknowledging and adoring an overruling Providence, which by all its dispensations proves that it delights in the happiness of man here and his greater happiness hereafter--with all these blessings, what more is necessary to make us a happy and a prosperous people?
Thomas Jefferson, First Inaugural Address (Mar. 4, 1801), in id. 140, 141.
In fact, in recognition of religion's foundational role in our law and government, both Thomas Jefferson and Benjamin Franklin independently proposed that the new American seal depict Moses leading Israel through the wilderness under the protection of God, with the motto, "Rebellion to Tyrants is Obedience to God." James H. Hutson, Religion and the Foundation of the American Republic, 50-51 (1998). Although the Continental Congress never accepted Jefferson's and Franklin's proposals, it did adopt a seal with numerous religious references. "What is unmistakable ... is the theistic framework in which the Continental Congress sought to have the world understand the creation of the American republic." Derek H. Davis, Religion and the Continental Congress, 1774-1789: Contributions to Original Intent 144 (Oxford Univ. Press 2000).
Like Washington, the Continental Congress also drew the connection between religion and government. On October 11, 1782, in a Thanksgiving proclamation near the end of the Revolutionary War, the Congress asked Americans
to testify their gratitude to God for his goodness, by a cheerful obedience to his laws, and by promoting ... the practice of true and undefiled religion, which is the great foundation of public prosperity and national happiness.
23 Journals of the Continental Congress, 1774-1789, 647 (Gaillard Hunt ed., Government Printing Office 1914). These same sentiments were expressed by the Congress the day after the First Amendment was proposed when it urged President Washington to proclaim "'a day of public thanksgiving and prayer, to be observed by acknowledging with grateful hearts the many signal favours of Almighty God." See Davis, supra at 89 (citation omitted).
President John Adams likewise described the importance of religion to the American system of government:
As the safety and prosperity of nations ultimately and essentially depend on the protection and the blessing of Almighty God, and the national acknowledgment of this truth is not only an indispensible duty which the people owe to Him, but a duty whose natural influence is favorable to the promotion of that morality and piety without which social happiness can not exist nor the blessings of a free government be enjoyed.
John Adams, Fast Day Proclamation (Mar. 23, 1798), in A Compilation of the Messages and Papers of the Presidents, 1789-1897, 268, 268-69 (James D. Richardson ed., 1899).
These are only a few of the numerous statements by our early political leaders drawing the same conclusion as did the defendants in this case: that religion played a foundational role in American law and government. This is a conclusion, incidentally, that is widely accepted by scholars. As one of the earliest observers of American political life, Alexis de Tocqueville recognized, religion is an essential component of American government:
Religion in America takes no direct part in the government of society, but it must be regarded as the first of the political institutions; for if it does not impart a taste for freedom, it facilitates the use of it. Indeed, it is in this same point of view that the inhabitants of the United States themselves look upon religious belief. I do not know whether all Americans have a sincere faith in their religion--for who can search the human heart?----but I am certain that they hold it to be indispensible to the maintenance of republican institutions.
Alexis de Tocqueville, Democracy in America 305-06 (Alfred A. Knopf, Inc. 1972) (1835). De Tocqueville's observation is confirmed by historical scholarship:
As intellectual heirs of a tradition which had entwined republicanism and Christian theism, New Englanders in the last two decades of the [eighteenth] century were unable to perceive religion as free from matters of civil government. From ancient history they were convinced that "the state cannot stand without religion" and from their own experience that "Rational Freedom cannot be preserved without the aid of Christianity."
Nathan O. Hatch, The Sacred Cause of Liberty: Republican Thought and the Millennium in Revolutionary New England 168 (Yale Univ. Press 1977) (footnotes and citations omitted). The distinguished jurist and professor of law, Thomas M. Cooley, also recognized the close relationship between religion and American law:
It was never intended that by the Constitution the government should be prohibited from recognizing religion .... The Christian religion was always recognized in the administration of the common law; and so far as that law continues to be the law of the land, the fundamental principles of that religion must continue to be recognized in the same cases and to the same extent as formerly.
Thomas M. Cooley, The General Principles of Constitutional Law in the United States of America 205-06 (The Lawbook Exchange 2000) (1880).
Relevant to our purposes here, the Supreme Court has repeatedly stated that there is a crucial link between religion and our laws and government, for "[w]e are a religious people whose institutions presuppose a Supreme Being." Zorach v. Clauson, 343 U.S. 306, 313 (1952). This link has been consistently celebrated by our political leaders from the founding to the present day and nowhere has this practice been questioned as fiercely as the majority does today. In fact, the majority's incredulity as to the avowed relationship between religion and our public life is unprecedented:
There 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 ....
Our history is replete with official references to the value and invocation of Divine guidance in deliberations and pronouncements of the Founding Fathers and contemporary leaders.
Lynch, 465 U.S. at 674-75.
With regard to the Ten Commandments, the legitimacy of the defendants' view of American history as expressed in their displays is supported by the Supreme Court's own appraisal of its Establishment Clause precedent:
[I]n 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 Commandments played an exclusively religious role in the history of Western Civilization.
Edwards v. Aguillard, 482 U.S. 578, 593-94 (1987).
Moreover, every one of our sister circuits that has considered a challenge to the public display of the Ten Commandments has recognized its foundational role in American law and government and, consequently, has declared that such displays can have a secular purpose.
Most recently, the Fifth Circuit in Van Orden v. Perry, No. 02-51184, [***] (5th Cir. Nov. 12, 2003), approved of a granite monument inscribed with the Ten Commandments and displayed at the Texas Capitol. Having concluded that the State had a valid secular purpose for the display, the court also affirmed the relationship between the Ten Commandments and American law:
To say this is not to diminish the reality that it is a sacred text to many, for it is also a powerful teacher of ethics, of wise counsel urging a regimen of just governance among free people. The power of that counsel is evidenced by its expression in the civil and criminal laws of the free world. No judicial decree can erase that history and its continuing influence on our laws--there is no escape from its secular and religious character.
In Freethought Society v. Chester County, 334 F.3d 247 (3d Cir. 2003), the Third Circuit upheld the display of a bronze plaque inscribed with the Ten Commandments that hung alone on the exterior of a county courthouse. The county commissioners had stated at trial that they wanted to maintain the plaque, in part, because they believed that the Ten Commandments contributed to the development of American law. The court held that this was a "'non-sham' secular purpose" and that there was a
well documented history ... 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.
Id. at 267.
The Eleventh Circuit recently approved of a court clerk seal that included an outline of two stone tablets inscribed with the Roman numbers I through X, because the Ten Commandments are a popularly recognized symbol of the law. King v. Richmond County, Ga. 331 F.3d 1271, 1278 (11th Cir. 2003). In its consideration of the seal's secular purpose, the court was satisfied "that during the 1870s the outline of the Ten Commandments presumably would have enabled illiterate citizens to recognize the legal validity of documents displaying the Seal." Id.
The Seventh Circuit, while striking down as unconstitutional a large granite monument bearing an inscription of the Ten Commandments, situated on the Elkhart, Indiana, City Hall grounds, nonetheless noted:
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.
Books v. City of Elkhart, 235 F.3d 292, 302 (7th Cir. 2000).
The Tenth Circuit, using the Lemon test, approved of the display of a granite Ten Commandments monument at a city-county courthouse in Salt Lake City. Anderson v. Salt Lake City Corp., 475 F.2d 29 (10th Cir. 1973). In doing so, the court stated that
the Decalogue is at once religious and secular, as, indeed, one would expect, considering the role of religion in our traditions. ...
It does not seem reasonable to require removal of a passive monument, involving no compulsion, because its accepted precepts, as a foundation for law, reflect the religious nature of an ancient era. ... [W]e cannot say that the monument, as it stands, is more than a depiction of a historically important monument with both secular and sectarian effects.
Id. at 33-34. Although Anderson predates the Supreme Court's decisions in Stone, Lynch, and Allegheny, neither the Supreme Court nor the Tenth Circuit has overruled Anderson and it remains good law. See Summum v. Callaghan, 130 F.3d 906, 912 n. 8 (10th Cir. 1997).
Thus, in their reasoned judgment, our sister circuits that have had the opportunity to consider this question have unanimously declared the validity of the very same premise that the defendants advance here today. "The Ten Commandments have profoundly influenced the formation of Western legal thought and the formation of our country." This judgment is not precluded by any decision of this court, and, in fact, would seem to be welcomed by it. Having had the opportunity to consider the place of the Ten Commandments in our public life, we have never rejected the historical relationship between the Ten Commandments and our law and government. In Adland v. Russ, 307 F.3d 471, we struck down a Kentucky legislative resolution directing that a six-foot tall granite monument inscribed with the Ten Commandments be displayed on the lawn at the State Capitol. The monument, which was totally different from the display at issue here, was essentially a stand alone piece, save for an accompanying clock and some small plaques nearby. Notwithstanding our objections to the monument in that case, we explicitly acknowledged that the Commonwealth could cure the defects in the display. Although we declined to render an advisory opinion on the constitutionality of alternative displays, we applauded the plaintiffs for proposing "to their credit, ... a historical display showcasing the various influences on our law by both secular and religious sources." Id. at 489-90 (emphasis added).
This collection of sources is not intended to settle the issue of whether the Decalogue is in fact a foundational document in American law and government, for that is not the question before us today. What we must decide is whether the displays were motivated by a secular purpose. In answering that particular question, our only concern is with the defendants' subjective belief, because government action will fail the purpose prong of the Lemon test if the "government intends to convey a message of endorsement or disapproval of religion." Lynch, 465 U.S. at 691 (O'Connor, J., concurring). Specifically, given the defendants' articulation of a secular purpose, we must consider whether such a purpose is a sham, i.e., whether the defendants subjectively believed that the Decalogue was part of the foundation of American law and government and that it provided the moral background of the Declaration of Independence and the foundation of our legal tradition.
Not only is the record utterly devoid of any evidence that the defendants subjectively intended to convey a message of endorsement, but the historical evidence dispels any suspicion that the defendants' theory of American law and history is a sham. In common, ordinary English usage, a sham means a fraud, a hoax, or an intentionally deceptive counterfeit. See 15 Oxford English Dictionary 159 (2d ed. 1989). Given the "unbroken history of official acknowledgment by all three branches of government of the role of religion in American life," Lynch, 465 U.S. at 674, and the consistent view of the courts that "[t]he text of the Ten Commandments no doubt has played a role in the secular development of our society," Books, 235 F.3d at 302, it cannot plausibly be said that the defendants' desire to demonstrate the foundational role of the Ten Commandments is a fraud or hoax. The voluminous historical evidence, common sense, and the decisional law of the federal courts all lead to one inevitable conclusion in the case before us: that the defendants' second and third articulated purposes are not shams and should, therefore, be accepted by this court as legitimate secular purposes.
Similarly, there is no evidence in the record that would justify this court in questioning the sincerity of the defendants' fourth articulated purpose: to educate the citizens of the county regarding some of the documents that played a significant role in the foundation of our system of law and government. The displays unquestionably contain numerous documents in "a historical display showcasing the various influences on our law by both secular and religious sources." Adland, 307 F.3d at 490. Lest there be any confusion about the displays' educative purpose, the defendants have posted signs explaining that all the documents "played a significant role in the foundation of our system of law and government." The signs go on to describe in considerable detail the significance of each document, including the Ten Commandments, which, the defendants assert, "provide[d] the moral background of the Declaration of Independence and the foundation of our legal tradition." As my earlier discussion of the historical evidence indicates, the defendants' purpose of educating their citizens about the relationship between religion and the American system of law and government is grounded in clear and indisputable fact and, as such, cannot be justifiably characterized as a sham. In their assessment of the relationship between religion and the Declaration of Independence, the defendants got it absolutely right:
[T]he numerous references to God were enough to place the Declaration in an overall theistic framework so as to satisfy virtually anyone who held a theistic worldview. Thus in drafting the Declaration of Independence, Thomas Jefferson and his congressional colleagues seized upon, and indeed helped to further shape, a bond between Enlightenment latitudinarianism and Christian orthodoxy that made it possible to formally dissolve all bonds with Great Britain and at the same time confidently assert "the protection of Divine Providence."
Davis, supra at 109.
Nevertheless, according to my colleagues, the displays in this case are defective because they "provided the viewer with no analytical or historical connection between the Ten Commandments and the other historical documents," maj. op. at 27, and, thus, fail to prove conclusively the defendants' thesis: that the Decalogue has a historical connection to American law and government. The majority rejects the evidence, as it appeared in the defendants' brief, "that each of the Ten Commandments were codified, to one extent or another, into the legal codes of some American Colonies, and that some of the Commandments ... persist to this day in American legal codes." Maj. op. at 24. In doing so the majority complains that this "evidence does not appear in the actual display of the Ten Commandments, so an observer would not actually be made aware of these facts." Maj. op. at 24. Thus, the majority seems to envision a display that contains a recounting of the history of the nation's founding, a summary of American constitutional law and history, perhaps a syllogism incorporating the foregoing, and, I suppose, at least as much evidence as was presented to this court in the official record of more than 200 pages.
In support of their reasoning, my colleagues cite Stone v. Graham, 449 U.S. 39 (1980) (per curiam), a case that the majority has both misapplied and misinterpreted and that, nevertheless, bears no factual relation to the case before us. Stone was a case about the constitutionality of a Kentucky statute mandating the posting of a copy of the Ten Commandments, standing alone, in every school classroom in Kentucky. Acting upon a petition for a writ of certiorari, and without benefit of oral argument or briefing on the merits, the Court, in a two-page, per curiam opinion from which four justices dissented, summarily reversed the Kentucky Supreme Court's judgment of constitutionality, stating:
We conclude that Kentucky's statute requiring the posting of the Ten Commandments in public schoolrooms had no secular legislative purpose, and is therefore unconstitutional.
Id. at 41. Noting that the Court's holding was without precedent, then-Justice Rehnquist called the decision "a cavalier summary reversal" having "no support beyond [the Court's] own ipse dixit." Id. at 43, 47 (Rehnquist, J., dissenting).
Although they cite no authority, my colleagues are apparently relying on Stone when they state that "a purported historical display must present the Ten Commandments objectively and integrate them with a secular message." Maj. op. at 18. If this is, in fact, the rule that my colleagues glean from Stone, it is not the rule they apply to the facts of the case before us. Rather, the defendants are faulted because they did not choose to display the Ten Commandments in "the most logical way," which the majority defines as "integrating the Ten Commandments with a secular curriculum, such as through the objective study of history, ethics or comparative religion." Maj. op. at 18. This is the actual standard by which my colleagues judge the defendants' displays. Accordingly, my colleagues condemn the defendants' displays because "the Ten Commandments are not integrated with a secular study of American law or government," maj. op. at 21 (emphasis added), and because of "the lack of a demonstrated analytical or historical connection with the other documents [in the displays]," maj. op. at 23 (emphasis added). These criticisms demonstrate that my colleagues think that it is no longer sufficient for a display to serve a secular purpose, for the majority now demands that such a display be "integrat[ed] ... with a secular curriculum." Maj. op. at 18.
It should first be observed that there is no obligation to display the Ten Commandments in an otherwise secular exhibit in a way that appeals to the logic of scrutinizing federal judges. I am not aware of any authority that would require us to condemn a government display simply because it did not choose "the most logical way" of conveying a message. Furthermore, insofar as the majority relies on Stone for guidance in forming its rule that "a purported historical display must present the Ten Commandments objectively and integrate them with a secular message," maj. op. at 18, it is better to quote this portion of Stone in full. What the Court actually said in Stone was the following:
This is not 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.
Stone, 449 U.S. at 42. Clearly, this statement by the Court is a gratuitous hypothetical, describing one possible scenario in which the Kentucky legislature could have mandated the use of the Ten Commandments in the classroom. But this hypothetical simply does not establish a rule that all efforts to post the Ten Commandments on public property must integrate them into a curriculum of study. If that were the case, the Court would have to condemn its own display of Moses, who, bearing the Ten Commandments, is represented among other historical figures in a frieze on the south wall of the Supreme Court courtroom:
Placement of secular figures such as Caesar Augustus, William Blackstone, Napoleon Bonaparte, and John Marshall alongside [Moses, Confucius, and Mohammed], however, signals respect not for great proselytizers but for great lawgivers. It would be absurd to exclude such a fitting message from a courtroom, as it would be to exclude religious paintings by Italian Renaissance masters from a public museum.
Allegheny, 492 U.S. at 652-53 (footnote omitted) (Stevens, J., concurring in part and dissenting in part).
Rather than attempting to divine a rule from Stone, this court should apply the actual rules from the Supreme Court's landmark decisions approving the government's use of religious symbols: Lynch and Allegheny. It is revealing that my colleagues are unable to offer any meaningful citation to either of these cases to support their reasoning. This is not surprising given the fact that the Court has never even suggested that there is any validity to the rules my colleagues have crafted today: that a government may display the Ten Commandments in a public building only if they are integrated into a secular curriculum, and that the display must include a narration of the proof of the relationship between religion and the ideas and impulses that contributed to the foundation of American law and government.
In Lynch, the Court approved of the use of a creche in a Christmas display that contained other symbols of the holiday such as a Santa Claus house and reindeer, even though the display contained no signs explaining the secular purpose of the display and the defendants made no attempt to demonstrate the link between the creche and the celebration of Christmas. Despite the defendant's failure to integrate the creche into "a secular curriculum, such as ... the study of history, ethics or comparative religion," see maj. op. at 18, the Court held that the defendant had nonetheless achieved its purpose of "tak[ing] note of a significant historical religious event long celebrated in the Western World." Lynch, 465 U.S. at 680.
Similarly in Allegheny, where the Court approved of a Christmas display containing a Christmas tree, a menorah, and a sign bearing the phrase "Salute to Liberty," there is not even a hint of the need to integrate the menorah into a secular curriculum. The only other message at the menorah display was the following: "'During this holiday season, the city of Pittsburgh salutes liberty. Let these festive lights remind us that we are the keepers of the flame of liberty and our legacy of freedom.'" Allegheny, 492 U.S. at 582 (citation omitted). Justice Blackmun concluded that this "sign serves to confirm what the context [of the display] already reveals: that the display of the menorah is not an endorsement of religious faith but simply a recognition of cultural diversity." Id. at 619 (Blackmun, J., concurring). Thus, the defendant was able to achieve the secular purpose of recognizing cultural diversity merely through the context of the display, and not by integrating the menorah into a secular curriculum. Moreover, the defendant's sign confirmed that same secular purpose even though it made no mention of diversity and, therefore, required the reader to make an inferential step in order to draw the connection between "our legacy of freedom" and the "recognition of cultural diversity."
Thus, neither Lynch, nor Allegheny, nor any other decision, and certainly not Stone, support the majority's rule that a government that wishes to use a religious symbol in a public display must integrate that symbol into a secular curriculum. As if the absence of authority were not enough, common sense militates against such a rule. Government monuments and displays appear in a context in which the displays must speak for themselves, for they do not present an opportunity to attach lengthy disclaimers and statements of purpose. However, in order to integrate the Ten Commandments into a secular curriculum in a manner that would satisfy the majority's new rule, the defendants would have to append to their displays a library of learned treatises and court briefs, or perhaps audio or video accompaniment, explaining beyond all reasonable doubt and in great detail what most Americans already know and the courts have expressly recognized: that "the Ten Commandments no doubt has played a role in the secular development of our society." Books, 235 F.3d at 302. Significantly, the majority has dismissed out of hand the signs accompanying the displays, which, among other things explain that "[t]he Ten Commandments have profoundly influenced the formation of Western legal thought and the formation of our country." This statement succinctly describes the secular purposes for the displays and, under Lynch and Allegheny, is more than sufficient.
In its review of the context of the defendants' displays, the majority objects that the displays are "blatantly religious" because they contain an "active symbol of religion" "'concern[ing] the religious duties of believers.'" Maj. op. at 30 (quoting Stone, 449 U.S. at 42). This, again, is a novel statement of the law that finds no support in the Supreme Court's landmark decisions of Lynch and Allegheny. In Lynch, the Court approved the display of the creche despite the fact that the creche has "special meaning to those whose faith includes the celebration of religious Masses." Lynch, 465 U.S. at 685. In Allegheny, the Court approved of the display containing the menorah even though it also concerned certain religious duties of the Jewish faith:
[T]he Talmud prescribes that it is a mitzvah (i.e., a religious deed or commandment) ... for Jews to place a lamp with eight lights just outside the entrance to their homes or in a front window during the eight days of Chanukah.
Allegheny, 492 U.S. at 583 (emphasis added) (footnote omitted). In both cases, the Court held that these religious icons, which necessarily concerned the religious duties of believers, were also symbols of a holiday that had both secular and religious meaning. See Lynch, 465 U.S. at 680; Allegheny 492 U.S. at 613-14. Therefore, simply because the Ten Commandments may prescribe religious duties for Jews and Christians, that fact alone does not detract from its place as a symbol of the religious origins of our law and government.
Finally, there is no evidence that would undermine the defendants' fifth articulated purpose: to create a limited public forum on the walls of the Harlan County school buildings for the purpose of posting historical documents that played a significant role in the development, origins, or foundations of American and Kentucky law. "The establishment of a public forum is a laudable goal, and part of a worthy tradition dating back to the Greek agora and the Roman forum." Americans United for Separation of Church & State v. City of Grand Rapids, 980 F.2d 1538, 1543 (6th Cir. 1992). There is simply no indication in the record that the defendants have manipulated the forum in any way or have excluded other speakers from using the forum in a manner that would cause us to believe that this purpose is a sham. See Capitol Square Review & Advisory Bd. v. Pinette, 515 U.S. 753, 766 (1995) (plurality opinion).
The majority raises an objection to the "evolution" of the displays. In doing so, it adopts the reasoning of the district court, which held that the history of the defendants' earlier attempts to erect constitutionally invalid displays conclusively "imprinted the defendants' purpose, from the beginning, with an unconstitutional taint[.]" McCreary II, 145 F.Supp.2d at 850. This theory of indelible, unconstitutional "taint" not only offends common sense, it is also contrary to the law of this circuit.
We have explicitly rejected the idea that the government's past unconstitutional conduct forever taints its actions in the future. In Granzeier v. Middleton, 173 F.3d 568 (6th Cir. 1999), we considered whether closing government offices on Good Friday was done for a religious purpose, violating the Establishment Clause. The county's claimed secular purpose was that Good Friday had become part of an extended spring weekend in which many people took a short vacation and very little business was conducted. As evidence that this explanation was a sham, the plaintiffs produced a government sign the defendant had previously posted that depicted a crucifix and stated that the offices were being closed in observance of Good Friday. We rejected the plaintiffs' contention that the defendant's earlier religious purpose forever tainted the secular purpose it proffered at trial. "[T]he fact that a particular closing was once constitutionally suspect does not prevent it from being reinstated in a constitutional form." Id. at 574.
We noted our agreement with Judge Posner of the Seventh Circuit who reasoned in a case factually similar to Granzeier, that "Illinois can accomplish much the same thing either by officially adopting a 'spring weekend' rationale for the law, in place of the governor's proclamation of a state religious holiday, or by moving to a system of local option for school districts." Metzl v. Leininger, 57 F.3d 618, 623-24 (7th Cir. 1995).
If a unit of government's past unconstitutional conduct forever taints its actions in the future, we would not have advised the defendants in Adland, 307 F.3d 471, that they could cure the constitutional defects in their Ten Commandments display by changing its composition.
While we cannot pass on the merits of plaintiffs' proposals [to amend the display], we are nevertheless confident that with careful planning and deliberation, and perhaps consultation with the plaintiffs, the Commonwealth can permissibly display the [Ten Commandments] monument in question.
Id. at 490 (emphasis added).
Our sister circuits have likewise rejected the idea that a prior unconstitutional display forever taints a subsequent display as religious. In ACLU v. Schundler, 168 F.3d 92 (3d Cir. 1999), the Third Circuit approved a city's Christmas display that had been modified in response to an Establishment Clause challenge:
The mere fact that Jersey City's first display was held to violate the Establishment Clause is plainly insufficient to show that the second display lacked a secular legislative purpose, or that it was intend[ed] to convey a message of endorsement or disapproval of religion.
Id. at 105 (internal quotation marks and citations omitted). In fact, in Books, 235 F.3d 292, the Seventh Circuit actually imposed on the defendant an affirmative duty to modify an unconstitutional display:
[T]he district court must ensure that, although the condition that offends the Constitution is eliminated, [the city] retains the authority to make decisions regarding the placement of the monument. In making those decisions, [the city] 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.
Id. at 307 (emphasis added).
The U.S. Supreme Court's holding in Santa Fe Independent School District v. Doe, 530 U.S. 290 (2000), did not overrule these cases; nor does it require us to find that the defendants' displays are unconstitutional merely due to some past constitutional violation. In Santa Fe, the plaintiffs challenged a school district practice that permitted students to deliver invocations and benedictions at graduation ceremonies and football games through the elected office of student council chaplain. In response, the defendants modified their policy in order to permit students, "with the advice and counsel of the senior class principal" to decide by vote whether to have an invocation at graduation. Id. at 296 (internal quotation marks and citation omitted). Later, the District drafted another policy entitled "Prayer at Football Games" that permitted students to decide whether to have an invocation at football games. Id. at 297. The final iteration of the policy, the "October policy," permitted students to vote whether they wanted to have a student-led "invocation and/or message" at football games, and, if so, who should give the invocation or message. Id. at 298 & n. 6. It was the October policy that was at issue in Santa Fe.
Significantly, the Court announced its holding by stating that "the text of the October policy alone reveals that it has an unconstitutional purpose." Id. at 314 (emphasis added). Thus, while the Court discussed the evolution of the District's prayer policy, see id. at 315, it expressly limited its holding to "[t]he narrow question ... [of] whether implementation of the October policy insulates the continuation of such prayers from constitutional scrutiny." Id. At most, Santa Fe held that a modified policy, or display, cannot be used as a shield to prevent litigation. However, Santa Fe does not state that a history of unconstitutional displays can be used as a sword to strike down an otherwise constitutional display.
Based on the record before us, there is abundant evidence to conclude that the defendants' declared purposes for erecting these displays were primarily secular, a complete lack of evidence that their purpose was primarily religious, and, therefore, no evidence whatever that the defendants' declared purposes constitute a hoax or fraud upon this court. I conclude that the defendants' displays do not violate the first prong of the Lemon test.
The second element of the Lemon test, as modified in Lynch, is whether a reasonable observer would believe that the challenged government action constitutes an "endorsement" of religion. Lynch, 465 U.S. at 691-94 (O'Connor, J., concurring). Incidentally, the opinions of my brother, Judge Clay, on this issue, are his own and do not represent those of the majority of the panel.
The first thing that must be said about the Lemon endorsement test, is that it asks whether a "reasonable observer"--not a proselytizing religious zealot committed to the establishment of a state religion, or, on the other hand, an indefatigable professional litigant dedicated, in the name of civil liberty, to expunging God, religion, and all reference to religion from the public square--would understand these displays as having a primarily religious purpose and the principal or primary effect of endorsing religion.
As it did with respect to the secular purpose issue, Justice O'Connor's concurrence in Lynch "provides a sound analytical framework for evaluating governmental use of religious symbols" to decide the endorsement issue. Allegheny, 492 U.S. at 595. Lynch, the reader will recall, upheld a Christmas display that included a creche, a Santa Claus house, reindeer, clowns, an elephant, a teddy bear, colored lights, and a sign bearing the phrase "Seasons Greetings." Lynch, 465 U.S. at 671. Justice O'Connor concluded that although the creche was an inherently religious symbol, a reasonable observer would not view the overall display as an endorsement of religion:
Although the religious and indeed sectarian significance of the creche, as the District Court found, is not neutralized by the setting, the overall holiday setting changes what viewers may fairly understand to be the purpose of the display--as a typical museum setting, though not neutralizing the religious content of a religious painting, negates any message of endorsement of that content.
Id. at 692 (O'Connor, J., concurring).
Justice O'Connor cited "legislative prayers ..., government declaration of Thanksgiving as a public holiday, printing of 'In God We Trust' on coins, and opening court sessions with 'God save the United States and this honorable court,'" as examples of "government acknowledgments of religion" rather than endorsements of it. Id. at 693 (internal citations omitted). She stated: "[The] history and ubiquity [of] those practices are not understood as conveying government approval of particular religious beliefs." Id. They
serve, in the only ways reasonably possible in our culture, the legitimate secular purposes of solemnizing public occasions, expressing confidence in the future, and encouraging the recognition of what is worthy of appreciation in society.
The Supreme Court returned to the issue of government use of religious symbols and the endorsement issue in Allegheny, when it considered the legality of two separate holiday displays. The Court held that the first display, a creche that stood alone in a prominent location inside the county courthouse, violated the Establishment Clause because "nothing in the context of the display detracts from the creche's religious message." Allegheny, 492 U.S. at 598. The Court found it significant that, unlike the creche in Lynch, the Allegheny County creche was not accompanied by other secular symbols of Christmas. However, the Court approved the second challenged display--a Christmas tree, a menorah, and a sign entitled "Salute to Liberty"--which was located at the city-county building. Justice Blackmun concluded that the second display, in which a religious symbol, the menorah, stood alongside two secular symbols, the Christmas tree and the sign, would not be perceived by the reasonable observer as an endorsement of religion: "[F]or purposes of the Establishment Clause, the city's overall display must be understood as conveying the city's secular recognition of different traditions for celebrating the winter-holiday season." Id. at 620 (Blackmun, J., concurring) (emphasis added).
Applying the analysis from Lynch and Allegheny, this court in Adland found that a reasonable observer would perceive a six-foot granite monument of the Ten Commandments as an endorsement of religion and that nothing in the overall display, which included a clock and several small plaques, reduced or diluted this message of endorsement. The court said it came to that conclusion largely because the monument "physically dominate[d]" the display and "'dwarf[ed]' all the other memorials ... in the vicinity." Adland, 307 F.3d at 487 (internal quotation marks and citation omitted). But we explicitly left the door open for the possibility that some other display that included the Ten Commandments, in addition to secular articles, might pass the Lemon endorsement test if the overall display conveyed "an easily discernible, unified theme to a reasonable observer." Id. at 488.
Without a unifying theme to hold the display together, a reasonable observer could only view the monuments separately. If a reasonable observer views the monuments separately, unconnected by a common context, his or her attention is naturally drawn to the Ten Commandments monument, the largest monument in the display, and its accompanying religious message.
But that is not this case. Here, the exhibition of ten documents, one religious and the rest secular, all of identical size, none having a position of prominence greater than another, and the whole labeled as contributing to "the foundation of American Law and Government," possesses a "unifying theme" that "hold[s] the display together" and conveys a single secular message that is spelled out in each display. No reasonable observer would ignore the nine secular documents in the display, including the one explicitly declaring the secular purpose for the display, and focus exclusively on the single religious document in order to conclude that the display is an endorsement of religion.
Just like the menorah, the Christmas tree, and the "Salute to Liberty" sign in Allegheny, and the creche, the reindeer, the Santa Claus house, and related secular paraphernalia in Lynch, and in each display in this case, it is the documents in their totality that comprise the defendants' displays. Therefore, it is the documents in their totality, their unifying theme, that must be assessed to determine whether a reasonable observer would see them as having the "principal or primary effect" of endorsing religion.
My colleague rejects as "transparent" the defendants' "attempt to 'secularize' the displays by surrounding the Ten Commandments with other patriotic documents and symbols." Maj. op. at 39. Thus, contrary to the directives of the Supreme Court on this issue, my colleague refuses to evaluate the displays in their totality, including the statement of educational purpose that is part of each display, but instead focuses exclusively on the single framed copy of the Ten Commandments and the history of the defendants' repeated efforts to assemble a display that would satisfy even federal judges.
My colleague makes much of the fact that the Ten Commandments have a "'religious nature.'" Maj. op. at 38 (quoting McCreary II, 145 F.Supp.2d at 851). This indisputable characterization of the Ten Commandments, however, has nothing to do with the issue of our endorsement inquiry, which asks "'what viewers may fairly understand to be the purpose of the display.'" Allegheny, 492 U.S. at 595 (emphasis added) (quoting Lynch, 465 U.S. at 692 (O'Connor, J., concurring)). In both Lynch and Allegheny, the Supreme Court approved of displays that contained inherently religious, even sectarian, symbols: the creche and the menorah. The crucial fact of both of those cases was not that the symbols were religious, but that they were accompanied by secular symbols that, taken together, conveyed no message of endorsement. See Lynch, 465 U.S. at 679-81; Allegheny, 492 U.S. at 613-14. By focusing on the religious aspect of only one part of the defendants' displays, my colleague conducts precisely the same analysis that the Supreme Court rejected in Lynch:
The District Court plainly erred by focusing almost exclusively on the creche. When viewed in the proper context of the Christmas Holiday season, it is apparent that, on this record, there is insufficient evidence to establish that the inclusion of the creche is a purposeful or surreptitious effort to express some kind of subtle governmental advocacy of a particular religious message. In a pluralistic society a variety of motives and purposes are implicated.
Lynch, 465 U.S. at 680. My colleague's error may be summed up as follows: "Focus exclusively on the religious component of any activity would inevitably lead to its invalidation under the Establishment Clause." Id.
In concluding that a reasonable observer would understand these displays, in their totality, as conveying a message of endorsement of religion, because of the religious "taint" imparted by the Ten Commandments, my colleague attributes to reasonable observers an utter lack of common sense, a profound ignorance of American history, and, arguably, an outright hostility to religion in our nation's public life. In my judgment, no reasonable observer, gazing at these displays in McCreary, Pulaski, and Harlan counties could fail to appreciate what, apparently, my colleague does not: that from the founding of the republic, religion was and always has been, an inherent component of the law and culture of our pluralistic society, and that saying so in the public square acknowledges religion, but does not endorse it.
The Supreme Court itself has declared that "religion has been closely identified with our history and government." Abington Sch. Dist. v. Schempp, 374 U.S. 203, 212 (1963). It is uncontested that depictions of the Ten Commandments and Moses appear in secular context in, among other places, the United States House chamber, the entrance to the national archives, and in three separate locations in the United States Supreme Court, as well as numerous courtrooms and legal settings across the country.
The history and ubiquity of the Ten Commandments in public buildings throughout the country and the universal practice of courts and legislatures publicly invoking God's blessing and guidance each day, before beginning the public's business, confirm the obvious: The inclusion of the Ten Commandments in these displays did nothing more than acknowledge the indisputable historical role of religion, and especially the canons of the Decalogue, as one of many principles, ideas, values, and impulses that, taken together, influenced the founders of this republic in shaping our law and government. Indeed, to have omitted the Ten Commandments from the collage of documents the defendants labeled "part of the foundations of American Law and Government," would have been historically inaccurate. No reasonable observer would consider the defendants' displays to have the "principal or primary effect" of endorsing religion.
My colleagues' reasoning and conclusions are faithful neither to the language and meaning of the Establishment Clause nor to the Supreme Court's interpretation of it. What the Supreme Court said about the Christmas display in Lynch is perfectly applicable to the historical document displays in this case:
The Court has acknowledged that the fears and political problems that gave rise to the Religion Clauses in the 18th century are of far less concern today. We are unable to perceive the Archbishop of Canterbury, the Bishop of Rome, or other powerful religious leaders behind every public acknowledgment of the religious heritage long officially recognized by the three constitutional branches of government. Any notion that these symbols pose a real danger of establishment of a state church is far-fetched indeed.
Lynch, 465 U.S. at 686 (internal quotation marks and citations omitted) (emphasis added).
The district court erred in the legal analysis it applied and clearly erred in its findings of fact in holding that these displays violate the Establishment Clause. Therefore, it also erred in its conclusion that the plaintiffs have a likelihood of success on the merits of their claim, and perforce, abused its discretion in issuing its preliminary injunction.
I would reverse the district court's judgment and set aside the preliminary injunction.
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