Freethought Society v. Chester County

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Precedential or Non-Precedential: Precedential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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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).

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42

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A True Copy:

Teste:

Clerk of the United States Court of Appeals

for the Third Circuit