explaining that when “Plaintiffs have demonstrated a likelihood of succeeding on the merits of their [First Amendment] claim, the other three preliminary factors follow in favor of granting the injunction” (citing Connection Distrib. Co. v. Reno, 154 F.3d 281, 288 (6th Cir. 1998))
How later courts described this case
- explaining that when “Plaintiffs have demonstrated a likelihood of succeeding on the merits of their [First Amendment] claim, the other three preliminary factors follow in favor of granting the injunction” (citing Connection Distrib. Co. v. Reno, 154 F.3d 281, 288 (6th Cir. 1998))
- finding “it significant that Defendants’ original displays, containing only the Ten Commandments, were erected in violation of the Supreme Court’s clear ruling in Stone. This defiance ... imprinted the Defendants’ purpose, from the beginning with an unconstitutional taint.”
- stating that “a successful showing on the first factor [regarding likelihood of success on the merits] mandates a successful showing on the second factor — whether the plaintiff will suffer irreparable harm”
- emphasis added; disagreeing with the district court's decision "to afford exclusive weight to Defendants' past conduct without addressing the specific content of the revised displays"
Written by the judges who cited it.
The opinion
GIBBONS, Circuit Judge,
concurring.
The district court’s decision to grant plaintiffs-appellees’ motion for a supplemental preliminary injunction enjoining the continued exhibition of the current displays was proper. With respect to the “secular purpose” prong of the test used to determine the constitutionality of the current displays, as set forth by the Supreme Court in Lemon v. Kurtzman, 403 U.S. 602 , 91 S.Ct. 2105 (1971), the majority opinion appropriately follows controlling precedent, and I generally agree with its application of the law to the facts of this case.
In light of the inherently religious nature of the Ten Commandments, defendants-appellants’ failure to articulate a facially secular purpose until after litigation had commenced, the “overtly religious” quality of the second display, Am. Civil Liberties Union of Kentucky v. McCreary County, Kentucky, 145 F.Supp.2d 845 , 850 n. 19 (E.D.Ky.2001), the absence of any evidence in the record indicating that the Ten Commandments have been or will be integrated into the school curriculum as part of an appropriate program of study, the absence of any discussion integrating the Ten Commandments into a secular subject matter other than a conclusory assertion about the Declaration of Independence, and the emphasis on the Ten Commandments as the only religious text in the displays, plaintiffs-appellees have shown a strong or substantial likelihood of success on the merits of their claim that the displays lack a secular purpose. I therefore concur in the result. I write separately, however, to emphasize that, as the majority opinion notes, “the inquiry into the constitutionality of the displays could end here, inasmuch as failure under any one of the Lemon prongs deems governmental action violative of the Establishment Clause.” Consequently, I express no opinion as to whether the displays violate the “effect/endorsement” prong of the Lemon test.
Finally, I offer two further observations relating to the dissenting opinion. First, the dissent concludes that the majority opinion questions a link between religion and our laws and government. In my view, the majority opinion says nothing whatsoever about this topic. Its subject is the application of the Lemon test to this particular case, and the only discussion to which the dissent could possibly refer in reaching this conclusion concerns defendants’ failure to include in the displays any support for their conclusory assertion about the relationship between the Ten Commandments and the Declaration of Independence.
Second, the dissent seeks to characterize the majority opinion’s descriptions of the facts on which its conclusion rests as state *463 ments of broad rules. For example, the dissent says that the majority opinion creates rules that the government may display the Ten Commandments in a public building only if they are integrated into a secular curriculum and that any display must include a narration of proof of the relationship between religion and the foundation of American law. In my view, this reading of the majority opinion is unjustified. Rather, the majority considers the lack of integration of the displays into a secular curriculum and" the lack of recited proof of a relationship bétween the Ten Commandments and the Declaration of Independence as factors that support a lack of secular purpose in this case and considers these factors, along with other evidence in this record, in reaching its result.