Petition for Writ of Certiorari — City of Elkhart v. Books
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&N Supreme Court, U.S.
( FILED
001407 MAR - 9 2001
_ No. OFFICE OF THE CLERK
IN THE
Supreme Court of the United States
CITY OF ELKHART,
Petitioner,
-V-
WILLIAM A. BOOKS and MICHAEL SUETKAMP,
Respondents.
ON PETITION FOR WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE SEVENTH CIRCUIT
PETITION FOR WRIT OF CERTIORARI
STUART J. ROTH JAY A. SEKULOW
WALTER M. WEBER Counsel of Record
DAVID A.CORTMAN JAMES M. HENDERSON
American Center forLaw FRANCIS J. MANION
and Justice COLBY M. MAY
1650 Diagonal Road American Center for Law
5" Floor and Justice
Alexandria, VA 22314 205 3” Steet, S.E.
(703) 740-1450 Washington, DC 20003
(202) 546-8890
VLADO VRANJES
Corporation Counsel
City of Elkhart .
229 S. Second Street
Elkhart, IN 46516
(219) 294-5471 Attorneys for Petitioners
eee Oar oe ~<
QUESTIONS PRESENTED
Beginning in the 1950s, the Fraternal Order of Eagles
donated to cities and towns throughout the United States and
Canada granite monuments containing, among other things,
the text of the Ten Commandments. One such monument
has stood on the lawn of the City of Elkhart, Indiana’s
Municipal Building since 1958 as part of a display which
includes a Revolutionary War Monument and a Freedom
Monument. A divided panel of the Court of Appeals for the
Seventh Circuit held that Elkhart’s inclusion of the Ten
Commandments monument in the display violates the
Establishment Clause. The following questions are presented:
J Does the Establishment Clause require a city to remove
from city property a 40 year old monument containing
the text of the Ten Commandments which is part of a
larger civic display?
2. Do respondents, whose “injury” consists of no more
than the psychological consequences produced by
observation of conduct with which they disagree, have
standing under Article III to bring an Establishment
Clause challenge?
PARTIES
The names of all parties to the proceedings in the
court below appear in the caption of this case.
‘The petitioner is not a nongovermental corporation. See
Rule 29.6. .
ii
TABLE OF CONTENTS
Page
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Reasons For Granting the Writ ...0...............ccccececeseseseseeeeners 10
I. THE DECISION OF THE SEVENTH
CIRCUIT CONFLICTS SQUARELY
WITH DECISIONS OF THE TENTH
CIRCUIT AND THE SUPREME COURT
a 10
a 10
B. The Colorado Supreme Court .00............cccececeseseseees 1]
Il.
TABLE OF CONTENTS - cont'd
Page
THE DECISION OF THE SEVENTH
CIRCUIT CONFLICTS SQUARELY
WITH THE DECISIONS OF THIS COURT. ............. 13
B. The Elkhart Display Is Constitutional Under
the Lemon Test As Applied In Lynch and
THE DECISION OF THE SEVENTH
CIRCUIT CONFLICTS WITH THIS
COURT'S DECISIONS ON STANDING
FOR ESTABLISHMENT CLAUSE CASEG............... 19
GG, TIED ccs resnscnsscemssnnsensssnscmemermensnsnseneemmmnesenes la
Order Granting Motion to Recall and Stay
the Mandate, Books v. Elkhart, No. 00-1114
(7th Cir. 2001) (Ripple, J., in chambers).................. 5Sa
Memorandum Order, Books v. Elkhart,
No. 3:98CV0230 AS, (N.D. Ind. 1999)..................... 60a
THE ELKHART TRUTH NEWSPAPER
Oe 107a
AFFIDAVIT OF E. J. RUEGEMER.................c0e000e 110a
iv
TABLE OF CONTENTS - cont'd
F. AFFIDAVIT OF HAROLD WINEINGER
G. Resolution
TABLE OF AUTHORITIES
Page
CASES
ACLU v. County of Allegheny, 842 F.2d 655
8 EEE 22
Adland v. Russ, 107 F. Supp. 2d 782
EEE, 14
Anderson v. Salt Lake City, 475 F.2d 29
(10th Cir.), cert. denied, 414 U.S. 879 (1973)........ 4, passim
Books v. City of Elkhart, 79 F. Supp. 2d 979
CRED, Ba, Be rcccesaserennsscsrssnscncsnssssssssnmenessesmsenessememmens l
Books v. City of Elkhart, Indiana, 235 F.3d 292
\: ) ee l
ye 7
City of Edmond v. Robinson, 517 U.S. 1201 (1996)............ 22
County of Allegheny v. American Civil Liberties
a, Gas eh BO i rcrcccnsctenesnssssnnesssme 7, passim
Doe v. Harlan County School Dist., 96 F. Supp. 2d
eG O————————————— 14
Donnelly v. Lynch, 691 F.2d 1029 (ist Cir. 1982).............. 22
Edwards v. Aguillard, 482 U.S. 578 (1987)............0+++ 14, 16
TABLE OF AUTHORITIES - cont'd
Page
Harris v. City of Zion, 927 F.2d 1401 (7th Cir. ettee
cert. denied, 505 U.S. 1218 (1992) 23
ICLU v. O'Bannon, 110 F. Supp. 2d 842
(S.D. Ind. 2000).............. ——
Lee v. Weisman, 505 U.S. 577 (1992) ....cccccccccccseceesereeees 14, 21
Lemon v. Kurtzman, 403 U.S. 602 (1971) ....ccccccc0000 7, passim
Lujan v. Defenders of Wildlife, 504 U.S. 555 (1992)..... 20, 21
Lynch v. Donnelly, 465 U.S. 668 (1984) ........ccccccc00e. 7, passim
Marsh v. Chambers, 463 U.S. 783 (1983) ....ccccccccecceceveve. 7, 23
McGowan v. Maryland, 366 U.S. 420 (1961) .esccocsosoe 16
Santa Fe Indep. Sch. Dist. v. Doe, 530 U.S. 290
iil osctecnsssesinenecsectisemmasetenneniestasibidintsiainapnininaniiieitaiaaaia ae 17
School District of Abington Township v. Schempp,
ee ee ctrninticrnicniatintinteiaiataniiaaiataininiaaanes 21
Steel Co. v. Citizens for Better Env., 523 U.S. 83
CL ee 21, 23
State of Colorado v. Freedom from Religion
Foundation, Inc., 898 P.2d 1013 (Colo. 1995),
cert. denied 516 U.S. Re 3, passim
Stone v. Graham, 449 U.S. 39 (1980) .......cccccccccceeee. 7, passim
TABLE OF AUTHORITIES - cont'd
Page
Summum v. Callaghan, 130 F.3d 906 (10th Cir. 1997) ....... 10
Valley Forge Christian College v. Americans
_ United for Separation of Church and State,
Inc., 454 U.S. 464 (1982).......cccccccccceeeeeeeeeeeeenerenes 20, passim
Vermont ANR v. U.S. ex rel. Stevens, 529 U.S.
Fe esicccsresrrecnensemmnnesenemnmenenmnmmecmnannen 20
Wallace v. Jaffree, 472 U.S. 38 (1985) ......ccccccecsereseseeseereees 21
Washegesic v. Bloomingdale Public Schools, 33 F.3d
679 (6th Cir. 1994), cert. denied, 514 U.S. 1095
ITI ccrinesnsannsnetccsunenepemeameenmenmmemnnuncmrenmenmenibartes 24
Whitmore v. Arkansas, 495 U.S. 149 (1990) .0........ccccccceeeees 20
Zorach v. Clauson, 343 U.S. 306 (1954) .....ccccccccccccceeeeeeneee 19
OTHER AUTHORITIES
Expressive Harms and Standing, \12 Harv. L. Rev.
Fa ee neccaescarmeenesntstsvennvecusnmmmstntediatentnimnmieneteien 21
Hutson, James H., Religion and the Founding
of the American Republic, 1998,
Library of Congress, Washington, D.C.,
BD, GIG... ccrcsessseseesesnsssessecssencesvenevesssosessosssssussscsacsarssesnsesses 19
INTRODUCTION
Three courts have reached two different ~»nclusions
about the constitutionality of government displays of the same
Fraternal Order of Eagles Ten Commandments monument.
The Tenth Circuit and the Supreme Court of Colorado have
found no constitutional impediment to such displays. The
court below, a divided panel of the Seventh Circuit, held that
such a display violates the Establishment Clause.
DECISIONS BELOW
The decision of the United States Court of Appeals
for the Seventh Circuit is reported as Books v. City of Elkhart,
Indiana, 235 F.3d 292 (7th Cir. 2000), App. A. The decision
of Circuit Judge Ripple granting petitioner’s motion for stay
pe memento py F.3d ___ (2001) (Ripple, J., in
chambers), App. B. The decision of the district court is
reported as Books v. City of Elkhart, 79 F. Supp. 2d 979
(N.D. Ind. 1999), App. C.
JURISDICTION
The United States Court of Appeals for the Seventh
Circuit entered its judgment in this case on December 13,
2000. This Court has jurisdiction under 28 U.S.C. § 1254(1).
CONSTITUTIONAL PROVISIONS
The First Amendment to the United States Constitution
provides in pertinent part as follows:
Congress shall make no law respecting an establishment
of religion, or prohibiting the free exercise thereof,
U.S. Const. amend. I.
The first section of the Fourteenth Amendment to the
United States Constitution provides as follows:
l
All persons born or naturalized in the United States, and
subject to the jurisdiction thereof, are citizens of the United
States and of the State wherein they reside. No State
shall make or enforce any law which shall abridge the
privileges or immunities of citizens of the United States;
nor shall any State deprive any person of life, tiberty, or
property, without due process of law; nor deny to any
person within its jurisdiction the equal protection of the
laws.
U.S. Const. amend. XIV § 1.
STATEMENT OF THE CASE
Plaintiffs, respondents here, brought the underlying
action pursuant to 42 U.S.C. § 1983 alleging that Elkhart’s
display of the Ten Commandments monument violates the
Establishment Clause and seeking declaratory and injunctive
relief.
A. Facts
In 1958, the people of Elkhart, Indiana observed
Memorial Day with a parade down Main Street, featuring a
unit of the Indiana National Guard, marching bands, floats,
trucks, and military vehicles. The parade followed the
presentation to Elkhart of a stone monument containing, among
other things, a version of the Ten Commandments. App.
107a. The Ten Commandments monument was placed on
the Municipal Building lawn as part of a larger display which
includes a Revolutionary War Monument and a Freedom
Monument.
The Ten Commandments monument at issue is a granite
slab, six feet high and three and one-half feet wide. App.
63a. At the top of the monument, there are two small tablets
of Hebrew script. Jd. Between the two tablets is an eye
within a pyramid — similar to the symbol on the back of a
one dollar bill. Jd. Below the text of the Decalogue are two
2
Stars of David and one Chi-Rho — an ancient Christian symbol.
App. 64a. A scroll is depicted at the bottom center of the
monument bearing these words: “Presented To The City of
Elkhart, Ind. By Elkhart Aerie No. 395 Fraternal Order of
Eagles May 1958.” Id.
The Ten Commandments stone was a gift to Elkhart
from the local lodge of the Fraternal Order of Eagles (hereafter
“FOE”) as part of a national program of similar donations.
App. 62a. The FOE is a non-religious, civic organization
founded in 1898 as “The Fraternity for the Common Man.”
Id. Its four cornerstone principles are “Liberty, Truth, Justice
and Equality.” Jd. The FOE takes credit for sponsoring
America’s first workers’ compensation law, mothers’ pension
law, and old age pension law. App. 112a The group is
involved in an impressive array of humanitarian efforts in
this country and abroad. /d. 2
The FOE Ten Commandments donations originated
with a Minnesota juvenile court judge, E. J. Ruegemer, who
once served as Chief Justice and Chairman of the Youth
Guidance Committee of the FOE. App. 110a. In 1943,
having observed that many of the youngsters who appeared
in his court were without any code of conduct or standards,
Judge Ruegemer thought “they could benefit from exposure
to one of mankind’s earliest codes of conduct, the Ten
Commandments.” Jd. Judge Ruegemer did not intend such
exposure “to be religious instruction of any kind, but to show
these youngsters that there were such recognized codes of
behavior to guide and help them.” Jd.
With the perhaps self-serving encouragement of
Hollywood mogul Cecil B. DeMille,’ producer and director
‘See State of Colorado v. Freedom from Religion
Foundation Inc., 898 P.2d 1013, 1017 (Colo. 1995), cert. denied,
516 U.S. 1111 (1996).
3
of the 1956 movie, “The Ten Commandments,” Judge
Ruegemer’s original idea of posting paper copies of the
Decalogue in juvenile courts soon metamorphosed into granite
monuments inscribed with a version of the Ten Commandments
agreed upon by representatives of the Jewish, Protestant, and
Catholic communities. Jd. Over the next several decades,
local lodges of the FOE donated Ten Commandments
monuments to cities and towns across the United States and
Canada as part of its “youth guidance project.” App. 3a.”
The Memorial Day, 1958, presentation of the Ten
Commandments monument to Elkhart included as participants,
the city controller, local FOE officers, and representatives of
Elkhart’s Protestant, Catholic and Jewish religious bodies.
App. 3a. Each member of the clergy spoke at the ceremony
«nd noted the importance to American society of adhering to
a moral code as exemplified by the Ten Commandments. /d.
Rabbi M. E. Finkelstein said that the dedication of the
monument “should be an occasion for dedication of everyone
to the high ideals inherent in the American way of life.” Jd.
Since that day the Ten Commandments monument
has stood on the 25 foot wide front lawn area of the Elkhart
Municipal Building along with two other monuments: a large
stone Revolutionary War Monument donated by the Daughters
of the American Revolution and a Freedom Monument
consisting of a brick pillar with a light on its top and a plaque
reading: “Behold Friend, You Are Now On Hallowed Ground
For Here Burns Freedoms Holy Light.” App. 4a. The Ten
Commandments monument is six feet high; the Revolutionary
War Monument is three feet four inches high; the Freedom
Monument is eight and one-half feet high. App. 63a. All
three monuments are approximately the same distance from
the main entrance to the Municipal Building and from the
public sidewalk. App. Sa.
>See Anderson v. Salt Lake City Corp., 475 F.2d 29, 30
(10th Cir. 1973), cert. denied, 414 U.S. 879 (1973).
4
The entrance to the Municipal Building itself is graced
by a relief of an elk’s head flanked by the Latin words
“DEDICATVM” and “JVSTITIAM.” App. 4a. There are
numerous other historical and cultural plaques located in the
foyer just inside the Municipal Building entrance, and in the
open areas of the first, second and third floors of the building.
App. 1 16a. The City maintains the lawn and walkways
surrounding the three monuments on the front lawn, but
contributes no time, money, or efforts to maintaining the
monuments themselves. /d.
The Elkhart FOE monument apparently aroused no
controversy for four decades. App. 6a. Then, in 1998, the
Indiana Civil Liberties Union contacted Elkhart’s Mayor and
threatened to sue unless Elkhart removed the Ten
Commandments from city-owned property. Jd. In
Elkhart’s Common Council adopted Resolution No. R-10-98
which set forth the City’s reasons for keeping the monument
where it stands. App. 66-67a. The council summarized its
reasons as follows:
The Ten Commandments Monument is a historical
and cultural monument that reflects one of the earliest
codes of human conduct. It is proper for the Ten
Commandments Monument to remain and the defense
of this position is strongly endorsed. /d.
This lawsuit followed.
Respondent William Books is an Elkhart resident who
alleges he is offended by the FOE monument and complains
that on those occasions when he goes to the Municipal Building,
and also during his daily activities, he is forced to come into
contact with the monument. App. 7a. Although Books admits
he could use the other doors of the Municipal Building to
avoid the monument (App. 7a), he avers that “Even if I don’t
see it, I certainly know it is there. It offends me if I think
about it.” App. 67a.
Respondent Michael Suetkamp is also an Elkhart
resident who alleges he is deeply offended by the monument.
App. 7a. In his routine activities he passes the monument
frequently and, although he does not always look at it, “even
if I don’t see it, I certainly know it is there.” App. 7-8a.
The plaintiffs did not allege in their complaint, nor
have they subsequently alleged, that any taxes or public funds
have been or are used to maintain the monument.
B. Proceedings Below
Plaintiffs filed suit in the United States District Court
for the Northern District of Indiana on May 5, 1998. In their
complaint, plaintiffs alleged that they are forced to come into
frequent, direct and unwelcome contact with the Ten
Commandments monument. They did not claim to have
standing based on their status as taxpayers. They asked the
court to declare that Elkhart’s display violates the
Establishment Clause and to enjoin the city from continuing
to display it.
l. The District Court
The district court decided the case on the parties’ cross-
motions for summary judgment. The court granted the City
of Elkhart’s motion for summary judgment.
The district court stated that the question of standing
was “very close” and that “the current Supreme Court has on
more than one occassion narrowed the doctrine of standing
applicable here.” App. 73a. The court noted, however, that
recent Seventh Circuit pronouncements would appear to
support a finding of standing even though the monument
stands at a distance from the entrance to the building and
even though someone could enter the building without even
noticing the monument. Jd. The court thus found that “the
scales tip ever so slightly in favor of the plaintiffs.” Jd.
6
The court then held that Elkhart’s display of the Ten
Commandments passed constitutional muster under any of
the five tests the court gleaned from this Court’s Establishment
Clause jurisprudence: (1) The Historical Precedent Test, Marsh
v. Chambers, 463 U.S. 783 (1983); (2) The Lemon Test,
Lemon v. Kurtzman, 403 U.S. 602, 612-13 (1971); (3) The
Endorsement Test, Lynch v. Donnelly, 465 U.S. 668, 688
(1984) (O’Connor, J., concurring in the judgment); County
of Allegheny v. American Civil Liberties Union, 492 U.S.
573, 592-94 (1989); (4) The Coercion Test, Allegheny, 492
U.S. at 659-63 (Kennedy, J., concurring in part, dissenting in
part); and, (5) The Test for Religious Speech in a Public
Forum, Capitol Square Review and Advisory Board v. Pinette,
515 U.S. 753 (1995). App. 75a.
The district court noted that the display of FOE
monuments virtually identical to Elkhart’s had been upheld
by the Tenth Circuit in Anderson v. Salt Lake City, 475 F.2d
29 (10th Cir., 1973), cert. denied, 414 U.S. 879 (1973), and
the Supreme Court of Colorado in Colorado v. Freedom From
Religion Foundation, 898 P.2d 1013 (Colo. 1995), cert. denied,
516 U.S. 1111 (1996). App. 98a.
2. The Court of Appeals
A divided panel of the Seventh Circuit reversed. The
court found that plaintiffs had standing because they are forced
to view a religious object they wish to avoid when attending
- government-owned place where the object is located. App.
a.
The court applied the Lemon test as modified by the
“endorsement” approach of Lynch and Allegheny. App. 15a.
The majority took, as its “starting point,” this Court’s decision
in Stone v. Graham, 449 U.S. 39 (1980). App. 16a. From
Stone, the majority concluded that it must focus presumptively
on the religious component of the Ten Commandments as
opposed to its significance as a moral or ethical document.
Id. The court recognized that a display of a religious symbol
7
may have a secular purpose, noting that “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.” Jd.
Indeed, the panel observed that this Court’s own courtroom
is decorated with a frieze containing a permanent depiction
of Moses holding the Ten Commandments. App. 16-17a.
Nevertheless, the panel majority was ultimately persuaded
that Elkhart’s purpose in displaying the monument was the
constitutionally impermissible one of promoting religious
ideals. App. 18a. Important to the court’s reasoning was the
presence of the clergy representatives at the 1958 dedication
ceremony and the specific statements they made which the
court viewed as urging the people of Elkhart “to embrace the
specific religious code of conduct taught in the Ten
Commandments.” App. 17-18a.
The panel majority rejected the argument that the 1998
Common Council Resolution provided a secular basis for
retaining the monument. The majority found it significant
that the resolution was issued “on the eve of litigation”; the
majority articulated no other reason for rejecting the city’s
avowed secular purpose. App. 18a. .
The majority also found that the display fails the second
prong of the Lemon test in that it impermissibly creates the
perception of government endorsement of religion. App. 19a.
Not only do the presence of the Revolutionary War Monument
and the Freedom Monument fail to dilute the religious message,
in the majority’s view, that message is enhanced by the Freedom
Monument’s reference to “hallowed ground.” App. 23a.
Judge Manion’s dissent focused on whether a secular
purpose supported Elkhart’s 1998 decision to retain the 40-
year-old monument. He noted that the 1998 Resolution
identified several secular purposes, each of which has been
accepted as valid by this Court and lower courts addressing
this issue. App. 28-29a. Judge Manion noted that the majority
itself recognized as a legitimate secular purpose the recognition
8
of the Ten Commandments’ “significant impact on the
development of the fundamental legal principles of Western
Civilization.” App. 28a. He pointed out that the sole basis
articulated for the majority's rejection of the asserted secular
purpose — the timing of the City’s Resolution — was readily
explained by the obvious fact that, until the respondents
threatened this lawsuit, there had never been any reason for
Elkhart to formally state its purpose for retaining the
monument. App. 30-3la. Judge Manion also disagreed with
the focus on the 1958 statements of the clergymen since “the
religious leaders were not the City, and it is only the City’s
intent that matters.” App. 31-32a.
Judge Manion likewise disagreed with the majority's
endorsement analysis. He noted that under this Court’s Lynch
and Allegheny decisions, “context is everything.” App. 36a.
Judge Manion stated that when Elkhart’s display is viewed in
its proper context, by an objective observer, it is constitutionally
permissible. In fact, an even stronger case can be made for
the FOE monument’s constitutionality, he contended, than
oe
Finally, Judge Mani ‘the j licability of
Stone v. Graham, a 5-4 per curiam opinion rendered without
the benefit of briefing or argument, decided before Lynch or
Allegheny, and properly confined to the special context of the
public schoolroom:
[W]hile Stone speaks for the school setting — where
student aftendance is compulsory, and pupils are
particular., susceptible to influence — it does not
answer the question in the context of an open courtyard
where citizens may divert their eyes, if confronted by
a discomforting reference to God, to one of the other
App. 45a.
REASONS FOR GRANTING THE WRIT
I. THE DECISION OF THE SEVENTH CIRCUIT
CONFLICTS SQUARELY WITH DECISIONS
OF THE TENTH CIRCUIT AND THE SUPREME
COURT OF COLORADO.
The Seventh Circuit’s decision requiring Elkhart to
remove the FOE Ten Commandments monument on its
property conflicts squarely with the Jc isions of two courts
which have previously rejected challcages to government
displays of identical FOE monuments.
A. The Tenth Circuit
Anderson v. Salt Lake City Corp., 475 F.2d 29 (10th
Cir. 1973), cert. denied 414 U.S. 879 (1973), was an
Establishment Clause challenge to Salt Lake City’s decision
to permit the Fraternal Order of Eagles to erect on city-county
courthouse grounds a Ten Commandments monument like
the one at issue in the present case. The monument was
situated “in a prominent place near the courthouse entrance,”
Id. at 30. The court noted that similar monuments have been
erected in public places across the United States and Canada
— nine in Utah alone — as part of the Eagles’ youth guidance
program. /d.
Noting that “the Decalogue is at once religious and
secular,” id. at 33, the Tenth Circuit observed that “[t)he
wholesome neutrality guaranteed by the Establishment and
Free Exercise Clauses does not dictate obliteration of all our
religious traditions,” id. at 34. The court held that the
monument was “primarily secular” and that “neither its purpose
or effect tends to establish religious belief.” Id.’
> In Summum vy. Callaghan, 130 F.3d 906 (10th Cir. 1997)
— a suit to compel a city to display another monument when the
city already displayed a Ten Commandments monuments —a panel
10
B. The Colorado Supreme Court
In State of Colorado v. Freedom from Religion
Foundation, Inc., 898 P.2d 1013 (Colo. 1995), cert. denied,
516 U.S. 1111 (1996), the Colorado Supreme Court rejected
an Establishment Clause challenge to that State’s display of
an FOE Ten Commandments monument on the grounds of
court regarding the origin, nature, and use of the Decalogue,
the Colorado Supreme Court stated:
All the experts who testified at trial agreed that, at
least to the extent that the Commandments established
ethical or moral principles, they were expressions of
universal standards of behavior common to all western
societies. It was agreed that these moral standards, as
influenced by the Judeo-Christian tradition, have played
a large role in the development of the common law
and have formed a part of the moral background for
the adoption of the national constitution.
Id. at 1024.
The court also found significant the facts that the FOE
monument does not reproduce exactly the Ten Commandments
as accepted by any particular sect, that the monument contains
symbols of more than one religious tradition, and that the
monument contains patriotic symbols such as the eagle and
the American flag. la. Whe When these facts were coupled with
the secular intent of the FOE itself in making the donation,
of the Tenth Circuit stated that the Anderson decision had been
“called into question” by this Court’s decision in Stone v. Graham.
Id. at 913, n.8. This is clearly not accurate since Stone neither
cited nor referred to Anderson and is obviously distinguishable
from it due to the markedly different factual settings.
Notwithstanding the panel's misperception of Stone, the court
expressly declined an invitation to overrule Anderson, which remains
the law in the Tenth Circuit. /d
ll
the court concluded that the purpose of the display is primarily
secular. Id.
With respect to the endorsement test, the court noted
that the FOE monument was one of a number of objects on
display in the Capitol Complex Grounds. The court described
various monuments honoring veterans of different wars, a
replica of the Liberty Bell, and a flagpole dedicated to citizens
killed in the Spanish-American war. Jd at 1025. The court
the monument respects the secular objective intended
at the outset, recognition of a historical, jurisprudential
cornerstone of American legal significance. Moreover,
the content and context of the display do not convey a
message that any person is excluded from our political
community based on religious beliefs or the lack of
such beliefs.
Id. at 1026.
Despite the fact that both Anderson and Freedom from -
monument passes constitutional muster in Salt Lake City and
Denver but violates the Establishment Clause in Elkhart.
This Court should grant review to resolve this conflict.
panel’s error proceeded from a misreading of this Court’s
decision in Stone v. Graham, this Court should intervene and
clarify Stone’s proper scope and applicability.
A. Stone v. Graham Does Not Presumptively
ieuntidete inciesten of Ten C
Displ All G _
The panel majority took as its “starting point” this
Court’s decision in Stone v. Graham striking down a Kentucky
law requiring the posting of the Ten Commandments in public
school classrooms. App. 16a. This Court’s observation that
the Ten Commandments “are undeniably a sacred text,” 449
U.S. at 41, was misapplied by the majority to create what
amounts to a de facto presumption that displays of the
Decalogue violate the Establishment Clause. This presumption
led the court to view with a suspicion bordering on hostility
the Elkhart Common Council’s 1998 Resolution setting forth
several perfectly valid secular purposes for not removing the
40-year-old FOE monument. Stone neither compels nor
supports such a presumption of unconstitutionality whenever
government chooses to display the Ten Commandments.
Stone is distinguishable from the case at bar for a
number of reasons. First, Stone arose in the setting of the
public school classroom, a setting which has invariably called
forth this Court’s heightened sensitivity to Establishment
13
Clause concerns. See, e.g., Lee v. Weisman, 505 U.S. 577,
eet anes Sn eee sey me on te mc
freedom of conscience from subtle coercive
schools”); Edwards v. Aguillard, 482 U.S. 578, 583-84 (1987)
(“The Court has been particularly vigilant in monitoring
compliance with the Establishment Clause in elementary and
secondary schools”). The Stone majority recognized, however,
that the Ten Commandments could properly be incorporated
even into the public school curriculum as part of “the study
of history, civilization, ethics, comparative religion, or the
like.” Stone, 449 U.S. at 42. It was only the required posting
of the Decalogue in isolation in public school classrooms
which was forbidden by Stone.
The second major distinction is that Stone was decided
before this Court’s decisions in Lynch and Allegheny, the two
cases which, more than any others, provide the analytical
framework for judging the constitutionality of government
displays of objects with religious significance.
Stone v. Graham is of limited utility in analyzing
displays of the Ten Commandments on government property,
outside of the limited context of public schools. To the extent
that the Seventh Circuit majority and other courts* have read
Stone presumptively to invalidate such displays, this Court
should clarify the proper scope of its holding in Stone.
*See, e.g., Doe v. Harlan County School Dist., 96 F. Supp.
2d 667, 674 (E.D. Ky. 2000) (citing Stone v. Graham for proposition
that very nature of Ten Commandments precludes a finding of a
prevailing secular purpose); Adland v. Russ, 107 F. Supp. 2d 782,
784-85 (E.D. Ky. 2000) (quoting Doe v. Harlan County for
proposition that nature of Decalogue precludes finding of secular
purpose); JCLU v. O'Bannon, 110 F. Supp. 2d 842, 851 (S.D. Ind.
2000) (taking Stone v. Graham as “starting point” for finding of
Establishment Clause violation in display of Ten Commandments
monument at State Capitol).
14
B. The Elkhart Display Is Constitutional Under
The Lemon Test As Applied In Lynch and
Allegheny, :
Both the panel majority and the dissent in the Seventh
Circuit analyzed Elkhart’s display under the three-pronged
test of Lemon v. Kurtzman, as refined by the endorsement
test of Lynch and Allegheny. See supra. Lemon asks whether
the challenged government action 1) has a secular purpose;
lt my Ann ee Hen
and 3) fosters an excessive entanglement between government
and religion.’ Lemon, 403 U.S. at 612-13. Allegheny refined
Lemon by clarifying that the Court’s approach in these cases
involves a determination of “whether the challenged
governmental practice either has the purpose or effect of
‘endorsing’ religion.”” Allegheny County, 492 U.S. at 592.
The panel majority in this case held that Elkhart’s display
violated both the purpose and effect prong of Lemon.
The majority’s error stems from its misapplication of
this Court’s precedents. Regarding Elkhart’s purpose, the
majority focused exclusively on the statements made by the
clergymen at the 1958 dedication of the FOE monument,
statements which admittedly contained religious references.
As noted by the dissent, however, the clergymen were not
speaking as representatives of the City of Elkhart, but as
ives of their respective religious bodies. App. 32a.
In the absence of a 1958 statement by City representatives of
their purpose in accepting the gift offered by the Fraternal
Order of Eagles, there is no basis for attributing to the City
the sentiments of the guests who attended the dedication
ceremony. A far more logical approach would be that followed
by the Colorado Supreme Court which, in similar
circumstances, “ascribe[d] to the donee the intent of the donor
— that is, acceptance of the gift by the State, without other
‘The parties in this case agree that the excessive
entanglement prong of Lemon is not at issue here.
15
evidence, indicates the State’s assent to the Eagles’ stated
secular purpose,” i.e., the promotion of morality. Freedom
From Religion, 898 P.2d at 1024.
Elkhart has, in effect, made two statements about its
_purpose in accepting and displaying the FOE monument. The
first is the non-verbal statement the City made in 1958 by
placing the monument in a preexisting display of monuments
with historical, secular significance. Even the physical
placement of the FOE monument, which put it equidistant
with the Revolutionary War Memorial and the Freedom
Monument from the Municipal Building entrance and did not
in any way highlight or emphasize the Ten Commandments,
speaks eloquently of the City’s purpose to display the
Decalogue for its universally recognized secular significance.’
The more explicit statement, of course, is the 1998
Common Council Resolution which the panel majority
dismissed. The majority acknowledged this Court’s rule that
courts should normally defer to a governmental articulation
of a secular purpose, App. 18-19a (citing Edwards v. Aguillard,
"As then-Justice Rehnquist put it in Stone v. Graham: “It
is equally undeniable . . . that the Ten Commandments have had a
significant impact on the development of secular legal codes of the
Western World.” Stone, 449 U.S. at 45 (Rehnquist, J., dissenting).
One example of this “significant impact” was addressed by this
Court in McGowan v. Maryland, 366 U.S. 420 (1961), a case
involving a challenge to Maryland’s Sunday Closing laws. In his
separate opinion, Mr. Justice Frankfurter traced the history of
Sabbath legislation and demonstrated that so-called “blue laws,”
although undeniably linked to the Ten Commandments, have always
had a secondary civil purpose. This linkage presented no
constitutional impediment, as Justice Frankfurter observed:
“Innumerable civil regulations enforce conduct which harmonizes
with religious concerns. State prohibition of murder, theft and
adultery reinforce commands of the decalogue.” Jd. at 462. In
summary, “[{N]o constitutional command which leaves religion free
can avoid this quality of ixxerplay.” Id.
16
482 U.S. 578, 586 (1983)); nevertheless, the majority
proceeded to reject Elkhart’s avowed secular purpose without
mae Oe ee
Whether the majority’s conclusion rests on its
misreading of Stone or upon some unexpressed suspicion of
the City’s actual motives, that conclusion clearly does not
rest on evidence in the record. Cf Santa Fe Indep. Sch. Dist.
v. Doe, 530 U.S. 290 (2000) (citing specific record testimony
and documents demonstrating government’s purpose was to
circumvent requirements of Establishment Clause); Aguillard,
' 482 U.S. at 591-93 (citing specific statements by legislators
evidencing a clear religious purpose for enacting statute).
By applying what amounts to a per se presumption of
unconstitutionality, which apparently cannot be overcome by
undisputed evidence of a secular purpose, the Seventh Circuit
has departed from this Court’s precedents in such a way as to
leave governments defenseless against Establishment Clause
challenges of this nature.
The Seventh Circuit panel majority also misapplied
the endorsement test as articulated in both Lynch and Allegheny.
In Lynch, this Court upheld the display of a purely religious
symbol — a creche — because of the overall secular context
in which it was displayed. Lynch, 465 U.S. at 686. In
Allegheny, this Court found that an isolated display of a creche
in the most prominent setting in the seat of government violated
the Establishment Clause. Allegheny, 492 U.S. at 598-99.
But the Court upheld the display of another religious symbol
— a menorah — because it stood next to a Christmas tree
"As the dissent noted, the timing of the Resolution was
dictated by nothing more than the fact that, until plaintiffs threatened
to sue, there had never been any reason for the City of Elkhart to
formally express its purpose for accepting or displaying the FOE
monument. App. 30a-3 la.
17
and a sign saluting liberty which supplied a broader context
for the display. Jd. at 614, (opinion of Blackmun, J.).
In the case at bar, however, the majority turned the
endorsement test inside out. Elkhart’s inclusion of the Ten
Commandments monument among other monuments,
according to the majority, only serves to heighten the
endorsement of religion. The majority construes the Freedom
Monument’s use of the phrases “hallowed ground” and
“freedom’s holy light’”’® as somehow conferring on the nearby
Ten Commandments monument an exclusively religious
signification. App. 23a. But these phrases are nothing more
than examples of the kind of patriotic — not religious —
sentiments of which our history is full and examples of which
this Court-has always viewed as constitutional. See, e.g.,
Lynch, 465 U.S. at 674-75 (“our history is replete with official
references to the value and invocation of Divine guidance,”
and includes “government practices embracing religion,
including Thanksgiving and Christmas holidays, congressional
and military chaplains and the congressional prayer room,
the motto, the Pledge of Allegiance, and presidential
proclamations for a National Day of Prayer”). Rather than
converting the message of the FOE monument into an
exclusively religious one, the presence of these traditional
patriotic expressions actually has the opposite effect on a
*The phrase is taken from Lincoln’s Gettysburg Address.
The prominent display of this phrase in military parks in
Pennsylvania and elsewhere hardly converts such government
properties into religious shrines.
'°This phrase is taken from the patriotic standard “America,”
the final verse of which concludes:
“Long may our land be bright
With freedom’s holy light.
Protect us by Thy Might,
Great God, our King.”
18
reasonable observer, i.e., it underscores the fact that Elkhart
displays the Ten Commandments as a text which has become
part of Western secular culture.”
The panel majority opinion in this case is inconsistent
with a correct reading of this Court’s Establishment Clause
jurisprudence. It implicitly adopts the very attitude of hostility
toward religion against which this Court has always warned.
See Zorach v. Clauson, 343 U.S. 306, 313 (1952).
Il. THE DECISION OF THE SEVENTH CIRCUIT
—~CONFLICTS WITH THIS COURT’S DECISIONS
ON STANDING FOR ESTABLISHMENT
CLAUSE CASES.
The respondents claim to have standing based solely
on the fact that they are offended by Elkhart’s display of the
FOE monument and that they are forced to view the monument
when passing or entering the Municipal Building. They
specifically do not allege taxpayer standing. Such a low
threshold for invoking the jurisdiction of the federal courts
amounts to virtually no threshold. It flies in the face of this
"'The story of Moses leading the people of Israel from
slavery to freedom was so much a part of the intellectual milieu of
the founding generation that, in response to a congressional
commission of July 4, 1776 to devise a seal for the United States,
Benjamin Franklin and Thomas Jefferson proposed the following:
“Pharaoh sitting in an open chariot, a crown on his head and a
sword in his hand passing through the waters of the Red Sea
in pursuit of the Israelites: rays from a pillar of fire in the
cloud, expressive of the divine presence and command, reaching
to Moses who stands on the shore and, extending his hand
over the sea, causes it to overwhelm Pharaoh.
Motto: Rebellion to Tyrants is Obedience to God.”
Hutson, James H., Religion and the Founding of the American
Republic, 1998, Library of Congress, Washington, D.C., pp. 50-51.
19
Court’s decisions on standing in Establishment Clause cases
and converts the federal courts into mere debating societies.
In Valley Forge Christian College v. Americans United
for Separation of Church and State, Inc., 454 U.S. 464, 485
(1982), this Court held that plaintiffs who allege no injury
beyond the “psychological consequence presumably produced
by observation of conduct with which one disagrees” do not
have standing under Article III.
The plaintiffs in Valley Forge were a nonprofit
organization committed to the principle of separation of church
and state and several of the organization’s employees. The
plaintiffs objected to the federal government’s conveyance of
surplus real property from the Department of Health,
Education, and Welfare to a nonprofit school operated by the
Assemblies of God. In reaching the conclusion that plaintiffs
lacked standing, this Court said:
Their claim that the Government has violated the
Establishment Clause does not provide a special license
to roam the country in search of governmental
wrongdoing and to reveal their discoveries in federal
court. The federal courts were simply not constituted
as ombudsmen of the general welfare.
Id. at 487.
The Court labeled the following requirements for
standing “an irreduciole minimum”: actual or threatened injury,
traceable to the defendant’s putatively illegal conduct, and
likely to be redressed by a favorable decision. /d. at 472.
The Court has not wavered from this “irreducible minimum”
in the two decades since Valley Forge. See Vermont ANR v.
U.S. ex rel. Stevens, 529 U.S. 765 (2000). In fact, this Court
has repeatedly emphasized the fundamental importance of
these requirements to the entire framework of our constitutional
form of government. Whitmore v. Arkansas, 495 U.S. 149,
155 (1990); Lujan v. Defenders of Wildlife, 504 U.S. 555,
20
559-60 rage (“the Constitution’s central mechanism of
separation of powers depends largely upon common
understanding of what activities are appropriate to legislatures,
to executives, and to courts”); Steel Co. v. Citizens for Better
pers ae U.S. 83, 101 (1998) (“constitutional elements of
jurisdiction are an essential ingredient of ion and
equilibration of powers”). py
This Court has never specifically addressed the issue
of standing in a religious display case. See Note,
Harms and Standing, 112 Harv. L. Rev. 1313, 1320 (1999).
The panel majority in the instant case cited several of this
Court’s religious exercises in public schools cases’? in support
of its finding that respondents’ allegation of “direct and
unwelcome exposure to a religious message” were sufficient
to confer standing. App. 11a (citing Lee v. Weisman, 505
U.S. 577 (1992) (student and parent objecting to benediction
at public school graduation); Wallace v. Jaffree, 472 U.S. 38
(1985) (students and parents objecting to school mandated
moment of silence); Stone v. Graham, supra; School District
of Abington Township v. Schempp, 374 U.S. 203 (1963)
(students and parents objecting to reading of Bible in school).
These cases, however, each involved the unique context of
the public school, a context calling forth “heightened concerns
with protecting freedom of conscience from subtle coercive
pressure,” Lee, 505 U.S. at 592. The “injury” element is
satisfied in these cases because, in the school context, the
pressure to participate in objectionable religious exercises,
“though subtle and indirect, can be as real as any overt
compulsion.” Jd. at 593. This Court has never applied such
an analysis to persons who, like the respondents in this case,
merely walk or drive by a passive stone which they are free
to look at or ignore, revere or revile.
Neither Lynch nor Allegheny directly addressed the
The panel majority did not cite or attempt to distinguish
Valley Forge.
21
standing issue. The court of appeals in Lynch, however,
specifically held that the plaintiffs’ standing was based on
their status as taxpayers. Donnelly v. Lynch, 691 F.2d 1029,
1030-32 (1st Cir. 1982). While this Court’s Allegheny decision
did not address the issue, the Third Circuit’s opinion contains
several references to public money being expended to create
and maintain that display, thus strongly suggesting taxpayer
standing. ACLU v. County of Allegheny, 842 F.2d 655-58
(3d Cir. 1988). There is no suggestion in the record here that
any public funds were or are used to maintain Elkhart’s
monument. Hence, this Court’s decisions in Lynch and
Allegheny — which, after all, did not even address standing
—cannot be said to have definitively resolved the issue in
favor of respondents herein, much less to have overruled
Valley Forge.
Three members of this Court have questioned whether
mere exposure to a religious display or symbol that offends
one’s beliefs is sufficient to confer standing. City of Edmond
v. Robinson, 517 U.S. 1201 (1996) (Rehnquist, CJ., with
whom Scalia, J., and Thomas, J., join, dissenting from denial
of certiorari). In Edmond, plaintiffs successfully challenged
a city’s display of its official seal which contained, among
other symbols, a Latin cross. The display of the seal was
apparently ubiquitous, appearing on “City limits signs, on
City flags, on the uniforms of City police officers and
firefighters, on official City vehicles, on stickers identifying
City property . . . in the City Council chambers . . . on each
utility bill sent out by the City, as well as on official City
stationery and the Utility and Sanitation Department’s
newsletters.” City of Edmond v. Robinson, 68 F.3d 1226,
1228 (10th Cir. 1995). The Chief Justice observed: “Mere
presence in the city, without further allegations of injury,
quite clearly fails to meet the standing requirements laid down
in cases such as Valley Forge.” Edmond, 517 U.S. at 1202.
Respondents in this case are adults. They do not
allege that their taxes are used to maintain the FOE monument.
They do not even claim that they have altered their usual
22
routes of travel or their daily activities to avoid the monument.
App. 7a-8a. They claim only that they observe and are offended
neg nage Se a te mg ane
Building or on those evidently
they actually enter the building. /d. ieee
a point of noting that the FOE monument disturbs them even
when they are not observing it because they “certainly know
it is there.” Jd. But respondents’ quest for psychic satisfaction
is insufficient: “[P]sychic satisfaction is not an acceptable
Article III remedy because it does not redress a cognizable
Article III injury.” Steel Co., 523 U.S. at 107.
Allowing litigants to enjoy standing in cases of this
nature runs contrary to this Court’s holding in Valley Forge.
It encourages the very sort of licensing of roaming bands of
self-appointed Establishment Clause police which this Court
rejected in Valley Forge, 454 U.S. at 487. Citizens who have
suffered no injury beyond the “psychological consequence
presumably produced by observation of conduct with which
[they] disagree” are given a veto power over the considered
judgments of executives and legislative bodies. Legislators,
such as the members of Elkhart’s Common Council, find
their good faith efforts to strike the often difficult balance
between an exaggerated aversion to religion and “a tolerable
acknowledgment of beliefs widely held among the people of
this country,” Marsh, 463 U.S. at 792, held up to exacting
judicial scrutiny. Such an approach is not conducive to
maintaining the “separation and equilibration of powers” which
Article III standing doctrine is intended to protect. Steel Co.,
523 U.S. at 101. It creates a kind of free admission pass for
litigious individuals whose “injuries” are trifling at best.'”
'*The trifling and contrived appearance of such claims las
produced frustration among some members of the judiciary. See,
e.g., Harris v. City of Zion, 927 F.2d 1401, 1419-25 (7th Cir.
1991) cert. denied, 505 U.S. 1218 (1992) (Easterbrook, J.,
; Washegesic v. Bloomingdale Public Schools, 33 F. 3d
679, 684-85 (6th Cir. 1994) cert. denied, 514 U.S. 1095 (1995)
23
CONCLUSION
Allowing the panel majority’s opinion to stand would
be to authorize judicially forced removal not only of Elkhart’s
FOE monument, but hundreds, perhaps thousands, of other
virtually identical monuments across the nation. Nothing in
this Court’s jurisprudence or our nation’s history requires or
even permits such a radical course.
This Court should grant the petition and reverse the
judgment of the Seventh Circuit Court of Appeals.
(Guy, Senior Circuit Judge, concurring). Judge Guy’ $ assessment
of plaintiff's claim of “injury” caused by viewing a picture of
Christ which has hung on a school wall for 30 years is deserving
of note:
For me, at least, a discussion of “psychological damage”
resulting from viewing this picture does implicate an
“establishment” — but not one of religion. What is established
is a class of “eggshell” plaintiffs of a delicacy never before
known to the law. I can well understand that someone
this plaintiff) in some sense could be offended by this portrait,
but “injured” is another matter.
Id. at 684.
24
Respectfully submitted,
STUART J. ROTH JAY A. SEKULOW
WALTER M. WEBER Counsel of Record
DAVID A. CORTMAN JAMES M. HENDERSON
American Center for Law FRANCIS J. MANION
and Justice COLBY M. MAY
1650 Diagonal Road American Center for Law
5* Floor and Justice
Alexandria, VA 22314 205 3” Steet, NE.
(703) 740-1450 Washington, DC 20003
(202) 546-8890
VLADO VRANJES
Corporation Counsel
City of Elkhart
229 S. Second Street
Elkhart, IN 46516
(219) 294-5471 Attorneys for Petitioners
DATED: March 9, 2001
25
APPENDIX
APPENDIX A
No. 00-1114
UNITED STATES COURT OF APPEALS FOR THE
~ SEVENTH CIRCUIT
WILLIAM A. BOOKS and MICHAEL
SUETKAMP,
Plaintiffs-Appellants,
Vv.
CITY OF ELKHART, INDIANA,
Defendant-Appellee.
Argued May 12, 2000
Decided December 13, 2000
Before RIPPLE, MANION and WILLIAMS, Circuit Judges.
RIPPLE, Circuit Judge.
On the lawn of the City of Elkhart's Municipal Building
stands a monument inscribed with the Ten Commandments.
William A. Books and Michael Suetkamp, residents of Elkhart,
object to the of this monument on government property.
brought this action in the district court, claiming that
the display of the monument by the City of Elkhart violates
the Establishment Clause of the First Amendment to the
Constitution of the United States. The district court granted
summary judgment for the City of Elkhart. For the reasons
One etree aaa cera CORED OD Daas
the district court and remand for proceedings consistent with
this opinion.
A monument inscribed with the Ten Commandments is
la
located on the lawn in front of the Municipal Building of the
City of Elkhart ("the City" or "Elkhart"). The plaintiffs,
residents of Elkhart, object to the presence of this monument
in this location. We therefore must determine whether this
presence of the monument violates the Establishment Clause
of the Constitution of the United States, which has been made
applicable to the states through the Fourteenth Amendment.’
This task requires that we examine the history of the
monument's placement and maintenance as well as the physical
characteristics of the monument and of the surrounding area.
l.
In the 1940s, a juvenile court judge in Minnesota, E. J.
Ruegemer, inaugurated the Youth Guidance Program.
Disheartened by the growing number of youths in trouble, he
sought to provide them with a common code of conduct. He
believed that the Ten Commandments might provide the.
necessary guidance. Judge Ruegemer originally planned to
post paper copies of the Ten Commandments in juvenile courts,
first in Minnesota and then across the country. To help fund
his idea, he contacted the Fraternal Order of es ("FOE"),
a service organization dedicated to promoting liberty, truth,
and justice. At first, FOE rejected Judge Ruegemer's idea
because it feared that the program might seem coercive or
sectarian. In response to these concerns, representatives of
Judaism, Protestantism, and Catholicism developed what the
individuals involved believed to be a nonsectarian version of
the Ten Commandments because it could not be identified
with any one religious group. After reviewing this version,
FOE agreed to support Judge Ruegemer's program.
Around this same time, motion picture producer Cecil B.
DeMille contacted Judge Ruegemer about the program.
' See County of Allegheny v. American Civil Liberties
Union, Greater Pittsburgh Chapter, 492 U.S. 573, 588, 106 L. Ed.
2d 472, 109 S. Ct. 3086 (1989); Wallace v. Jaffree, 472 U.S. 38,
48-55, 86 L. Ed. 2d 29, 105 S. Ct. 2479 (1985); School Dist. of
Abingdon Township v. Schempp, 374 U.S. 203, 215, 10 L. Ed. 2d
844, 83 S. Ct. 1560 (1963) (calling the principle "decisively settled");
Cantwell v. Connecticut, 310 U.S. 296, 303, 84 L. Ed. 1213, 60 S.
Ct. 900 (1940).
2a
Commandments," suggested
Erase plegess, Judge Resear eagtad Get panko aioe
nze plaques. Judge i ite mi
be a more suitable material be the original ten
Commandments were written pod py DeMille agreed with
Judge Ruegemer's suggestion, and the judge thereafter worked
with two Minnesota granite companies to produce granite
monuments inscribed with the Ten Commandments. Local
chapters of FOE financed these granite monuments and then,
throughout the 1950s, donated them to their local communities.
The Elkhart chapter of FOE donated its version of the Ten
Commandments monument to the City of Elkhart in 1958.
_Elkhart's newspaper, The Elkhart Truth, published an
article about the dedication of the Ten Commandments
monument to the City of Elkhart. See R.29, Ex.A, Ceremonies
Pay Tribute in Memorial Day Rite; City Given Decalogue,
The Elkhart Truth, May 31, 1958, at 1. The dedication was a
part of the City's Memorial Day ceremonies, and the
participants in the dedication included: Robert Long, city
controller; Mahlon Hull, past president of the Elkhart
of FOE; Dale Swihart, lodge secretary for FOE; the Reverend
William Gieranowski, assistant pastor of St. Vincent's Catholic
Church; the Reverend W. W. Kenhell, outgoing president of
the Elkhart Ministerial Association; and Rabbi M: E.
Finkelstein of Temple Israel.
According to the newspaper, Reverend Kenhell spoke at
the ceremony, imparting the message that "Americans have
munertiad mramm powes Sam the founding fathers of cur country,
.. . and if they will accept the precepts of the Ten
Commandments, it will provide their redemption from today's
strife and fear." Jd. Father Gieranowski also spoke at the
ceremony and stated that moral law does not change and that
the Ten Commandments should be engraved not only in stone
but in the hearts, minds, and consciences of everyone. See id.
Finally, the newspaper noted, Rabbi Finkelstein explained
that the dedication of the monument "should be an occasion
for dedication of everyone to the high ideals inherent in the
American way of life." Jd.
I
3a
As we have noted earlier, Elkhart's Ten Commandments
monument is located on the lawn in front of the City’s Municipal
Building. The Municipal Building, situated on the comers of
Second and High Streets in downtown Elkhart, contains the
mayor's office, the City's legal and human relations
a the city court, the prosecutor's office, and the
offices of the Common Council. Above the main entrance to
the Municipal Building is a bas relief of an elk's head. Directly
to the left of the elk’s head is the word "DEDICATVM,” and
on the immediate right of the elk's head is the word
"JVSTITIAM.” R.29 & 31, Ex.14-16.
The lot for the Municipal Building contains the building
itself, sidewalks, and a parking area. Between the building
and the sidewalks is a grass lawn that is approximately 25
feet wide. Within this lawn are three monuments. The City
maintains this lawn surrounding the monuments but does not
contribute any time, money, or effort to the maintenance of
the monuments themselves.
On the southeast corner of the building's lot — the corner
nearest the intersection — are the Revolutionary War
Monument and the Freedom Monument. The Revolutionary
War Monument, closest to the street, is a large stone, which
bears a plaque and is surrounded by a bed of flowers. See
R.29 & 31, Ex.23-24. The plaque explains that the monument
was donated by the Daughters of the American Revolution in
honor of the Revolutionary War soldiers buried in Elkhart
County. Behind the Revolutionary War Monument is the
Freedom Monument. The Freedom Monument is a brick pillar
with a light on its top. A plaque on the pillar reads: "BEHOLD
FRIEND, YOU ARE NOW ON HALLOWED GROUND
FOR HERE BURNS FREEDOMS HOLY LIGHT." R.29 &
31, Ex.25. Collectively, the Revolutionary War Monument
and the Freedom Monument are referred to as the War
Memorial.
On the northeast corner of the lot is the Ten Commandments
? The bas relief also contains, in smaller lettering, the
words "INCORPORATED 1875" on the far left of the elk's head
and the words "ERECTED 1915" on the far right of the elk's head.
R.29 & 31, Ex.16.
4a
granite and stands six feet high and three and one-half feet
aoeuchaetenlenamateans Gare tereetent
the text of the Ten The face of the monument
Llp efpecpter depres
Thou not make to thyself any en i 1
Thou shalt not take the Name of the Lord thy God in
vain.
Remember the Sabbath day, to keep it holy.
enw rn rn a
upon God giveth thee.
Thou shalt not kill. al —
Thou shalt not covet thy neighbor's wife, nor his
manservant, nor his mai ant, nor his cattle, nor
anything that is thy neighbor's.
R.29 & 31, Ex.5. This text, as stated previously, is an
nee of Jewish, Protestant, and Catholic versions of
Commandments.
Pe. the top On Cnn, there are two small tablets
contain anci ebrew script. Surrounding both of these
tablets is a floral design, and between the two tablets is an
eye within a pyramid — an all-seeing eye.‘ Immediately below
the all-seeing eye is an American Eagle grasping the American
° Both the Ten Commandments monument and the War
Memorial are approximately the same distance from the main
entrance and from the sidewalks. The Ten Commandments
monument is 46 feet from the main entrance and 10 feet from the
sidewalk, and the War Memorial is 48 feet from the main entrance
and 10 feet from the sidewalk. Both are partially shaded by trees.
“ The all-seeing eye on the monument is similar to the
one depicted on the one-dollar bill.
Sa
flag. Below the text on the monument are two small Stars of
David. In the center of the two stars is a similarly sized
symbol representing Christ: two Greek letters, Chi and Rho,
superimposed upon each other. At the base of the monument
is a small scroll, which reads as follows:
PRESENTED TO THE CITY OF ELKHART, IND.
BY
ELKHART AERIE NO. 395
FRATERNAL ORDER OF EAGLES
MAY, 1958
Id.
Photos of the Ten Commandments monument and of the
front of the Municipal Building were included in the trial
record and are attached as appendices to this opinion.
3.
Insofar as this record shows, the presence of the Ten
Commandments monument on the lawn of the Elkhart
Municipal Building produced no controversy until 1998. In
that year, the City's mayor was informed that, unless the
monument was removed, a lawsuit would be filed. After this
warning was received, the Common Council of the City of
Elkhart convened on May 4, 1998, and adopted a resolution
"regarding the display of the Ten ents on public
property." R.29, Ex.B. According to this resolution, the
monument and the symbols on its face recognize the historical
and cultural significance of the Ten Commandments. The
Common Council noted in its resolution that numerous other
historical and cultural plaques are inside the Municipal
Building. The Common Council further emphasized that "the
Ten Commandments have had a significant impact on the
development of the fundamental legal principles of Western
Civilization." Jd. Finally, the Common Council concluded
that, because the Ten Commandments monument "is a
historical and cultural monument that reflects one of the earliest
codes of human conduct," it was proper for the monument to
remain. Id. Because the Common Council did not remove the
monument, two residents of Elkhart filed this action against
the City of Elkhart.
6a
4.
Plaintiff William Books is a resident of Elkhart County
and has resided in Elkhart since the early 1980s. In Mr. Books’
affidavit, he states that "to the extent that I must, or wish to,
go to the Municipal Building to participate as a citizen of
Elkhart I must come into direct and unwelcome contact with
the [Ten Commandments] monument." R.24, Attachment 1,
at 2. Mr. Books explains that, in the past, he has gone to the
Municipal Building to pay a traffic ticket and to attend City
Council meetings when the issues discussed were ones that
interested him. Also, notes Mr. Books, his deposition for this
case was conducted in the City Attorney's office in the
Municipal Building. As Mr. Books explains, although he could
use the Municipal Building's side entrance instead of its main
entrance in order to avoid the monument, he "knows the Ten
es 9 monument is there whether [he] sees it or
not.” Jd. at 3.
Mr. Books further explains that he the monument
in his daily activities, including: riding his bicycle on a route
that passes the Municipal Building; patronizing the Elkhart
Public Library, which is located across the street from the
Municipal Building; and visiting his landlord's office and his
cousin's house, both of which are located near the Municipal
Building. He states that, in order to avoid seeing the Ten
Commandments monument, he "would have to assume the
special burden of altering [his] daily routine so as to avoid
this direct and unwelcome contact." Jd. at 2.
Plaintiff Michael Suetkamp is also a resident of Elkhart
County and has lived in Elkhart since the early 1990s. In his
affidavit, Mr. Suetkamp states that he is an atheist and is
offended deeply by the placement of the Ten Commandments
monument on the property of the City of Elkhart. He states
that he must come in direct and unwelcome contact with the
monument to participate as a citizen of Elkhart. As he explains,
he has entered the Municipal Building to pay a traffic ticket,
to attend a City Council meeting, to talk to the City Council's
oe and to have his deposition taken by the City Attorney
in this case.
Mr. Suetkamp also avers that he comes in direct and
7a
unwelcome contact with the monument in his daily activities.
For example, he states that the route he takes to return home
from work passes the Municipal Building and that he
sometimes sees the monument when entering the Elkhart Public
Library. Although he passes the monument frequently, Mr.
Suetkamp admits that he does not look directly at it every
time, but he states that "even if 1 don't see it, I certainly know
it is there." R.24, Attachment 4, at 2.
B. Proceedings in the District Court
The district court held that the placement of the Ten
Commandments monument on the lawn of the Elkhart
Municipal Building did not violate the Establishment Clause.
When analyzing the placement of the monument under the
test set out in Lemon v. Kurtzman, 403 U.S. 602, 29 L. Ed. 2d
745, 91 S. Ct. 2105 (1971), the court examined (1) whether
the City had a secular purpose in maintaining the monument,
(2) whether the primary effect of the monument was to advance
religion, and (3) whether the City's action fostered an excessive
entanglement of government with religion. See id. at 612-13.
After stating that the third prong did not apply, the court
found that Elkhart had a secular purpose for the monument.
According to the court, the City's purpose in accepting the
monument, promoting morality in youths, is a legitimate aim
of government and is a traditional part of the police powers
of the state. Also, the court stated, the City's purpose in
continuing to display the monument, to maintain exhibits of
cultural and historical significance on City property, is also
secular.
The court also discussed whether the monument had the
effect of endorsing religion. It noted that this question is
asked from the perspective of a reasonable observer who is
charged with knowledge of the history and context of the
display. The court stated that a reasonable observer looking
at the monument would know that the Ten Commandments
has both religious and historical significance and would
acknowledge the significance of the religious symbols on the
monument as signs of the major religions of this country at
the time of the monument's donation. The court next pointed
out that a reasonable observer would view the Ten
Commandments monument as part of the City's overall
8a
Building is and the City could not be to
all of its displays in one “Tho cowt an bold Geet
does not violate the lishment Clause for the City of
T
the
laying the monument on the lawn of the
nation by di
Municipal
Il
DISCUSSION
A. Standard of Review
Mp review 2a the o—— of the district court to
grant summary j t. Wright v. Illinois Dep't
Corrections, 204 F.3d 727, 729 (7 i
affidavits, if any, show that there is no genuine issue as to
any material fact and that the moving is entitled to a
tolament as a matter of law." Fed. R. Civ. P. 56(c); Celotex
—— v. Catrett, 477 U.S. 317, 322-23, 91 L. Ed. 2d 265, 106
S. Ct. 2548 (1986). In determining whether a genuine issue
of material fact exists, we must review the record in the light
most favorable to the plaintiffs and make all reasonable
inferences in their favor. See Anderson v. Liberty Lobby, Inc.,
477 U.S. 242, 255, 91 L. Ed. 2d 202, 106 S. Ct. 2505 (1986).
Here, the parties do not dispute the material facts, so we shall
— yi b —y ~ 9 conclusions of law. See
reedom From Religion Found., Inc. v. City of Ma
203 F.3d 487, 490 (7th Cir. 2000). dubia
B. Standing
l.
* The district court also analyzed the placement of the
Ten Commandments under several other "tests." Because we believe
that the Lemon test, as refined by Supreme Court precedent, still
the other tests mentioned by the district court.
9a
Under Article III of the Constitution of the United States,
a plaintiff must have ing to bring an action before a
federal court. To have ing, the S Court has
explained, the plaintiff must allege (1) that he has suffered an
injury in fact (2) that is fairly traceable to the action of the
defendant and (3) that will likely be redressed with a favorable
decision. See Lujan v. Defenders of Wildlife, 504 U.S. 555,
560-61, 119 L. Ed. 2d 351, 112 S. Ct. 2130 (1992). Here, the
dispute centers on the first element: whether the plaintiffs
suffered an injury in fact by the City's display of the Ten
on government property.
To allege adequately an injury in fact, a plaintiff must
show "an invasion of a legally protected interest which is (a)
concrete and particularized and (b) actual or imminent, not
conjectural or hypothetical." /d. at 560 (citations and quotation
marks omitted). In the context of the Establishment Clause,
our cases have required that, to allege properly that a plaintiff
has suffered an injury in fact from the display of a religious
object, the individual may show he has undertaken a special
burden or has altered his behavior to avoid the offensive
object. See, e.g., Freedom From Religion Found., 203 F.3d at
489 (avoids using the park); Go v. North Township, 4
F.3d 1412, 1416-17 (7th Cir. 1993) (avoids area of the park);
Harris v. City of Zion, 927 F.2d 1401, 1405 (7th Cir. 1991)
(alters travel routes); Doe v. Village of Crestwood, 917 F.2d
1476, 1478 (7th Cir. 1990) (will stay away from festival);
American Civil Liberties Union v. City of St. Charles, 794
F.2d 265, 269 (7th Cir. 1986) (alters behavior by detouring);
Doe v. Small, 726 F. Supp. 713, 718-19 (N.D. Ill. 1989),
rev'd en banc on other grounds, 964 F.2d 611 (7th Cir. 1992)
(avoids using park).
The district court here, however, relied on Doe v. County
of Montgomery, 41 F.3d 1156 (7th Cir. 1994), to determine
whether the plaintiffs had suffered an injury in fact even
though they had not altered their behavior to avoid the Ten
Commandments monument. In Doe, a permanent metal sign,
ing over the main entrance of the county's courthouse,
: "THE WORLD NEEDS GOD." The plaintiffs were
residents of the county and wished to avoid the sign; however,
in order to participate as citizens of their county and to fulfill
certain legal obligations, they needed to use the courthouse.
10a
505 U.S. 577, 120 L. Ed. 2d 467, 112 S. Ct. 2649 (1992)
ictions at non- ion ceremonies);
Wallace v. Jaffree, 472 U.S. 38, 86 L. Ed. 2d 29, 105 S. 4
2479 (1985) (school children = objected to one-
minute period of silence); Stone v. , 449 U.S. 3
L. Ed. 2d 199, 101 S. Ct. 192 (1980) (per curiam) (students
and parents objected to posting of Ten Commandments);
School Dist. of Abington Township v. Schempp, 374 U.S.
(school children and parents objected to reading of Bible in
to not errs og): Berger v. Rensselaer Cent. Sch. Corp.,
982 F.2d 1160, 1164 n.4 (7th Cir. 1993) (parent of school
children objected to distribution of Gideon Bibles in the
schools); Sherman v. Community Consol. Sch. Dist. 21 of
Wheeling Township, 980 F.2d 437, 441 (7th Cir. 1992) (student
objected to recitation of Pledge of Allegiance).
The district court followed the holding of Doe and noted
that the plaintiffs had alleged that they must come in direct
and unwelcome contact with the Ten Commandments
monument to participate fully as citizens of Elkhart and to
Se En ten ceanas. The cout questioned whether
the plaintiffs had to at the monument to enter the Municipal
as the plaintiffs in Doe had to see the sign over the
main entrance to enter the county courthouse, but found that
the facts were sufficiently close to fit within the rule of Doe.
lla
Therefore, the plaintiffs had standing to challenge the
placement of the monument in front of the Municipal Building.
2.
The plaintiffs bear the burden of establishing that they
have standing to bring this action. See Doe, 41 F.3d at 1159.
To meet that burden, plaintiffs Books and Suetkamp both
allege that they must come in direct and unwelcome contact
with the Ten Commandments monument to participate fully
as citizens of Elkhart and to fulfill certain legal duties.
Moreover, they each allege specific examples in which they
have entered the Municipal Building to participate as a citizen
of Elkhart or to fulfill a obligation.
According to the City, the plaintiffs must alter their
behavior to avoid the Ten Commandments monument before
they can allege that they have suffered an injury in fact. In
Doe, the City submits, the plaintiffs wished to avoid the
religious sign above the ‘s main entrance but could
not do so if they wished to use the courthouse and to participate
as citizens of the county. Here, the City argues, the plaintiffs
could have entered the Municipal Building through ive
entrances, or, even if entering through the main entrance,
they could have passed along the back of the Ten
Commandments monument. Because of these two options,
the City contends, the plaintiffs did not need to come in
direct and unwelcome contact with the text on the Ten
Commandments monument in order to participate as citizens
of Elkhart or to fulfill their legal obligations. Thus, the City
asserts, the plaintiffs have not all that they suffered an
injury in fact by the placement of the Ten Commandments
monument on the lawn of the Municipal Building.
3.
As this court discussed in Doe, the Supreme Court has
addressed the requirements for standing when a plaintiff must
view a religious symbol in his daily routine or when he is
forced to come in contact with religious conduct through
participation in school or in government. See Doe, 41 F.3d at
1160. As we demonstrated in Doe, our holding in that case is
grounded firmly in the precedent of the Supreme Court.
12a
Therefore, we must conclude that the plaintiffs have i
to challenge the placement of an tee toc
monument on the lawn of the Municipal Building.
_ We agree with the district ict court that there is no principled
distinction between the facts of Doe and the facts presented
here. In Doe, the plaintiffs were required to come in direct
and unwelcome contact with the religious di in order to
participate fully in government and to their legal
obligations. Here, the plaintiffs do the same. Although
attend the government-owned place where the object is located.
See Doe, 41 F.3d at 1159-61. Therefore, the plaintiffs have
alleged sufficient facts to demonstrate that they suffered an
injury in fact by the placement of the Ten Commandments
monument on the lawn of the Municipal Building.
C. Governing Principles and Application
Although various members of the Supreme Court of the
United States have criticized it,° the test first enunciated by
* See, e.g., Santa Fe Indep. Sch. Dist. v. Doe, 530 U.S.
290, 120 S. Ct. 2266, 2284-85, 147 L. Ed. 2d 295 (2000) (Rehnquist,
the decisional lew of ts Court” end collecting opiiocs ciicising
- * end collecting opiai “wee
Lemon); Lamb's Chapel v. Center Moriches Union Free Sch. Dist.,
508 U.S. 384, 398-99, 124 L. Ed. 2d 352, 113 S. Ct. 2141 (1993)
(Scalia, J., concurring in judgment) (comparing Lemon to "some
ghoul in a late-night horror movie that repeatedly sits up in its
grave and shuffles abroad, after being repeatedly killed and buried"
13a
the Court in Lemon v. Kurtzman, 403 U.S. 602, 29 L. Ed. 2d
745, 91 S. Ct. 2105 (1971), remains the prevailing analytical
tool for the analysis of Establishment Clause claims. As an
intermediate federal appellate court, we are obliged by the
doctrines of stare decisis and precedent to employ that
methodology unless instructed otherwise by the Supreme
Court.’ See, e.g., Freedom From Religion Found., 203 F.3d
at 493 (emphasizing Lemon test in Establishment Clause
analysis); Bridenbaugh v. O'Bannon, 185 F.3d 796, 797 (7th
Cir. 1999) (same); Tanford v. Brand, 104 F.3d 982, 986 (7th
Cir. 1997) (same); Kerr v. Farrey, 95 F.3d 472, 476-80 (7th
Cir. 1996) (same); Fleischfresser v. Directors of Sch. Dist.
200, 15 F.3d 680, 685-86 (7th Cir. 1994) (same); Sherman v.
Community Consolidated School District 21, 8 F.3d 1160 at
1163-64 (same). Under the approach mandated by Lemon,
we must consider: (1) whether the government activity in
question has a secular purpose, (2) whether the activity's
primary effect advances or inhibits religion, and (3) whether
the government activity fosters an excessive entanglement
with religion. See Lemon, 403 U.S. at 612-13. Governmental
and then collecting opinions criticizing Lemon); County of
Allegheny, 492 U.S. at 655-56 (Kennedy, J., concurring in the
judgment in part and dissenting in part) (stating that, although he
found the Lemon test useful in judging the 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. Educ. & Religious Liberty v. Regan, 444 U.S.
646, 671, 63 L. Ed. 2d 94, 100 S. Ct. 840 (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)).
” See State Oil v. Khan, 522 U.S. 3, 20, 139 L. Ed. 2d
199, 118 S. Ct. 275 (1997) (stating that the "Court of Appeals was
correct in applying [the doctrine of stare decisis] despite
disagreement with [a prior Supreme Court opinion], for it is this
Court's prerogative alone to overrule one of its precedents"); Agostini
v. Felton, 521 U.S. 203, 217, 138 L. Ed. 2d 391, 117 S. Ct. 1997
(1997) (reminding appellate courts that "the views of five Justices
that [a] case should be reconsidered or overruled cannot be said to
have effected a change in Establishment Clause law"); see also
DeWalt v. Carter, 224 F.3d 607, 617 n.5 (7th Cir. 2000).
l4a
action is violative of the constitutional prohibition against the
establishment of religion if it violates one of these three
See Edwards v. 482 U.S. 578, 583, 96 L.
2d 510, 107 S. Ct. 2573 (1987) In this case, the plaintiffs
nae ay of So monument lnvatves an
excessive entanglement with religion; therefore, we shall
confine our discussion to the first two prongs of the analysis.
Before turning to the situation before us, we also note
that, in more recent cases, the Supreme Court has, on occasion,
articulated these first vo prongs in terms of an "endorsement"
test. See County of Allegheny v. American Civil Liberties
Union, Greater Pitts. Chapter, 492 U.S. 573, 592, 106
L. Ed. 2d 472, 109 S. Ct. 3086 (1989) (formally accepting
the endorsement test and stating that "in recent years, we
have paid particularly close attention to whether the challenged
governmental practice either has the purpose or effect of
endorsing: religion, s concern thet has long hed « place in
our Estab ent Clause jurisprudence"); see also Santa Fe
oo Sch. Dist. v. Doe, 530 U.S. 290, 120 S. Ct. 2266,
2278, 147 L. Ed. 2d 295 (2000) (asking whether the state
endorsed religion by allowing a student to lead a prayer to
open high school football games); Capitol Square Review &
Advisory Bd. v. Pinette, 515 U.S. 753, 763-65, 132 L. Ed. 2d
650, 115 S. Ct. 2440 (1995) (acknowledging endorsement
test but stating that it did not apply in the case at hand because
the correct analysis for private religious speech in a public
forum was under the Free Speech Clause). As we noted recently
in Freedom From Religion Foundation, "under this test, ‘the
effect prong asks whether, irrespective of government's actual
purpose, the practice under review in fact conveys a message
of endorsement or disapproval.” 203 F.3d at 493 (quoting
Lynch v. Donnelly, 465 U.S. 668, 690, 79 L. Ed. 2d 604, 104
S. Ct. 1355 (1984) (O'Connor, J., concurring)).
l.
The first of our inquiry must be to determine whether
the display of this tablet by the City of Elkhart has the proncey
purpose of "advancing or inhibiting religion." Agostini v.
9G oo Ae Ee a 138 L. Ed. 2d 391, 117 S. Ct.
; urt has explained, ""The purpose prong
of the Lemon test asks whether the government's actual purpose
15a
is to endorse or disapprove of religion."" Aguillard, 482 U.S.
at 585 (quoting Lynch, 465 U.S. at 690 (O'Connor, J.,
concurring)). In determining whether this particular display
of the Ten Commandments can be said to have a valid secular
purpose, we must evaluate the totality of the circumstances
surrounding the placement and maintenance of the monument.
As a starting point, we do not think it can be said that the
Ten Commandments, standing by themselves, can be stripped
of their religious, indeed sacred, significance and characterized
as a moral or ethical document. Indeed, the Supreme Court
made this point clear in Stone v. Graham, 449 U.S. 39, 66 L.
Ed. 2d 199, 101 S. Ct. 192 (1980), when it noted that a
simple reading of the Ten Commandments does not permit
us to ignore that they transcend "arguably secular matters,
such as honoring one's parents, killing or murder, adultery,
stealing, false witness, and covetousness. Rather, the first
part of the Commandments concerns the religious duties of
believers: worshipping the Lord God alone, avoiding idolatry,
not using the Lord's name in vain, and observing the Sabbath
Day." Jd. at 41-42 (citations omitted). Indeed, when one goes
beyond the text itself and regards this particular display, the
religious nature of the document is emphasized by the very
format of the monument. Notably, the prefatory words "I am
the Lord thy God" are set out in large lettering at the top of
the text. R.29 & 31, Ex.5. This religious format is enhanced,
not detracted from, by the etchings at the bottom of the tablet
of the Stars of David and the Chi Rho symbol, a distinctive
Christian symbol. It cannot be doubted, therefore, that this
monument bearing the Ten Commandments possesses a
religious nature.
The display of a religious symbol still may, under certain
circumstances, have a secular purpose. The text of the Ten
Commandments no doubt has played a role in the secular
development of our society and can no doubt be presented by
the government as playing such a role in our civic order. For
example, on the wall of the Supreme Court there is a frieze
that contains Moses holding the Ten Commandments. The
frieze contains depictions of two other religious figures,
Confucius and Mohammed, but it also includes Caesar
Augustus, William Blackstone, Napol'on Bo , and John
Marshall. Justice Stevens has stated that the placement of all
16a
terabytes, ee
PM LABM ARLES ALE AR That at WAL
of these historic figures together on the frieze signals a respect
for great lawgivers, not great proselytizers. See County o
Allegheny, 492 U.S. at 652 (Stevens, J., i —
and dissenting in part). This is a fitting message, he tells us,
for the wall of a courtroom. See id. at 653. A display is
unconstitutional, according to Justice Stevens, "only when its
message, evaluated in the context in which it is presented, is
nonsecular." /d. at 652. Indeed, the Court in Stone i
The Supreme Court has stressed the importance of the
context of a clearly religious symbol in determining whether
the purpose in displaying the symbol is religious or secular.
We also have emphasized that religious symbols should not
be considered in the abstract; instead, courts must ask "whether
the particular display at issue, considered in its overall context,
could be said to advance religion." American Jewish Congress
v. City of Chicago, 827 F.2d 120, 125 (7th Cir. 1987).
_ Here, the record discloses no significant attempt by the
City of Elkhart to present the text of the Ten Commandments
in a way that might diminish its religious character.’ Indeed,
the history of the City's involvement in the placement of this
particular monument serves to emphasize a religious purpose
in its display. As we have noted already, the original impetus
behind the proliferation of the Ten Commandments
monuments was Judge Ruegemer's desire to provide youths
with a common code of conduct that they could use to govern
their actions. In accepting the monument, the City also aimed
to nny a code of conduct for the citizens of Elkhart to
follow. The code chosen, however, was a religious code that
* Given the obvious religious nature of the text itself, it
falls to the City of Elkhart to demonstrate that it has taken steps to
“obviate its religious ." Gonzales v. North Township, 4
F.3d 1412, 1421 (7th Cir. 1993); see also Bridenbaugh v. O'Bannon,
185 F.3d 796, 798 (7th Cir. 1999); Metz! v. Leininger, 57 F.3d
618, 621 (7th Cir. 1995).
17a
focuses not only on subjects that are the legitimate concern
of civil authorities, but also subjects that are beyond the ken
of any government and that address directly the relationship
of the individual human being and God. That the purpose
was to endorse, through governmental sponsorship, a code of
religious values is further established by the program of
speakers at the dedication of the monument: a Protestant
minister, a Catholic priest, and a Jewish rabbi. When these
religious leaders spoke, the first speaker urged Americans to
accept the precepts of the Ten Commandments because they
could provide redemption from strife and fear. The second
speaker stated that the Ten Commandments should be engraved
not only in stone but in the hearts, minds, and consciences of
everyone. Finally, the last speaker recommended that the
dedication of the monument should be an occasion for the
dedication of everyone to the high ideals inherent in the
American way of life. The participation of these influential
members of several religious congregations makes it clear
that the purpose for displaying the monument was not only to
provide youths with a common code of conduct to guide their
participation in the civil community but also to urge the people
of Elkhart to em brace the specific religious code of conduct
taught in the Ten Commandments. Thus, in applying the
purpose prong of Lemon, the inherently religious nature of
the Ten Commandments is strengthened by the circumstances
surrounding the display of the monument. We cannot escape
the conclusion that the purpose in displaying this monument
was to promote religious ideals.
Moreover, nothing in the subsequent history of the
monument can be said to have in any way transformed that
religious purpose. The City's resolution, issued on the eve of
this litigation and proclaiming a secular purpose for the
monument's presence by recognizing the historical and cultural
significance of the Ten Commandments, ought to be accorded
no more weight than the avowed secular legislative purpose
articulated by the Kentucky legislature in Stone. In Stone, the
Kentucky statute required the following language at the bottom
of each Ten Commandments display: "The secular application
of the Ten Commandments is clearly seen in its adoption as
the fundamental legal code of Western Civilization and the
Common Law of the United States."" 449 U.S. at 41 (quoting
18a
1978 Ky. Acts 436, § 1, Ky. Rev. Stat. Ann. § 158.178 (1980)).
The Supreme Court responded to this statement of purpose
by stating that "such an ‘avowed’ secular is not
sufficient to avoid conflict with the First panama” Id.;
see also Santa Fe Indep. Sch. Dist., 120 S. Ct. at 2278
(reiterating that a governmental entity's professed secular
purpose for an arguably religious _— is entitled to some
> wepanlig ihe waded od vo Ay the courts to ensure that
purpose is sincere); illard, 482 U.S. at 586-87 (stating
Sel eaten chad esti dae wo a aaa ate
secular purpose, but the statement of such purpose must be
sincere). As we noted in Gonzales, 4 F.3d at 1419, although
this court "will defer to a municipality's sincere articulation
of a religious symbol's secular purpose,” we shall not accept
a stated purpose that merely seeks to avoid a potential
Establishment Clause violation. Similarly, we hold that the
City of Elkhart's avowed secular se of recognizing the
historical and cultural significance of the Ten Commandments,
issued on the eve of litigation, "is not sufficient to avoid
conflict with the First Amendment." Stone, 449 U.S. at 41.
We therefore hold that the purpose of displaying the Ten
Commandments monument was not secular. The display of
the monument, consequently, violates the first prong of the
Lemon test and cannot survive Establishment Clause scrutiny.
2.
_ Even if we were to ignore the primary purpose behind
displaying the Ten Commandments monument, we would
have to conclude that this particular display has the primary
or principal effect of advancing religion. In County of
Allegheny, the Court noted that, under this prong, courts have
a special responsibility to ensure that a government-sponsored
display does not have the or the effect of endorsing a
religion. See 492 U.S. at 592. As we noted recently in Freedom
of Religion Foundation, “under this test, ‘the effect prong
asks whether , irrespective of government's actual purpose,
the practice under review in fact conveys a message of
endorsement or disapproval." 203 F.3d at 493 (quoting Lynch,
465 U.S. at 690 (O'Connor, J., concurring). When employing
this analytical approach, we are charged with the responsibility
of assessing the totality of the circumstances surrounding the
display to determine whether a reasonable person would believe
19a
. recurring holiday disp
that the display amounts to an endorsement of religion. See
County of Allegheny, 492 U.S. at 597 (stating that "the
government's use of religious symbolism is unconstitutional
if it has the effect of endorsing religious beliefs, and the
effect of the government's use of religious symbolism depends
on its context").
In County of Allegheny, the plaintiffs challenged the
~ of a creche placed on the Grand
Staircase inside the county courthouse and of a Chanukah
menorah placed outside the city-county building. The Court
held that the placement of the creche violated the Establishment
Clause. The creche in question was surrounded on three sides
by a wooden fence. Along the fence sat poinsettias, and on
each of the two ends of the fence was a small evergreen tree.
A plaque was attached to the fence that announced that the
display had been donated by the Holy Name Society. The
creche was used as the setting for weekday Christmas caroling
by local musical groups. The Court noted that the creche was
capable of communicating a religious message, but then
explained that "the effect of a creche display turns on its
setting” because "the context of the display [could] detract ]
from the creche's religious message." Jd. at 598. In assessing
the context surrounding the creche in County of Allegheny,
the Court determined that nothing detracted from its religious
message. The floral border drew one's attention to the display,
and the fact that traditional Christmas flowers were used further
contributed to the perception of the endorsement of religion
by the government. The sign disclosing ownership by a
Catholic organization further enhanced the perception that
the government was promoting a religious message. The Court
also noted that the creche was displayed on the main and
most beautiful part of the building and that the building served
as the seat of government. According to the Court, "no viewer
could reasonably think that it occupies this location without
the support and approval of the government." Therefore,
concluded the Court, "by permitting the ‘display of the creche
in this particular physical setting,’ the county sends an
unmistakable message that it supports and promotes the
Christian praise to God that is the creche's religious message.”
Id. at 599-600 (quoting Lynch, 465 U.S. at 692 (O'Connor, J.,
concurring)). The Court therefore held that the creche display
20a
violated the Establishment Clause.
In County of Allegheny, a majority of the Court also held
that the menorah placed in front of the city-county building
did not violate the Establishment Clause. The menorah was
= next to a 45-foot pine tree that was decorated with
ghts and ornaments. At the foot of the tree rested a sign that
bore the mayor's name and a text that was entitled "Salute to
Liberty." The Court held that this particular display was not a
violation of the Establishment Clause because its specific
setting did not have the primary effect of endorsing religion.
Instead, the Court stated that the combination of the now-
secularized Christmas tree with a sign extolling liberty and
the giant menorah tended to promote the winter-holiday season.
ne display, held the Court, did not violate the Establishment
use.
In fulfilling our responsibility to apply faithfully the
Establishment Clause jurisprudence of the ‘Supreme Court of
the United States, we have subjected to particularly careful
scrutiny displays at the seat of government. We have taken
this course because "an important concern of the effects test
is .. . ‘whether the symbolic union of church and state effected
by the challenged governmental action is sufficiently likely
to be perceived by adherents of the controlling denominations
as an endorsement, and by the nonadherents as a disapproval,
of their individual religious choices." American Jewish
Congress, 827 F.2d at 127 (quoting Grand Rapids Sch. Dist.
v. Ball, 473 U.S. 373, 390, 87 L. Ed. 2d 267, 105 S. Ct. 3216
(1985)). In American Jewish Congress, the City of Chicago
had displayed a creche during the holiday season in the lobby
od = a pero Poa noted that the seat of
ernment is "a setting w presence of government is
pervasive and inescapable." Jd. 827 F.2d at 26. We then
held that the ae violated the second prong of Lemon
"because City Hall is so plainly under government ownership
and control, every display and activity in the building is
implicitly marked with the stamp of government approval.”
Id. at 128. In that case, the presence of the creche in the
lobby of the seat of government created "a clear and strong
impression that the local government tacit]
toniey." Ia g nt tacitly endorsed
2la
We reiterated this principle in Harris v. City of Zion, 927
F.2d 1401 (7th Cir. 1991). In City of Zion, the plaintiffs
challenged the seal of two cities because they contained
symbols of Christianity, the Latin cross. We stated that the
cities’ seals containing the Latin cross presented unambiguous
endorsements of religion in violation of the Establishment
Clause. See id. at 1412. "Depicting these patently religious
symbols on a corporate seal that is wholly owned and controlled
by the City connotes the City's approval for the message
conveyed." Jd. at 1414. This endorsement, we held, violated
the Establishment Clause. Moreover, we noted, the finding of
a constitutional violation was even more compelling in this
situation because the seals were "a permanent statement that
[was] viewed year-round." /d. at 1412.
In assessing the situation before us, we must ask whether
an objective observer familiar with the history and placement
of the Ten Commandments monument would perceive it as a
state endorsement of religion. See Santa Fe Indep. Sch. Dist.,
120 S. Ct. at 2278. We note first that the monument is displayed
at the seat of government. As we have just explained, the seat
of government "is so plainly under government ownership
and control" that every display on its property is marked
implicitly with governmental approval. American Jewish
Congress, 827 F.2d at 128. Here, in front of the building that
houses the governmental departments of the City, stands a
religious message. This granite monument is a permanent
fixture on the grounds of the seat of government. As viewed
by the passer-by or by an individual hing the building,
the monument certainly cannot be fairly characterized as a
component of a comprehensive display of the cultural heritage
of the people of Elkhart. Rather, it stands, as the City intended
it to be when it dedicated the monument on Memorial Day in
1958, as a sole and stark reminder of the ific injunctions
contained in the Commandments. Ind the surrounding
area enhances the dignity and the primacy of the
Commandments. Above the door of the Municipal Building
are the Latin words "Dedicatum Justitia." Those who view
the Ten Commandments are thus informed that the role of
the government in that location is to do justice; the only
"law" displayed for doing justice is the monument bearing
the Ten Commandments. The only other display on the lawn
22a
of the Municipal Building is the War Memorial that reminds
the onlooker that the in front of the icipal Building
is “hallowed " R.29 & 31, Ex.25.’ person
ing the seat of government is thus informed that, at
that location, the government goes about the business of doing
justice, that the only "law" displayed is the
and that these Commandments are di on land designated
by the government as "hallowed -
represented
community, but by no means the total of all those who depend
on the City of Elkhart as their local government. The Supreme
Court has cautioned that government "sponsorship of a
religious message is impermissible because it sends the
ancillary message to members of the audience who are
Sa cee” oon ae et Oe embers of Ge
community, e accom ing message to
adherents that they are insiders, Seanad euamibens of the
political community." Santa Fe Indep. Sch. Dist., 120 S. Ct.
at 2279 —e Lynch, 465 U.S. at 688 (O'Connor, J.,
_ In this regard, the placement of the American Eagle
gripping the national colors at the top of the monument hardly
detracts from the message of endorsement; rather, it specifically
links religion, or more specifically these two religions, and
civil government. See City of Zion, 927 F.2d at 1412 (holding
that a Latin cross surrounded by other symbols of city life on
the city's corporate seal only served to show that the city
Ceeitanity). certain aspects of city life, among them
Finally, we cannot say that the monument's
* As stated above, the Freedom Monument reads:
"BEHOLD FRIEND, YOU ARE NOW ON HALLOWED
GROUND FOR HERE BURNS FREEDOMS HOLY LIGHT."
R.29 & 31, Ex.25.
23a
acknowledgment of two religious traditions, rather than one,
renders the situation before us in compliance with the strictures
of the Constitution. "The simultaneous endorsement of Judaism
and Christianity is no less constitutionally infirm than the
endorsement of Christianity alone." County of Allegheny, 492
U.S. at 615. Although Elkhart's Ten Commandments
monument does not Christianity only, it confines its
approval to the Judeo-Christian faiths. As the Supreme Court
has stated, the First Amendment is "recognized as guaranteeing
religious liberty and equality to ‘the infidel, the atheist, or the
adherent of a non-Christian faith such as Islam or Judaism."
Id. (quoting Wallace, 472 U.S. at 52). Accordingly, we hold
that the primary effect of the Ten Commandments monument
on the property of the City of Elkhart's Municipal Building is
to advance or endorse religion. The display, consequently,
fails the second prong «/ the Lemon test and violates the
Establishment Clause.
3.
This case was decided by the district court on cross-motions
for summary judgment. Now that we have reversed the district
court's grant of summary judgment for the defendants, the
district court ought to enter summary judgment for the
plaintiffs. The district court must then turn to the question of
remedy. In fashioning a remedy, the district court must be
guided by the basic rule that the nature of the remedy ought
to be determined by the nature and the scope of the
constitutional violation. See Milliken v. Bradley, 433 U.S.
267, 280, 53 L. Ed. 2d 745, 97 S. Ct. 2749 (1977) It must
also proceed in a manner that respects the interests of state
and local authorities to manage their own affairs in a manner
consistent with the Constitution of the United States. See id.
at 280-81.
In crafting equitable relief to comply with our judgment
today, the district court must ensure that, although the condition
that offends the Constitution is eliminated, Elkhart retains the
authority to make decisions regarding the t of the
monument. In making those decisions, E 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
24a
the strictures of the Establishment Clause.
Clausen, 343 U.S. 306, 313, 96 L. Ed. 954, 92 $ C1 670"
(1952) ("We are a ameeee poeple whose institutions
presuppose a Being. We guarantee the freedom to
worship as one We make room for as wide a variety
of beliefs and creeds as the spiritual needs of man deem
"Since undoubtedly we are a ‘religious people whose
institutions presuppose a Supreme Being,’ deep feelings are
First Amendment that government may
make ‘no law respecting an establishment of religi
ibiting the free exercise thereof.” Schempp, 314 US. >
pointed out,
‘aton ng our people "ins" and “outs” on the basi
of religion. yo acknowledges a
far back in our personal histories — and the Country certainly
cannot ignore the circumstance of its own birth — without
25a
acknowledging that our ancestors were who suffered
significantly because of their religious belief and who were
ostracized by their national communities or made to suffer
poverty or even worse because of their religious beliefs. As
one visitor to our shores, himself a refugee from Nazi tyranny,
put it, Americans can all say, "We are bruised souls.” We
each carry "the wounds and sorrows of ancestors, and that
memory of the sufferings caused by persecution and prejudice
which they ieft to their progeny” is our "spiri -
The Establishment Clause acknowledges that "spiritual
patrimony” and requires that we exercise, in our go
manifestations of the religious nature of our people, a self-
restraint that will prevent anyone from becoming in the eyes
of our governmental system — an "out" on the basis of religious
beliefs.
Accordingly, the judgment of the district court is reversed,
and the case is remanded for proceedings in conformity with
REVERSED and REMANDED
MANION, Circuit Judge, concurring in part and dissenting
in part. The court sets out an accurate presentation of the
facts at issue in this case. Suffice it to say that in a Metaorial
Day ceremony in 1958 the Fraternal Order of the Eagles
presented to the City of Elkhart a stone monument engraved
with a version of the Ten Commandments. The City placed it
near the north entrance of the City Hall building where it has
remained to this day. The plaintiffs claim that the location of
the monument is offensive to them and an unconstitutional
endorsement of religion by the City.
I agree with the court's analysis ing the plaintiffs’
standing to challenge the constitutionality of the placement
of the Ten Commandments monument. And while I also agree
with the court's legal summary of the Lemon test, I di
with its application of Lemon to the facts before us. q
applying Lemon and its progeny should lead to the conclusion
that the City of Elkhart does not violate the Establishment
Clause by leaving undisturbed a monument inscribed with
'° Jacques Maritain, Reflections on America 83-84 (1958).
26a
the Ten Commandments that was erected more than
years ago. Moreover, even if the monument did not sati
the Lemon test, the Supreme Court has upheld certain religious
— which have become a part of the fabric of our society.
ving the Ten Commandments monument where it now
stands comfortably falls within the historical context of this
country and is thus constitutional even though it retains the
SSENT in part.
ivocal references to God. I therefore i
ond DI CONCUR in part ,
I.
A.
Lemon Test
In Lemon v. Kurtzman, 403 U.S. 602, 29 L. Ed. 2d 745,
91 S. Ct. 2105 (1971), the S Court adopted a three-part
test for analyzing Establi t Clause cases. First, the
s chal practice must have a secular purpose.
Second, the principal or primary effect must be one that neither
advances nor inhibits religion. Third, the government's practice
must not create an excessive entanglement of religion. As
noted by the court, the third prong is not at issue. Accordingly,
we focus on the first two prongs of the Lemon test.
1. Secular purpose.
Under Lemon, the government's challenged practice must
have a secular purpose. Thus, in this case, we must ask whether
a secular supports the City of Elkhart's decision not
to remove the Ten Commandments monument. Elkhart
presented as evidence of its secular purpose the resolution
which its Common Council adopted on May 4, 1998, following
consideration of the plaintiffs’ request that the City remove
the 40-year-old monument."
'' WHEREAS, the issue of the Ten Commandments
Monument outside Elkhart City Hall has been raised by a person
who is represented by the Indiana Civil Liberties Union. The Indiana
Civil Liberties Union has contacted the Mayor of the City of Elkhart
and has stated that a lawsuit will be filed if the Ten Commandments
Monument is not removed. WHEREAS, in recognition of the
historical significance of the Ten Commandments, the Fraternal
27a
The Council's resolution, which the Mayor of Elkhart
approved on May 13, 1998, identifies several secular
justifying the City's decision not to remove the Ten
ents monument. First, as the City recognized, the
Ten Commandments represents one of the earliest codes of
human conduct and, as such, it "had a significant impact on
the development of the fundamental legai principles of Western
Civilization.” In fact, the Ten Commandments served as a
foundation for the formation of both English Common Law
and the Napoleonic Code, which together laid the foundation
for American jurisprudence. See State of Colorado v. Freedom
From Religion Foundation, Inc., 898 P.2d 1013, 1018 (Col.
1995). See also, id. at 1026 (Ten Commandments "monument
represents the secular objective intended at the outset,
recognition of a historical, jurisprudential cornerstone of
American legal significance").
The Common Council's resolution also noted that "the
Monument contains symbols that reflect the cross cultural
and historical significance of the Ten Commandments,” and
that the monument serves as a recognition of those roots and
the historical significance of the Ten Commandments. These
stated justifications are permissible secular purposes even
Order of Eagles presented the Ten Commandments monument to
the City of Elkhart in May, 1958. In addition to the Ten
- Commandments, the Monument contains symbols that reflect the
cross cultural and historical significance of the Ten Commandments.
WHEREAS, the Ten Commandments Monument has stood outside
in an unobtrusive location to the north of the entrance of City Hall
since 1958. There are numerous other historical and cultural plaques,
memorials, and monuments located south of the entrance of city
hall, in the foyer just inside the city hall entrance, at the first floor
open area of city hall, and at the second and third floor open areas
of city hall; and WHEREAS, the Ten Commandments have had a
significant impact on the development of the fundamental legal
principles of Western Civilization. NOW, THEREFORE, BE IT
RESOLVED BY THE COMMON COUNCIL OF THE CITY OF
ELKHART, INDIANA, THAT: The Ten Commandments
Monument is a historical and cultural monument that reflects one
of the earliest codes of human conduct. It is proper for the Ten
Commandments Monument to remain and the defense of this position
is strongly endorsed.
28a
though a religious symbol is used to accomplish them.
Anderson v. Salt Lake City Corp., 475 F.2d 29, 34 (10th Cir.
1973) (Ten Commandments monument stands as "a icti
of a historically important monument with both and
sectarian effects"). See, e.g., Lynch v. Donnelly, 465 U.S.
668, 691, 79 L. Ed. 2d 604, 104 S. Ct. 1355 (1984 (O'Connor,
J., concurring) ("celebration of public holi which have
so laghtinate somnlar paopoetTc at a cas hee
is a legi ; id. at 680 i
the display depicts the histor igi tional
event recognized as a National Holiday. . . . The displa
is sponsored by the City to celebrate the Holiday and to
Sart a nt that Holiday."); American Jewish Congress
a. of C cago, md a 120, 126-27 (7th Cir. 1987)
ognizing a city's ition in "taking official note of
roy = and acknowledgi —s sentiment in favor of
ity scene are ssible purposes justifying
creche display). The that the Ten Conmandmente refers
to God, and that all of the world's major monotheistic religi
have the Ten Commandments as basic tenets of their aith,
does not alter the monument's secular ses. See, e.g.,
American Jewish Congress, 827 F.2d at | 5 Go euve scones
purpose, the government's purpose need not be unrelated to
religion). Cf v. O'Bannon, 185 F.3d 796, 799-800
(7th Cir. 1999) (the fact that a secular holiday coincides with
a day that has religious significance for Christians does not
defeat the secular purpose justifying the state holiday).
The court acknowledges the validity of Elkhart's asserted
secular purposes, stating "the text of the Ten Commandments
no doubt has played a role in the secular development of our
society and can no doubt be by the government as
playing such a role in our civic order.” Opinion at 19. And in
this case, Elkhart has explicitly stated in its resolution that it
was leaving standing the Ten Commandments monument in
order to recognize their "significant i on the development
of the fundamental legal principles of Western Civilization."
Yet the court concl that "the purpose in displaying the
Ten Commandments monument was not secular.” Opinion at
22. How can the court on one hand recognize the legitimacy
of this purpose and on the other conclude that Elkhart lacks a
legitimate secular purpose for leaving the Ten Commandments
29a
monument in place? Apparently, the court just doesn't believe
that the City of Elkhart's statement of secular purposes is
sincere and not a sham. Edwards v. Aguillard, 482 U.S. 578,
586-87, 96 L. Ed. 2d 510, 107 S. Ct. 2573 (1987) ("While the
Court is normally deferential to a State's articulation of a
secular purpose, it is required that the statement of such purpose
be sincere and not a sham.").
But there is no evidence that the Common Council's
resolution was a sham, and absent some evidence that the
Common Council's stated reasons for its decision not to remove
the monument are insincere, we should defer to those asserted
justifications. Cohen v. City of Des Plaines, 8 F.3d 484, 489
(7th Cir. 1993). See also American Jewish Congress, 827
F.2d at 127 ("In the absence of any evidence that the city's
stated purposes behind the display of the nativity scene are
merely a sham, we must conclude that the 1985-86 display
had no invidious purpose.") (internal citation omitted). "This
is in keeping with the well settled maxim that courts are
‘reluctant to attribute unconstitutional motives to the States,
particularly when a plausible secular purpose for the State's
program may be discerned from the face of the statute."
Cohen, 8 F.3d at 489-90 (quoting Mueller v. Allen, 463 U.S.
388, 394-95, 77 L. Ed. 2d 721, 103 S. Ct. 3062 (1983))
"This is true whether the governing body is a state legisiature
or a city council." Cohen, 8 F.3d at 489. Accordingly, rather
than assume the Common Council is insincere about its
motivations, we are obligated to do just the opposite — assume
they are being truthful.
The court seemingly relies on the timing of the resolution
(noting that it was passed on the eve of litigation) as evidence
that the resolution was insincere. But the timing is totally
reasonable. Before the plaintiffs objected to the monument
and threatened to sue the City, it rested unobtrusively on
the lawn along with other monuments for nearly forty years,
so there was never a need for the Common Council to declare
its reasons for allowing the monument to remain. It was not
until the plaintiffs demanded that Elkhart remove the
monument that it became an issue. At that point the currently
governing Common Council convened to consider the
plaintiffs’ demands and decided against removing the
monument, stating its reasons in the resolution. Given these
30a
circumstances, there is nothing suspect about the ti ing. In
fact, in other Establishment 7, dae areas wath mec ses. Ae
on the secular purposes proffered during litigation,
notwi the timing of the state's explanation. See
Bridenbaugh, 185 F.3d at 799 (relying on testimony offered
during litigation as to Indiana's purpose for giving
ote) to on ae Copan e 7 F.2d
at 127 (relying on frome ned wy teh nied oe me
behind creche display and noting that in the absence of any
evidence that the city's stated purpose behind the di was
a sham, the court would have to conclude there was no invidious
purpose). In those cases we held that, absent any evidence
that the stated justification was a sham, we would take the
government at its word. Since there is no evidence of an
invidious motive here, we should take the Common Council
at its word, as set forth in the resolution.
_ Moreover, even if the City had a religious se in
displaying the Ten Commandments, that would toy noni
the City's other valid secular purposes. "A law that
religion may nevertheless be upheld . . . because of the secular
that the law also serves. . . ." Metz/ v. Leininger, 57
F.3d 618, 620 (7th Cir. 1995). Accordingly, Elkhart need
have only one secular purpose justifying its decision in order
to satisfy Lemon's first prong. It has several secular
justifications. Therefore, even if E in part, wanted to
promote the religious aspects of the Ten Commandments,
that does not negate its other valid secular justifications for
leaving the monument alone. Bridenbaugh, 185 F.3d at 800
("[A] secular purpose need not be the exclusive one; it was
sufficient if the government had ‘a secular purpose.'")
(emphasis added). See also, Barghout v. Bureau of Kosher
Meat & Food Control, 66 F.3d 1337, 1345 (4th Cir. 1995)
("In determining whether the [display] has a secular purpose,
we note that this first prong of the Lemon test is a fairly low
hurdle. A legislative enactment has no secular purpose only
if bam fs] tg met we the [display] or activity was
motivated wholly by religious consideration.) (quoti
Lynch, 465 U.S. at 680). - dsereatis
The court highlights the speeches made when the
monument was dedicated in 1958 as proof of Elkhart's religious
purpose in displaying the Ten Commandments. While the
3la
speeches made by the various religious leaders were solemn
— in line with the occasion — they did not evidence a religious
purpose. In fact, those es lacked anything near the
religious fervor of the legislative statements made in connection
with other practices adopted in the 1950's and upheld by the
various circuits notwithstanding the sponsors’ overtly religious
messages. See infra at 59-62. Recall that the Elkhart monument
was unveiled on Memorial Day as part of the City's festivities.
Participation in that celebration by religious leaders with
speeches that had a religious tone is both understandable and
acceptable. As recently as 1998, Congress recognized that
Memorial Day is a day "during which the people may unite
in prayer for permanent peace,” and that the President should
call "on the people of the United States to observe Memorial
Day by praying, according to their individual religious faith,
for permanent peace.” 36 U.S.C. § -116 (1998). Furthermore,
even if the various religious leaders’ speeches demonstrated
that they gladly accepted Elkhart's decision to display the
monument because of the monument's religious message, the
religious leaders were not the City, and it is only the City's
intent that matters.
The speeches, in short, provide little guidance as to
Elkhart's original purpose in accepting the monument donated
by the Fraternal Order of Eagles. To the extent that the original
purpose would matter, see infra at 43, the evidence presented
at the summary judgment stage indicates that the City accepted
the Ten Commandments monument from the Eagles (a civic,
non-religious organization) in order to further the Eagles’ goal
of providing "youths with a common code of conduct that
they could use to govern their actions," and "showing these
youngsters that there were such recognized codes of behavior
to guide them.” Providing youth with a common code of
conduct is a valid secular purpose. See Freedom From Religion
Foundation, 898 P.2d at 1023 ("The monument was donated
as part of the National Youth Guidance Program, whose
purpose was secular in nature. Such secular intent of the
donation is logical in light of the historical fact that the Ten
Commandments have served over time as a basis for our
national law.").
The court claims that this purpose was not secular because
the City chose a religious code to further its goal. But as the
32a
Supreme Court recognized in Lynch, a religi |
be used to further the secular goal of ae boda religions
and secular holida ene ae ee ee
can permissibly c the Ten Commandments, which
includes both reli and secular rules of conduct, to further
its secular goal of pro youth with an e of a code
of conduct. In fact, it is logical that when Elkhart chose
an example of a "common code of conduct" to display, it
chose one that would be recognized by its citizens, and
especially children, and there can be no doubt that the Ten
Commandments is the most well-known and recognizable
code of conduct to Americans, as opposed to, say, the
Napoleonic Code or the Code of Hammurabi.”
In any event, the Ten Commandments monument was
donated to Elkhart over forty years ago. What matters, however,
is not the City's purpose in 1958 — when Elkhart could
constitutionally have a religious purpose — but the City's
purpose today. Bridenbaugh, 185 F.3d at 799 (original reason
for choosing Good Friday as state holiday is not dispositive);
-Metzl v. Leininger, 57 F.3d 618, 621 (7th Cir. 1995) (state's
religious purpose 53 years ago may accrue a secular
justification and essentially eliminate any purpose of
promoting religion); American Jewish Congress, 827 F.2d at
126 (Mayor's comment in 1959 that "We are a Christian
Nation,” and that "the more religion we can get in politics,
the better off we are,” while relevant to the original purpose
of nativity scene reveals little about purpose behind the 1985-86
display). In its resolution, Elkhart explained its current reasons
for leaving undisturbed the Ten Commandments monument:
to recognize the historical and cross-cultural significance of
the Ten Commandments; to acknowledge the significant
impact the Ten Commandments had on the development of
"? The frieze contained on the south wall of the courtroom
of the United States Supreme Court includes a procession of great
lawgivers of history, including Hammurabi, the Babylonian king
who developed the Code of Hammurabi, and Napoleon .
Suhre v. Haywood County, N.C., 55 F. Supp. 2d 384, 393, 395
(W.D.N.C. 1999), figures possibly recognizable to the learned
lawyers arguing before the Supreme Court, but unlikely familiar to
many laypersons.
33a
the fundamental legal principles of Western civilization; and
to retain an historical and cultural monument that displays
one of the earliest codes of human conduct. Those reasons
are permissible secular justifications, see supra at 37-39, and
therefore Elkhart has satisfied Lemon's first prong.
2. Principal or primary effect.
The second prong of Lemon considers whether the
government's practice has the principal or Fg effect of
advancing or inhibiting religion. Freedom of Religion
Foundation v. City of Marshfield, 203 F.3d 487, 493 (7th Cir.
2000). Under this prong, the question is "irrespective of
government's actual purpose, [does] the practice under review
in fact convey [ ] a message of endorsement or disapproval.”
Id. (internal quotations omitted). As the court recognizes, to
analyze this prong we must assess the totality of the
circumstances surrounding the display to determine whether
a reasonable person would believe that the display amounts
to an endorsement of religion. This is a fact-specific inquiry.
The court's conclusion that, based on all of the
circumstances, Elkhart's decision to leave standing the Ten
Commandments monument constitutes an endorsement of
religion seems to be at odds with the Supreme Court's decisions
in Lynch and Allegheny. In Lynch v. Donnelly, 465 U.S. 668,
79 L. Ed. 2d 604, 104 S. Ct. 1355 (1984), the Supreme Court
considered the constitutionality of the city of Pawtucket, Rhode
Island's display of a creche at Christmas. In applying the
second prong of the Lemon test, the Court initially noted that
the district court had "plainly erred by focusing almost
exclusively on the creche." Lynch, 465 U.S. at 686. Rather,
according to the Court, the appropriate question was whether
the nativity scene, while religious, could be said to advance
religion. The Court held that given the overwhelmingly secular
character of the Pawtucket display, "the inclusion of a single
symbol of a particular historic religious event . . . [did not] so
‘taint’ the city's exhibit as to render it violative of the
Establishment Clause." Jd. The display in Lynch included not
just the creche, but also a Santa Clause house, reindeer pulling
Santa's sleigh, candy-striped poles, a Christmas tree, carolers,
cutout figures representing clowns, an elephant and a teddy
bear, hundreds of colored lights and a banner reading "Season's
34a
Greetings.” /d. at 671.
Five years later in County of Allegheny v. American Civil
Liberties Union, 492 U.S. 573, 106 L. Ed. 2d 472, 109 S. Ct.
3086 (1989), the Supreme Court again considered the
constitutionality of religious displays located on public
property. One was a creche placed on the Grand Staircase
inside a county courthouse in Pittsburgh. The creche
was surrounded on three sides by a wooden fence, decorated
with poinsettias and a sign proclaiming "Gl to God in the
Highest!" The other was a menorah displayed in front of the
courthouse. The menorah stood next to a Christmas tree and
a sign rested below the tree with the words "Salute to Liberty.”
The Court ia Allegheny held that the creche di violated
the Establishment because "nothing yp tien of
the display detracts from the creche's religious message,” as
it "stands alone; it is the single element of t the display on the
Grand Staircase,” which was "the ‘main’ and ‘most beautiful
= of the building.” /d. at 598-99. The Court concluded that
ased on this location, "no viewer could reasonably think
that it occupies this location without the and approval
of the government.” Jd. at 599-600. On other hand, the
Supreme Court held that the menorah display was
constitutional. As Justice Blackmun explained, the menorah
stood next to a Christmas tree and a sign saluting liberty, and
thus created an "overall holiday setting" which neutralized
the religious dimensions of the menorah. /d. at 614 (Blackman,
J., concurring).
Together Lynch and Allegheny provide significant guidance
for our fact-specific analysis of f ony cond 9 ng tiene.
In those cases, the Supreme Court upheld the constitutionality
of government displays of y religious symbols — a creche
and a menorah — when symbols were part of a larger
display. But where the religious display — the creche in
Allegheny — stood alone, it violated the Establishment Clause.
Here, the Ten Commandments monument stands not alone,
but as part of Elkhart's larger cultural and historical outdoor
display. As the court points out, in addition to the Ten
Commandments monument, the small, twenty-five-foot-wide
courtyard includes a bas-relief of an elk's head with the words
"DEDICATVM" and "JVSTITIAM"” inscribed next to this
35a
symbol of "Elk"hart; a Revolutionary War Monument
surrounded by a flower bed and bearing a plaque explaining
that the Daughters of the American Revolution donated the
monument in honor of the Revolutionary War soldiers buried
in Elkhart County; and the Freedom Monument, which consists
of a light standing on top of a brick pillar which reads
"BEHOLD FRIEND, YOU ARE NOW ON HALLOWED
GROUND FOR HERE BURNS FREEDOM'S HOLY
LIGHT."
These other displays place the Ten Commandments
monument in an historical context, and under Lynch and
Allegheny context is everything. Thus, in Lynch, the Court
held that a solely religious symbol — a creche — was
constitutionally permissible because "when viewed in the
proper context," the creche "depicts the historical origins of
the traditional event long recognized as a National Holiday."
Lynch, 465 U.S. at 680. Similarly, when viewed in the context
of the other monuments displayed outside Elkhart’s municipal
building, the Ten Commandments monument "depicts the
historical origins” of the United States' justice system.
Moreover, while the creche is solely a religious symbol, the
text of the Ten Commandments itself provides context to the
monument, as the monument includes not just religious
commands, but six rules of conduct that have meaning in the
secular world. The presence of both secular and religious
messages in the Ten Commandments monument makes this a
stronger case than the creche at issue in Lynch.
'3 The court is concerned that this monument could have a
religious meaning to someone approaching the building because it
uses the words "hallowed" and "holy." Opinion at 26-27. Considering
the words in the context of the display and its location, however,
demonstrates that there is nothing religious about the display. Rather,
the ground is "hallowed" because freedom's “holy light" burns
"here," and "here" is the municipal building where justice is served
through the county government. The choice of the words “hallowed”
and "holy" merely serve as a literary device to honor freedom; the
words in context do not have a religious meaning. See Webster's
Seventh New Collegiate Dictionary (G. & C. Merriam Co. 1972),
offering alternative definitions for "hallow" — one religious, “to
make holy,” and one secular, “to respect greatly."
36a
"Salute to Liberty." Compared to 's
“salute to liberty" , Elkhart's cultural and historical
display more fully the religious dimension of the
Ten Commandments. In short, if the menorah was
constitutional in Allegheny, the Ten Commandments display
must be in this case. See, e.g., Freedom From Religion
Foundation, 898 —- ing that Ten Commandments
monument on Co State Capitol Complex was
constitutional); Anderson, 475 F.2d at 33 ( k
Commandments monument displayed on lawn of a
courthouse because it had “substantial secular attributes");'*
Suhre, SS F. Supp. 2d 384 (holding display of Ten
Commandments in county courtroom did not violate the
Establishment Clause). its discussion of Lynch and
opinions — it pope Ad Ten Commandments
monument constitutes an i t of religion. Rather,
the court focuses on the question of whether “an objective
observer familiar with the history and placement of the Ten
Commandments monument would perceive it as a state
een eee Cyliion ot 26, Thi in fan eggeageiens
i but for = nd we must consider le
under! upreme Court's cases invol the
Beushfichenens Clonee. That precedent leads to the pee
when part of a larger historical and cultural display. ,
what we have in this case.'* ay Se
'* While Anderson was decided before Stone v. Graham,
449 US. 39, 66 L. Ed. 2d 199, 101 S. Ct. 192 (1980) (per curiam),
Stone is distinguishable because it involved the posting of the Ten
Commandments in the school setting. See infra at 54-56. In fact,
the five-Justice majority in Stone did not even cite to Anderson —
the only circuit decision considering and approving the
constitutionality of a Ten Commandments monument.
'S Although the court insists "the monument certainly cannot
37a
This circuit's decisions in American Jewish Congress, 827
F.2d 120, and Harris v. City of Zion, 927 F.2d 1401 (7th Cir.
1991), do not alter the analysis. Harris ied Lemon to a
challenge to a religious symbol ined in two different
city seals. It is not helpful because it involved two consolidated
cases challenging the official seals of two cities in Illinois.
Here the government's display of a monument which served
as only one aspect of a historical display has minimal
similarity to an official emblazoned on stationery, signs,
and numerous other official standards. American Jewish
Congress is more closely related as it involved the
constitutionality of a government-displayed creche. But even
the facts in American Jewish Congress differ significantly
from those involved in this case. In American Jewish
the creche display, which this court held violated the
Establishment Clause, stood in isolation in the center of the
City-County building in Chicago. It was the creche’s visual
isolation from the other holiday displays and its place of
honor that caused this court to hold that a reasonable observer
of the creche would believe that Chicago was
Christianity. See American Jewish Congress, 827 F.2d 120.
Conversely, in this case, the Ten Commandments
be fairly characterized as a component of a comprehensive display
of the cultural heritage of the people of Elkhart,” the facts point to
the opposite conclusion. Within the very smaill 25-foot-wide
courtyard rest four historical displays, including a monument to
freedom, the Revolutionary War monument, the Ten
Commandments monument, and the Elk bas-relief. These displays
represent various aspects of our country and Elkhart's history, and
encompass themes relevant to the offices located inside the
Municipal Building, including not just the city court, but also the
mayor's office, the human relations department, and the offices of
the Common Council. Given the limited space available, it is
impossible to get much more “comprehensive” than the current
display. A more compact layout could lose what Elkhart strived to
create — an aesthetically pleasing visual display, centered by the
Elk bas-relief and balanced by the other monuments that flank the
walkway. Nor does a display have to be "comprehensive" to dilute
the religious aspect of one exhibit, as is clear from the Supreme
Court's decisions ir Lynch and Allegheny — displays which were
far from comprehensive.
38a
given special placement by the City. Rather, the Ten
Commandments monument is one of multiple monuments
that use the Ten Commandments.""). See also, Allegheny, 492
U.S. at 620 (Blackman, J., concurring) ("The Christmas tree
' In fact, the differences between the monument at issue
in this case and the display challenged in American Jewish Congress
are very similar to the differences the Supreme Court faced in
Allegheny: the creche, which was unconstitutionally favored by its
courthouse near a Christmas tree and a sign saluting liberty. As
noted, the location prowed dispositive in Allegheny.
39a
|
t
r
if
of pluralism and freedom of belief. . . ."). Second, implicit in
the court's reasoning is the belief that a display must include
percei ‘DS
symbols also displayed — not because a religious symbol
ing every citizen's beliefs was incorporated in the-
impression gion.
27. On the contrary, ons ei
by the menorah and Christmas tree in A/ ,
of the American Eagle, our flag the All-Seeing
Eye help place the monument in context for the viewers by
indi Oth Ce ae
important role in our country's legal foundation. See, e.g.,
Allegheny, 492 U.S. at 619 ("The [Salute to Liberty] sign
will be interpreted as a dual endorsement of Christianity and
Judaism. The sign states that during the holiday season the
city salutes liberty.”). Coupied with the six clearly secular
commands, the flag, eagle and all-seeing eye broadcast a
secular message of justice and patriotism, as does the
inscription that the monument was presented to the City by
the Fraternal Order of Eagles — a secular organization
dedicated to promoting "Liberty, Truth, Justice, and Equality.”
But in any event, even to the extent that the placement of
American symbols on the Ten Commandments monument
40a
commands,’ it is to note that the religious
of the Ten need not be aod ft
is a of possible endorsement that must be sufficiently
inimi its setting and context. See Lynch, 465 U.S. at
692 (O'Connor, J., concurring) ("[A] typical museum setting,
though not the religious content of a
painting, negates of endorsement of that
content.”). Thus, the overall context of a display must overcome
any message of endorsement, and in this case when the Ten
Commandments monument is viewed in its park-like setting
with the other three artists’ secular renderings, any ible
view of religious endorsement is sufficiently ail uted to
gion.
Fe Indep. Sch. Dist. v. Doe, 530 U.S. 290, 120 S. Ct. 2266,
2278, 147 L. Ed. 2d 295 (2000). The fact that the plaintiffs
— and for that matter many citizens — wrongly believe that
the Constitution requires a separation of Church and State, or
ardently wish that were the case, does not alter the test. Lynch,
465 U.S. at 673 ("Nor does the Constitution require
separation of church and state; it affirmatively tes
accommodation, not merely tolerance, of all religions, and
per ogee tate es Rah mp np ny ety
is whether a citizen knowing the totality of the facts and the
circumstances would believe that Eikhart seeks to endorse
religion. See Capitol Review and Advisory Bd. v.
Pinette, 515 U.S. 753, 780, 132 L. Ed. 2d 650, 115 S. Ct.
2440 (1995) (O'Connor, J., concurring) ("The reasonable
observer in the endorsement inquiry must be deemed aware
of the history and context of the community and forum in
'’ The text of the Ten Commandments monument listed
twelve commands so as to serve as an amalgamation of the Jewish,
Protestant and Catholic versions of the Ten Commandments. The
first six commands refer to God or the Sabbath, while the last six
do not. Opinion at 6.
4la
which the religious display appears."). See also, Gaylor v.
United States, 74 F.3d 214, 217 (10th Cir. 1996) (same). An
informed citizen would know that the Ten Commandments
monument was donated in the 1950's — and also know the
historical context of those times: that the Eagles who donated
the monument were not a religious group; wi eens we
purpose was to recognize general codes of conduct that
the Ten Commandments is an historical example of such a
code; and that today Elkhart leaves standing the monument
out of recognition or that history and in commemoration of
the legal roots of our country.”*
As the plaintiffs' own testimony demonstrates, they are
not reasonably informed citizens, but are demonstrating an
outright hostility to religian, even in private, non-governmental
settings. See, Books Deposition (stating that he is offended
by any reference by a private organization to God); Suetkamp
Deposition (stating that he is offended when the Pledge of
Allegiance is said in a private setting). See, e.g., Suhre, 55 F.
Supp. “er at 398 ("In beet, the Plaintiff's angst results more
from his own intolerance of the rights of others than a desire
to protect his own atheistic convictions.”); Gaylor, 74 F.3d at
217 (the reasonable observer inquiry is "not about the
perceptions of particular individuals or saving isolated non-
adherents from the discomfort of viewing symbols of faith to
which they do not subscribe") (internal quotation omitted).
Based on these facts, a reasonable person would not believe
that Elkhart is- endorsing religion (which perhaps explains
why, other than these two plaintiffs, no one complained to
Elkhart about the Ten Commandments monument during the
forty years it stood outside the Municipal Building). For these
reasons, I conclude that the City's decision to leave standing
the monument satisfies Lemon's second prong.
B. Stone v. Graham
'® In this last regard, the Common Council's resolution not
only explains its secular purpose, but also serves to inform the
citizenry that Elkhart has no desire to endorse religion--it is merely
acknowledging religion's role in our country's history. Or in the
court's language, Elkhart in passing the resolution has "taken steps
to ‘obviate its religious purpose.” Opinion at 20 n.8.
42a
The court also relies on Stone v. Graham, 449 U.S. 39, 66
L. Ed. 2d 199, 101 S. Ct. 192 (1980) (per curiam), to support
its conclusion that Elkhart's decision to leave standing the
Ten Commandments monument constitutes an
unconstitutional. In concluding that Elkhart had an
impermissible religious purpose it decided to leave in
place the Ten Commandments monument, the court relies on
the Supreme Court's statement in Stone that the Ten
ao Leste nanetn vain and centan do baad Das
rye pm ty pany ye a Fa
amen, Coen Se eee
Opinion at 19. This point is extremely
important one remembers that Stone was decided prior
io Lynch and dlegheny — cases in which displays of purely
religious symbols (as opposed to the Ten
whicl¥ contains both religious and secular rules) were Id
because of other secular = justiGentans. This is significant
because in Stone the Ten Commandments were posted alone
on school walls, while in this case the Ten Commandments
monument is part of a larger historic display with a secular
. In fact, the Supreme Court in rejecting the posting
of the en Commandments noted that they were to be displayed
in isolation, as opposed to incorporated into "the study of
history, civilization, ethics, comparative religion, or the like."
Stone, 449 U.S. at 42. That factor distinguishes Stone from
the Ten Commandments monument involved in this case,
and makes this case more analogous to Lynch and Allegheny.
Stone is distinguishable for another and more fundamental
reason — it involved the mandated posting of Ten
Commandments in schools. Where i le youths are
involved the Supreme Court has taken a harsher view of
religion. Sez, e.g., Lee v. Weisman, 505 U.S. 577, 592, 120 L.
43a
Ed. 2d 467, 112 S. Ct. 2649 (1992) ("There are heightened
concerns with protecting freedom of conscience from subtle
coercive pressure in schools."); Edwards v. Aguillard, 482
U.S. 578, 583-84, 96 L. Ed. 2d 510, 107 S. Ct. 2573 (1987)
("The Court has been particularly vigilant in monitoring
compliance with the Establishment Clause in elementary and
secondary schools."); Abington v. Schempp, 374 U.S. 203,
307, 83 S. Ct. 1560, 10 L. Ed. 2d 844 (1963) (Goldberg, J.,
concurring) ("The pervasive religiosity and direct
governmental involvement inhering in the prescription of
prayer and Bible reading in the public schools, during and as
part of the curricular day, involving young impressionable
children whose school attendance is statutorily compelled,
and utilizing the prestige, power, and influence of school
administration, staff, and authority, cannot realistically be
termed simply accommodation, and must fall within the
interdiction of the First Amendment."); Board of Ed. of
Westside Community Schools v. Mergens, 496 U.S. 226, 261-
62, 110 L. Ed. 2d 191, 110 S. Ct. 2356 (Kennedy, J., concurring)
("The inquiry with respect to coercion must be whether the
government imposes pressure upon a student to participate in |
a religious activity. This inquiry, of course, must be undertaken
with sensitivity to the special circumstances that exist in a
secondary schoo! where the line between voluntary and coerced
participation may be difficult to draw."). Thus, while the
Supreme Court has upheld the opening of legislative sessions
with prayer, Marsh v. Chambers, 463 U.S. 783, 786, 77 L.
Ed. 2d 1019, 103 S. Ct. 3330 (1983), it has declared
unconstitutional the opening of school sessions with prayer.
Engel v. Vitale, 370 U.S. 421, 8 L. Ed. 2d 601, 82 S. Ct. 1261
(1962) Likewise, whereas the Supreme Court upheld the
constitutionality of the creche and menorah displays in Lynch
and Allegheny, the Court also noted that it would have a
different case if the displays arose in the school setting. See,
e.g., Allegheny, 492 U.S. at 620 n.69 ("This is not to say that
the combined display of a Christmas tree and a menorah is
constitutional wherever it may be located on government
property. For example, when located in a public school, such
a display might raise additional constitutional considerations.
Cf Edwards v. Aguillard, 482 U.S. at 583-584, 107 S. Ct. at
2577 (Establishment Clause must be applied with special
sensitivity in the public-school context)."). Again, context is
44a
critical, and the school context in Stone dictated the result, as
See S a9" US 42 cing bing District,
tone, S. at iting A n
374 U.S. 203, 83 S. Ct. 1560, 10 L. ed 2d 844, and Engel,
370 U.S. 421, 8 L. Ed. 2d 601, 82 S. Ct. 1261. Therefore,
while Stone speaks for the school setting — where student
attendance is compulsory, and pupils are particularly
susceptible to influence — it does not answer the question in
the context of an open courtyard where citizens may divert
to one of the other monuments ing the |
historical display. See, e.g., Freedom From Religion
Foundation, 898 P.2d at 1022-23 (distinguishing Stone based
on the school setting, and upholding the constitutionality of a
Ten Commandments monument on state capital grounds).
C. Historical Practices
Given the factual similarities to the displays
constitutionally permitted in Lynch and Allegheny, Elkhart's
decision to leave the Ten Commandments monument standing
should not violate mee ae test. But even if the Lemon test
was not met, where a religious symbol has meaning in history
and ubiquity, the S Court has side-stepped the strictures
of Lemon because the results would be contrary to the clear
intent of the Framers of the Constitution. For instance, in
rg ks roy > dy xd weehn | 77 L. Ed. 2d 1019, 103 S.
4 " urt ld the practice of Congress
opening the legislative session with prayer stating:
In light of the unambiguous and unbroken history of
more than 200 years, there can be no doubt that the
ice of opening legislative sessions with eT
is become part of the fabric of our society. To waned
Divine guidance on a public body entrusted with making
the laws is not, in these circumstances, an
"establishment" of religion or a step toward
establishment; it is simply a tolerable acknowledgment
of beliefs widely held among the people of this country.
Id. at 792.
45a
Significantly, Marsh did not apply Lemon, but in its holding
recognized the fact that "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." Lynch,
465 U.S. at 674. In fact, that history predates our three branches
of government, beginning with the proclamation in our
Declaration of Independence that all men "are endowed by
their Creator with certain unalienable Rights,” and continues
even as recently as the President's call to Americans to "thank
God today for the lives, the character, and courage of the
crew of the USS Cole."
The Supreme Court has long recognized the
constitutionality of such religious references. For instance,
the Court has acknowledged that its own court
open with an announcement which concludes "God save the
United States and this Honorable Court." Marsh, 463 U.S. at
786. The Court has also noted that the Establishment Clause
does not prohibit "prayers in our legislative halls; the appeals
to the Almighty in the messages of the Chief Executive; the
proclamations making Thanksgiving Day a national holiday;
‘so help me God' in our courtroom oaths — these and all
other references to the Almighty that run through our laws,
[and] our public rituals . . . [including] the supplication with
which the Court opens each session: 'God save the United
States and this Honorable Court." Zorach v. Clauson, 343
U.S. 306, 312-13, 96 L. Ed. 954, 72 S. Ct. 679 (1952). Likewise
in Lynch v. Donnelly, 465 U.S. at 674-75, Justice O'Connor
noted that "our history is replete with official references to
the value and invocation of Divine guidance,” and includes
"government practices embracing religion, including
Thanksgiving and Christmas holidays, congressional and
military chaplains and the congressional prayer room, the
motto, the Pledge of Allegiance, and presidential proclamations
for a National Day of Prayer,” thus implicitly acknowledging
the constitutionality of such practices. As Justice O'Connor
explained, "Because of their history and ubiquity, those
practices are not understood as conveying government
approval of particular religious beliefs." /d. at 693.
Also informative are comments the Supreme Court has
made concerning the constitutionality of the 1932 artistic
rendition of Moses and the Ten Commandments contained in
46a
the frieze surrounding the walls of the highest court. For
instance in Lynch, 465 U.S. at 676, in considering an
chamber in which oral arguments on this case were heard is
decorated with a notable and permanent — not seasonal —
— of a amy with the Ten Commandments."
Allegheny, ‘S. at 652-53 (Stevens, J., concurring
in part, dissenting in part) (noting that it "would be absurd to
exclude" the inclusion of Moses, Confucius and Mohammed
from the Supreme Court's frieze because they are religious
lawgivers). More recently, Chief Justice Rehnquist justified
the presence of Muhammad in the north wall frieze in the
Courtroom, stating "the depiction of Muhammad was intended
only to recognize him, among many other lawgivers, as an
important figure in the history of law;.. . . It is part of an
in Gen Me ee
sixty years.""). Suhre, 55 F. Supp. 2d at 394 (quotin
from a 1997 statement of Chief Justice Rehnquist). ; ,
The circuit courts have also accepted historical references
to the Deity, upholding our national motto of "In God We
Trust,” and the same “yo on our currency, O'Hair v.
Murray, 588 F.2d 1144 (Sth Cir. 1979) (upholding national
motto "In God We Trust"); Aronow v. United States, 432
F.2d 242 (9th Cir. 1970) (accord), as well as the
constitutionality of the Pl of Allegiance's reference to
God. Sherman v. Community Consol. Sch. Dist. 21 of Wheeling
Township, 980 F.2d 437 (7th Cir. 1992).
The reference to God on the Ten Commandments
monument is much like these other references — an
acknowledgment of our religious roots. While the display
does not date back to our nation's founding, neither does the
Pledge of Alliance's reference to God, or other such
constitutionally approved religious references, such as the
"In God We Trust" motto and inscription. Rather, many of
the Deity references find their roots in our more recent history
— the 1950's — just as the Ten Commandments monument
in this case does. Therefore, in looking at the monument that
still stands before Elkhart's Municipal Building, it is helpful
to view it in light of the time it was placed there.
In the 50's the Cold War was daunting, and our country
47a
— as it often does in times of crisis — acknowledged the
importance of God. See 100 Cong. Rec. 1700 (1954) ("The
fundamental issue which is the unbridgeable gap between
America and Communist Russia is a belief in Almighty God.")
(statement of Rep. Rabaut). In 1952, Congress established
the "National Day of Prayer," H.R.J. Res. 382, 82d Cong., 2d
Sess. (1952), recognizing that "the national interest would be
much better served if we turn aside for a full day to pray for
spiritual help and guidance from the Almighty during these
turbulent times." 98 Cong. Rec. 771 (1952) (statement of
Rep. Brooks). That same year, Justice Douglas, writing for
the Supreme Court in Zorach v. Clauson, 343 U.S. 306, 313,
96 L. Ed. 954, 72 S. Ct. 679 (1952), penned the now-famous
line: "we are a religious jae whose institutions presuppose
a Supreme Being." The following year, in 1953, the House of
Representatives voted to establish a prayer room in the Capitol.
H.R. Cong. Res. 60, 83d Cong., 99 Cong., 99 Cong. Rec.
9073 (1953). The Bill's sponsor explained that the legislation's
purpose was to "provide a place of retreat as an encouragement
te prayer. . . ." 99 Cong. Rec. 9073 (1953) (statement of Rep.
Hays). Congressman Scrivner went further, explaining that
"at this time in the world's history, when the materialistic
ideology of the Communists is . . . right in our own land, it is
comforting to know that the Congress of the United States
goes on record as believing in the spiritual values taught by
all religions, and also showing to the world their belief in
prayer and meditation as opposed to the barbarous teachings
that so many nations have fallen prey to." 99 Cong. Rec.
9075 (1953) (statement of Rep. Scrivner).
In 1954, Congress added the phrase "one Nation under
God" to the Pledge of Allegiance. This amendment came in
response to a sermon delivered by the Reverend George M.
Docherty at the New York Avenue Presbyterian Church in
Washington D.C. at a service which President Eisenhower
and several Senators and Representatives had attended. In his
sermon, Reverend Docherty noted that our Pledge of
Allegiance was missing something — something that would
distinguish it from the pledge "little Muscovites might repeat"
in a "pledge to their hammer-and-sickle flag in Moscow."
Steven B. Epstein, Rethinking the Constitutionality of
Ceremonial Deism, 96 Colum. L. Rev. 2083, 2118-19 (1996).
48a
That something was a recognition of God. After the President
signed this legislation, the new Pledge of Allegi was
recited and a bugler played a rendition of " Christian
ann 100 Cong. Rec. 6348 (1954) (statement of Sen.
erguson).
freedom is our faith in God and the desire of Americans to
live by His will and His guidance. As long as this country
trusts in God, it will prevail. To remind all of us of this
self-evident truth, it is proper that our currency should carry
these inspiring words, coming down to us through our history:
‘In God We Trust." 101 Cong. Rec. 4384 (1955) (statement
of Rep. Bennett). The following year, Congress codified "In
God We Trust" as our national motto. See Act of July 31,
1956, Pub. L. No. 84-851 (codified at 36 U.S.C. § 186 (1994)).
Two years later, in 1958, as part of its national project, the
Elkhart Eagles chapter donated the Ten Commandments
monument to the City of Elkhart.
As a nation, we are thankful the Communist wall of
separation has fallen. And it is true that following the Supreme
Court's Establishment Clause jurisprudence beginning in the
60's, our governments are increasingly restricted in invoking
the name of God. We have numbed such invocations with
terms such as "rote repetition," moments of silence, and
ceremonial deism." Yet that does not change the historical
_ that ae oe pn ents served as the foundation
r our co s system. A monument displaying the
Decalogue acknowledges that fact without dete The
Ten Commandments monument also serves as an historical
headstone, not only for our nation's original foundation, but
also for the 1950's, a religious time in America when as a
nation we turned to God. A time when divorce, illegitimacy,
drug abuse, murder, abortion, youth violence, and the other
crises of today were still relatively rare.
49a
In sum, I believe the retention of the 40-year-old Ten
Commandments monument displayed outside Elkhart's
Municipal Building is justified based on our country’s early
and more recent history as a "tolerable acknowledgment of
beliefs widely held among the people of this country." Marsh,
463 U.S. at 783. Because of the Ten Commandments’ history
and ubiquity, it should be treated just as other accepted
practices, such as the Supreme Court's frieze, the national
Thanksgiving and Christmas holidays, congressional and
military chaplains and the congressional prayer room, the
national motto, the Pledge of Allegiance, presidential
proclamations for a National Day of Prayer, and our own
court's opening "God save the United States and this Honorable
Court.” Therefore, even if the Ten Commandments monument
would fail the strictures of the Lemon test (which, in my
view, it does not), I believe Elkhart may constitutionally leave
it standing.
D. Remedy
Because | believe that Elkhart's decision to leave the Ten
Commandments monument standing does not constitute an
"establishment of religion," I would conclude that the
monument's placement and design is fine as is. However, the
court concludes otherwise, and thus is correctly concerned
about the appropriate remedy. While I have no doubt that the
City can locate an obscure hiding place for the monument,
that should not be necessary. Cemeteries are full of monuments
honoring times past. But this monument should not be exiled
to the equivalent of a graveyard. Perhaps it could remain in
place if it could be sufficiently diluted with additional plaques
and memorials. I don't think anyone would accept some sort
of redaction whereby the preliminary references to God would
be chiseled away or otherwise defaced. There must be some
other way to minimize any perception of endorsement, and
many communities and the State of Indiana seek guidance on
where and how the Decalogue can be prominently displayed
without offending the Constitution. Yet, if the court's decision
in this case stands, there may be no remedy other than removal
because the court concludes that the City lacked a secular
purpose justifying its decision to leave undisturbed the Ten
Commandments monument. Thus, it appears that under the -
court's reasoning, no matter what Elkhart does to dilute the
50a
history? God? Some of each? Some frustrated Justices have
been led to discuss the absurdity of the Lemon test. See Lee v.
Weisman, 505 U.S. 577, 644, 120 L. Ed. 2d 467, 112 S. Ct.
2649 (1992) (Scalia, J., dissenting) (stating that Lemon “has
received well-earned criticisra from many Members of this
Court," and collecting opinions criticizing Lemon). See also,
Lamb's 1 v. Center Moriches Union Free School Dist.,
nae Gale ene 124 L. Ed. 2d 352, - S. Ct. 2141
i » conoming sepa Gs ecting opinions
criticizing Lemon). But in the there has to be a Lemon
test, or some other test now that the Court has departed from
the text and original understanding of the Establishment Clause.
The Establishment Clause reads that "Congress shall make
no law ing an establishment of religion.” "The Framers
intended the Establishment Clause to prohibit the designation
Sla
of any church as a ‘national’ one. The Clause was also designed
to stop the Federal Government from ing a
for one religious denomination or sect over ." Wallace
v. Jaffree, 472 U.S. 38, 113, 86 L. Ed. 2d 29, 105 S. Ct. 2479
(1985) (Rehnquist, J., dissenting). The Establishment Clause
further sought "to protect state establishments of religion from
federal interference." Lee, 505 U.S. at 641 (Scalia, J.,
dissenting) (emphasis added). See also, American Jewish
Co . 827 F.2d at 129 (Easterbrook, J., dissenting) ("The
Establishment Clause was supposed to prevent the federal
government from taxing for the support of a church or requiring
religious observance."). What the Establishment Clause did
not intend to do was to build a wall of separation, or to
mandate that the government treat religion and irreligion
equally. See, e.g., Wallace, 472 U.S. 38, 98, 86 L. Ed. 2d 29,
105 S. Ct. 2479 (Rehnquist, J., dissenting) (Madison "did not
ace th co suquising aeubaly on Go past between
religion and irreligion."). See generally, Wallace, 472 U.S. at
91-114 (Rehnquist, J., dissenting); Lee, 505 U.S. at 631-46
(Scalia, J., dissenting); American Jewish Congress, 827 F.2d
at 128-40 (Easterbrook, J., dissenting); Leonard W. Levy,
The Establishment Clause: Religion and the First Amendment
(1986).
History proves that, and “the true meaning of the
Establishment Clause can only be seen in its history." Wallace,
472 U.S. at 113 (Rehnquist, J., dissenting). See also, Lee v.
Weisman, 505 U.S. at 632 (Scalia, J., dissenting) ("Justice
Helmer quhesion Gass ‘a page of Mistery is west 6 wean of
pa alin ely parti force to our Establishment Clause
jun .") (internal citation omitted). History shows that
"from our Nation's origin, pases Cate SOEh © Senna ease
of governmental ceremonies and proclamations. The
Declaration of Independence, the document marking our birth
as a people, ‘appealed to the Supreme Judge of the
world for the rectitude of our intentions’ and avowed ‘a firm
reliance on the protection of divine Providence.” Jd. at 633.
In fact, George Washington, in his first inaugural address,
"after swearing his oath of office on a Bible, . . . deliberately
made a prayer a part of his first official act as President.” /d.
And when Congress passed the first ten amendments to the
Constitution, "George Washington himself, at the request of
52a
a day of wh ee ee a
scknowledgng many and signal favors
of Almighty God."" /d. at 635. As Justice i i
summarized: "F must judge whether it was the Father
of his Country in 1789, or a majority of the Court which has
strayed from the ing of the Establishment Clause."
Wi 472 US. at 113 ist, J., dissenting).
The Lemon test a determined effort
to craft a workable from a historically faulty doctrine;
but the rule can only be as sound as the doctrine it attempts
to service." /d. at 110. Lemon's view of the Establishment
cause Se Comenstnily inscwest 0s 0 matter of bistery. And
repetition in varying forms in inions of the
Gaul aun ave tis ees ee ae tama ae
matter of fact; stare decisis may bind courts as to matters of
law, but it cannot bind them as to matters of history.” /d.
___ For now, however, the history as viewed by these dissenting
jurists has been displaced by the Lemon test. Until the Court
returns to the original ing of the Establishment
Clause we are bound by Lemon, and we therefore are left to
measure the dilution of the religious message and
the sincerity of the government's secular motive--neither task
well suited to the judiciary. Nonetheless, even under these
complicated standards, the Ten Commandments monument
does not constitute an establishment of religion.
Ill.
The Ten Commandments monument serves several secular
on the monument — placing the Ten Commandments
in context of this country's history — and by the existence of
other secular monuments in Elkhart's municipal building
parkway. Moreover, even if we were to conclude that the
monument fails the strictures of the Lemon test, I believe that
history and ubiquity justify Elkhart's decision to leave
undisturbed a monument which has rested unobtrusively and
undisturbed in front of its municipal building for more than
53a
ears in recognition of our country's religious and legal
won hy therefore DISSENT from the court's holding that
Elkhart's decision to leave in place the Ten Commandments
monument constitutes an establishment of religion, and its
implicit mandate that it must be removed.
APPENDIX B
No. 00-1114
UNITED STATES COURT OF APPEALS FOR THE
SEVENTH CIRCUIT
WILLIAM A. BOOKS and MICHAEL
SUETKAMP,
Plaintiffs- Appellants,
Vv.
CITY OF ELKHART, INDIANA,
Defendant-Appellee.
MOTION TO RECALL AND STAY THE MANDATE
JANUARY 31, 2001
RIPPLE, Circuit Judge (in chambers).
This matter is before me on the application of the
City of Elkhart, Indiana, for a stay of this court's mandate
while the City seeks a writ of certiorari in the Supreme Court
of the United States. When this application was first presented
to me, | ordered that the plaintiffs file a response. That response
has been received, and the matter is now before me for
Familiarity with our decision in Books v. City of Elkhart,
235 F.3d 292 (7th Cir. 2000), is presumed; I shall set forth
only a thumbnail sketch of the underlying litigation. The
plaintiffs, William Books and Michael Suetkamp, residents
of Elkhart, brought this action because they objected to the
placement of a monument inscribed with the Ten
Commandments on the lawn of Elkhart's Municipal Building.
The district court granted summary judgment in favor of the
City. On December 13, 2000, this court reversed that decision.
We held that, under the facts established in this record, the
primary and effect of the monument is to advance or
endorse religion; therefore, the display violates the
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