Appendix — O'Bannon v. Indiana Civil Liberties Union

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In the

Gnited States Court of Appeals

For the Seventh Circuit

No. 00-3011

INDIANA CIVIL LIBERTIES UNION, JOAN LASKOWSKI, ALICE

BENNETT, ET AL.,

Plaintiffs-Appellees,

Vv.

FRANK O’BANNON, GOVERNOR OF INDIANA,

Defendant-Appellant.

Appeal from the United States District Court

for the Southern District of Indiana, Indianapolis Division

No. 00 C 811—Sarah Evans Barker, Judge.

ARGUED JANUARY 9, 2001—DECIDED JULY 27, 2001

Before FLAUM, Chief Judge, and BAUER and CoFFEY,

Circuit Judges.

BAUER, Circuit Judge. This case comes to us upon the

district court’s grant of a preliminary injunction. On appeal,

the dispute concerns whether plaintiffs are likely to succeed

on the merits. Akin to our recent decision in Books v. City of

Elkhart, 235 F.3d 292 (7th Cir. 2000),’ we must determine

, On May 29, 2001, the Supreme Court denied the petition for a writ of

certiorari in our opinion in Books. See Elkhart v. Books, 121 S. Ct. 2209,

2209 (2001). Chief Justice Rehnquist, joined by Justices Scalia and

Thomas dissented from the denial of certiorari, and Justice Stevens

issued a statement in support of the denial. Justice Stevens wrote:

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whether a monument to be placed on state government

property will violate the Establishment Clause of the First

Amendment to the United States Constitution 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,” Books, 235 F.3d at 294, and then apply

the test articulated in Lemon v. Kurtzman, 403 U.S. 602

(1971). We have completed this work and affirm the district

court’s entrance of the preliminary injunction pending

resolution on the merits.

BACKGROUND

As detailed in Books, 235 F.3d at 294-95, the Fraternal

Order of the Eagles donated plaques inscribed with a version

of the Ten Commandments (developed by representatives of

Judaism, Protestantism, and Catholicism) to communities

~~ —~across the United States during the 1950s. Jn 1958, one of

the plaques was erected on the Indiana Statehouse grounds in

downtown Indianapolis, where it stood until smashed by a

vandal in 1991. Indiana State Representative Brent Steele

arranged for the creation of a new monument to replace the

destroyed plaque. The Indiana Limestone Institute

generously agreed to donate both limestone and labor for this

purpose. Steele, also an attorney, surmised that it would be

Even though the first two lines of the monument’s text appear

in significantly larger font than the remainder, they are

ignored by the dissenters. Those lines read: “THE TEN

COMMANDMENTS—I AM the LORD thy GOD.” The

graphic emphasis placed on those first lines is rather hard to

square with the proposition that the monument expresses no

particular religious preference . . . .

121 S. Ct. at 2210. The denial of certiorari in Books, coupled with

Justice Stevens’ statement, makes our reasoning and decision in this case

all the more sound.

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legally prudent if, in addition to the Ten Commandments, the

hew monument displayed historical texts. The texts he chose

were the Bill of Rights from the United States Constitution

and the Preamble to the 1851 Indiana Constitution.

The planned monument consists of two pieces of

limestone—a four-sided block resting upon a rectangular

base—and will weigh 11,500 pounds. The two wider sides

of the four-sided block are carved into rounded arcs at the

top, which resemble tablets, a form typically used in artistic

depictions of the stone tablets delivered by Moses upon

returning from Mt. Sinai. The monument will stand seven

feet tall; six feet, seven inches wide; and four feet, seven

inches deep. On one of the wide surfaces, the following

version of the Ten Commandments will be engraved in one

inch, all capital lettering:

Ten Commandments

I. Thou shalt have no other Gods before me

II. Thou shalt not make unto thee any graven image

III. Thou shalt not take the name of the Lord thy God

in vain

IV. Remember the Sabbath day to keep it holy

V. Honor thy father and thy mother that thy days may

be long in the land which the Lord thy God giveth

thee

VI. Thou shalt not kill

Vil. Thou shalt not commit adultery

VIII. Thou shalt not steal

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IX. Thou shalt not bear false witness against thy

neighbor

X. Thou shalt not covet thy neighbor’s house or wife

or anything that is thy neighbor’s

The other wide surface will display the Bill of Rights in five-

eighths inch, all capital lettering. On one of the smaller sides

the 1851 Indiana Constitution Preamble will be inscribed,

which states:

To the end, that justice be established, public order

maintained, and liberty perpetuated: We, the

People of the State of Indiana, grateful to Almighty

God for the free exercise of the right to choose our

own form of government, do ordain this

Constitution.

The 1851 Preamble will not be clearly identified as such.

The other small side will read:

Gift of the Indiana Limestone Industry—2000 A.D.

This monument replaces one donated by the Aeries

and Auxiliaries of the Indiana Fraternal Order of the

Eagles on October 25, 1958

The record is not clear as to the exact size of the lettering for

the 1851 Preamble and the dedication.

The Statehouse park-like grounds span almost two acres

and are home to many Indiana government buildings,

including the Capitol Building, the Governor’s office, the

General Assembly, the Indiana Supreme Court, the Indiana

Court of Appeals, and other state offices. The grounds are

surrounded by Ohio Street to the north, Washington Street to

the south, Capitol Avenue to the east, and Senate Avenue to

the west. There are numerous monuments currently on the

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had demonstrated a likelihood of success on the merits by

showing that the state action violated both of the first two

prongs of the Lemon test.

the Lawrence County Courthouse lawn until a decision in this appeal was

issued. The Commission voted to accept the monument for display. Not

Surprisingly, the erection of the monument on the Courthouse lawn

Spurred the filing of an identical case, which is also being handled by

Judge Barker. See Kimbley v. Lawrence County, 119 F. Supp. 2d 856

(S.D. Ind. 2000).

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Under the first prong of the Lemon test, the district court

reasoned that the State’s purpose in displaying the

monument was to advance religion because the State had not

shown a historical link between most of the Ten

Commandments and the ideals of government and the legal

system, that the monument’s tablet-shaped design was

religious in nature, the Ten Commandments would be

displayed apart from the other texts, and there was no

explanation on the monument that the Ten Commandments

was being displayed for its historical significance. Under the

second prong, the district court reiterated that the content,

shape, size, design, permanence, and location at the seat of

Indiana’s government, would lead a reasonable observer to

believe that the Ten Commandments were “marked with the

stamp of government approval.”

The State’s appeal asks for the vacation of the.

preliminary injunction because the plaintiffs have not shown

that they are likely to succeed on the merits.

DISCUSSION

A preliminary injunction is an extraordinary remedy

intended to preserve the status quo until the merits of a case

may be resolved. A preliminary injunction may be issued

only if the moving party demonstrates some likelihood of

success on the merits, an inadequate remedy at law, and

irreparable harm if denied. If these elements are demon-

strated, the court must balance the irreparable harm the

nonmovant will suffer if relief is granted and the irreparable

harm to the movant if relief is denied. The court must also

consider the public interest in either the grant or denial of the

relief. When a district court grants a preliminary injunction,

we review conclusions of law de novo and findings of fact

for clear error while giving substantial deference to the

district court’s discretionary acts of weighing evidence or

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balancing equitable factors. See Cooper v. Salazar, 196 F.3d

809, 813 (7th Cir. 1999). ,

Deciding the merits of this case involves the application

of the Lemon test. Under Lemon, the Establishment Clause

is. violated if any of the following are found: (1) the state

action does not have a secular purpose; (2) the primary effect

of the state action is the advancement or inhibition of

religion; or (3) the state action fosters excessive

entanglement with religion. See 403 U.S. at 612-13. In this

case, the parties only invoke the first two prongs, which have

been refined and dubbed the “endorsement test.” See Books,

235 F.3d at 301. Under the endorsement test we focus on

whether the state’s action has the purpose or effect of

conveying a message of endorsement or disapproval of

religion. See id. at 302.

)

1. Secular Purpose

Under the first prong of the Lemon test, we ask whether

the State’s actual purpose in planning to erect this monument

on the Statehouse grounds is to advance or inhibit religion.

See id. We have recognized that the Ten Commandments is

a religious and sacred text that transcends secular ethical or

moral concerns. See id. This is so in part because its very

text commands the reader to worship only the Lord God, to

avoid idolatry, to not use the Lord’s name in vain, and to

observe the Sabbath. These particular commandments are

wholly religious in nature, and serve no conceivable secular

function. Yet, we have also recognized that the Ten

Commandments “can no doubt be presented by the

government as playing . . . a role in our civic order.” Jd. at

302-03 (recognizing the secular nature of the frieze on the

wall of the United States Supreme Court depicting Moses

holding the Ten Commandments alongside other “great

lawgivers” or the secular use of the Ten Commandments in

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public schools to study history, civilization, ethics, or

comparative religion).

Since displaying the text of the Ten Commandments may

have a legitimate secular purpose, the state bears the burden

of demonstrating “that it has taken steps to ‘obviate its

religious purpose.’” Jd. at 303 n.8 (quoting Gonzales v.

North Township, 4 F.3d 1412, 1421 (7th Cir. 1993)). We

generally defer to the purpose offered by the state for its

action as long as it is not a sham. Beyond assessing the

purpose expressly articulated by the state, we ensure that the

stated secular purpose is legitimate by also examining the

context and the content of the display. See id. at 302-04.

Since the new monument will be significantly different

than the 1958 version, we do not rely on the stated purpose

for the display of the 1958 plaque. Therefore, the March 14,

2000 press release issued by Governor O’Bannon

announcing that Indiana would accept the new monument

provides the state’s stated purpose for agreeing to erect the

monument. In the press release, Governor O’ Bannon stated:

For more than three decades, a monument inscribed

with the Ten Commandments stood on _ the

Statehouse lawn as a reminder of some of our

nation’s core values. Soon those words will stand

alongside the biding principals of our form of

government, especially its protections of individual

rights. They’re ideals we all need to be reminded of

from time to time.

Citing State v. Freedom From Religion Found., Inc., 898

P.2d 1013 (Colo. 1995), the State adds that the display

reflects the ideals of our legal system. Regarding the context

of the monument, Governor O’Bannon stated: “The new

monument will be an integral part of the Statehouse setting,

which honors the history of our state and our nation.” As for

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the monument’s content, the State points out that most of the

words displayed on it are secular in nature. In sum, the State

says that the monument is intended to honor our history by

reminding society of its core values and to honor our legal

tradition since several of our secular laws are parallel to the

Ten Commandments.

We start by saying that the display of secular texts along

with the Ten Commandments does not automatically lead to

a finding that the purpose in erecting the monument is

primarily secular. The Ten Commandments is still an

inherently religious text, and we conclude that the State has

not articulated a valid secular justification for planning to

erect the monument.

The stated purpose that the Commandments will remind

society of its “core values” is akin to the purpose of

providing a “code of conduct” rejected in Books. We stated:

“The code chosen, however, was a religious code that

focuses not only on Subjects that are the legitimate concern

of civil authorities, but are subjects that are beyond the ken

of any government and that address directly the relationship

of the individual human being and God.” 235 F.3d at 303.

The Commandments are historical, secular “core values”

only to those who adhere to them. This is all the more true

since the version here, as noted, maintains the religion-based

commandments. Moreover, since each text stands apart, the

monument’s physical design belies any suggestion that these

texts are presented as a whole to remind viewers of the core

values and legal ideals of our nation. While we hold that the

State’s articulated purposes are not secular ones, we go on to

consider the next prong of the Lemon test.

Il. Primary Effect

Under the second prong, we ask, irrespective of the

State’s stated purpose, whether accepting this monument for

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display on the Statehouse grounds has the primary effect of

conveying a message that the state is advancing or inhibiting

religion. See id. at 304. The question is: would a reason-

- able person believe that the display amounts to an

endorsement of religion? “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.” Jd. at 305 (quotations omitted). Again, to answer

these questions we examine the content and context of the

display. See id. at 304-06.

The State argues that the other statues and monuments

help neutralize any religious message emanating from the

Ten Commandments because they lend a historical context.

It is true that the grounds house other statues and

monuments, which certainly helps the State’s case because

the grounds are somewhat akin to a museum, and “a typical

museum sétting, though not neutralizing the religious content

of a religious painting, negates any message of endorsement

of that content.” Lynch v. Donnelly, 465 U.S. 668, 692

(1983) (O’Connor, J., concurring). But, this is not simply

some museum nestled in some secluded park. The grounds,

which house, among other things the Capitol, the Governor’s

office, the General Assembly, the Indiana Supreme Court,

and the Indiana Court of Appeals, is the seat of Indiana

government. “[We subject] to particularly careful scrutiny

displays at the seat of government.” Books, 235 F.3d at 305

(discussing Harris v. City of Zion, 927 F.3d 1401 (7th Cir.

1999); American Jewish Congress v. City of Chicago, 827

F.2d 120 (7th Cir. 1987)). Given that these grounds are

home to all of the branches of Indiana’s government, we are

hard-pressed to conclude anything other than that a

reasonable observer would think that this monument,

regardless of the message it conveys, occupies this location

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with the support of the state government. And, since we find —

that a reasonable observer would think the monument

conveys a religious message, we hold that it impermissibly

endorses religion.

The large limestone monument, weighing just under six

tons and standing seven feet tall and four feet wide, will be a

permanent fixture on the Statehouse grounds. Its very

format conveys a religious message. The limestone blocks

are tablet-shaped, so, particularly given its height, even from

afar the religious nature of the monument is suggested to

observers. The lettering of the Ten Commandments is larger

(one-inch capital lettering) than the Bill of Rights inscribed

on the other side (five-eighths inch capital lettering), making

the Commandments more prominent to observers. The State

explains that the lettering sizes are difference because the

Ten Commandments consists of fewer words than that of the

Bill of Rights, and therefore, the lettering of the Bill of

Rights is necessarily smaller so that it can fit on the face of

the stone. :

While this is an eminently reasonable reason, it is of no

matter unless a reasonable observer would surmise such,

which we doubt. But, even if a reasonable observer would

surmise such, the fact that the Ten Commandments is in

larger lettering also means that it can be observed more

clearly from a distance. And, depending on from which

direction an observer approaches, he or she may only- view

the Commandments by peering back, for it stands alone on

one side, totally isolated form the other texts. So,

approaching from one side, an observer would only see the

Ten Commandments, reasonably leading he or she to believe

that the monument only displayed the sacred text.

The placement of the texts on different sides also inhibits

observers from visually connecting the texts. We further

hazard that since the texts are not visually connected, a

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reasonable observer would be hard-pressed to make any

analytical connection between the texts, particularly since

the planned monument lacks any marker explaining why

these particular texts have been combined, although

somewhat separately, on one slab of limestone. A

reasonable observer would not necessarily link all three of

these texts to society’s legal development and history. A

reasonable person will think religion, not history.

Nothing in the context of the monument itself or the

surrounding grounds mitigates the religious message

conveyed. The monument is a display distinct both in its

placement by other statues and monuments and in its

content. See generally County of Allegheny v. ACLU, 492

U.S. 573, 598 n.48 (1988). There are no other monuments or

statues directly near this one and there is no unifying

historical or legal significance between this monument and

the others.

Moreover, an observer who views the entire monument

may reasonably believe that it impermissibly links religion

and law since the Bill of Rights and the 1851 Preamble are

near the sacred text. This would signal that the state

approved of such a link, and was sending a message of

endorsement. See Books, 235 F.3d at 307 (finding that the

placement of the American Eagle .gripping the national

colors at the top of a plaque inscribed with the Ten

Commandments endorsed a link between religion and civil

government); City of Zion, 927 F.2d at 1412 (finding that the

placement of a Latin cross surrounded by other symbols of

city life on a municipality’s corporate seal endorsed a link

between Christianity and government).

The permanence, content, design, and context of the

monument amounts to the endorsement of religion by the

state. Our holding is in regards to the likelihood of success

on the merits based on the facts available to us at this

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preliminary stage, but we are hard-pressed to believe that a

trial on the merits will support a different conclusion. See

ACLU v. City of St. Charles, 794 F.2d 265, 269 (7th Cir.

1986).

CONCLUSION

We AFFIRM the district court’s entrance of the

preliminary injunction, pending resolution on the merits.

COFFEY, Circuit Judge, dissenting. I do not disagree

with the majority’s presentation of the facts at issue before

us. The state of Indiana plans to erect a monument on

Indiana Statehouse grounds that is to be engraved on various

sides with the Ten Commandments, the Bill of Rights, and

the Preamble to the Indiana Constitution (“Preamble”) on its

sides. The plan to erect the monument originated after

vandals destroyed a monument inscribed with the Ten

Commandments, which had previously stood on the

Statehouse grounds since 1958. | respectfully dissent

because I believe that applying Lemon and its progeny

should lead us to the conclusion that the proposed monument

by the State of Indiana is not constitutionally prohibited

under the Establishment Clause.

I. Lemon Test

In Lemon v. Kurtzman, 403 U.S. 602 (1971), the

Supreme Court adopted a three-part test for analyzing

Establishment Clause cases. Initially, the government’s

challenged 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

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religion. Because the third prong is not at issue, the

discussion focuses on the first two prongs.

The Lemon test continues to be criticized. See, e.g.,

Santa Fe Indep. Sch. Dist. v. Doe, 120 S.Ct. 2266, 2284-85

(2000) (Rehnquist, C.J., dissenting); Lamb’s Chapel v.

Center Moriches Union Free Sch. Dist., 508 U.S. 384, 398-

99 (Scalia, J., concurring in judgment); Committee for Pub.

Educ. & Religious Liberty v. Regan, 444 U.S. 646, 671

(1980) (Stevens, J., dissenting). Although the Lemon test

remains the framework under which we analyze an

Establishment Clause issue, I believe it helpful to always

bear in mind the text of the First Amendment, which is

fundamental and clear:

Congress shall make no law respecting an establishment

of religion, or prohibiting the free exercise thereof.

U.S. CONST., amend. I (emphasis added).

The Establishment Clause was intended to prohibit the

establishment of a national church and also to prohibit the

Federal Government from preferring one _ religious

denomination over others. See Wallace v. Jaffree, 472 U.S.

38, 113 (1985) (Rehnquist, J., dissenting). It was never

intended to “build a wall of separation” between government

and religion. See id. at 98 (Rehnquist, J., dissenting). The

wholesome neutrality guaranteed by the Establishment and

Free Exercise Clauses does not dictate the obliteration of all

the nation’s religious traditions. Indeed, as the Supreme

Court has noted, “no significant segment of our society and

no institution within it can exist in a vacuum or in total or

absolute isolation from all the other parts, much less from

government.” Lynch v. Donnelly, 465 U.S. 668, 673 (1984).

The Constitution does not “require complete separation of

church and state; it affirmatively mandates accommodation,

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not merely tolerance, of all religions, and forbids hostility

toward any.” Id. (emphasis added).'

Judges and legal scholars agree that the Lemon test has

led to inconsistent results. See Wallace, 472 U.S. at 110-1]

(Rehnquist, J. dissenting) (discussing inconsistencies brought

about by the Supreme Court’s Establishment Clause

jurisprudence). It is possible to pick and choose from the

myriad of case law dealing with the Establishment Clause to

find case law to suit each and every position on any given

factual situation. For example, public monuments invoking

the deity offend the Constitution, but mottos emblazoned on

coins or religious language contained in Constitutions or in

the Bill of Rights do not. Teenagers may not participate in

school-organized prayer at football games, but Congress, the

courts, and state legislatures may open sessions with a

prayer. In the end, the Court annually picks the winners and

losers in a game of free-exercise roulette, expanding or

contracting the Establishment Clause as it sees fit to permit

or deny the claimed exemption in a given term.

Nevertheless, I acknowledge without hesitation that we are

bound to apply Lemon, though I contend that no matter how

' While I obviously recognize the constitutional distinction between

state and private action, I am surprised that the First Amendment has

been used at times to protect pornography (and those who distribute and

possess it) and private religious proselytization, while at the same time

also been used to prohibit well-intentioned communities from expressing

their understanding of our nation’s history and culture and from making

any reference to God. Indeed, people can receive pornography through

the mail, over the internet, on their televisions because of the simple

premise that one may tur it off. But wouldn’t a person passing the

proposed monument also be free to believe whatever he or she wants, to

pass it by and thereby turn it off? In my opinion, the pormography

available on the intemet (often sent unsolicited) and religious

proselytizers who come to people’s homes seems far more invasive and

difficult to “turn off” than a monument that sits passively among a

beautiful grassy lawn adorned with monuments that honor the history of

our nation and also the State of Indiana.

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the test is applied in the factual situation before us, the

proposed monument can withstand constitutional scrutiny.

A. Secular Purpose

Under Lemon, the government’s challenged practice

must have a secular purpose. In determining whether a

secular purpose exists, the Supreme Court merely requires

that the displays not be “motivated wholly by religious

considerations.” Lynch, 465 U.S. at 680. This monument

consists of three sides—two of which are completely secular

in nature. Simply because some religious meaning is

conveyed by a monument does not destroy a state’s valid

secular purposes for its display. See Lynch, 465 U.S. at 680;

Bridenbaugh v. O'Bannon, 185 F.3d 796, 800 (7th Cir.

1999).

The majority concludes that “[t]he Ten Commandments

is still an inherently religious text, and . . . that the State [of

Indiana] has not articulated a valid secular justification for

planning to erect the monument.” The Commandments are a

“sacred text in the Jewish and Christian faiths,” concerning,

in part, the “religious duties of believers.” Stone v. Graham,

449 US. 39, 41-42 (1980). But neither Stone, nor any other

Supreme Court decision for that matter, even suggests that

the Ten Commandments are without a secular significance.

Indeed, Stone noted that “integrated into the school

curriculum” the Commandments “may constitutionally be

used in an appropriate study of history, civilization, [or]

ethics.” Jd. at 42.

The text of the Ten Commandments “no doubt has

played a role in the secular development of our society and

can no doubt be presented by the government as playing

such a role in our civic order.” Books v. City of Elkhart, 235

F.3d 292, 302 (7th Cir. 2000). Six of the Ten

Commandments are, in fact, wholly secular, and form the

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basis of much of our modern codes of criminal conduct. The

historic, secular nature of the Ten Commandments is

recognized inside the walls of the United States Supreme

Court, one of which is adorned with a frieze that contains

Moses holding the Ten Commandments, alongside other

historic figures, both religious and secular. See County of

Allegheny v. American Civil Liberties Union, Greater

Pittsburgh Chapter, 492 U.S. 573, 652 (1989) (Stevens, J.,

concurring in part and dissenting in part). Justice Stevens

stated that the placement of these historic figures together on

the frieze signals a respect for great lawgivers, not great

proselytizers, which is a fitting message for the wall of a

courtroom. See id. at 652-53. If the Ten Commandments

properly convey a secular message when adoring the wall

of a Federal Courtroom, I cannot understand how the State of

Indiana’s proposed placement of the three-sided monument

amidst twelve other secular symbols of the nation’s legal and

cultural history fails to similarly convey a secular message. I

do not understand why the majority reasons that but four

lines on the monument (those four Commandments that

reference God) so overshadow the remainder of the

monument (which includes the Bill of Rights and the

Preamble to the Indiana Constitution) such that the majority

concludes the monument has no secular purpose whatsoever.

Here, the State of Indiana has architecturally blended the

text of the Ten Commandments with two other important

legal texts—the United States Bill of Rights and the

Preamble to the Indiana Constitution (not to mention the

twelve other secular monuments with which it would share

the Statehouse lawn). The explicit language of the Preamble

further reflects the secular message of the monument. The

Preamble to the Indiana constitution states three goals: 1)

for “justice [to] be established”; 2) for “public order [to be]

maintained”, and 3) for “liberty [to be] perpetuated’. The

three goals espoused by the Preamble, reinforced by the

freedoms contained in the Bill of Rights, clearly serve to

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secularize the monument, memorializing the cornerstones of

our civilization’s law.

The majority somehow suggests that the design and

construction of the monument belies any intention to convey

a secular message. Respectfully, I am forced to disagree. It

seems to me that the majority is overly concerned with the

design of the monument. This court, nor any other court,

should not be in the business of monument design. If the

State of Indiana believes that it is aesthetically pleasing (or

more conducive to conveying a historical message) to erect

the monument as designed, it should be permitted to do so

without the court making the assumption based only on a

foundation of quicksand that a reasonable observer will

glance only at a single side or glance only at the side bearing

the larger letters. I believe that a court’s inquiry should

focus on the reasonable observer viewing the display in its

entirety, and not on an observer’s potential misperception of

an isolated aspect of the display. When any person focuses

on only one particular aspect of a monument or display to the

exclusion of the other aspects it will distort even the most

reasonable observer’s opinion. It seems far more reasonable

to assume that a person taking the time to gaze upon the

beautiful edifice will look at all three sides, and draw

conclusions from the whole—which presents three important

steps in the development of the law as they affect 1) the

people of the world; 2) the citizens of the United States; and

3) the citizens of the State of Indiana.

Further, because the Preamble to the Indiana Constitution

would occupy the smaller side of the monument between the

Ten Commandments and the Bill of Rights, its message,

“that justice be established, public order maintained, and

liberty perpetuated,” would link the Ten Commandments

with the Bill of Rights and convey a secular message of the

fundamental legal principles which form the basis of our

national history and culture.

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Indiana Governor O’Bannon explicitly articulated the

secular purpose of the monument, Stating that it was to be

“an integral part of the Statehouse setting, which honors the

history of our state and our nation.” The Governor’s March

14, 2000, press release further stated that the Ten

Commandments “stood on the Statehouse lawn as a reminder

of some of our nation’s core values .. . [and that] [s]oon

those words will stand alongside the abiding principals of

our form of government, especially its protections of

individual rights. They’re ideals we all need to be reminded

of from time to time.”

We are “normally deferential” to “articulation[s] of

secular purpose,” so long as they are “sincere and not a

sham.” Edwards v. Aguillard, 482 U.S. 578, 586-87 (1987).

“This is in keeping with the well settled maxim that courts

are ‘reluctan{t] to attribute unconstitutional motives to the

States, particularly when a plausible secular purpose for the

State’s program may be discerned... .°” Cohen v. City of

Des Plaines, 8 F.3d 484, 489 (7th Cir. 1993) (quoting

Mueller v. Allen, 463 U.S. 388, 394-95 (1983)).

The majority attempts to downplay Governor

O’Bannon’s press release, Stating that reminding society of

its “core values” is akin to the purpose of providing a “code

of conduct” rejected in Books. But this is not the same case

as Books, and “[e]very government practice must be judged

in its unique circumstances. . . .” Allegheny, 492 U.S. at 595.

In Books, the only text set forth on the single monument at

issue was that of the Ten Commandments. In the factual

situation before us, the Ten Commandments stands joined

with the Bill of Rights and the Preamble to the Indiana

Constitution, thus linking the three texts and conveying a

secular message regarding our nation’s legal history. The

Governor’s well-reasoned message in his press release

cannot and should not be construed as shallow words without

meaning or sincerity.

20a

Nevertheless, the majority here, partially based on the

recent decision in Books, 235 F.3d at 303-04, seems to go

out of its way to second guess Governor O’Bannon’s stated

purpose for the proposed monument in an attempt to

discredit that purpose. The Governor (and also the Elkhart

City Council, in Books) should be presumed to have fulfilled

the duties of his office with honesty and integrity. There is

not one iota of evidence of insincerity here, and in my

opinion no justification for the majority’s refusal to give

credit to the state’s articulated purpose. See, e.g., American

Jewish Congress v. City of Chicago, 827 F.2d 120, 127 (7th

Cir. 1987) (relying on affidavit from mayor’s chief of staff

stating secular reasons to attract visitors to downtown

businesses and to take official note of Christmas to find a

secular reason behind a nativity display and noting “the

absence of any evidence that the city’s stated purposes

behind the display of the nativity scene are merely a sham”);

Bridenbaugh, 185 F.3d at 799 (relying on testimony offered

during litigation as to Indiana’s purpose for giving

employees a Good Friday holiday).

I believe that the proposed monument conveys a secular

message that honors and pays due homage to our nation’s

legal history. Accordingly, I would hold that the monument

satisfies the first prong of the Lemon test requiring a valid

secular purpose.

B. Principal or Primary Effect

The second prong of Lemon focuses on whether the

government’s practice has the principal or primary effect of

advancing or inhibiting religion. Freedom From Religion

Foundation, Inc, v. City of Marshfield, 203 F.3d 487, 493

(7th Cir. 2000). Under this prong we ask only in the case

before us whether an “objective observer” would perceive

the display as a state endorsement of religion. See Santa Fe

Indep. Sch. Dist. v. Doe, 530 U.S. 290, 308 (2000). The

cian

2la

appropriate inquiry is thus, whether a citizen knowing the

totality of the facts and circumstances surrounding the

placement of the proposed monument would believe that the

State of Indiana and its officials seek to endorse, rather than

merely respect and tolerate, religion by placing it on the

Statehouse lawn. See Capitol Square Review and Advisory

Bd. v. Pinette, 515 U.S. 753, 777 (1995) (O’Connor, J.,

concurring). “A policy which tolerates religion, [however],

does not improperly endorse it.” Chandler v. Siegelman,

230 F.3d 1313, 1317 (11th Cir. 2000) (emphasis in original).

Even recent decisions of the Supreme Court have looked

favorably upon the constitutionality of government displays

of purely religious symbols—a creche and menorah—when

those symbols were part of a larger display, as in the factual

situation before us. See Lynch, 465 US. at 686; Allegheny,

492 U.S. at 617-18; see also Books, 235 F.3d at 316-18

(Manion, J., dissenting) (discussing Lynch and Allegheny).

The Court’s guidance appears to be that where the religious

display—the creche in Allegheny—stood alone, it violated

the Establishment Clause. Allegheny, 492 U.S. at 598-99.

As Lynch and Allegheny teach, the inquiry into whether

the display of a religious symbol violates the Establishment

Clause turns upon the context in which the symbol appears.

In this case, the Ten Commandments is not the Only text to

be inscribed on the monument, but instead is only one

portion of the display, to be accompanied the Bill of Rights

and the Preamble to the State of Indiana’s Constitution.

The majority curiously suggests, however, that an

observer who views the entire display may reasonably

believe that it links religion and law since the Bill of Rights

and the Preamble are near the Commandments. The cases

the majority cites for this proposition are distinguishable. In

Books, 235 F.3d 292, and Harris v. City of Zion, 927 F.3d

1401 (7th Cir. 1999), the religious symbol was directly

¥ 22a

linked io a governmental symbol—an American Eagle

gripping the national colors atop a plaque inscribed with the

Ten Commandments and a Latin cross surrounded by other

symbols of city life on a municipality’s corporate seal. Here

the monument does not join government symbols (such as

the American Eagle or a municipality’s seal) with religious

symbols or text.

Moreover, the layout of monuments that adorn the

Statehouse lawn also serves to diminish any perceived

endorsement of religion that may allegedly flow from the

monument at issue. The proposed monument would share

the Statehouse lawn with twelve other monuments—all

wholly secular in nature, thereby emphasizing the secular

aspects not only of the proposed monument but of the entire

designated area. For instance, among the twelve other

monuments are busts and statues of historic figures—

Christopher Columbus, George Washington, and Robert

Dale Owen. There are statues of former Indiana Governors

Thomas A. Hindricks and Oliver H.P. Morton. There are

monuments commemorating historic events and ideals of

liberty—two Civil War friezes and two monuments

dedicated to the National Road. There is also a statue of.a

coal miner to honor Indiana’s coal mining history and a

- marker honoring the Statehouse itself. In short the

Statehouse lawn is an area dedicated to monuments that pay

due homage to both the state’s and the nation’s history that

serves to situate the monument in an appropriate cultural and

historical context.

As the Supreme Court clearly noted in Lynch, in

applying the second prong of the Lemon test a court should

not focus exclusively on the religious symbol, but within the

context in which the symbol appears. Lynch, 465 U.S. at

680. In Lynch, the Court allowed the city of Pawtucket,

Rhode Island to erect a holiday display that included a

creche depicting the nativity scene where that creche was

killa

23a

surrounded with other secular symbols, such as reindeer,

Santa Claus, candy-striped poles, teddy bears, among others.

Lynch, 465 U.S. at 671. Here, the context of the proposed

monument, placed amongst the twelve other secular markers

honoring Indiana’s and the nation’s history, only serves to

reinforce the secular nature of the monument in question as

set forth and clearly delineated in Governor O’Bannon’s

press release. The twelve secular monuments that would

Share the Statehouse lawn with the proposed monument

create a museum-like setting that effectively and persuasively

does away with any conceivable endorsement of religion that

would flow from the proposed monument.

The majority suggests that the other monuments would

be too far away to contribute to the secular message of the

proposed monument. I fail to see what effect the distance

between the monuments upon the very beautiful plot of land

has upon our analysis. Indeed the proposed monument is not

given a special place on the Statehouse lawn any more than

any of the other memorial edifices. Instead, it would be

merely just one of a number (12) of monuments on the lawn.

In my view, the vastness of the grounds, coupled with the

number and diversity of the subject matter of the

monuments, dilutes even the slightest perceived endorsement

of religion flowing from the proposed monument.

Accordingly, I conclude that the proposed monument does

not constitute an endorsement of religion. Because it also

satisfies and fits within the parameters of the other prongs of

Lemon, I would further hold that it does not violate the

Establishment Clause.

II. Historical Practices

Even if the proposed monument was found not to satisfy

the requirements of Lemon, which I am convinced it does, I

still would dissent form the majority’s opinion. Where a

religious symbol has a landmark foundation and meaning in

24a

the history of our country the Supreme Court has sidestepped

the strictures of Lemon to avoid a result contrary to the clear

intent of the Framers of the Constitution. Then-Justice

Rehnquist discussed at length the history and intent of the

Framers who crafted the First Amendment in Wallace, 472

U.S. at 95-114 (Rehnquist, J., dissenting). I share in the

view that the First Amendment was never intended to be

read in a wholly secular fashion, as if its objective were to

remove all religious expression from the public square and to

prefer irreligion over religion.

Our Nation’s history is replete with religious symbols

“linked” in some way to the government. Indeed, George

Washington, at the request of the Congress that passed the

Bill of Rights, proclaimed, Thanksgiving to be a day of

“prayer to be observed by acknowledging with grateful

hearts the many and signal favors of Almighty God.” See id.,

472 U.S. at 113. Washington further declared Thanksgiving

“to be devoted by the people of these states to the service of

that great and glorious Being who is the beneficial author of

all the good that was, that is, or that will be . . . [and] that we

may all unite in rendering unto Him our sincere and humble

thanks for his kind care and protection of the people of this

country .. . and, in general, for all the great and various

favors which He has been pleased to confer upon us .. . and

beseech Him to pardon our national and other

transgressions .. . to promote the knowledge and practice of

true religion and virtue . . . and to grant all mankind a

degree of temporal prosperity as He alone knows best.”

George Washington, Proclamation: A National Thanks-

giving (reprinted in 5 Founders’ Constitution 94). Similarly,

Thomas Jefferson signed treaties with Indian tribes that

provided annual cash support in order for a Roman Catholic

priest to provide services for the tribes. Wallace, 472 U.S. at

103. :

ils.

25a

Washington’s and Jefferson’s examples have been

followed as the practice of Congressional prayer has

continued uninterrupted since the very first Congress.

Moreover, each Congress elects (and pays a salary to) a

Chaplain to preside over this practice. See Marsh v.

Chambers, 463 U.S. 783, 788-89 & n.10 (1982). The

Supreme Court (and this court) open their sessions with an

declaration that states “God save the United States and this

Honorable Court.” Marsh, 463 U.S. at 786; Zorach vy.

Clausen, 343 U.S. 306, 312-13 (1952). Numerous other

governmental practices pay homage to our religious heritage,

including national holidays such as Christmas and

Thanksgiving, military chaplains, the motto, and the Pledge

of Allegiance. See Lynch, 465 U.S. at 674-75. Our currency

bears the motto “In God We Trust.” “Because of their

history and ubiquity, those practices are not understood as

conveying government approval of particular religious

beliefs,” id. at 693, but instead as part of the richness of the

very fabric of our Judeo-Christian heritage which comprises

an integral part of our Nation’s history and culture.

> Indeed, if one extends plaintiffs’ theory of the case to its logical

extreme, not only must every public monument be shom of religious

reference, but many of the nation’s most revered documents must be

cleansed as well. If the Ten Commandments are deemed constitutionally

offensive, how can one justify the rich religious traditions of our nation

established in government practices including the opening of a

Congressional session or the opening of this court with a prayer;

similarly, how can one justify the religious references as found in

innumerable public documents, including the Declaration of

Independence (which declares God as the source of our rights) or the

Constitutions to 46 out of the 50 states (which include references to

“God,” “Almighty God,” and the “Supreme Ruler of the Universe,” and

with notable frequency refer to God as the author or source of human

rights and liberties). A policy that tolerates religion does not improperly

endorse it. See Chandler, 230 F.3d at 1317 (writing about the

intersection of the Establishment Clause and Free Exercise Clause).

26a

The proposed monument’s reference to the Ten

Commandments is much like other references (that have

been deemed not to violate the Constitution) to God as set

forth in the Christian history of our country—not an

endorsement of religion, but merely an acknowledgment of

the historical fact that the Ten Commandments served as an

integral part of the foundation for our country’s legal system.

Because of the Ten Commandments’ history and ubiquity, I

believe that even if the monument would somehow fail the

strictures of Lemon, Indiana’s proposed monument as

determined herein does not violate the Establishment Clause.

III. Conclusion

The majority’s decision, similar to that in Books, 235

F.3d 292, leads us further away from the mainstream—and

to a point where irreligion is favored over religion. The

Constitution does not require complete separation of church

and state, but instead “it affirmatively mandates

accommodation, not merely tolerance, and forbids hostility

toward any,” Lynch, 465 U.S. at 673, and the appropriate

question to ask is whether an “objective” observer would

believe that the display constitutes a government.

endorsement of religion, Santa Fe. Indep. Sch. Dist., 120

- S.Ct. at 2278. After all, “[w]e are a religious people whose

institutions presuppose a Supreme Being.” Zorach, 343 US.

at 313.

In my view, the proposed three-subject monument

inscribed with the Ten Commandments, the Bill of Rights,

and the Preamble to the Indiana Constitution, does not

offend the Constitution. Instead, it serves as a well-deserved

recognition of our country’s legal, historical, and religious

roots. Any possible endorsement of religion is diluted by the

monument’s placement on the Statehouse lawn with at least

twelve other secular monuments memorializing and

honoring the state’s and nation’s history.

ee

27a

Samuel Smith wrote My Country, ‘Tis of Thee in 183]

and concluded-his epic with the following lines:

Our fathers’ God, to thee, Author of liberty, To thee we

sing;

Long may our land be bright, With freedom’s holy light.

Protect us by thy might, Great God, our King!

Does Samuel Smith’s song no longer represent the very

values upon which this country was founded, and indeed,

where government officials are forbidden to sing of the

liberty about which Smith cherished above all else, simply

because it refers to religion?

I therefore respectfully DISSENT from the court’s holding

that Indiana’s proposed monument violates _ the

Establishment Clause or constitutes an establishment of

religion, and thus would REVERSE the district court’s grant of ~

the preliminary injunction.

A true Copy:

Teste:

Clerk of the United States Court of

Appeals for the Seventh Circuit

28a

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF INDIANA

INDIANAPOLIS DIVISION

INDIANA CIVIL LIBERTIES )

UNION, INC., et al., )

Plaintiffs, )

)

vs. ) IP 00-091 1[sic; 0811)

) -C-B/S

FRANK O’BANNON, etal., _)

Defendants. )

ORDER GRANTING PRELIMINARY INJUNCTION

Plaintiffs, Indiana Civil Liberties Union, Inc., et al.

(collectively “ICLU”), move for a preliminary injunction

seeking to prevent Defendants, Frank O’Bannon, et al.

(collectively “Indiana” or “State’), from posting on the

grounds of the Indiana Statehouse a monument containing,

among other things, the Ten Commandments. For the

reasons discussed below, we GRANT Plaintiffs’ motion and

preliminarily enjoin the State from .proceeding to erect the

proposed monument on the grounds of the Indiana

Statehouse.

Background

The parties have entered a Stipulation of Facts (“Stip.”)

from which the majority of the following facts are gleaned.

To the extent that we rely on one of the parties’ other

submissions, we abbreviate them as follows: Plaintiffs’

Memorandum in Support of Motion for Preliminary

Injunction (““ICLU Mem.”); Defendants’ Memorandum in

29a

Opposition to Motion for Preliminary Injunction (“Opp’n

Mem.”); and Plaintiffs’ Reply Memorandum in Support of

Motion for Preliminary Injunction (“ICLU Reply”).

A. The Statehouse Grounds

The Indiana Statehouse is prominently positioned in

downtown Indianapolis consisting of, in addition to the

Capitol Building itself, a sizeable expanse of land stretching

from Washington Street on the south, between Capitol and

Senate Avenues, to Ohio Street on the north. See Stip. 4 3.

The Statehouse contains the office of the Governor, the

Indiana General Assembly, the Indiana Supreme Court and

the chambers of its justices, the Indiana Court of Appeals

and the chambers of some of its judges, as well as the offices

of certain other Indiana constitutional and Statutory

officeholders. See id. {| 2. Immediately to the north of

Washington Street is a 1.93 acre plot of park-like land on the

grounds of the Statehouse, immediately in front of the south

entrance to the Statehouse. See id. {| 4.

On the park-like lawn area, there are presently located,

among other things: monuments honoring the national road

and coal miners, as well as statues of George Washington,

Christopher Columbus, Vice President Thomas A.

Hendricks, and Governor Oliver P. Morton; in addition there

are a number of ornamental trees marked with placards

honoring various former governors of Indiana. See Stip., Ex.

2 (“Map”) (map of all of the monuments on the statehouse

grounds including their photographs). The southwest area of

the lawn contains currently only a single tree marked with a

placard honoring former Governor Schricker and a four-feet

tall by two-feet wide monument noting the historic

significance of the National Road, US 40, which formerly

ran along Washington Street. See id. | 5. The proposed

monument (“Monument”) containing a version of the Ten

Commandments, the Preamble of the 1851 Indiana

30a

Constitution, and the Bill of Rights is intended to be placed

on this southwest section of the lawn, near Senate avenue,

though the precise spot has not been identified to us by the

parties. See Stip. | 28. The Monument as designed will be a

four-sided structure, measuring approximately seven feet

high at its highest point, six-feet, seven-inches wide at its

widest point, more than four-feet deep, and will be composed

of two large blocks of Indiana limestone weighing almost _

11,500 pounds. See id. $4 7, 10.

It is intended that the Monument will be erected in the

approximate location of a former monument containing the

Ten Commandments that, in 1958, had been donated by the

Fraternal Order of the Eagles (“FOE”) in 1958. See id.

| 24, 28. The prior Ten Commandments monument was

toppled in 1991 in a series of acts of vandalism. See Stip.

qf] 24, 26; Stip., Ex. 1 (“Press Release”). Its exact location,

and which direction it will face, are yet to be determined;

however, the State indicated at oral argument that the

Monument will be placed as closely as possible to the site of

the former Ten Commandments monument. See Stip. 4] 24,

28. The site of the former monument is within the triangular

| portion of grass shown on the Map as: containing the tree

dedicated to former Governor Schricker, approximately one-

hundred-thirteen-feet north of the north edge of the

Washington Street sidewalk, approximately eighty-three-feet

south of the middle of the east-west walkway that touches

the south side of the Statehouse, and approximately_nineteen-

feet east of the Senate Avenue sidewalk. See id. {J 34, 35.

The location is also approximately forty-one-feet away from

Governor Schricker’s tree and ninety-two-feet away from the

National Historic Civil Engineering Landmark. See id. 4 36.

The monument honoring Christopher Columbus is

approximately forty-three-feet north of the east-west

sidewalk that touches the south side of the Statehouse. See

id. | 37. The State also represented at oral argument that the

0 eeeeeeeeeeEeEeE————EE

3la

Monument will be at least fifteen-feet from any existing

pathway and that no plans exist to create a path to it.

South of the Statehouse, five monuments and four

dedicated trees curently stand; located west of the

Statehouse are three monuments, one marker, and two

dedicated trees. See Map.' To reiterate, only the Columbus

statue, one of the National Road monuments, and a dedicated

tree will be within ninety-two-feet of the proposed site of the

Monument. See Stip. 44 35-37.

B. The Monument

The proposed Monument is being donated by the Indiana

Limestone Institute, after having been enlisted by State

Representative Brent Steele of Lawrence County (“State

Representative Steele”). See Stip. {J 21-22; Opp’n Mem. at

4 (citing Deposition of Brent Steele (“Steele Dep.”) at 8-10).

The State’s brief details the history of the 1958

monument, given as a gift to the State by the FOE. See

Opp’n Mem. at 2-4; Stip. § 25.2 The Original monument

contained the text of the Ten Commandments on a seven-feet

tall, three-feet wide, and one-foot deep center tablet that was

flanked by two smaller tablets (each of which was three-feet

by three-feet, eight-inches) listing Indiana FOE lodge

affiliates. See Opp’n Mem. at 2-3. The Original monument

was erected as part of a national campaign, initiated by a

Minnesota juvenile court judge, as a way of addressing what

he perceived to be a need for juveniles to have a “code of

"As the parties have provided a map of the Statehouse grounds

and pictures of the monument, see Map, we will refer to those materials

to the extent such reference is required rather than describing the

monuments in detail herein.

7As we note elsewhere, we have reservations about the

relevance of this information, but include it to provide a complete record

EOSS'=S

32a

conduct,” from which they could benefit by “‘exposure to

one of mankind’s earliest codes of conduct, the Ten

Commandments.’” See Opp’n Mem. at 3 (quoting Books v.

City of Elkhart, 79 F. Supp. 2d 979, 982 (N.D. Ind. 1999),

appeal pending and Colorado _v. Freedom from Religion

Found., Inc., 898 P.2d 1013, 1017 (Colo. 1995)).° The FOE

undertook a national campaign at or about this time in

support of this program. See id.

In 1991, when the previous monument was vandalized,

Indiana officials promised the public it would replace the

monument. See id. at 3-4; Stip. 9 26. In 1996, Indiana

officials renewed their promise to replace the FOE

monument; however, in the interim the original monument

had been repaired and relocated to the Eagles Lodge in

Anderson, Indiana. See Steele Dep. at 7, 12. When plans

were announced to construct a new Ten Commandments

monument on Statehouse grounds, Representative Steele

oversaw completion of the initial design in conjunction with

the Indiana Limestone Institute. See id. at 6-9; Stip. 4 22.

This design called for a more substantial monument,

hopefully more impervious to vandalism, containing only a

text of the Ten Commandments. See Opp’n Mem. at 4;

ICLU Reply at 2. ae after bem apprised of the

ruling in | :

Inc., Representative Steele (who is an attorney) decided to

add two other historical documents to the monument,

}

*The constitutionality of an identical monument was at issue in

the Northern District of Indiana in Books, as well as in Colorado v.

Freedom from Religion Foundation, Inc., 898 P.2d 1013 (Colo. 1995).

The Government has cited facts from these two cases to supplement its

presentation of historical facts here.

33a

namely, the Bill of Rights and the Preamble to the 185]

Indiana Constitution. See Steele Dep. at 5, 17, 27-34.4

The Monument as designed consists of two pieces, a base

and an upper portion, weighing approximately 11,500

pounds total. See Stip. 9 7. The base is a rectangular block

of limestone, six-feet, seven-inches wide, four-feet, seven-

inches deep, and two-feet, eight-inches long. See id. 4 8. On

top of the base will sit a four-sided block -- tapered, with two

large faces, each measuring four-feet, four-inches in height

by three-feet, seven-inches in width, while the smaller faces

will be triangular, also four-feet, four-inches tall, but

tapering from a width of approximately two-feet, six-inches

at the base to six-inches at the top. See id. ¥ 9.

The large surfaces on the top block will be tablet shaped,

that is, the stones will be carved with two rounded arcs or

arches at the top; (it-is a form widely utilized in artistic

depictions of the stone tablets delivered or handed down by

Moses upon his return from Mt. Sinai). One of the surfaces

will display the following text:

TEN COMMANDMENTS

I. THOU SHALT HAVE NO OTHER GODS

BEFORE ME

Il. THOU SHALT NOT MAKE UNTO THEE ANY

GRAVEN IMAGE

Il. THOU SHALT NOT TAKE THE NAME OF

THE LORD THY GOD IN VAIN

‘The Press Release erroneously indicated that the monument

would include the Preamble to the United States Constitution rather than

the Preamble to the 1851 Indiana Constitution. See Press Release.

34a

| IV. REMEMBER THE SABBATH DAY TO KEEP

IT HOLY

V. HONOR THY FATHER AND THY MOTHER

THAT THY DAYS MAY BE LONG IN THE

LAND WHICH THE LORD THY GOD GIVETH

THEE

VI. THOU SHALT NOT KILL

VII. THOU SHALT NOT COMMIT ADULTERY

VIII. THOU SHALL NOT STEAL

- IX. THOU SHALT NOT BEAR FALSE WITNESS

AGAINST THY NEIGHBOR

X. THOU SHALT NOT COVET THY

NEIGHBOR’S HOUSE OR WIFE OR ANYTHING

THAT IS THY NEIGHBOR’S

Id. 4] 9-11. The State represents that this text, which is

allegedly similar to that appearing on the 1958 FOE-donated

monument, will be set forth in all-capital letters

approximately one-inch in height. See id. 4 13. This is the

only text appearing on one side of the monument. See id. 4

12. The second large tablet-shaped face of the Monument

will display the text of the Bill of Rights from the United

States Constitution which is expected to be engraved all in

capital letters each of an approximate height of five-eighths

of an inch. See id. J] 14-16.

On one triangular face of the Monument will be the text

of the Preamble to the 1851 Indiana Constitution --

To the end, that justice be established, public order

maintained, and liberty perpetuated: We, the People

———LaQaE

35a

of the State of Indiana, grateful to Almighty God for

the free exercise of the right to choose our own

form of government, do ordain this Constitution.

Id. | 19. However, the source of this text is not expressly

attributed to the Indiana Constitution. See id. The other

triangular face will identify the Indiana Limestone industry

as the donor of the monument with the historical explanation

that “[t]his monument replaces one donated by the Aeries

and Auxiliaries of the Indiana Fraternal Order of Eagles on

October 25, 1958.” Id. 9 17. We are not informed of the

size of the lettering of these two passages, but the State

expects it to be balanced in the context of the rest of the

monument. See id. $f 18, 20.

The purpose for erecting this monument was explained

by Governor O’Bannon in a press release issued at the time

he announced the State’s acceptance of this gift. The

Governor stated that the monument will be placed on the

Statehouse lawn to remind people of “some of our nation’s

core values” and the juxtaposition of the Ten

Commandments and the Indiana Constitution’s preamble as

well as the Bill of Rights will exemplify “ideals” that all

people “need to be reminded of from time to time.”

Governor O’Bannon also stated in that press release that the

Ten Commandments “[sJoon ... will stand alongside the

abiding principles of our form of government, especially its

protections of individual rights, ..., ” and “will be an integral

part of the Statehouse setting, which honors the history of

our state and our nation.” The parties do not disagree that

the new monument is also intended to honor the FOE for

having donated the old monument in 1958 that contained the

Ten Commandments and stood on the Statehouse lawn. See

Stip. 4 17.

State Representative Steele, who co-authored Act 1180

authorizing the display of the Ten Commandments along

36a

with these other two documents, stated in the press release

that the “new monument will soon take its proper place

alongside such historic figures as Oliver P. Morton, Thomas

A. Hendricks, George Washington, and Christopher

Columbus.” When questioned as to why he chose the Ten

Commandments to display on the Statehouse grounds, as

opposed to any other codes, such as the Code of Hammurabi

and the Roman Code, Representative Steele responded,

“[W]hy not these rules?” Steele Dep. at 39. Representative

Steele shares Governor O’Bannon’s view that the Ten

Commandments remind us of the nation’s core values and

that the Ten Commandments and the other texts to be

displayed on the Monument express common ideals. See

Steele Dep. at 34, 36-37. Representative Steele has

conceded that certain of the statements in the Ten

Commandments, such as the admonishments to not have

other gods, keep the Sabbath holy, and not make graven

images, in addition to expressing core values in our nation,

are a form of religious expression. See id. at 36, 37.

C. The Plaintiffs

For purpeses of injunctive relief, Defendants do not

challenge Plasatiffs’ standing. The ICLU has among its

membevviip employees of the State of Indiana who work in

the State Office Building which is located immediately west

of the proposed location of the monument. See Compl. The

ICLU asserts that because of this proximity these individuals

will be forced into frequent, direct, and unwelcome contact

with the monument during the course of their normal

routines, it if is erected as planned, and to alter those routines

to avoid the monument would impose an undue burden. See

id. Further, members of the ICLU as well as the individual

plaintiffs allege that they travel regularly to the Statehouse to

participate as citizens of Indiana in various capacities and for

a variety of purposes. See id. Plaintiffs allege that they will

be forced to come into direct and unwelcome contact with

37a

the monument, if it is erected as planned, and to avoid the

monument would cause them an undue burden. See id.

Finally, Plaintiffs allege that some of the ICLU’s members,

as well as individual plaintiffs, regularly travel on the road

and sidewalks adjoining Washington Street, near where the

monument is to be located which would force them to come

into direct and unwelcome contact with the monument, if it

is erected as planned, and again to avoid the monument

would cause them an undue burden. See id.

Discussion°

A. Preliminary Injunction Standard

In order to be entitled to a preliminary injunction, the

moving party must demonstrate:

(1) some likelihood of prevailing on the merits, and

(2) an inadequate remedy at law and irreparable

harm if preliminary relief is denied. If the movant

clears these two thresholds, the court must consider

(3) the irreparable harm the nonmovant will suffer if

preliminary relief is granted, balanced against the

irreparable harm to the movant if relief is denied;

and (4) the public interest, meaning the effect that

granting or denying the injunction will have on

nonparties.

Grossbaum v. Indianapolis-Marion Coun Bidg. Auth., 63

F.3d 581, 585 (7th Cir. 1995); see also Baja Contractors, Inc.

v. City of Chicago, 830 F.2d 667, 675 (7th Cir. 1987). The

heart of this test is “a comparison of the likelihood, and the

gravity of two types of error: erroneously granting a

“Although in its Answer the State has contested Plaintiffs’

standing to bring suit, it has conceded standing for the purposes of this

motion; thus, we do not address here the legal merits of that issue.

38a

preliminary injunction, and erroneously denying it.” General

Leaseways, Inc. v. National Truck Leasing Ass’n, 744 F.2d

588, 590 (7th Cir. 1984). Defendants concede for the

purposes of this motion that Plaintiffs lack an adequate

remedy at law. See Opp’n Mem. at 14.

1. Likelihood of success on the merits:

Establishment Clause standards? -

Plaintiffs’ first obligation is to establish some likelihood

of success on the merits of its challenge to the Monument on

First Amendment-Establishment Clause grounds. This is no

small assignment, given the profusion and confusion

reflected in the case law and in Supreme Court precedent.

As Judge Sharp noted in his recent decision in Books, there

are no fewer than five Supreme Court tests for determining

when government action penetrates the wall between church

and state. See Books, 79 F. Supp. 2d at 989 & n.5.

However, since both parties in the case at bar agree that the

substantive law standards -governing this case are those set

out in Lemon v. Kurtzman, 403 U.S. 602 (1971), we need

not and will not engage in a full-scale analysis of each

possible test. See ICLU Mem. at 4-6; Opp’n Mem. at 14-15.

Our approach is validated by recent reaffirmations, by both

the Supreme Court and the Seventh Circuit, of the continuing

vitality of the Lemon standards. See Agostini v. Felton, 521

U.S. 203, 222-23 (1997); Freedom from Religion Found.,

Inc. v. City of Marshfield, 203 F.3d 487, 493 (7th Cir. 2000);

Bridenbaugh v. O’Brannon, 185 F.3d 796, 797-98 (7th Cir.

1999).

°The ICLU has framed its challenge to the posting of the Ten

Commandments in violation of the Establishment Clause, not to the

constitutionality of Indiana Code § 4-20.5-21-2 which allows for the

posting of the Ten Commandments. See ICLU Mem. at 4.

"At oral argument, both parties conceded that the anticipated

Seventh Circuit’s decision reflecting its review of Books, which case was

argued there in May of this year, will be highly informative on the issues

39a

Under Lemon, a governmental action is constitutional

under the Establishment Clause if: (1) it has a secular

purpose; (2) its principal or primary effect neither advances

nor inhibits religion; and (3) it does not foster excessive

governmental entanglement with religion. See Lemon, 403

U.S. at 611-12. A governmental action “violates the

Establishment Clause if it fails to satisfy any of these

prongs.” Edwards v. Aguillard, 482 U.S. 578, 583 (1987)

(emphasis added). Although the continuing vitality of the

Lemon test has been debated among jurists and other legal

scholars, the Supreme Court recently reaffirmed that “the

general principles we use to evaluate whether government

aid violates the Establishment Clause have not changed ....”

Agostini, 521 U.S. at 222-23. Thus, Establishment Clause

analysis continues to focus on “whether the government

acted with the purpose of advancing or inhibiting religion ...

[and] whether the [action] has the ‘effect’ of advancing or

inhibiting religion [as well as whether the action involves an

excessive entanglement with religion].” Agostini, 521 U.S.

at 232.

The general principles laid out in Lemon, have been

redefined by the Supreme Court so that under current

interpretations the first two factors are characterized or

construed as an “endorsement” test. See, e.g., Capitol

view and Advi _ Vv. Pinette, 515 U.S. 753

(1995); Co le v. American Civil Liberties

~ Uni ter Pi ter, 492 U.S. 573 (1989). As

the Seventh Circuit recently noted,

[flollowing the Court’s formal acceptance in

County of Allegheny ..., the effect prong of [the

Lemon] test has been analyzed under the

‘perception of endorsement’ test developed in

the parties have presented to us, and perhaps, depending on the scope of

that opinion, even dispositive of this matter.

40a

Lynch _v. Donnelly, 465 U.S. 668, 690 (1984)

(O’Connor, J., concurring). 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.’ :

City of Marshfield, 203 F.3d at 493.

The ICLU concedes that the proposed Monument does

not implicate the third prong of the Lemon test, that is, it

does not promote “excessive entanglement” of the

government with religion; thus we only consider whether the

Monument has a secular purpose and whether the effect of

the Monument is to advance or inhibit religion.

a. Purpose for creating the Monument

The general rule when attempting to determine the

purpose behind a governmental action is to consult and to

defer to the stated purpose for the action. See Edwards, 482

U.S. at 586-87. While the secular purpose need not be the

exclusive purpose for taking the action, it must be sincere

and not a sham to avoid a potential Establishment Clause

violation. See Bridenbaugh, 185 F.3d at 800, 801 (citing

Lynch, 465 U.S. at 681 n.4 and Edwards, 482 U.S. at 586-

87). Since the avowed purpose may not be a “sham,” courts

have looked at both the context of the display as well as the

content of the display to determine if the purpose is in fact

secular. See County of Allegheny, 492 U.S. at 597.

In conducting this analysis, we, of course, examine first

the applicable precedential law. In Stone v. Graham, the

Supreme Court held that Kentucky legislation requiring the

posting of the Ten Commandments in the back of every

classroom in the commonwealth was _ unconstitutional

because it had no valid secular purpose. 449 U.S. 39, 42-43

4la

(1980). The displays recited in small print at the bottom the

following: “The secular application of the Ten Command-

ments is clearly seen in its adoption as the fundamental legal

code of Western Civilization and the Common Law of the

United States.” Id. at 41. The Supreme Court held that,

despite this avowed purpose, the purpose was plainly

religious in nature. See id. In reaching this conclusion, the

Court relied on the fact that the Ten Commandments is

“undeniably a sacred text in the Jewish and Christian faiths

... Id. The Court indicated that other governmental

invocations of the Ten Commandments may pass

constitutional muster, but the challenged action made no

attempt to mitigate the religious nature of the Ten

Commandments. See id. at 42 (“This is not a case in which

the Ten Commandments are integrated into the school

curriculum, where the Bible may constitutionally be used in

an appropriate study of history, civilization, ethics,

comparative religion, or the like. ... Posting of religious

texts on the wall serves no such educational function.”)

(citation omitted).®

Likewise, in a trio of related cases, the Eastern District of

Kentucky has recently held that the display of the Ten

Commandments on public grounds had no secular purpose

and was unconstitutional. See Doe v. Harlan Co Sch.

Dist., 96 F. Supp. 2d 667 (E.D. Ky. 2000) (posting in public

schools); American Civil Liberties Union of Ky. v.

McCreary County, 96 F. Supp. 2d 679 (E.D. Ky. 2000)

(posting in courthouse); American Civil Liberties Union of

Ky. v. Pulaski County, 96 F. Supp. 2d 691 (E.D. Ky. 2000)

(posting in courthouse). In these cases, the defendants

Bn fact, as we discuss below, Justice Stevens has noted that the

south wall of the Supreme Court chambers contains a frieze that includes

a depiction of Moses holding the Ten Commandments that presents no

constitutional violation. See County of Allegheny, 492 U.S. at 652-53

(Stevens, J., concurring in part and dissenting in part).

42a

claimed that the displays were intended to teach “American

religious history and the foundations of the modern state.”

McCreary County, 96 F. Supp. 2d at 686. However, the

“narrow scope of the display[s]” belied this stated purpose.

See id. at 686-87. Moreover, the history of the displays

revealed that they originally contained only the Ten

Commandments and that only in the face of litigation did the

defendants attempted to flank the Commandments with other

documents. See id. at 687. The Court stated that even if it

were to consider these additional documents in construing

the purpose of the display, the fact that each had been chosen

for its religious references reinforced the court’s conclusion

that there was no secular purpose. See id.

Ring Vv. d Forks Public School District N

the District of North Dakota faced a similar challenge to

legislative action requiring the posting of a placard

containing the Ten Commandments in a conspicuous place

in every classroom in the state. See 483 F. Supp. 272, 273

(D.N.D. 1980). These defendants contended that the purpose

of the requirement was to “instill in students the basic mores

of civilization and the principles of our common law.” Id. at

274. However, the court held that the posting of the Ten

Commandments without any explanation plainly failed to

convey that message and thus had no secular purpose. See

id.

In contrast to these holdings, the Northern District of

Indiana recently determined that a monument on the

municipal building lawn in the City of Elkhart, Indiana, |

which structure was identical to the one that formerly stood

on the Indiana Statehouse lawn, had a secular purpose. See

Books, 79 F. Supp. 2d at 996. The District Court judge

could glean almost no evidence as to the intent of the city in

accepting the display of the Ten Commandments, so it

looked to the purpose behind the donation of the monument.

See id. at 996. Looking only at this stated purpose and

43a

referring to the factual findings of the Colorado Supreme

court in Colo Vv. eligion Foundation

Inc., 898 P.2d 1013 (Colo. 1995), where the intent of an

identical donor of an identical monument was construed, the

District Judge in Books held that the purpose was to

“promot(e] morality among [the city’s] youth, ... a

legitimate aim of government and traditionally part of the

police powers of the state.” Books, 79 F. Supp. 2d at 996.

In addition, the District Court noted that the donor, the

Elkhart chapter of the FOE, was a service ‘organization, not a

religious organization. See id. at 982. Moreover, at the time

of the litigation, the Elkhart Common Council had stated its

intention “to maintain a number of exhibits on City property

of cultural and historical significance, of which the Ten

Commandments monument is just one.” Id. at 996. Thus, in

Books, the court concluded that the city had a secular

purpose in originally accepting the monument and that its

presently stated purpose in displaying it was also secular in

nature. See id.

In a similar fashion, the Western District of North

Carolina held that a display of the Ten Commandments in

conjunction with the image of Lady Justice, the sword of

justice, and the scales of justice flanked by the United States

and North Carolina flags had a secular purpose and was

constitutional. See Suhre v. Haywood County, 55 F. Supp.

2d 384, 399 (W.D.N.C. 1999). The court looked to the

history of the dedication of the monument and found that its

intent was to “honor and respect the development of the

judicial system.” Id. at 394. Although the dedication

ceremony included the admonition that “[t]his is your

Temple of Justice .... Bear in mind at all times that you

should be as fair in your dealings with each other as the blind

Goddess who stands there, always guided by the Ten

Commandments as your code of law ...» 1d, at 387, the

court held that the purpose was secular in nature. See id. at

394.

44a

Turning to the case at bar, we start with the Supreme

| Court’s declaration that the Ten Commandments is

undeniably a sacred text. See Stone, 449 U.S. at 41.2 With

the unambiguous religious nature of the Ten Commandments

as our starting point, the State is obligated to articulate a

valid secular purpose for the display of this scared text. See

Metz v. Leininger, 57 F.3d 618, 622 (7th Cir. 1995). The

State adopts the purpose articulated by the Governor in his

Press Release announcing that the State will allow the

Monument to be placed on the Statehouse lawn, which states

that the Ten Commandments are to be displayed as a

reminder of our nation’s core values and ideals. See Press

Release. Further, the purpose of the Monument is to

“venerate[] important documents that reflect the history and

ideals animating American government ... [and] add[]} to the

rich historical context presented to visitors to the State

capitol.” Opp’n Mem. at 15. Focusing on the documents

other than the Ten Commandments contained on the

Monument, the government argues that the content of the

Monument is predominately secular. See id. at 16. “Most of

the surface of the monument and most of the words on it

relate to the Bill of Rights and Preamble to the 1851 Indiana

Constitution.” Id.

However, at oral argument, the State was unable to

elucidate or cite any historical link between most of the

commandments and “ideals animating American

government.” Counsel for the State, when asked about each

individual commandment, was unable to provide any

* according to the ICLU, the sacred nature of this text stems

from the belief that the Ten Commandments were given by God to

Moses at Mount Sinai. See ICLU Mem. at 3. Moreover, many people

see the Commandments not as individual statements, but instead as a

whole -- a single pronouncement held together by the initial

commandment, “I am the Lord thy God.” See ICLU Mem. at 3;

Affidavit of Robert Gianninni.

45a

historical linkage between seven of the commandments and

only weak historical links to three of them.'°

The State directs us to the factual findings in Colorado v.

igi ion as indicative of the

secular purpose inherent in a display posting the Ten

Commandments. There, the stated purpose was to “show ...

youngsters that there were such recognized codes of

behavior [as the Ten Commandments] to guide and help

them.” F m F Religion Found., 898 P.2d at 1024

n.16. One of the witnesses testifying on behalf of Colorado

opined that it was possible to construe commandments two

through ten as being examples of law that this country has

observed from its very beginnings. See id. at 1024 n.17.

We are unpersuaded by the Colorado Supreme Court’s

factual findings. On the one hand, the stated purpose in that

case, as well as in Books, for that matter, to wit, “to provide

a code of conduct for youngsters,” is quite different than

Indiana’s stated purpose in this case to “provide a reminder

of our nation’s core values and ideals.” Although we

withhold our view as to. whether the purpose stated in

Freedom _ Fro igion tion and Books is itself

rhe only Commandments the State was able to link

historically to legal or core values and ideals were “thou shalt not kill,”

“thou shalt not commit adultery,” and “thou shalt not bear false witness

against thy neighbors.” However, even the links to these commandments

were quite attenuated, as the State itself acknowledges that killing, in and

of itself, is not illegal (moreover, the State itself authorizes death as

punishment for certain crimes under certain circumstances), the links to

adultery are found in statutes that are no longer on the books, and bearing

false witness is only incorporated into our legal system to the extent that

swom witnesses are subject to perjury laws if they lie. Counsel also

conceded that any association between the Second Commandment and

old “Blue Laws” which in past times requirer) scsi commercial

establishments to be closed for business on Swaday aad other such

historical vestiges of the old sabbatic laws, is a stretch, aad certainly not

an expression of any “core” value or ideal.

46a

secular, an issue that we expect to be resolved shortly by the

Seventh Circuit, it is sufficient at this stage in these

proceedings to note that the purposes are substantially

different.'' In addition, the witness’s testimony in Freedom

From Religion Foundation contradicts Indiana’s concessions

made at oral argument and described above. It is not enough

to say that our nation’s framers personally believed in the

Ten Commandments, assuming they did, and offer that as

proof that our country has incorporated those principles into

the structures of government and adopted those values into

the life of the republic from its inception. To the contrary,

the First Amendment stands as strong and clear testimony to

the fact that, while the framers may very well have known of

and been influenced by the Ten Commandments in their

personal religious and spiritual lives, such personal religious

influences were not allowed to preempt, negate, or otherwise

supersede our national preference for secular governmental

structures. :

Thus, we conclude that the State’s articulated purpose in

erecting a Monument depicting the Ten Commandments is

not a valid secular purpose, but is in fact religious in nature.

This conclusion is reinforced by the very design of the

Monument, as well as its words. The Ten Commandments

are not physically linked to the other texts on the display,

appearing by themselves on one side of the large tablet-

ltt is for this reason that we regard the history of the original

Ten Commandments monument that stood on the Statehouse grounds as

irrelevant to our current analysis. On questioning at oral argument, the

State acknowledged that the purposes behind the displays embodied in

the 1958 monument and in the proposed monument are quite different --

the purpose for the original monument having been to provide a code of

conduct while the purpose for the proposed monument is to remind

people of our nation’s core values and ideals. Further, and perhaps as

important to our conclusion that the 1958 monument, its purpose and

history are irrelevant, is the fact that that depiction was never subjected to

a constitutional challenge.

(iii i iii

47a

shaped block. The other three sides of the Monument will,

respectively, display the texts of other documents and the

Monument’s dedication. No indication will appear on the on

the monument to the effect that the Ten Commandments are

displayed for their historical significance, as might be

suggested by their visual proximity to several other historical

texts or with an explanatory marker.’ Rather, the Ten

Commandments will be displayed in such a way that a

person looking at them will see only the Ten

Commandments, as they are set out on a seven-foot tall

limestone block. These factors reinforce our conclusion that

the purpose of displaying the Ten Commandments is

religious, not secular, and is thus, in violation of the

Establishment Clause. Although this holding would suffice

in terms of our First Amendment analysis, we nonetheless

will address the second prong of the Lemon test as well.

b. Effect of the Proposed Monument

While the first part of the Lemon test focuses on the

government’s intent, the second prong demands that the

challenged action not have the principal or primary effect of

advancing religion. See Lemon, 403 US. at 612.

“Following the Court’s formal acceptance [of Justice

O’Connor’s formulation of the “endorsement test”

enunciated in her concurrence in Lynch v. Donnelly, 465

U.S. 668, 691 (1984) (O’Connor, J., concurring)] in [County

of Allegheny, 492 U.S. at 595], the effect prong of [the

Lemon test] has been analyzed under the ‘perception of

endorsement’ test developed in [Lynch].” City of

Marshfield, 203 F.3d at 493. Under this test, we must

determine ““whether, irrespective of government’s actual

'2-These are provided only as examples of alternative designs for

the Monument. We express no opinion as to whether such depictions

would ultimately overcome the decidedly religious purpose in the design

of the currently proposed and planned Monument.

48a

purpose, the practice under review in fact conveys a message

of endorsement or disapproval.”’ Id. (quoting Lynch, 465

U.S. at 691 (O’Connor, J., concurring)). If we find that a

“reasonable person could perceive that a government action

conveys the message that religion or a particular religion is

favored or preferred, the Establishment Clause has been

violated.” City of Marshfield, 203 F.3d at 493 (citing

Capitol Square Review and Advisory Bd. v. Pinette, 515

U.S. 753, 778-79 (1995) (O’Connor, J., concurring)).

Although this is a “reasonableness” test, “[e]very

government practice must be judged in its unique

circumstances to determine” whether it endorses religion.

Lynch, 465 U.S. at 694 (O’Connor, J., concurring). Thus,

the context of the display, including its message, its

presentation, and its surroundings must be factored into our

determination.

In County of Allegheny, the content and location of the

challenged displays assumed key roles in the Supreme

Court’s resolution of the constitutional issues presented. The

Supreme Court reviewed a challenge to a creche displayed

inside a county courthouse as well as the constitutionality of

a menorah displayed outside the courthouse alongside a

Christmas tree and a sign saluting liberty. The Court held

that the creche was an unconstitutional endorsement of

religion because there was nothing in its content or context

that detracted from the religious message it imparted. See

f Allegheny, 492 U.S. at 598. Along with the

overtly religious content of the display, the Court noted the

importance that:

the creche sits on the Grand Staircase, the ‘main’

and ‘most beautiful part’ of the building that is the

seat of county government .... No viewer could

reasonably think that it occupies this location

without the support and approval of the |

government. Thus, by permitting the ‘display of the

49a

creche in this particular 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 (internal citation and footnote omitted).

Equally important was what the Court did not look to in

examining the context of the display containing the creche.

See id. at 598 n.48.

The presence of Santas or other Christmas

decorations elsewhere in the county courthouse, and

the nearby gallery forum, failed to negate the

endorsement effect of the creche. The record

demonstrates clearly that the creche, with its floral

frame was its own display distinct from other

decorations or exhibitions in the building.

Id.

In contrast, the Court did declare the display of the

menorah to be constitutional. Unlike the creche, the

constitutionality of which the Court examined by looking at

the display alone, the Court looked at both the menorah and

Christmas tree together and determined that the two symbols

were not exclusively religious, but represented holidays with

both secular and religious dimensions. See id. at 613-14.

Thus, there was no endorsement, since “[iJn the shadow of

the tree, the menorah is readily understood as simply a

recognition that Christmas is not the only traditional way of

observing the winter-holiday season.” Id. at 617.

The Seventh Circuit likewise has held unconstitutional

displays of a nativity scene displayed inside a city hall. See

v. Ci hicago, 827 F.2d 120,

Ww.

128 (7th Cir. 1987). In American Jewish Congress, the

50a

Seventh Circuit regarded as important the-fact that the

display was in the city hall, since:

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. The presence of a nativity

scene in the lobby, therefore, inevitably creates a

clear and strong impression that the local

government tacitly endorses Christianity.

The message of endorsement is equally powerful

on the symbolic level. Like the nativity scene itself,

City Hail is a symbol -- a symbol of government

power. ... A creche in City Hall thus brings together

Church and State in a manner that unmistakably

suggest their alliance.

American Jewish Congress, 827 F.2d at 128.

In another case, when faced with a constitutional

challenge to city seals that contained Christian symbols, the

Seventh Circuit focused on the powerful relationship

between the government and symbols that represented

government power. See Harris v. City of Zion, 927 F.2d

1401 (7th Cir. 1991). In Harris, the Seventh Circuit held that

a city seal that contained within it the obvious presence of a

Latin cross and a city’s seal, emblem or logo that contained a

Latin cross and the words “God Reigns” had the

unconstitutional effect of endorsing religion. Id. at 1413,

1415. The court noted that “[ljike the seat of county

government in County of Allegheny, or the City Hall

Building in American Jewish Congress, the corporate seal of

a municipality is ‘plainly under government control ... (and

is) a clear symbol of government power.’” Id. at 1412

(quoting American Jewish Congress, 827 F.2d at 128).

Moreover, the Seventh Circuit noted that the seal presented a

S5la

“more compelling case for finding the challenged display

unconstitutional” due to its status as a permanent fixture as a

symbol for the city. See id. at 1412. “The City’s seal is a

permanent statement that is viewed year-round, while the

creche is displayed only Seasonally amidst the secular

celebration of Christmas.” Id.

The location of a display involving the Ten

Commandments, and its context, are just as important as

with displays of other religious symbols, such as a creche or

a Latin Cross. In his concurrence in County of Allegheny,

Justice Stevens noted that a frieze on the south wall of the

Supreme Court chambers included a depiction of Moses

“holding the Ten Commandments. See County of Allegheny,

492 U.S. at 652 (Stevens, J., concurring). He wrote that,

standing alone, this image might be seen to convey a

message of “respect for Judaism, for religion in general, or

for law.” Id. Such an image standing alone, or alongside

images of Confucius and Mohammed, would not be tolerated

by the First Amendment. See id. However, in the context of

a display that depicts images of Caesar Augustus, William

Blackstone, Napoleon Bonaparte, and John Marshall along

with these three religious leaders, the overall effect “signals

respect not for great proselytizers but for great lawgivers.”

Id. at 652-53. Thus, the frieze as a whole is a “fitting

message [for] a courtroom” and does not violate the First

Amendment. Id. at 653.

In Harvey v. Cobb County, 811 F. Supp. 669 (N.D. Ga.

1993), aff'd, 15 F.3d 1097 (11th Cir. 1994) (table text), the

county sought to place a display containing the Ten

Commandments and the Great Commandment in a county

courthouse. Id. at 671-72. The court, citing County of

Allegheny, indicated that both the content and context of the

display were significant in determining its constitutionality.

See id. at 677. Relying on Stone, see supra, the court readily

determined that the display had a religious content. See id.

52a

(noting that Stone considered and rejected the argument that

the Ten Commandments is not religious because it can be

viewed as a “historical, jurisprudential cornerstone of

American legal significance.”). Equally significant to the

court’s holding that the display was unconstitutional was

that, unlike the frieze on the wall of the Supreme Court

discussed by Justice Stevens in County of Allegheny, it sat

alone in an alcove in the courthouse without any

countervailing secular passages or symbols present. See id.

at 678.

Moreover, the display is located in the Cobb County

State Court Building, a seat of judicial authority in

the county. Although the panel is not located in the

‘most prominent part of the building, it is,

nonetheless, located high on the wall, above a

marble bench, near the Clerk’s Office and the

Traffic Court courtrooms. ‘No viewer could

reasonably think it occupies this location without

the support and approval of the government.’

Id. (quoting County of Allegheny, 492 U.S. at 598).

In the trio of cases decided recently by the District Court

for the Eastern District of Kentucky, the content and location

of the displays again contributed to the conclusion that they

unconstitutionally endorsed religion. As _ previously

described, the displays consisted of the Ten Commandments

and other texts chosen solely for their religious references.

See McCreary County, 96 F. Supp. 2d at 687. The court

held that the displays presented an “overriding theme ... of

religion and more specifically of Christianity.” Id.

Moreover, the displays were placed in locations that had

unique importance -- inside a courthouse and posted on

classroom walls. See McCreary County, 96 F. Supp. 2d at

688-89 (courthouse); Harlan County Sch. Dist., 96 F. Supp.

2d at 676-77; Pulaski County, 96 F. Supp. 2d at 700

53a

(courthouse). The court, in McCreary County, distinguished

the display at issue in that case, located inside of a

courthouse, from the displays found constitutional in Books,

on Vv. i ». 475 F.2d 29 (10th Cir.

1973), and Suhre, which displays were “removed from

government buildings” and were “part of some larger artistic

rendering or academic display encompassing a wide range of

cultural, religious, and legal traditions.” McCreary County,

96 F. Supp. 2d at 689.'° :

In contrast, as we have previously cited at length, in

Freedom From Religion Foundation, the Supreme Court of

Colorado held a display of the Ten Commandments

constitutional. That display, made of stone and shaped in the

form of two tables, contained a floral design, Phoenician

letters that formed no intelligible words, an “all seeing eye,”

an American eagle grasping an American flag, a version of

the Ten Commandments, two stars of David, the two Greek

letters, Chi and Rho, one superimposed upon each other,

which symbolize the first two letters in the name “Jesus

Christ.” See 898 P.2d at 1016. The Colorado monument

was located in a state-owned park on property adjacent to,

but removed from, the State Capitol building. See id. at

1015-16. The court held that the park was “more of a

museum setting” and that the Ten Commandments

monument itself was one of the “smallest and least

‘The court also noted that the Tenth Circuit has called into

question its holding in Anderson, that a Ten Commandments monument

identical to the one in Books and the one which previously stood on the

Indiana Statehouse grounds was constitutional, in light of the Supreme

Court's supervening opinion in Stone. See Summum v. Callaghan, 130

F.3d 906, 910 n.10 (10th Cir. 1997) (decided on grounds of freedom of

speech). The Easter District of Kentucky also doubted the validity of

the holdings in Books and Anderson, given Stone’s holding that a

governmental requirement that the Ten Commandments be displayed in

classrooms was unconstitutional. See McCreary County, 96 F. Supp. 2d

at 688.

54a

conspicuous displays” in the park. Id. at 1025. Moreover,

the court found significance in-the fact that the display,

although on public property, was not located “where citizens

exercising their might to access the courts or other

government benefits might encounter the monument ... [but]

in an inconspicuous place where citizens may be found by

choice and are not necessarily present for purposes related to

government.” Id. In light of the many countervailing

secular symbols surrounding the Ten Commandments on the

face of the monument and given its out-of-the-way location,

the court held that the monument was not an endorsement of

religion. See id.

In Books, the monument was shaped in the form of two

large, stone tablets, and had on its face the same display at

issue in Colorado v. Freed igi ti

Inc. See Books, 79 F. Supp. 2d at 983. It was located on a

grass lawn near the entrance to a municipal building. See id.

at 984. The court noted that other, historical monuments

were maintained by the City, although “none are visible at

the same time as the challenged monument,” other than a

War Memorials monument. Id. The court ruled that the

content of the monument was not “exclusively religious,”

given its view that the Ten Commandments hold “both

religious and historical significance in this nation.” Id. at

1002. Despite the proximity of the monument to the

entrance to the courthouse, the court held that the monument

was not “obtrusive” and thus was constitutional in its

context. See id.

In Suhre, the monument in question contained small

plaques containing the Ten Commandments, but was

“overwhelmingly dominated by Lady Justice and which

contain[ed] other secular objects such as the sword of justice

and the scales of justice flanked by the American and North

Carolina flags.” Suhre, 55 F. Supp. 2d at 395-96. Much like

the frieze discussed by Justice Stevens in County of

\

55a

Allegheny, given its context, “[t}he display touts nothing

more than an effort to recall the origin of modem law, by

reference to an ancient source of law and justice. The

overall, basic message is equal justice before the law.” Id. at

397. Thus, although the frieze was located in a courtroom,

the court held it not to violate the Establishment Clause. See

id. at 399.

Turning to the facts of our case, we must determine

whether a reasonable person would perceive the Monument

as conveying a message of government endorsement of

religion. See Lynch, 465 U.S. at 692 (O’Connor, J.,

concurring); City of Marshfield, 203 F.3d at 493. We

conclude that a reasonable person looking at this monument

would undoubtedly view it as an endorsement of religion.

Looking at the monument itself, two factors strongly

indicate an endorsement of religion. One is that the text of

the Ten Commandments is prominently located, to the

exclusion of everything else, on one side of this seven-foot

tall monument. Although the direction the monument will

face has not yet been determined, people who approach the

monument from the side on which the text Ten Conmimand-

ments is contained will see only that. In order to understand

the “historical context” which the State Says is the

Monument’s intended purpose, a_person would have to walk

completely around the monument, in a 360-degree manner,

to see the Bill of Rights, the Preamble to the Indiana

Constitution, the Ten Commandments and the dedication.

The State, itself, acknowledged at oral argument that a

reasonable person would not likely circumnavigate the

Monument, especially when there are no pathways

immediately near or around it.

Moreover, even if a person were to review the entire

texts on all four sides of the Monument, there is nothing that

would allow a reasonable person to put the documents into a

56a

secular context. While the State argues that the “secular”

language predominates on the face of the Monument, we

disagree. It is undisputed that the engraved letters forming

the Ten Commandments will be one inch tall and all capital

letters, a typeset that no doubt is intended to indicate the

importance of the ideals contained therein. In contrast, the

size of the lettering of the Bill of Rights is to be only five-

eights of an inch high and the text of the other documents is

likely to be even smaller. Looking at these documents

together, the Ten Commandments would likely be viewed as

the most prominent in comparison to the other depictions on

the Monument.

In addition, no marker identifies any linkage among the

documents on the Monument. In fact, the Preamble to the

Indiana Constitution is unattributed as such, the words

merely being laid out on one side of the Monument for

people to read without further explanation, identification or

authentication. Reviewing the Monument as a reasonable

person would, it is likely that a religious message would be

perceived, rather than a “historical” one. ,

Even if we extend our examination of the context of the

display to the other displays on the Statehouse lawn, we still

must conclude that the message endorses religion.'* This

monument is designed to be quite substantial, standing

seven-feet tall and weighing almost 11,500 pounds. From

'4The State contends that the monuments contained in the

interior of the Statehouse must also be considered, as most Plaintiffs

contend that they will pass the Monument to do business inside of the

Statehouse. See Opp’n Mem. at 10. However, County of Allegheny

made it clear that we are to examine the display in a context that is

reasonable. See id, at 598 n.48. Here, as in County of Allegheny, the

presence of other monuments in locations remote from the challenged

monument is not reasonably regarded as part of the context. Thus, we

regard the presence of monuments inside of the Statehouse as irrelevant

to our analysis.

57a

the descriptions of the other displays on the Statehouse lawn,

it will certainly stand out. The majority of the displays on

the lawn are either placards dedicating trees or statues of

historical figures; those that are not placards or statues are in

the shapes of nondescript blocks or pillars or plates. In

contrast, the size and shape of the Monument accentuate its

religious message. The Ten Commandments and the Bill of

Rights will each be on a tablet-shaped block oflimestone, a

Shape which we have previously noted is unique and

unmistakable. Even if one cannot read the text of the

Monument without approaching it, as the State argues, one

will clearly be able to identify the shape of this seven-foot

tall monument from some distance across the Statehouse

lawn. Indeed, we assume this is one of the purposes of

utilizing this unique shape -- that it will be recognizable from

a distance -- since no paths are to be constructed to allow for

closer viewing. Thus, while the State argues that only those

who choose to approach will read the message of the

Monument, we believe that anyone walking along the south

or west side of the Statehouse who sees the shape of the

Monument will undoubted associate it with and regard it as

an explicit endorsement of the Ten Commandments.

The imputed endorsement is enhanced as well due to the

planned location for the Monument. This is not a display

that is going to be placed in a museum-like setting or in a

park far removed from the seat of governmental power. See

igi , 898 P.2d at 1025; see also

Doe v. Small, 964 F.2d 611, 619 (7th Cir. 1992). Like the

displays found unconstitutional in County of Allegheny,

American Jewish Congress, Harris, and Harvey, the

Monument is to be located on the lawn of the Statehouse, at

the seat of government for the entire state, an area over

which the State has exclusive and obvious control. While

the Monument will not be physically in or on the building

that provides the locus of the State government’s power, its

placement will be well within the boundaries of the property

58a

that a reasonable person would associate with the Statehouse

itself, “marked with the stamp of government approval ..

[and] inevitably creat[ing] a clear and strong impression that

the ... government tacitly endorses” religion. American

Jewish Congress, 827 F.2d at 128. Although Books found

that a monument displaying the Ten Commandments on the

lawn of the city’s municipal building did not convey this

stamp of approval by the government, we say respectfully

that we likely would not share that assessment.

Equally important as the Monument’s overall

endorsement of religion is the fact that it will become a

permanent display. Unlike the seasonal displays held

constitutional in County of Allegheny and Lynch, the

Monument is not a temporary display that will be placed on

the Statehouse lawn on a temporary basis. In fact,

everything about it’s size and construction evinces

permanence. Like the seals found unconstitutional in Harris,

the Monument is a display intended to be a “permanent

statement that is viewed year-round.” Harris, 927 F.2d at

1412. This aura of permanence strengthens the message of

endorsement that a reasonable person would perceive.

Thus, because of the content and shape of the proposed

Monument, the proposed location and the permanence of the

display, we conclude that a reasonable person would

perceive in this display a message of government

endorsement of religion, which compels our finding that the

Monument fails the second prong of the Lemon test.

59a

c. Conclusion

We have thus determined that Plaintiffs have shown a

uxelihood of prevailing on the merits of their First

Amendment claim, in that the Monument, according to our

preliminary analysis, fails both the first and second prongs of

the Lemon test, by having a religious purpose and by its

implied endorsement of religion. Either of these deficiencies

would suffice to cause a violation of the Establishment

Clause. Accordingly, we hold that Plaintiffs have

established a reasonable likelihood of succeeding on the

merits of their First Amendment challenge.

2. Inadequate remedy at law and irreparable harm

The State has conceded that no adequate remedy at law

exists for the Plaintiffs’ potential First Amendment harm.

While the State questions the harm that will be experienced

by the Plaintiffs if we fail to enjoin the placement of the

Monument, a First Amendment violation, for even “minimal

periods of time,” is “unquestionably ... irreparable injury.”

Elrod v. Burns, 427 U.S. 347, 373 (1976) (plurality).

ceo to | arties and the public interest

The State asserted at oral argument that the harm to

itself, if erection of the Monument is enjoined pending a

final ruling on the merits (and perhaps an appeal), will occur

by its being placed in the position of receiving a gift which it

would be unable to accept. Compared to the effects of the

possible First Amendment violation that would be incurred

by the Plaintiffs if we fail to enter an injunction, the State’s

harm is clearly inconsequential. We have difficulty, in truth,

seeing any actual harm to the State from a granting of

injunctive relief. Further, the resultant harm of allowing the

construction of the Monument to go forward, only to have to

, tear it all down if it is finally held to be unconstitutional, is

60a

obvious to all. As previously noted, the Seventh Circuit

Court of Appeals currently has under advisement the

Northern District of Indiana’s opinion in Books, the

resolution of which promises to have a significant impact on

the resolution of this case. In light of that impending ruling,

maintenance of the status quo is altogether prudent. We

believe this result to be fully consonant with the public

interest as well.

Conclusion

Having determined that the Plaintiffs have a reasonable

likelihood of succeeding on the merits of their First

Amendment challenge, that they have no adequate remedy at

law and would suffer irreparable harm if preliminary relief

were to be denied, that the balance of the harms favors the

Plaintiffs, and that the public interest is in line with granting

the Plaintiffs their requested injunctive relief, we hold that

the Plaintiffs are entitled to their requested relief. Plaintiffs’

motion for preliminary injunction is GRANTED. Pending a

resolution of the merits of this case or until further order of

the Court, we Hereby ENJOIN the State from henceforth

taking any further steps to erect the proposed monument

containing the Ten Commandments, the Bill of Rights, and

the Preamble to the Indiana Constitution on the Statehouse

grounds.

It is so ORDERED this 28th day of July 2000.

/s/ Sarah Evans Barker

SARAH EVANS BARKER, CHIEF JUDGE

United States District Court

Southern District of Indiana

nT

6la

Copy to:

nm Kenneth J. Falk

Indiana Civil Liberties Union

1031 E Washington St.

Indianapolis, IN 46202

John Laramore

Geoffrey Slaughter

Office of the Attorney

General of Indiana

402 West Washington Street

Indianapolis, IN 46204

62a

Gnited States Court Of Appeals

For the Seventh Circuit

Chicago, Illinois 60604

October 2, 2001

Before

Hon. JOEL M. FLAUM, Chief Judge

Hon. WILLIAM J. BAUER, Circuit Judge

Hon. JOHN L. COFFEY, Circuit Judge

No. 00-3011

INDIANA CIVIL LIBERTIES Appeal from the United

UNION, et al., States District Court for

Plaintiffs-Appellees, the Southern District of

Indiana, Indianapolis

v. | Division.

FRANK O’BANNON, No. 00 C 811

GOVERNOR OF INDIANA,

~ Defendant-Appellant. | Sarah Evans Barker,

Judge.

ORDER

On consideration of the petition for rehearing en banc

filed in the above-captioned case by the defendant-appellant,

and the response thereto, no judge in active service has

requested a vote thereon, and all of the judges on the original

panel have voted to deny. Therefore, the petition for

rehearing is hereby DENIED.

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF INDIANA

INDIANAPOLIS DIVISION

INDIANA CIVIL LIBERTIES _ )

UNION, et ai., )

Plaintiffs, :

v. No. IP-00-0811-C B/S

FRANK O’BANNON, et ai.,

Defendant.

ST:PULATIONS CF FACT

Come now the parties and stipulate to the following

facts. Although the parties stipulate to these facts, they do

not agree that they are necessarily relevant to the resolution

of this matter and reserve the right to object to their use on

that ground. These stipulations only bind the parties for

purposes of the preliminary injunction.

1. Indianapolis is the capital of the State of Indiana.

2. The Indiana Statehouse is located in Indianapolis and

contains the office of the Governor, the Indiana

General Assembly and the offices of the members of

the General Assembly, the Indiana Supreme Court

and the offices of the justices, the Indiana Court of

Appeals and offices of some of the judges of the

Indiana Court of Appeals as well as the offices of

certain other Indiana constitutional and statutory

officeholders.

3. The Statehouse is located between Ohio Street to the

North, Washington Street to the South, Capitol

Avenue to its East and Senate Avenue to the West.

4. Immediately to the North of Washington Street there

is a large plot of land on the grounds of the Statehouse

immediately in front of the South entrance to the

Statehouse. It is approximately 1.93 acres.

5. Washington Street was formerly U.S. 40.

6. The attached document, Exhibit 1, accurately quotes

the comments of Governor Frank O’ Bannon.

7. The planned monument will be made of two blocks of

Indiana limestone and will be approximately 11,500

pounds in weight.

8. The monument will consist of a rectangular base

block which will be approximately 6’7” wide, 4°7”

deep and 2’8” in height.

9. On top of this rectangular block will be a four sided

block of limestone that will be tapered at its highest

point. The block will be about 4’4” tail and will go

from 3° wide at its base to 6” wide at its highest point.

The two larger sides of the block will be

approximately 3’7” in width. The two small sides

will taper from approximately 2 4 feet in width to

approximately 6” in width.

10. Taken together, therefore, the monument, including

both blocks, will be approximately 7’ wide at its

highest point and 6’7” wide at its widest point. It will

be more than four feet deep at its deepest point.

It will appear as indicated below.

i

Front View Side View

11. One large face of the monument will have inscribed

on it the following:

TEN COMMANDMENTS

I. THOU SHALT HAVE NO OTHER GODS

BEFORE ME

Il. THOU SHALT NOT MAKE UNTO THEE

ANY GRAVEN IMAGE

Il. © THOU SHALT NOT TAKE THE NAME OF

THE LORD THY GOD IN VAIN

ITV. REMEMBER THE SABBATH DAY TO

KEEP IT HOLY

12.

13.

14.

15.

66a

V. HONOR THY FATHER AND THY

MOTHER THAT THY DAYS MAY BE

LONG IN THE LAND WHICH THE LORD

THY GOD GIVETH THEE

VI. THOU SHALT NOT KILL

Vil. THOU SHALT NOT COMMIT ADULTERY

Vill. THOU SHALT NOT STEAL

IX. THOU SHALT NOT BEAR FALSE

WITNESS AGAINST THY NEIGHBOR

X. THOU SHALT NOT COVET THY

NEIGHBORS HOUSE OR WIFE OR

_ ANYTHING THAT IS THEY NEIGHBORS

There will be nothing else on this side of the

monument.

It is unclear how large the lettering spelling the “Ten

Commandments” on the monument will be. The text

of the monument itself will be approximately one (1)

inch in height.

On the other large face of the monument there will be

carved into the limestone the text of the Bill of Rights

underneath a heading entitled “Bill of Rights”.

The text will be within the same tablet shape as the

Ten Commandments. There will be nothing else on

this side of the monument.

16. Because the text of the Biil of Rights is longer than

that of the Ten Commandments the lettering of the

text of the Bill of Rights will be approximately 5/8”

high.

17. On one of the small sides of the monument will be

carved the following:

Gift of the Indiana Limestone

Industry — 2000 A.D.

This monument replaces one

donated by the Aeries and

Auxiliaries of the Indiana

Fraternal Order of the Eagles

on October 25, 1958.

18. It is unclear how large the above lettering will be.

But, it will be balanced with the rest of the monument. -

19. On the other side of the monument will be carved the

Preamble to the Indiana Constitution. It will not be

labeled in any way and will therefore indicate:

To the end, that justice be established,

public order maintained, and liberty

perpetuated: We, the People of the State

of Indiana, grateful to Almighty God for

the free exercise of the right to choose our

own form of government, do ordain this

Constitution.

- 20. At this time it is not clear how large the above

lettering will be and whether all, or a portion of the

text will be in large or small type. However, it will be

balanced with the rest of the monument.

21.

22.

23.

24.

25.

26.

27.

68a

The monument is being constructed with donated

labor and materials by various members of the

limestone industry in, and around, the Bedford,

Indiana area.

State Representative Brent Steele worked out an

initial design for the monument and this design was

refined by Hoosier Drafting, a design firm that

donated its labor.

The monument will be available for delivery to the

State of Indiana no earlier than mid-August of 2000.

From 1958 until 1991 a monument containing the Ten

Commandments was located in the southwest portion

of the Statehouse lawn. It had been donated by the

Fraternal Order of Eagles and was knocked over by

vandalism in 1991.

This former monument was 7’ high, 3’ wide and

flanked by smaller tablets which listed all the chapters

and auxiliaries of the Eagles in Indiana.

One of the plaintiffs, Steven Schroeder, was convicted

of misdemeanor criminal mischief for vandalizing the

former monument. :

Representative Steele intended the text of the Ten

Commandments on the new monument to be identical

to that on the former monument.

28. The new monument will be located near the site of the

former monument near the Southwest corer of the

grounds of the Statehouse. The exact location has not

yet been determined. It is also still not clear how the

new monument will face.

29.

30.

31.

32.

33.

34.

35.

69a

The new monument will be installed with donated

labor and its installation will not cost the State of

Indiana anything.

The attached diagram, Exhibit 2, demonstrates the

location of other monuments and points of interest on

the exterior grounds of the Statehouse along with their

photographs.

On the interior of the Statehouse there is a plaque

stating “In God We Trust” on the side of one of the

pillars in the Rotunda. The plaque is approximately 8

¥” by 18”. A similar plaque is contained in the

Courtroom of the Indiana Supreme Court which is

located on the Third Floor of the Statehouse.

On the Fourth Floor of the Statehouse there is a room

designated as a “Meditation Room.” It is used for,

among other things, religious worship as well as

meditation.

Exhibit 2 is drawn to scale. One inch on Exhibit 2 is

approximately 100 feet.

The site of the former Ten Commandments

monument is within the triangular portion of grass

shown on Exhibit 2 as containing the Schricker tree

(numbered 3 on Exhibit 2).

The site is approximately 113 feet north of the north

edge of the Washington Street sidewalk,

approximately 83 feet south of the middle of the east-

west walkway that touches the South side of the

Statehouse, and approximately 19 feet east of the

Senate Avenue sidewalk.

70a

36. The site of the former monument is approximately 41

feet away from Governor Schricker’s tree (No. 3 on

Exhibit 2) and 92 feet away from the National

Historic Civil Engineering Landmark (No. 4 on

Exhibit 2).

37. The Christopher Columbus monument (No. 2 on

Exhibit 2) is approximately 43 feet north of the east-

west sidewalk that touches the South side of the

Statehouse.

/s/_ Kenneth J. Falk /s/_ Geoffrey Slaughter

Kenneth J. Falk Geoffrey Slaughter

Jacquelyn E. Bowie Jon Laramore

E. Paige Freitag Deputy Attorneys General

Indiana Civil Liberties Union IGCS-Sth Floor

1031 E. Washington St. 402 W. Washington St.

Indianapolis, IN 46202 Indianapolis, IN 46204

317/635-4059 317/232-6201

Attorneys for Plaintiffs Attorneys for Defendant

Tla

OFFICE OF THE GOVERNOR

INDIANAPOLIS, INDIANA 46204-2797

FRANK O’BANNON

GOVERNOR

FOR IMMEDIATE RELEASE = Tuesday, March 14, 2000

New monument will include Bill of Rights

O’Bannon signs 10 Commandments bill;

outlines new Statehouse monument design

Governor Frank O’Bannon today signed legislation to let

state and local governments display the 10 Commandments

in a historical context.

At the same time, O’Bannon announced that a new

monument will be erected on the Statehous: lawn this

summer, featuring not only the 10 Commandments but also

the preamble to the U.S. Constitution and the Bill of Rights.

“For more than three decades, a monument inscribed

with the 10 Commandments stood on the Statehouse lawn as

a reminder of some of our nation’s core values,” the

governor said.

“Soon those words will stand alongside the abiding

principles of our form of government, especially its

protections of individual rights,” O’Bannon added. “They’re

ideals we all need to be reminded of from time to time.”

72a

Effective July 1, House Enrolled Act 1180 permits units

of government, including schools, to display the Ten

Commandments, if they so choose, along with other

documents of historical significance that have formed and

influenced the legal or governmental system of the United

States.

The legislation received overwhelming bipartisan

support, adopted by votes of 90-6 in the Indiana House of

Representatives and 40-10 in the state Senate.

Representative Jerry Denbo authored the bill, whose lead

sponsor was state Senator Kent Adams. State Representative

Brent Steele co-authored and is spearheading the monument

project.

“Our entire Statehouse is rich with other monuments to

our heritage,” Steele said. “This new monument will soon

take its proper place alongside such historic figures as Oliver

P. Morton, Thomas A. Hendricks, George Washington and

Christopher Columbus.”

“The new monument will be an integral part of the

Statehouse setting, which honors the history of our state and

our nation,” O’Bannon added.

Also displayed on the Statehouse lawn are memorials to

returning veterans of the Civil War and to the wartime

efforts of Hoosier women.

Other markers note the significance of U.S. Highway 40,

which passes the Statehouse. In the 1800s it was known as

the National Road, and Congress used it to promote the

young nation’s westward settlement.

73a

In addition to the historical text to be inscribed on the

new monument, Steele said it will honor the Indiana State

Aerie and Auxiliaries of the Fraternal Order of Eagles, based

in Anderson, which donated an earlier 10 Commandments

monument to the state in 1958.

“In the fifties, Eagles lodges across the country donated

monuments like the one we had to their home states,” Steele

said. “We thought it only right that we note on the new

monument that is replaces one given so generously before.”

After gracing the Statehouse lawn for three decades, the

original monument was broken in a series of acts of

vandalism. The Eagles reclaimed and repaired it at a cost of

about $2,500. It now stands outside the Anderson lodge,

somewhat battered but still at its original 6-foot height and 5-

foot width.

The new monument, valued at more than $20,000, will

be about 4 feet high, 5 feet wide and 4 feet deep. It will

stand on the spot formerly occupied by the Eagles’

monument.

Jack R. Moore, state conductor of the Indiana State

Aerie, Fraternal Order of Eagles, and an officer of the

Anderson Lodge, said he looks forward to the dedication

ceremony for the new monument.

“We were proud to have donated the first monument, and

we're really pleased to be recognized on the new one,”

Moore said. “It’s a wonderful thing for the state.”

To be carved from a 9-ton block of Lawrence County

limestone, the monument is planned as a gift to the state

solicited by Representative Steele from five Southern

Indiana companies. They will provide the stone, design and

carve it and then transport and install it.

“On behalf of all Hoosiers, I want to thank

Representative Steele, the Elliott Stone Company, Evans

Limestone Company, Watterson Monument Service, Hoosier

Drafting and Charles Jones, engineer, for their generosity,”

O’Bannon said. “The monument they envision will be a

wonderful addition to the many historic markers on the

Statehouse grounds.

Reporters’ -

contact: Phil Bremen or Cheryl Reed, 317-232-4578