ACLU Nebraska Foundation v. City of Plattsmouth

BOWMAN, Before RICHARD S. ARNOLD, BYE, Judges. Circuit BYE, Judge. Circuit n A resident of the of Plattsmouth and the ACLU Nebraska Foundation al- lege Plattsmouth’s display of Ten Com- mandments monument violates Estab- lishment Clause of the United States Constitution. The district court1 found the Ten Commandments monument vio- lates the Establishment and grant- Clause appellees’ ed summary motion for judg- ment. appeals.

I

the Ten Commandments I AM thy the LORD God. Thou shalt gods have no other before me.

Thou any shalt not make thyself gra- ven image.

Thou shalt not take the Name of the thy Lord inGod vain.

Remember the day keep Sabbath it holy. thy

Honor thy father and mother that thy may days be long upon the land thy which Lord God giveth thee. Thou shalt not kill.

Thou adultery. shalt not commit Thou shalt not steal.

1. The Kopf, Honorable Richard G. United braska. Judge States District for the District of Ne- (10th against v. F.3d Ogden, false witness Cir. not bear

Thou shalt 2002) (describing Eagles an neighbor. thy Utah); Elkhart, Books v. neighbor’s thy not covet Thou shalt (7th Cir.2000) (describing an monu house. Indiana); ment Christian Grand thy wife neighbor’s not covet Thou shalt Junction, 01-CV-685, No. 2001 WL maidservant, nor his nor his manservant (D.Co. 27, 2001). 34047958, *1 June thy that is anything his nor nor cattle Circuit’s in Books re opinion Seventh neighbor’s. history Eagles’s counts Ten approximately five-foot-tall reads the So project, begins which Commandments with issue in this lawsuit. granite monument at juvenile judge a Minnesota court who saw inscription are two small tablets Above the Ten Commandments as the cure for the Ten Commandments engraved with juvenile the in delinquency, and includes script,2 eye within a written a Semitic Hollywood producer B. volvement of Cecil gripping an Ameri- triangle,3 eagle and an DeMille, his promoting who movie stars,4 six-point two flag. can Below are THE TEN COMMANDMENTS. Id. at symbols “chi” and “rho”5 the intertwined 294-95; see also State v. Freedom From reading, small “PRESENTED and a scroll Found., Religion Inc. 898 P.2d NE- THE OF PLATTSMOUTH TO CITY (Colo.1995). FRATERNAL ORDER OF BRASKA BY AERIE PLATTSMOUTH NO. EAGLES The Ten monument be- Commandments 365 1965.” longs to Plattsmouth. The monument ten stands Memorial Park blocks from reference to than scroll’s Other City park, forty- The Plattsmouth Hall. Plаttsmouth, very a the monument bears largest City, in park five acres the the is Ten resemblance to scores of other close by also owned Plattsmouth. monu- by the given monuments Commandments grassy a shady ment sits under trees on to Eagles of the towns Fraternal Order (containing knoll a recreation area See, between cities in the 1950s and 1960s. and benches, tables, barbeque grill, picnic Perry, F.3d e.g., Van Orden shelter) and a road. Al- Cir.2003) permanent and a (5th an Ea (describing 175-76 road, the inscribed faces the it though side gles capitol on the Texas monument by passing far read Russ, away is too be grounds); Adland v. — Pedestrians, (6th denied, picnickers, and Cir.2002), motorists. 475-76 cert. however, park, U.S. -, using others the have of the Ten on unrestricted view Command- (describing an monument Summum, as written on the monument. Other Kentucky capitol grounds); ments the only they Noerdlinger, Egypt it matters Henry S. Moses and of discussion 2.See original replica (University purport be a of the Ten California of Southern 1956) Commandments. (discussing languages of the Press late nearly photograph Age, with of identi- Bronze Egyp- image 3. also to as the This is referred Ten monument created cal Commandments eye" "all-seeing atop can seen tian and be Ralph of by Marcus of the Oriental Institute back a dollar bill. pyramid on the of University Chicago). The District the language as He- Court identified Semitic David, brew, six-point star the Star of say is is Plattsmouth's briefs it Phoeni- cian, religion. symbol of Jewish Egypt but describes the lan- Moses "early guage as Id. at 40. It Canaanite." language repro- are used which is 5. The Greek letters "chi” "rho” matters not Semitic tablets; religion. symbolize purposes Christ in the Christian duced on the small for the mowing grass than its around concrete Doe John is a Plattsmouth resident who requires regular base no comes into frequent unwelcome contact maintenance. When the monument is with the monument. Doe is an atheist and however, cleaning repair, City need of as such does not share the religious beliefs perform employees those expressed the monument. The monu- duties. On least one occasion since this ment alienates him Doe makes feel commenced, litigation the monument was like a second-class citizen. He lives near toppled employees City over and re-erect- by the monument and drives frequently. it ed it. Although the letters are too small to be street, read from the Doe is reminded of may not placed Permanent markers be message every by. time he drives Be- park permission without monument, cause using Doe avoids poli- has no City Plattsmouth. The formal park except recreational activities cy regarding permanent acceptance when scheduled requires pres- event his markers; rather, such makes decisions He park ence. would use more often case-by-case on a No other monu- basis. it not were for the monument. ment, statue or is within eyeshot the like subject A large plaque monument. John Doe is a donor to and member of containing the names of donors is located the ACLU Nebraska Foundation. The park. the main entrance to the Individ- is a membership ACLU organization ual pieces equipment, of recreational such whose stated is defending citizens’ benches, as grills and plaques bear identi- constitutional rights. Its members hold a fying their donors. variety views. The ACLU has Nebraska, over 800 members including contemporaneous resolutions, No County, twelve Cass of which Platts- minutes, proclamations or other records is county mouth seat. Some these survive from so period, there little is members come direct into and unwelcome process by evidence of the which mon- with, contact deeply and are by, offended accepted ument was and installed. What the monument. participated The ACLU following: known is the the Eagles do- this action to assert the rights and inter- nated the to Plattsmouth members, ests of its local including those Eagles 1965. The is a national organiza- of John Doe. tion responsible many for philanthropic and community-enhancing to contributions II Plattsmouth. The chose Eagles the words symbols and engraved and had them Before reach question we the the Commandments, monument. The Ten display whether Plattsmouth’s is unconsti also tutional, referred to as Decalogue, an are we must answer the threshold amalgam Protestant, of those in the question used of whether Doe and the ACLU Catholic religions. and Jewish Then standing bring have their Establishment Street Hellwig Commissioner Art oth- and claim. Tarsney O’Keefe, Clause v. 225 er 929, (8th Cir.2000) Plattsmouth employees erected F.3d 934 (“Standing is It monument. is not known whether these the threshold question every federal case....”) (internal employees acting in per- were their quotation and citation omitted). sonal or capacities they official when erect- jurisdictional is a Standing re known, however, ed the monument. It is quirement; if Doe and the have no ACLU an Hellwig was officer of standing to bring this claim district at the time. power court had no to consider the monu-

1027 (internal 560-61, 112 2130 constitutionality, quo- and does Id. S.Ct. neither ment’s omitted). id.; Valley Forge Chris tations and this citations court. See Separation tian v. Am. Unitеd Coll. plaintiff may A also be denied Inc., State, 475- U.S. Church and standing, even if he meets Article III 70 L.Ed.2d 700 standing he runs requirements, if afoul of (“[0]f may be Those thing we sure: one judicially-constructed prudential certain Ill standing may Art. possess who not do standing. Valley Forge, limits on 454 U.S. in the courts of the litigate not as suitors 474-75, prudential 752. These S.Ct. States.”). The district court found United limiting standing concerns include to cases standing bring have Doe and the ACLU his own plaintiff rights where asserts action, decision we now review de interests, third parties, and not those of Cmty. v. novo. Acad. Church Heartland Seldin, 490, 499, Warth v. (8th Cir.2003). Waddle, 684, 689 (1975), S.Ct. 45 L.Ed.2d 343 and invoking jurisdic Parties federal the complaint where falls within “the zone tion, ACLU, have the here Doe and regulated protected of interests to be or establishing standing. Scha burden of guarantee or constitutional statute Dist., County nou Sch. v. Lancaster question.” Data Processing Ass’n Serv. Cir.1995).6 (8th F.3d Orgs. v. Camp, 397 U.S. incorporates both con standing doctrine (1970). 827, 25 The final pru L.Ed.2d 184 requirements prudential stitutional standing dential limitation on teaches considerations, serves to limit federal plaintiff standing to assert has no “ab jurisdiction and “controversies” to “cases” questions significance public stract of wide III by Article of the U.S. as required grievances, generalized which amount Lujan Constitution. Defenders pervasively appropriately and most shared 555, 559-61, 112 Wildlife, representative addressed in branches.” (1992). The consti Valley Forge, 454 has distilled prerequisite tutional been omitted). (quotation marks following into test: Doe’s begin by addressing Article We First, must plaintiff have suffered personal III has direct of- standing. Doe “injury in fact”—an invasion Plattsmouth’s (a) fensive contact with legally protected interest which is and avoids the (b) of the Ten Commandments ac- particularized, concrete and undisputed facts park because of it. These imminent, conjectural tual or and third III Second, meet second Article must be a hypothetical. there standing of causation and re- requirements injury connection between the causal display Plattsmouth’s is caus- dressability; in- complained of—the and the conduct complains, which Doe ing injuries of fairly to the jury has to be traceable defendant, judiciary’s and the at the dis- varied relief action of challenged injuries. independent posal The clos- action could redress not the result case, as it often is with question not the court. er in this party third before some alleging only claims Third, likely, to Establishment Clause opposed it must be as the first element injury injury, will non-economic is merely speculative, requiring injury in fact. by a favorable decision. an be redressed standing taxpayer pursue whether has to in his brief his status as Doe Doe mentions rely upon establish taxpayer but does not it to this action. standing. We therefore do consider not plaintiff Doe, however, If a has not suffered a ing principle. on is not judicially injury, cognizable there is no merely suing on principle, so Flora is not standing jurisdic without and the court is controlling here. Tarsney, tion to action. consider the In the of a governing injury-in- absence injury-in-fact require F.3d 934. The standard, fact suggested Plattsmouth has distinguish person ment to with “serves argues one. Plattsmouth Doe suffered no litiga a direct stake in the outcome of a injury in fact because Plattsmouth did not though person tion—even small—-from a eject him park, from- the tax him dispa with a in the problem'.” mere interest rately, force him to read the Ten Com Challenging United States v. Students mandments, force him pray, to or other Procedures, Regulatory Agency 412 U.S. against wise take action him because of his 669, 14, 2405, 689 n. 93 S.Ct. 37 L.Ed.2d allegations atheism. Such certainly would (1973). precedent No governing de amount an injury to in fact sufficient to injury required scribes the fact to estab create standing pursue an Establish standing lish in a religious display case ment Clause claim. standing But is not such Eighth as this. The Circuit case injuries limited to cases with egregious Am. Civil v. Liberties Union Florissant is See, suggested by as those appellant. e.g., help of no because the standing basis for Weisman, 577, 604, Lee v. 505 U.S. described, much less discussed or 2649, (1992) (Black- 120 L.Ed.2d 467 (8th 1095, upon. ruled 186 F.3d Cir. mun, J., concurring) (“Although prece our 1999) (holding holiday display did not dents proof government make clear that Clause). violate the Establishment necessary coercion is not to prove Es an more recent case of Doe v. Sch. Dist. of sufficient.”); violation, tablishment Clause it is held a student no standing had Norfolk m. Pub. Nyquist, Educ. v. Com assert Establishment claim Clause 2955, 413 U.S. 93 S.Ct. public high based his school’s announce (1973) (“The of any absence a graduation ceremony ment that would coercion, however, element of is irrelevant include a religious invocation and benedic to questions arising under the Establish tion because the invocation arid benedic Clause.”); ment Abington Sch. Dist. of 605, tion were cancelled. 340 F.3d Touwnship Schempp, v. 224 n. (8th Cir.2003). stands for the Norfolk (1963) 10 L.Ed.2d 844

proposition alleged establishment of (“But requirements for standing to religion must occur in actually order to challenge state action under the Establish injury; announcement, have caused an Clause, ment unlike relating those to"the itself, injury. caused no the case Clause, Free Exercise do proof not include bar, Plattsmouth did more than аnnounce particular religious freedoms are in its intent the Ten Command Vitale, fringed.”); Engel ments; them, City displayed so Nor 8 L.Ed.2d 601 apply. only does not other deci folk (“The Clause, Establishment unlike the sion of this Court touching question on this Clause, Free Exercise does not depend White, (8th is Flora v. upon any Cir.1982). showing of direct governmental Flora held atheists lacked compulsion and is violated the standing enact challenge to an Arkansas consti ment of laws which establish an provision tutional official barring anyone who de religion whether being operate nied “the of a those laws holding God” from direct public court, ly testifying nonobserving office or in to coerce because individuals or not.”); requirement the Tarsney, had never applied been 225 F.3d at 935 (quoting against plaintiffs the merely Engel); who were su- but see Bd. Educ. the West of of

1029 Mergens, government religion establishment to Cmty. side Sch. he, 259-60, personally directly, L.Ed.2d 191 which has been (re (1990) (Justice Kennedy, concurring) subjected. has therefore Doe suffered an test favor of a coer jecting endorsement injury degree of a a nature and to the test). cion Valley Forge did not. We plaintiffs are controversy “satisfied genuine that a exists quotes apposite as the Su- something and that has more per- [Doe] preme Valley Forge statement Court’s gain victory sonal to from the lawsuit psychological consequence pre- that “the ideological than the or psychological mere sumably by observation of con- produced disagrees” upholding one is not an satisfaction duct with which Constitution.” standing. Warth, to confer injury 498-99, sufficient U.S. 2197. 485-86, Valley 752. But rejecting injury-in-fact After test up billing to does not live Forge by Plattsmouth, proposed we are left with standing. to requiring coercion establish question of what standard we should government In had Valley Forge the As apply. explained by judge, the district surplus property to transferred regard. two views in this emerged have organizations payment. without See, Rorh, e.g., Tilting at Marc Crosses: plaintiffs an account of the transfer read Nontaxpayer Standing to Sue Under the they a and sued press release because Clause, 11 Establishment Ga. St. U.L.Rev. government’s acts to be an believed the (explaining the 510-19 two religion. plain- But the establishment views). demanding The more test re- Valley Forge alleged injury no tiffs minimum, quires plaintiff prove, a to at a a whatsoever to themselves as conse- altered the alleg- he his behavior to avoid fact, In quence government acts. edly display. unconstitutional Freedom no direct they experienced contact with Found., Zielke, Religion Inc. v. from religion; they alleged establishment Cir.1988) (7th F.2d (denying objected government’s merely action standing challenge Ten Commandments Valley Forge makes clear principle. display in to residents public park who government acted claiming has they did not alter their “concede[d] that having unlawfully, per- without suffered a in any behavior manner as a result of the injury, satisfy standing not sonal does ”).7 .... Ten Commandments Valley Id. This lesson of requirements. wisdom, not Forge is received but it does By prevailing requires only far view support high bar Plattsmouth would personal direct and contact unwelcome have us set. religion. alleged with establishment See, Adland, e.g., (holding, F.3d at 478 fact, easily Valley Doe meets in an monu- Ten Commandments He Forge’s standing test. does not mere case, ment Establishment Clause “[a]n ly gov courts to ask the federal declare or plaintiff allege that he she need action unconstitutional on an ac ernmental avoids, avoid, containing the area will ideological principle; ademic or Doe is Books, 235 challenged display.”); F.3d stop federal courts to Platts asking the (“We at 301 conclude that a therefore mouth’s act because what does injury in fact plaintiff may allege an when not the mere him. Doe’s is vindication object allegation but an of he is forced to view public grievance, likely Montgomery, appears 7. See Doe v. 1160- It Seventh Circuit has Books, (7th 1994); 235 F.3d at the “altered behavior” and dis Cir. 299- disowned test language tinguished Zielke. contained in 1030 Indeed,

he wishes to avoid but is unable to avoid monument stands. Doe would use duty because of right his or to attend the the park more often if the monument were government-owned place object where the injuries not there. In toto these meet located.”); Haywood County, Suhre v. both the prevailing “direct and unwelcome (4th Cir.1997) (re 1083, 131 F.3d 1087-88 contact” test and the demanding more but jecting plaintiffs the view must alter their test, disfavored “altered behavior” so we fact, injury behavior to incur concluding need not choose between them. See also precedent “neither Supreme Court nor Ar Moore, 1282, Glassroth v. 335 F.3d 1292- change-in-behavior ticle III such imposes (11th Cir.2003) (holding plaintiffs two requirement.... standing Rules of that who assumed burdens to avoid Ten Com require plaintiffs to avoid public places mandments monument ‍​‌​​‌​​‌​​​​‌​‌​​​‌​‌‌​​‌​‌‌​‌‌‌​‌​‌‌‌‌‌​​​‌​​‌‌‍standing, had would make minorities into out deciding plaintiff whether third who casts.”); George, v. Foremaster St. had not any assumed burdens had suffered (10th Cir.1989) 1485, 1490-91 (holding F.2d injury sufficient in fact to establish stand plaintiff by standing alleging had direct ing). only injuries We hold that Doe’s are personal' contact with offensive municipal nature, Doe, concrete particularized to though conduct even he did not contend he actual and ongoing, merely conjec and not behavior); changed his Saladin v. Mil hypothetical, ture or judi and therefore (11th ledgeville, 812 F.2d Cir. cially recognizable injuries in fact. 1987) (holding city residents had standing Forth, Friends Inc. v. Laidlaw challenge city’s placement of the (TOC), Inc., Envtl. Servs. 528 U.S. “Christianity” word on its official seal be 180-81, 145 L.Ed.2d 610 they cause regularly correspon received (2000). Moreover, injuries Doe’s are re- bearing dence the seal and the seal made by courts, dressable citizens); them feel like federal second-class Am. there Civil Liberties Georgia satisfy Union v. Rabun fore the “case” or “controversy” Commerce, County Chamber requirement 698 F.2d Lujan, Article III. (11th Cir.1983) (holding one 560, 112 S.Ct. 2130. plaintiff standing challenge had a large Next are prudential stand park solely cross a state “because the ing concerns. Government establishment clearly cross porch [was] visible from the religion very injuries causes real of his summer cabin as well as from the experienced by sort Doe: official alien ”). roadway he .... must use ation, perceived political diminution and direct, Doe experiences offensive and pressure to conform one’s views to those of alienating contact with the Ten Command Suhre, majority. See 131 F.3d at 1086 ments displayed by Platts- (“the plaintiff Establishment Clause is not injuries mouth. That by are caused likely physical to suffer injury pecuni Doe’s own is all the more alienating. ary loss. Rather the spiritual, value-laden

See Am. Liberties Union v. St. Civil plaintiffs beliefs of the are often most di Charles, (7th Cir.1986) rectly alleged affected an establishment (“Maybe it ought to make difference if (internal of religion.”) omitted); quotation here) (as a plaintiff is complaining about County see also Allegheny v. Am. Civil the unlawful a religion by establishment of Liberties Union Pittsburgh Greater Chap town, city, lives, or state which he ter, 573, 595, than rather about such establishment elsewhere.”). (1989); Lynch Donnelly, addition to the direct contact, Doe avoids using park, and in

particular park (O’Connor, J., which the L.Ed.2d 604 concur- An like the ACLU (“Endorsement to association message sends

ring) outsiders, standing bring not to suit on behalf of its they are has nonadherents community, (1) political the would oth members of members when its members full to adher- message accompanying standing to sue their own erwise have insiders, favored mem- they (2) are ents ger are right, the interests stake To community.”)- de- political bers of the organization’s purpose, mane to the that suffered injury than greater mand claim nor relief neither the asserted the govern- of the Doe would belittle effect in requested requires participation the on nonadherents proselytization ment dividual members the lawsuit. Friends championed. The religions religion or the Earth, 120 S.Ct. the 528 U.S. fall within complains injuries of which Doe and, a member of the ACLU 693. Doe is protected to be zone of interests “the above, has explained for the reasons he or constitutional by the statute regulated sue, members standing to as would other on question,” prohibition guarantee The inter making allegations. the same religion. establishment government germane to the ACLU’s ests at stake are Org., Inc. Processing Serv. Data Ass’n of defending constitution purpose of .citizens’ Camp, 397 U.S. v. the claim asserted nor rights. al Neither (1970). rеquested require partic the relief in this his own interests Doe asserts therefore of ACLU We ipation members. suit, parties. ques not those of third pur to standing has conclude ACLU and state is of separation of church tion of this action. sue But sure. public significance,” be “wide to in right of his not be Doe’s assertion Ill does jured by government establishment successfully the thresh- Having crossed “ grievance[ ]’ ‘generalized amount to a standing, old of we next address appropriately and most pervasively shared claim Platts- merits. Doe and ACLU branches.” representative in the addressed of the Ten Command- display mouth’s 474-75, 102 Valley Forge, 454 U.S. violates the Establish- ments monument Cohen, 752; v. Flast First Amendment.8 ment Clause (1968). Indeed, 1942,20 L.Ed.2d 947 provides: Clause The Establishment minority very status as a Doe’s respecting no law “Congress shall make injuries unlikely per his are be means ” .... religion U.S. an establishment the sort vasively precisely shared. This is Const, the Estab- Originally amend. I. the federal courts grievance for which only Congress barred lishment Clause suited; representative are best religion, but it has establishing from disobey the equipped to branches are less through applied to the states since been majority reli passionate of a whose wishes Everson Fourteenth Amendment. In' sum being views are established. gious Educ., Bd. mation, standing consider prudential (1947); Tarsney, L.Ed. 711 against bringing Doe weigh do not ations Amendment The First F.3d at 935. Doe has and we this lawsuit conclude prohibits therefore Constitution standing. below, state law. The develop the relevant courts to proceedings Doe and In the Arti- dismissed the Nebras- claimed the violated court therefore ACLU also district I, prejudice. § Constitution. cle 4 of the Nebraska claim without ka constitutional court, is unde- noting Nebraska law ruling by district with this party takes issue Neither questions presented, conclud- veloped it. do not address court so we the district allowing Nebraska comity ed favored any answered, from making question laws “re- The first to be then, specting religion establishment of whether Plattsmouth’s monument is. government activity

is a that discriminates among religions practice also known as —a The task of court first is choose “religious gerrymandering.” E.g., Chil appropriate test for this Establishment Healthcare, dren’s 212 F.3d at 1091. To challenge. Clause See Bd. Educ. trigger review, Larson strict-scrutiny Grumet, Kiryas v. Joel Vill. Sch. Dist. 512 challenged law need not expressly discrim 687, 720, 2481, U.S. 114 129 S.Ct. L.Ed.2d name, inate between religions by sect (1994) (“Ex (O’Connor, J., 546 concurring) rather, may such discrimination be demon perience proves that the Establishment by objective strated legis factors such as Clause, Clause, Speech like the Free can history practical lative effect while in test.”). easily single be reduced to a operation. See Church the Lukumi Bar district court applied The the test first Hialeah, Aye, 520, balu Inc. v. 508 U.S. Kurtzman, announced in Lemon v. 403 534-35, 540, 2217, 124 113 S.Ct. L.Ed.2d 602, 612-13, 2105, U.S. 29 L.Ed.2d (1993); Larson, 254, 472 456 102 (1971), 745 and found the monument vio however, question, S.Ct. 1673. The lates the Establishment Clause. Doe and triggers what kind of discrimination Lar prefer the ACLU would this court affirm son. court, doing decision of the district but Valente, 228, so under v. Larson Doe and the ACLU contend Lar son applies because Plattsmouth’s monu (“The clearest command of the Establish facially ment religious favors certain views ment Clause is one denomi discriminating against while others. The nation officially preferred cannot be over choice of Commandments does indeed ex another.”). Glassroth, press preference. See deciding 1; gоv Lubet, When whether 335 F.3d at n. Steven Alabama, ernment action violates the Establishment Ten Commandments Clause, (1998) (describ we first determine whether the Const. Comment. challenged government ing action discrimi some of the differences in Command faiths). religions. among nates Children’s Health according ments to different Even Legal Duty, care Is A Inc. among v. Min De religions general agreement (8th Parle, Cir.2000); 212 F.3d importance about the source and also, Commandments, see Hernandez v. Comm’r Internal Ten there is deep and Revenue, disagreement divisive about their content. (1989). does, (“To 104 L.Ed.2d 766 faithful, If it we Id. at 476-77 scripture apply matters.”); government Jr., Larson and review the see also E.J. Dionne scrutiny” standard, action with the “strict Third Stage: New Religious Frontiers of under which it Liberty, “must be invalidated unless What’s God Got to Do with the (E.J. justified by a compelling government in American Experiment 117 Dionne eds.2000) (dis closely Jr., terest and unless fitted to further Jr. & John J. Dilulio Larson, cussing shifting interest.” 456 U.S. at 246- separation views on the (citation omitted). 47, 102 S.Ct. 1673 If between church noting, and state and “in challenged government people action does not ... six in a were killed riot among religions, Philadelphia discriminate we apply over what version of the Ten Healthcare, Lemon. Children’s posted public Commandments should be schools.”). at 1090. Additionally, the monument 1673; Hinduism, Internal Rev sects, Sklar Comm’r such as polytheistic snubs (9th Cir.2002) enue, sects, as Bud- F.3d such non-theistic as well as Every policy reli- dhism, non-religious. (applying Larson to invalidate IRS and the monument is Scientologists certain expressed allowing belief Church gious If contrary express- views. of other rejection people tax deductions disallowed view, thereby prefer- and ing religious faiths); a Labor Wilson v. Nat’l Relations others, Cir.1990) amounts to (6th view over ring Bd., such a 920 F.2d Larson strict worthy of discrimination section of Larson to strike down (applying review, quali- then this monument scrutiny on members of conferring NLRA benefit every government does But then so fies. described religious organizations so Applying Larson expression. religious statute). Lemon whole.

broadly would swallow action amounts to no government Where strict scruti- So, apply we when should however, religious expression, than more and when to Larson ny pursuant review See, e.g., applied have Lemon. courts Supreme Lemon? apply should we Glassroth, (applying F.3d at 1295 Kurtzman “the Lemon v. has said Court hold monu Lemon to Ten Commandments af- to laws apply intended to ‘tests’ are Clause); ment violated Establishment religions, to all a uniform benefit fording Pa. v. Ches Freethought Soc’y Greater ... that discrimi- provisions not to and (3d 247, 267-69 Cir. County, ter 334 F.3d Larson, 456 U.S. religions.” among nate (as 2003) separate Lemon well as (applying (footnote omitted) at test) holding and Ten Com endorsement Larson, In original). (emphasis not violate Estab plaque mandments did im- a statute invalidated Supreme Court Clause); King v. Richmond lishment require- reporting and registration posing (11th 1271, 1275-76 Cir. County, 331 F.3d religious organiza- only those upon ments 2003) question to (applying Lemon of their more than 50% soliciting tions represent tablets outline of stone whether nonmembers, part because funds from court on ing the Ten Commandments explicit with the the statute was “drafted violated the Establishment clerk’s seal including particular intention of Adland, Clause); (apply at 479 307 F.3d excluding others.” 456 denominations Ten Command to an ing Lemon 102 S.Ct. 1673. Children’s Books, monument); at 298 235 F.3d ments Healthcare, of this court panel a divided (direct Saladin, (same); F.2d at 694 to a law al- applying Larson considered apply to Lem court on remand ing district objections to with lowing people of the word city’s placement if on to decide assis- government receive medical care to official seal violated “Christianity” on its care rendered tance for non-medical Clause). the Establishment institutions, on the but declined secular Larson notably apply declined Court facially neutral and law was ground the city’s ownership scrutiny review to strict any particular to benefit intended holiday in a Nativity of a scene display Eighth No 212 F.3d at 1090-92. sect. [the] “unable to see because was display scrutiny strict applied decision has Circuit it, explicitly any as display, to Larson. pursuant review contemplated sense discriminatory in the did Larson having applied courts Most n. at 687 Lynch, 465 U.S. in Larson.” action challenged government when the so or bur- tangible benefit practical, created reli Plattsmouth’s conclude We religion. specific for adherents of den “discriminate” 246-51, does not gious expression See, Larson, e.g., Place, (8th among religions Cir.1989). so to trigger Larson scrutiny strict review. See Bd. Ed. These “in questions large part are ... Kiryas, 512 U.S. at S.Ct. 2481 legal question^] to be answered on the (“Cases (O’Connor, J., concurring) involv judicial basis of interpretation of social ing government speech religious topics facts,” upon rather than factual findings ... seem me to fall into a different Lynch, individual cases. 465 U.S. at category require analysis and to focus (O’Connor, J., 104 S.Ct. 1355 concurring). ing speech on whether the endorses or Four appeal courts of and one state disapproves religion, rather than on supreme court have considered whether government whether the action is neutral public ownership of an Eagles regard religion.”); Separation with of Ten passes Commandments monument Church and Eugene State Comm. v. of Lemon test. The in monuments those 617, (9th County, Lane 93 F.3d 623 Cir. nearly cases were identical to the Platts- 1996) (“Lar (O’Scannlain, J., concurring) monument, mouth but each had been scrutiny son ’s strict approach is limited to placed slightly in a setting. different cases where a government statute or prac First, 1973, the Tenth Circuit concluded explicitly tice against discriminates a cer Eagles an Ten Commandments Therefore, religious group.”). tain Platts- effect, was secular in purpose and despite mouth’s monument does not trigger strict the fact that purpose “inspire one was to review, scrutiny apply and we shall God,” the rule of because “at the same three-part originally test set forth Lem purposes time secular empha were also Kurtzman, 602, 612-13, on v. 91 sized.” Anderson v. City Corp., Salt Lake (1971). 2105, S.Ct. 29 L.Ed.2d 745 Floris (10th 29, Cir.1973). ‍​‌​​‌​​‌​​​​‌​‌​​​‌​‌‌​​‌​‌‌​‌‌‌​‌​‌‌‌‌‌​​​‌​​‌‌‍475 F.2d 33 In sant, (citing 186 F.3d at 1097 Good News/ Supreme Court of Colorado concluded Ladue, Sports Good Club v. Sch. Dist. of in, there was neither purpose nor (8th Cir.1994)). 28 F.3d 1508 . Al from, religious effect an Eagles monument though part have soured on or all of some (1) because the version of Ten Lemon, see, Command e.g., Lamb’s Chapel v. Center ments used was not Dist., any particular Moriches Union Free Sch. (2) sect, 398-99, the monument 124 L.Ed.2d included various (1993) (collect (Scalia, J., 352 secular dissenting) symbols and sacred of different ing opinions (3) religions, Court Justices Eagles’s purpose for who have expressed disapproval of or some donating the monument was spe secular — Lemon), all good it is law and binds this cifically, providing a code of behavior for court. at n. Id. 389 113 S.Ct. 2141 wayward youth. State v. Freedom Frоm (“Lemon, frightening may however be to Found., (Colo. Inc., Religion 898 P.2d 1013 some, overruled.”). has not been 1995). Also in the Seventh Circuit Eagles held an monument did violate the test, Under the Lemon a law is Establishment Clause because neither its permissible under the Establishment purpose primary nor its effect were secu (1) only Clause if: it has a legisla secular Books, (“As lar. 235 F.3d at 302 a starting (2) purpose, primary tive principal point, we do not think it can be said that effect is neither to advance nor to inhibit Commandments, the Ten standing by religion, and it does not foster exces themselves, can be stripped of their reli government sive entanglement with reli sacred, gious, Florissant, significance indeed and char gion. 1097; 186 F.3d at Chil Healthcare, acterized as a dren’s moral or ethical docu F.3d at 1093. The ment.-”). challenged law A only panel is constitutional if it different of the Seventh satisfies all inquiries. Clayton three v. Circuit came to the same conclusion with Books, (1987); F.3d at n. 8. Eagles monument Platts-

respect to another Liberties Union v. purpose exclusively Ind. Civil mouth’s need not be Cir.2001), (7th O’Bannon, 766, 770 secular; 259 F.3d requires only Lemon “a secular denied, 1162, 122 6, 104 rt. purpose.” Lynch, 465 U.S. 681 n. ce (2002). 1173, 152 added). (emphasis Nor does plan to relocate held state’s Sixth Circuit secular-purpose prong require Lemon’s permanent to a site Eagles an religion “be unrelated to purpose —that display- of a historical and cultural requirement would amount to a that the on state land violated the Establishment government show a callous indifference primarily religious it had a Clause because religious groups, and the Establishment impermissibly endorsed reli interpreted. Clause has never so been Adland, 483-84, F.3d at 488-89. gion. Rather, ‘purpose’ requirement Lemon’s Fifth recently, Most Circuit concluded preventing the relevant govern aims monument that was one sev ... from abandon mental decisionmaker displayed on the Texas enteen monuments neutrality and ing acting with intent of not violate the Estab capitol grounds did promoting particular point of view Orden, Clause. Van lishment Presiding matters.” Corp. of considering the different factu 182. Even Bishop Jesus Church Christ of of of monuments, it al contexts of these would Amos, Latter-Day Saints v. of the Fifth and appear the decisions 273 L.Ed.2d Tenth and the Colorado Circuits omitted). (quotations and citations While with those of the Court are conflict we accord some deference Plattsmouth’s Adding to and Sixth Circuits. Seventh purpose, avowed it is our role to “distin- are recent decisions this division involving guis[h] purpose a sham secular from a monu- non-Eagles Ten Commandments Indep. Dist. sincere one.” Santa Fe Sch. Soc’y, the Third Freethought ments. Doe, 290, 308, eighty-year-old found an brass Circuit (2000); Edwards, 147 L.Ed.2d 295 see also listing the Ten Commandments did plaque (“While 586-87, 107 482 U.S. at S.Ct. 2573 religion and withstood the endorse normally deferential to a the Court is 334 F.3d at 270. The Elev- Lemon test. it is re purpose, articulation of State’s Circuit, however, in found a enth Glassroth purpose quired that the such statement washing-machine sized monument of the sham.”); see, e.g., and not a be sincere in the Mont- Ten Commandments installed Adland, (rejecting 307 F.3d at 484 state’s Alabama, judiciary building violat- gomery, “remind[ing] purpose avowed Kentucki purpose prongs ed both the and effect of the laws of the Biblical foundations ans fall- Lemon. F.3d 1293. Whether finding real of the Commonwealth” other, or the ing to one side of the debate purpose religious). was body of of these adds to the each decisions аppeal come to us as an This matter has and, jurisprudence Establishment Clause summary judgment. from the decision on such, informs our discussion. as grant summary judgment

We review Purpose novo, as applying the same standard de Mfg. Jaurequi v. Carter the district court. satisfy “purpose” prong To (8th Cir.1999). Co., 173 F.3d test, artic Plattsmouth must of the Lemon if there ex Summary judgment proper is purpose erecting ulate a secular any material as to genuine ists no issue monu maintaining its Ten Commandments is entitled to moving party fact and the Aguillard, 482 U.S. ment. Edwards v. Fed. a matter of law. judgment 56(c). thy ... rather parties agree on the LORD GOD hard R.Civ.P. facts; square proposition our role is to review the district with the that the monu- application undisputed expresses particular court’s facts ment no court purpose inquiry. to the The district preference particularly when considered — purpose declined to rule whether conjunction with ... that the [the fact] satisfied, prong relying instead on the depicts monument also two Stars of David analysis. .undisputed effects facts symbol composed and a of the Greek let- conclusions, from which we draw our how superimposed ters Chi and Rho on each ever, are in the record. Christ.”). that represent other The monu- suprema- ment declares the existence and We look first to Plattsmouth’s God, cy prescribes a code of behav- 1965 in the monu accepting ior. Some of the rules of behavior are having it public ment and installed on O’Bannon, exclusively religious. See argues there is no property. (“[T]he F.3d Ten Command- a religious purpose evidence of because no ... ments commands the reader to wor- decision-making process records оf the God, only idolatry, Lord ship to avoid survive. While such records can be useful vain, to not use the Lord’s name and to see, in discerning government purpose, particular observe the Sabbath. These Books, e.g., they are not wholly religious commandments are in na- case, only available evidence. In this ture, and serve no conceivable secular undisputed pur evidence of Plattsmouth’s fúnction.”). Although several of the Com- pose accepting, erecting and maintain (not mandments have secular applications ing the monument is to found in be mind) stealing comes to the monument content and context the monument it presents even these rules with a (looking totality self. Id. at 302 at “the putative tenor because their source is “the surrounding placement the circumstances” God,” thy City LORD not the of Platts- Eagles and maintenance of an monument or the mouth courts or another secular city’s purpose).9 to determine thing source. It is one for Plattsmouth to begin symbols with We the words and steal; say quite one should not it is anoth- on the monument. The monument’s mes say er for Plattsmouth to there is a God sage undeniably religious. Stone v. said, who “Thou shalt not steal.” Graham, 39, 41, (1980) (“The in Nothing the monument’s surrounds Ten Command suggests religious message its might undeniably ments are text in sacred the be faiths, Plaques its raison d’etre. and name- legisla Jewish and Christian and no of, to, in plates remembrance or in thanks tive recitation of a supposed pur secular fact.”); pose park can various individuals adorn other items blind us to that see also Books, as well as a wall main Elkhart v. the entrance to (2001) (Ste monument, however, park. 149 L.Ed.2d Unlike vens, J., opinion messages respecting recognition denial of cer- these of thanks and tiorari) (noting phrase “I appear religious AM do not on well-known undisputed purpose analysis. prong The dissent is of the view the We taken have heart, history, apply, Lynch's content and context of the monument to and do herein lesson inadequate upon are foundation an which that narrow and exclusive focus on the reli- analysis, purpose prong gious display improper build the and cites is insufficient to find Lynch support. Lynch purpose. comprehensive We do not believe We take a view of monument, requires explicit history physical an statement of an exclusive- and its ly improper legislative purpose to run afoul of context to draw our conclusions. subject by any object contributions are not the or they accompanied

symbols nor are Rather, also note the monu- text. We monument. donation of the of the with its environs trees ment shares Eagles’s many monument was one of the by Platts- equipment provided recreational well-intended contributions to Plattsmouth. purposes. But purely mouth for secular see, Orden, But 351 F.3d at Van 178-79 reflects an in- none of this mise-en-scene in (affirming purpose accepting an Ea an otherwise merely complement tent gles recognize monument was “to and com on one of the setting by drawing secular private organization mend a for its efforts applications. secular Ten Commandments’ juvenile delinquency.”). to reduce See, Edwards, e.g., 482 U.S. at Plattsmouth’s motivation is at issue in (noting the decision Stone S.Ct. 2573 here, Eagles’s, particular- not the and it is “forbidding posting of the Ten Com- ly pur- difficult to reconcile Plattsmouth’s did not mean that no use could mandments ported purpose thanking Eagles Commandments, made of the Ten ever be undisputed history Eagles with the of the played that the Ten or Commandments Books, project. Ten Commandments See exclusively religious history role alia, (considering, inter Civilization.”). Rather, the mon- Western history Eagles of the Ten Commandments religious purpose stands naked ument’s park project concluding City of the with no evident of Elkhart’s the middle secular); to endorse and advance its purpose but purpose real was not Mercier v. Indeed, message. LaCrosse, F.Supp.2d it “does not assert it dis- concedes (W.D.Wis.2003) (noting donation of an Ea- in order to show the plays the monument gles part of the nation-wide of the Ten Com- secular role and influence program concluding fact dis- ” Appellant’s .... Brief at 6. mandments city’s purpose of proved avowed secular (emphasis original). thanking helped volunteers who after litigation, flood). Platts- response to this monu- donated Administrator, who has no mouth’s campaign as a of its nationwide ment knowledge acceptance first-hand of the spread its version of the Ten Command- monument, submitted installation ments; erecting Plattsmouth’s testimony declaring “it is safe to assume” nothing complex it was more than the purpose installing the the monument may adoption goal. of that gratitude Eagles was to show to the for refusing the well have been concerned their civic contributions. The district Eagles, monument would offend the but pro- court discredited discounted hardly purpose a valid secular for that is think posed purpose. secular We also the of the Estab- departing from the strictures purpose the Administrator invites secular lishment Clause. undisput- us to assumе runs counter to the purpose Plattsmouth’s avowed secular undisputed ed evidence. While there this Ten for Commandments Eagles the Plattsmouth is a ven- evidence case, in which the calls to mind the Stone organization good whose works erated a Supreme struck down state law Court worthy gratitude public makes it posting of the Ten Com- requiring the honor, does not mention its the monument schools on the public mandments gift contributions. The monument awas ground that the statute had no secular City Eagles the to the of Plattsmouth from 41, at 101 purpose. 449 U.S. S.Ct. a at bottom of the and on small scroll the postings The state in Stone insisted the Eagles take credit properly monument the legislative purpose a be- gift. for But the and its civic served secular purpose installing the Plattsmouth’s saying included a statement they cause adopted Indeed, “as solely religious. Ten Commandments had monument was .been of Western legal code the fundamental paradig- Plattsmouth’s monument is the the Common Law Civilization and matic violation Establishment 101 S.Ct. 192. United States.” Id. government speech declaring Clause: reli- rejected the Court school gious Koppleman, truth. Andrew Secular self- purpose as district’s avowed .secular Purpose, 88 Va. L.Rev. undeniably to the reli serving and looked (“The Establishment Clause forbids the postings to conclude gious nature of the declaring religious state truth .... from enacting law purpose the state’s may It means that the state not declare 42- religious one. Id. at impermissibly an may of faith. The state not ex- articles 192. See also Santa Fe religious an press opinion about matters. Dist., Indep. Sch. may encourage It citizens to hold cer- (“When entity governmental S.Ct. 2266 beliefs.”). sum, tain mon- professes purpose argu for an secular ument, history disprove its context and its ably religious policy, government’s purpose Plattsmouth asks us to as- is, course, characterization entitled to speculation sume based on the of its deference. But it is nonetheless the some Administrator. We therefore hold the duty distinguis[h] of the courts to sham district court did not err when labeled one.”) (in purpose secular from sincere proposed purpose secular Plattsmouth’s omitted); quotation ternal Wallace v. Jaf originally installing for the monument as a free, 472 “guess speculative” ... far too credit. (1985) (O’Connor, J., concur L.Ed.2d (“I ring) have little that our courts doubt not, sug We do as Plattsmouth a sham secu- capable distinguishing are gests, adopt presumptive a rule of invalid one, lar from a-sincere or that the purpose religious purpose religious displays for all into the effect of an enact inquiry Lemon public property. holding Our is not help ment would decide those close cases nearly pur so broad. There are secular validity secular expressed where the poses displaying the Ten Command doubt.”); Abing is in Sch. Dist. of ments, just there are for other ton, (holding Bartlett, teachings. Gregory'M. Dis See daily reading of Bible unconstitutional the Ten Commandments on Pub playing Prayer in public verses and the Lord’s Property: Kentucky Experience: lic schools, despite the school district’s asser Stone?, Ky. Wasn’t it Written in 30 N. purposes pro as “the tion of such secular (2003) (“[T]here L.Rev. is no values, contradiction motion of moral that the can doubt state Ten times, of our to the materialistic trends Commandments, if it does so with a secu our institutions and the perpetuation оf literature.”). lar in a Stone, purpose proper and context. The teaching of Santa question remains whether the advocates Abington prop cases stand for the Fe of not at face displaying truly osition the courts need take the Commandments are value an defendant’s Establishment Clause this willing to limit use sacred text purpose. avowed secular added); purposes.”) (emphasis secular for Edwards, see at also 482 U.S. case, In there is clear evidence this Stone, 2573; 42, 101 at U.S. S.Ct. purpose religious, Plattsmouth’s was 192; Abington, 374 at Sch. Dist. U.S. statement, only by self-serving a someone 1560; 225, 300, 306, 83 S.Ct. McCollum knowledge, without of a secular first-hand Educ., purpose. Accordingly, we conclude Bd. 333 U.S. 68 S.Ct. (1948) (Jackson, J., below, being litigated con- action was the monu- 92 L.Ed. 649 (“One system a hardly respect can curring) toppled ment was over and Plattsmouth that would leave the student of education very day. reinstalled it the next Evident- religious currents of wholly ignorant of the ly, the monument is none too difficult to (“The Books, F.3d at 302 thought.”); from setting. remove its Plattsmouth symbol, may, still religious of a used resources to reinstall the monu- circumstances, a secu- certain have under ment, may so it not complain now about there are purpose.”). lar Just because removing to demur from or expense displaying purposes secular for permissible secularizing it. Commandments, however, does the Ten purported artistic and historic always purpose mean there is a secular purposes fare no better. Unlike case, In display. a this the evi- for such in plaque Freethought Soc’y, Plattsmouth’s shows Plattsmouth was “motivated dence old, thirty-five years monument is which wholly religious considerations.” does not a historicаl artifact make. isNor 1355. Lynch, 465 at 104 S.Ct. U.S. this monument affixed to a historical build duty abandoned its to reli- Plattsmouth rather, in ing; park it sits alone a without neutrality and acted with the intent gious secularizing a context. all With due re a of view in promoting particular point Amos, at to the religious spect craftsperson, matters. monument’s By expressing symbols Ten Commandments and are the truth, establishing began Plattsmouth reli- monument; subject any artistic val gion in 1965 when it installed its monu- presentation ue their is not Platts ment. purpose refusing mouth’s real for to re move or secularize it. Plattsmouth’s pur Notwithstanding improper purposes retaining avowed for the monu monument in pose installing the appear pretext keep ment to be but a for it if it argues prevail Plattsmouth should ing public the monument on land without purpose retaining can show a secular secularizing pur context. Plattsmouth’s the monument. The recent Third Circuit Freethought Soc’y, pose imper lends some is the same as it was in decision 1965— argument. to this 334 F.3d at support missible endorsement and advancement of 302). Books, (citing 235 F.3d at truth. its chosen Soc’y, county Freethought refused re By having solely religious purpose for plaque move a brass Ten Commandments monument, installing maintaining that had been affixed to a courthouse wall prong has failed the first years court eighty some earlier. The Lemon, proceed no further. we need county’s purpose retaining to the looked Stone, 192; 42-43, 101 S.Ct. U.S. plaque satisfy purpose in 2001 to Dist., Fe Indep. Santa Sch. analysis without re prong the Lemon 2266; Abing Sch. Dist. of gard purpose installing to whether the ton, 1560. To be eighty years before secular. need We however, round out our anal thorough, we not, however, question because decide ysis prong. The with the second Lemon currently Plattsmouth does not have a sec prong entanglement—is not at is third — retaining ular the monument. sue so we shall not address it. purpose The avowed that comes closest— by the cost of removal—is discredited 2. Effect undisputed Freethought facts. Unlike the prong The second of the Lem case,

Soc’y government here has acted requires “primary maintain this that the effect” the monument. While on test Thei'efore, perspec- we look to the action nei at 259. government challenged of the religion. observer aware of the inhibit Chil tive of a reasonable ther advance nor Healthcare, at 1095. history, including Eagles’s 212 F.3d dren’s monument’s Thus, of Plattsmouth’s effect primary that landed it in Memorial project national may fairly-un monument is “what viewers many civic contributions of Park and the ”, Lynch, ... [its] derstand to be Eagles. Our reasonable the Plattsmouth irrespec 465 U.S. City employees would know observer purpose. actual government’s tive it in it in 1965 and re-erected erected (O’Connor, 690, 104 465 U.S. at recognize would be able to This observer words, J., where the concurring). In other symbols on the monument and be government’s to the purpose prong looked a the Ten Commandments are sa- aware what the purpose, prong asks actual and ci-edtext found the Judeo-Christian perceived to intend government is religions. This is a well informed Islamic will fail the display. Government action indeed, because he or she knows observer likely sufficiently if it prong effects “is that, accepted Plattsmouth has and while the control pex-ceivedby adherents of be park, other donated items erected endorsemеnt, an ling denominations as items beai-s a text none those disapproval, a of their by nonadherents as conveys any religious message. or Final- County choices.” individual ly, our reasonable obseiwer would be 573, 109 Allegheny, 492 U.S. at proffered of Plattsmouth’s reason aware Lynch, 465 U.S. at 3086.10 See also erecting for the monument —offered some (O’Connor, J., concurring) thirty-five yeax-s the fact—and would after (“Endorsement message a to nona sends required accept is not know he she outsiders, not full they are dherents City’s explanation. ‍​‌​​‌​​‌​​​​‌​‌​​​‌​‌‌​​‌​‌‌​‌‌‌​‌​‌‌‌‌‌​​​‌​​‌‌‍community, political members of the government context of a reli message to adherents The accompanying an insiders, they gious display may are favored members be determinative of its community.”). political County Allegheny, effect. (“[T]he 597, 109 S.Ct. 3086 effect of the reasonable obseiwer government’s religious symbolism use of perspective adopt we must when whose context.”). displays on its Some depends deciding the effect of the monument passed which have Establishment Clause monument and more infonned about the scrutiixy only differ their context from history passers-by. than are uninformed County failed. displays which have (“In Books, assessing the 235 F.3d at 306 Allegheny, example, us, before must ask whether situation we Nativity county scene inside a Court held familiar the his objective observer with courthouse violated the Establishment tory placement of the Ten Command poinset Clause because its context—a few perceive ments monument would as naming plaque tias and a the scene’s do religion.”); see also state endorsement nothing to detract from the dis nor-—did Advisory Bd. v. Capitol Square Review & 599-600, message. Id. at Pinette, play’s religious 753, 779-781, 115 S.Ct. (1995) (O’Connor, J., Nativity sсene stood 2440, 132 109 S.Ct. 3086. Soc’y, single alone as the element of concurring); Freethought Allegheny we look at the endorsement 10. Some Circuits consider to have in this Circuit sep- new test question prong. created whole "endorsement” of Lemon’s effects see, Lemon, (and e.g., Healthcare, replacing) arate from Children's 212 F.3d at 1095. Freethought Soc’y, but 334 F.3d at building. Id. at and prominent spot Supreme Books. The Court in Coun contrast, ty Allegheny In a menorah and the 109 S.Ct. 3086. Seventh Circuit of Books said the fact that simultaneously displays were displayed part elsewhere as located near government heart of a display large of a with Christmas tree' likely made it more that a reasonable ob reading Liberty,” sign and “Salute perceive server would them to be en of not violation the Establishment Clause dorsement of religion. County Alleghe the context “secularized” the me- because of 599, 109 Books, ny, 3086; at U.S. 620-21, An- norah. Id. at 109 S.Ct. 3086. 235 F.3d at 306. Plattsmouth’s monument comparison other illustrative is between any government is not located at or near Court’s treatment of the Na- building. While this fact lessens per tivity Allegheny, scene which had not ceived association between government context, by been secularized its and a Na- monument, and it doesn’t do so much. tivity Lynch. Lynch the Na- scene The inscription govern monument’s links tivity by being scene was dis- secularized religious message degree ment to its to a played large holiday display, as of a may Specifically, its location not. in Clause, including candy-striped Santa patriotic symbol clusion of the of an eagle poles, clown and 465 U.S. at bear. gripping flag on the monument imper- Therefore, weigh 104 S.Ct. 1355. we missibly patriotism links government heavily the context of Plattsmouth’s monu- religious tеaching to the on the monument. determining ment in its effect on the rea- Books, Moreover, See 235 F.3d at 307. sonable viewer. hardly location gov is detached from the The context of the monument does noth ernment; public the monument is on land. it. ing any to secularize To reasonable government’s adoption of its it park viewer would be clear the and message apparent to the reasonable ob public property monument are and Platts- server whether the monument is near remove, alter, mouth could or add to at Therefore, Hall or not. the different set will. religiosity The monument’s stands ting County Allegheny between to, sharp ampli contrast and therefore is sufficiently not distinguishing Books are by, space. fied the recreational uses of the lead us ato different conclusion. Nothing park setting about the secularizes The monument’s endorsement pronounced religiosity of the monu faiths, multiple Judeo-Christian instead (“[T]he Books, ment. See 235 F.3d at 306 sect, particular of an one is no less [Eagles] fairly monument cannot be char than establishment endorsement of one component acterized of a comprehen County Allegheny, alone. See display sive of the cultural heritage (“The simultaneous people only of Elkhart” because the other Christianity endorsement of Judaism and memorial); item on the lawn was a war constitutionally is no less infirm than the Adland, (hold 483-84, alone.”). Christianity endorsement of ing an assortment of commemorative only First Amendment protects Chris plaques, signs, tree markers and war me Jews, atheists, animists, pa tians and but morial lacked common theme to secular alike, gans, everyone wieca and no matter ize an Ten monu Commandments they whether are inside or outside the ment). County Alleghe mainstream. rightly points out (The there are ny, 492 S.Ct. 3086 material differences between the location “guaranteefs] Establishment Clause reli infidel, displays of its and those found gious liberty equality to the atheist, in County Allegheny unconstitutional or the adherent of a non- Judaism.”) (or apply did not Lemon test faith such as Islam Court Christian Wallace, matter), (internal omitted); upheld 472 Larson for that and Ne quotation (“[T]he legisla 52-53, 105 practice opening braska’s state Court by with a prayer tive sessions state- in that the unambiguously has concluded chaplain practice funded because the protected dividual freedom of conscience history and tradi “deeply embedded by the First embraces Amendment country.” tion of this Id. at any faith or none right to select Marsh, In concluded the Court all.”). for are all on a search We of us “deeply practice was embedded” because truth, pro and the Clause Establishment by legislative preceded sessions had been government purposefully hibits the from prayers since times. Id. at such colonial in a See steering particular us direction. 786, 103 S.Ct. 3330.11 Marshall, In generally William P. Defense Amend the' First Search Truth as a case, however, In this no there is 1, 10-16, Justification, L.Rev. ment 30 Ga. unambiguous and unbroken two-hundred- founders’ (discussing history year displaying Ten Command the search as a rationale views on for truth public parks. ments monuments Platts religion prohibition for the clauses and argues merely mouth is monument Weisman, orthodoxy); of official Lee v. God, acknowledgment general and ac cf. 2649, 120 knowledgments deeply of God are embed (1992) (“When govern L.Ed.2d history. addressing ded our Without truth, appropriatеs it ‘trans ment of this part argument, the second we find theological forms rational into de debate fault in characteriza fatal Plattsmouth’s disagree longer ... no [TJhose cree.’ who merely tion of the monument an ac questioning policy judgment are knowledgment God. monument authority higher God; elected but rules of a much more than acknowledge does (internal beyond cita reproach.”) who is an instruction from is the Judeo-Christian omitted). requires viewer God on how He followers to tion The reasonable His say To an at live. with perceive would this monument as inscribed the Ten and various reli by its citizens Commandments tempt Plattsmouth to steer gious patriotic symbols nothing in the direction of Judeo- mainstream than an “acknowledgment more of God” religion. Christian it cannot do. This sanctity diminishes their to believers and 3. Historical Precedents belies the words themselves. conclude We Plattsmouth’s Ten Commandments monu We have now held Plattsmouth’s Ten not saved prece ment is the historical Commandments monument fails both the dents test. prongs and effect of the Lemon test, and therefore the Establish- violates Accordingly, judgment of the district ment Clause of First Amendment. court is affirmed. argues the monument is con- ARNOLD, Judge, RICHARD S. Circuit stitutional under the Marsh nonetheless concurring part concurring in the no precedents Chambers historical test judgment. analysis. the outcome Lemon

mátter of our 77 L.Ed.2d join applaud I most of the Court’s (1983). Marsh, opinion, including excellent all of I. noted, plainly equivalents 11. The Court has since "Marsh and their are constitutional to- proposition County sweeping dayl” Allegheny, does not stand for the 492 U.S. at 603- accepted practices years ... all old 109 S.Ct. 3086. portion part dealing and that II. with I. the Lemon “test.” A. addition, say, I would like to that I opinion of the Court holds that the believe this monument is also invalid under presence monument’s violates the Estab- the Larson test. The words on the monu- lishment Clause city because the had a clearly prefer Christianity ment and Juda- religious purpose when erected the mon- very ism. properly As the Court remarks Kurtzman, ument. Lemon v. in words that I think should be heard 602, 612, 29 L.Ed.2d 745 everywhere: (1971) (requiring “a secular ... purpose” The monument does much more than action). for state I disagree with this con- God; acknowledge it is an instruction clusion for several reasons. Because it from the Judeo-Christian on God how conclusion, forces this goes the Court be- requires he his followers to To say live. yond what the facts suggest, what a monument inscribed with the Ten found, District Court Supreme what Commandments and various religious precedent Court permits. Specifically, in patriotic symbols is nothing more order to find religious purpose for the than an “acknowledgment of God” di- city’s exists, where none actions the Court sanctity minishes their to believers and uses form of reasoning that belies the words themselves. Court has previously disavowed. More-

Ante, at 1042. over, the finding Court’s of a I concur without reservation in the re- purpose essentially means that the District sult, affirmance of judgment of the the. Court’s findings of fact this issue were District Court. clearly erroneous; yet nowhere does the opinion truth, state that conclusion. BOWMAN, Judge, partially Circuit there is no factual basis for concluding that concurring and dissenting. city had a purpose when it agree I with the Court’s decision that permitted the monument to be erected. Doe and the ACLU Foundation of Nebras- very There is little evidence regarding ka have standing bring I this suit. also origins the monument’s purposе and the agree that this case cannot be decided those who erected it. The District Court’s under Larson v. Valente’s strict-scrutiny findings of fact reflect paucity of this test. 456 U.S. Specifically, evidence. (1982). the District Court cannot, L.Ed.2d however, I “[tjhen-Street found that Commissioner agree with the Court’s conclusion that the Hellwig Art city employees and other evidence of religious pur- Plattsmouth’s helped erect the monument. pose Hellwig was unmistakably so “clear” and “un- at the Eagles, time officer of the disputed” and it as warrant the conclusion that is not helped known whether he the Lemon part the first erect the has test been violated. Ante at capacity monument in his as Street do I Com- Nor agree Eagles missioner or as an the monument officer.” 186 violates the sec- (citation omitted). the Lemon test. Instead, F.Supp.2d ond be- La- ter, I cause cannot conclude the District primary that the -Court concluded that placement effect of the Eagles’ City’s “there is no record -of the mon- intent ument in an inconspicuous spot accepted in a when it city donation of the monu- park is to advance or to 1966.” Id. at 1033. The District religion, “endorse” ment I would reverse the acknowledged decision of the District Court only that the direct Court. city’s purpose evidence of the was the (citations Administrator, omitted); see id. Id. also current “guess” of the (“[W]e to assume that conclude Plattsmouth’s that it was “safe who stated accepted ... was Eagles’ monument installing Park in Memorial city placed Indeed, solely Plattsmouth’s religious. for their gratitude to the out violation of paradigmatic monument is (quoting Winkler civic work.” Id. at 1083 ....”). Typi the Establishment Clause affidavit). the Court dis- But Distriсt cally, courts found a where have such because fact “[t]he counted this reason purpose clear a religious govern behind why knows the is that no one the matter Commandments, ment’s the Ten Id. at 1033 City accepted the monument.” religious purpose the evidence has been the Court was Ultimately, n. 10. District See, Moore, explicit. e.g., v. 335 Glassroth to unwilling speculate” attempt “to (11th Cir.), de F.3d cert. city. to Id. attribute a motive the Conse- - nied, -, 124 157 U.S. the secular ver- quently, court avoided the (2003). In the absence of L.Ed.2d and con- purpose question sus religious contrary, city’s clear to the the evidence event, that, any part the cluded in effects Lynch stated reason should stand. See I of the Lemon test was violated. dis- Donnelly, U.S. finding of a reli- agree with the Court’s (1984). District Court gious purpose where the though no to Even there is evidence evidence.12 inadequate concluded there was support the that conclusion Plattsmouth Given the facts as the District Court religious had in the purpose erecting a given found the dearth of evi- them monument, one the Court finds reason- intent, to dence related Plattsmouth’s ing the had a religious that because is perceive religious there no reason adopted that purpose, city the must have purpose the District Court observed where (“The religious at Ea- purpose. Ante “no why accepted that one knows gles this as a donated monument Id. the monument.” at 1033. Court campaign spread its ver- nationwide too it concludes that “there goes far when Commandments; sion of the Ten Platts- purpose is clear evidence Plattsmouth’s purpose erecting nothing it was mouth’s city’s religious” was and that the avowed adoрtion more than complex of that “only self-serving purpose secular goal.”). precisely, More the Court finds statement, by someone without first-hand “undisputed pur- evidence of Plattsmouth’s Even Ante more knowledge.” pose accepting, erecting and maintain- strongly, that: the Court states ing monument ... in the content and Plattsmouth was evidence shows Id. at context itself.” wholly by religious “motivated consider- added). (emphasis agree I cannot ations.” abandoned its that this method deduction allowable duty neutrality and religious acted under Supreme precedent Court or that promoting particular with the intent of the Court has reached a reasonable conclu- By matters. point religious of view sion. truth, Platts- expressing First, and most establishing religion importantly, mouth Court’s began Lynch. reasoning its monument. is erroneous under when installed final about it is has 12. Whether the conclusion this case clear Court city’s purely is a religious or secular findings make undertaken to its own of fact legal question, ques- or is a mixed factual on issue. fact, because tion law does not matter majority acknowledges Lynch by Rather, .quoting history and context of this explaining it when that “the evidence only case show city that the accepted the wholly shows Plattsmouth was ‘motivated monument on the same any terms as it did ” considerations,’ by religious ante at 1039 of the other donated items have’been (quoting Lynch, 465 U.S. 104 S.Ct. placed in city’s parks. Governmental 1355); yet ignores the Court the substan generally entities do adopt the mes- Lynch, tive law of that case. the Su sages contained the various monuments preme Court first that “[f]ocus observed they permit to be erected on government exclusively on the cоmponent of land. In Van Orden v. Perry, which con- any activity inevitably would lead to its sidered an Eagles monument situated on invalidation under the Establishment grounds of the Texas State Capitol, the Clause.” 465 S.Ct. 1355. Fifth rejected Circuit expressly plain- Next, the Court noted that it had in the tiffs attempt prove a religious purpose past legislation governmen “invalidated or for the Eagles’ actions and then to attrib- ground tal action on the a secular that purpose ute that to the State of Texas. purpose lacking, only was but when it has (5th 173, Cir.2003). That question concluded there was no that the rejected court this method of proving reli- activity statute or wholly by was motivated gious purpose nothing because legis- the religious Finally, considerations.” Id. the history, lative in the surrounding events Lynch explained Court the lower court’s donation, the monument’s inor the state’s error: “The District Court inferred from practice of accepting and erecting monu- religious the nature of the creche that the that, “suggested ments the recited reason city purpose has no secular display. for the a sham.” Id. at was 179. In the case at rejected In so doing, city’s the claim that hand, only the city’s pur- evidence the including reasons for the creche are pose by is the statement the Adminis- essentially the same as its for reasons trator indicating purpose secular as well sponsoring the as a whole. The city accepted District the fact that the plainly by Court erred the mon- focusing exclusively almost on the creche.” I ument on the same Id. terms as it did other Court, must conclude that this by ignoring structures and monuments that have been existing Supreme precedent, Court has circumstances, dоnated. In these erred finding religious purpose in the city’s stated reason should stand and the manner in .which it has. inquiry should proceed to the second part event, of the

Second, any Lemon test. In to as- wholly apart problem from the just flagged, cribe what the might there is no reason to Court believes conclude have city that the adopted been the purpose Eagles’ purpose city whatever to the con- Eagles had they when made the donation. Lynch Donnelly.13 flicts with Eagles’ 13. purpose Even if the posting is attributed to idea "statfed] that the Ten Command city, grounds there are on which to con religious ments was 'not to be a instruction of purpose clude that their religious. was not In kind,’ any but rather was meant to ‘show Religion Colorado v. Freedom From Founda youngsters recog these that were there such tion, case, another the Col s guide help nized code of behavior to orado exactly Court arrived at that explanation them’ and that .this was consis 1013, (Colo.1995), conclusion. 898 P.2d tent purpose with what little evidence of exist denied, 1111, rt. ce Orden, ed). See also Van 351 F.3d at 179-80 909, (1996) (noting 133 L.Ed.2d 841 that the (strongly suggesting Eagles' program that the goal Eagles’ stated National Youth juvenile delinquency to' Project combat was religious; Guidance not reli that the juvenile judge up gious court who purpose). came with the (1980) Third, agree merely (noting look- L.Ed.2d 199 that the Ten I that cannot “content and to the or ing text “Bible ‍​‌​​‌​​‌​​​​‌​‌​​​‌​‌‌​​‌​‌‌​‌‌‌​‌​‌‌‌‌‌​​​‌​​‌‌‍con may Commandments and the can pro- monument itself’ context in an stitutionally appropriate be used religious pur- evidence” of vide “clear civilization, ethics, study history, com at Ante pose that the Court finds. like”); parative religion, or the also see matter, general As a content Aguillard, 593- Edwards v. the monument are more and context of 96 L.Ed.2d 510 usefully under “endorse- considered (observing that “did not that Stone mean under the second inquiry ment” or made no use could ever be of the Ten Lemon and should not be the sole test Commandments, Ten Com ascribing religious purpose to a basis played exclusively mandments entity where the record is governmental history role in the of Western Civiliza of such evidence. largely See devoid tion”); Lynch, U.S. Lynch, 465 104 S.Ct. 1355. U.S. (noting governmental acknowledg that, event, any agree I cannot in and religious heritage tradi legal ments itself, content the monument es tion); Lynch, that is tablishes attrib (O’Connor, J., concurring noting city. contents of the utable “plainly that the had some State Stone arranged way monument are objectives, instilling secular such as most within the places the Ten Commandments of of the values the Ten Commandments tradition, a tradition that Judeo-Christian illustrating le and their connection to our history the undergirds the of western In gal system”). presentation, this the First there the world and of America. is clearly is in script, importance which Hebrew the display Semitic illustrates the of the origin, depicted top at the of monu long legal rule law and of the tradition of joined script are ment. With the Semitic in history codes conduct in our own and of placed the Stars of David near bottom two Al- history the of the western world. clearly of the monument. Christian though impossible it is to know whether Rho symbol, commonly item is the Chi juveniles the at whom this monument was of regarded sign as the Within the Christ. sophisticated imagery grasped aimed the religious sym boundaries marked these monuments, on thousands the of rendering is non-denominational of bols the to monument itself tends corroborate top Ten On the Commandments. Eagles’ purpose undertaking stated for non-religious symbols repre text are two Therefore, I program. disagree with America, eye (part senting all-seeing of the Court’s that the monument conclusion adopted by the Great the Continental Seal itself that Plattsmouth a reli- proves had eagle holding an an Congress) and Ameri Moreover, gious “by focusing al- purpose. flag. non-religious symbols rep can itself, exclusively most on” the monument resenting founding America its then the Court makes the same error that the history, the text to our nation’s where link in Lynch, 465 Court described in code of the com conduct embodied 680, 104 U.S. at S.Ct. 1355. The Court important played mandments has role. city’s pur- have concluded that the should See, ACLU, e.g., County Allegheny v. or, pose either was secular the District 652-53, 573, 3086, 106 concluded, on impossible Court discern (1989) (Stevens, J., 472 concurring L.Ed.2d analysis made the record in this case. The dissenting part, discussing in part, proceed must to the second then giver); v. great Moses as law Stone Gra 42, ham, 192, 449 66 the Lemon test. U.S.

1047 thinking subject,” B. is the next best on the “specific guidance absent from the Su finding agree I cannot with Court’s preme Eighth Court” or from the Circuit. that Plattsmouth had Books, F.Supp.2d 186 at 1026. In the evi First, although for two other reasons. regarding religious purpose dence was ex “adopt that it a rule Court states does plicit, for the monument was dedicated in a religious purpose invalid presumptive ceremony featuring, literally, priest, religious displays public proper- for all on minister, rabbi, and a some whom in ty,” imagine difficult to Ante is' any display religion Commandments speaking Ten voked when of the monu ' muster. fact the Court pass could ment and of purpose. See Books v. it clear that it find an Estab- Elkhart, Ind., makes would City 303 Clause violation no matter where (7th lishment Cir.2000), denied, cert. city displayed gift. Id. at (2001). L.Ed.2d (“The adoption of monu- government’s [the Russ, So too F.3d Adland — message apparent is ment’s] (6th Cir.2002), denied, cert. mon- the reasonable observer whether the -, not.”). City ument is near Hall or With (2003), where law implementing the state of former Justice Moore actions Chief Kentucky’s plan an Eagles mon remqve of the spectrum, Glassroth one end from it on ument storage and the of Plattsmouth on the other grounds capítol (argu of the state listed spectrum, the Court has left end of the ably) overtly religious erecting reasons for run displays little room will not Glassroth, Finally, monument. It afoul of the Clause. Establishment Chief evidence former Justice Moore’s instance, see, for how Ten hard to religious purpose explicitly clear. The the side plaque Commandments affixed to clarity the evidence these cases belies County in of the Chester courthouse the that there was clear Court’s conclusion County, Chester Freethought Society v. of religious pur evidence Plattsmouth’s (3d 247, Cir.2003), pass 251 could pose. opinion. under this While muster Court’s than factu- rely Rather cases that are case, the Court notes the existence of that decision, ally far removed to our I distinguish guide it little effort to it be- makes Freethought turn to Orden and yond noting would Van plaque present that the was (some total) Society. a provide These cases better longer eighty years than this that, case, monument and in this structure within which to evaluate the Platts- noted, mon- mouth has done more to maintain the As in plaintiffs’ already claims. presence case, to its bе- Orden, ument and celebrate present like the there Van city cause the returned the monument to purpose little of was direct evidence position top- it upright after had been rejected plaintiffs Fifth the the Circuit 1039; pled at See Ante see also over. attempt prove purpose by to association. Freethought Soc’y, 334 F.3d Similarly, Freethought in evi- Society, the plaque of at the time the dence ways I with District part the Court place eighty years old and put was was opinion respect. this Court’s in one final I city’s present far reason removed from the agree cannot with reliance on those their keeping the lack for the monument. Given “Ten cases in which evi- Commandment” religious both purpose, of evidence of a religious purpose explicit. dence of Thus, proceeded the of the to second disagree I with the District Court’s courts and, day, the that Elkhart test at the end of [v. ] conclusion “Books Lemon of 1048 from of the religion deriving inclusion no of Establishment

found violation the same here. than these and en I do creche from benefits Clause. would held of previously dorsements not violative

II. Clause.”). Religion re the Establishment little, that any, pres holds if benefit from the opinion the Court also ceives of is violat- part of the Lemon test Park. the second ence of monument Memorial presence in Memo- by this monument’s ed tend to reli Any benefit that does to flow styled as inquiry Park. is rial Whether reasonably great cannot be said to be gion (i.e., of the Lemon test the second element religion as er than benefit received primary or effect the “principal whether Sunday closing approved laws result advances government action] [or] [of 420, Maryland, v. 366 U.S. of McGowan 612, 91 religion,” 403 U.S. S.Ct. inhibits (1961), 1101, 6 L.Ed.2d 393 81 S.Ct. 2105), govern- for or as a test looks supplying religious of textbooks schools nev- religion, has ment “endorsement” of v. Al of in Board Education approved of presence that the mere er been case len, 236, 1923, 20 392 88 S.Ct. U.S. gov- religious or monument on display (1968), exemptions 1060 L.Ed.2d tax has, facto, land commanded ipso ernment of in approved for institutions the conclusion that Establishment York, v. Tax Walz Commission Newof Rather, was violated. Clause 664, 1409, L.Ed.2d U.S. sug- cases Establishment Clause Court’s (1970), the ex tax deductions for tuition required more is gest something penses approved institutions “prin- display’s that the court determine Allen, 388, v. 103 S.Ct. Mueller reli- advance cipal primary effect” (1983), legislative 77 L.Ed.2d 721 that a or for a court to determine gion approved of in prayers Marsh Cham gov- would view [the] “reasonable observer bers, 3330, 77 103 S.Ct. U.S. practice endorsing religion,” ernment (1983), display- Advisory Bd. v. Capitol Square Review & Lynch, approved creche Pinette, U.S. a menorah J., (O’Connor, con- 132 L.Ed.2d 650 approved County tree of in and Christmas curring). I reverse the decision would ACLU, Allegheny v. con- because I cannot the District Court 3086, 106 L.Ed.2d or the student primary that the effect clude monument’s approved of in v. Sim vouchers Zelman religion. is to advance or to endorse 2460, mons-Harris, 639, 122 536 U.S. S.Ct. a have both The Ten Commandments (2002).14 153 L.Ed.2d 604 religious message. and a Crucial secular in question The meatier this case— Establish- question to the of whether the passes to reli- where so little “benefit” by display a ment Clause is offended such question. That gion the endorsement —is the of the and the as this is context is, person, who is would the reasonable the history. facts related Because to its history of the and of this aware context primary or the monu- principal effect of case, perceive that the of Plattsmouth any religion ment is not to advance any particular religion, endorses brand Supreme the Court greater extent than religion, permitted it has because already permitted, part of has the “effects” a monument to erected a corner of be Lemon not violated. See the test is Pinette, 515 115 city park? U.S. at Lynch, 465 S.Ct. (cited J., (“We (O’Connor, concurring) aid to greater are to discern S.Ct. unable examples to be 14. This list is not intended all-inclusive. Zelman, donations. specifically, 536 U.S. at More the reason- quoted

and in Good News Club v. able observer that private knows groups, Milford School, 98, 119, 121 Central Club, such as the' Lions have erected (2001)). I 150 L.Ed.2d 151 cannot (such shelter) picnic structures as a in the conclude that reasonable the observer public parks for the benefit of all. The perceive would such endorsement. reasonable cognizant observer is of the fact that city’s-practice is to maintain case, In this the reasonable observer all these grounds and the that donated structures sur- Eagles knows this monu- facts, city permitted rounding ment in them. Given these I 1965 and that can- not monument to be erected 1966.15 that conclude the reasonable observer Although the reasonable observer knows perceive would the City that of Platts- that Art Hellwig and certain other individ- mouth religion by is endorsing retaining uals, city employees, who helped were also and maintaining the donated monument. monument, to erect the the reasonable ob- Nor can I that agree the monument server what capаcity does know itself does to detract nothing from the these acting. individuals The reason- were perception of Ante endorsement. at 1036- therefore, observer, quite able .aware 1037 (concluding monument and surround may that these have been act- individuals ings are inherently religious); id. at 1042 ing capacities. in their individual The rea- (concluding that patri the “inclusion of the city, sonable observer knows that the also otic symbol eagle of an gripping flag on why accepted when asked it the monument impermissibly monument patrio links erected, permitted and it to be stated that government tism and contemporaneous regard- had no records monument”). Rather, teaching on the ing that surmised decision but from its monument gift is identified its face as a practice of accepting donations and from informs, Eagles. fact This the rea the fact that are important the city sonable observer that itself did not organization civic it was that “safe to as- government invest and money time on the sume that the ... Eagles’ was monument but presented gran with a accepted by city placed in Memori- place ite slab that it public chose al Park out of to the gratitude Eagles for park. The fact that the monument is iden F.Supp.2d their civic work.” tified gift Eagles may as a not be affidavit). Further, (quoting Winkler our enough to pri convert the monument into observer knows that the monument was vate speech pro would be Park, placed in a corner of Memorial tected Court’s decision in from the street the monument looks rather Capitol Square Advisory Review and tombstone, like that the text of Pinette, Board v. Ten is not Commandments visible unless (1995), 132 L.Ed.2d but this fact park one enters the a spеcial makes clearly any perception diminishes en effort to approach the monument. The Similarly, dorsement. the fact that reasonable is observer also aware that monument in a corner of sits Memorial accepted many has other do- Park important is also to ohr reasonable structures, nated donated plus recreation trees, placement observer. The of the smallish equipment and donated and also sug are monument in a remote location plaques knows often affixed to rather gests these items to acceptance note or commemorate the that Plattsmouth’s 15. symbols The reasonable knows the beneath the at the bottom observer monu- text says just ment was donated of the Ten because so Commandments. for the monument was not display of the message. endorsing noted, already the rea-

Finally, I have is that the monu- aware sonable observer empha- highlight ment tends to itself in the role size Ten Commandments’ Founding American Judeo-Christian and traditions.

III. reasons, I foregoing respectfully For the opinion of the inso- dissent from Court far as it violation finds Plattsmouth I can Clause. Because Establishment city’s perceive religious purpose in the no to be decision to allow the monument pri- principal erected and because the mary not to effect I religion, re- or endorse would advance also F.3d 586. See the District verse the decision of Court. POWER COM NORTHERN STATES doing PANY, En business as Xcel Plaintiff-Appellant, ergy, FEDERAL TRANSIT

ADMINISTRATION;

Defendant, Transporta Department Minnesota Of tion; ‍​‌​​‌​​‌​​​​‌​‌​​​‌​‌‌​​‌​‌‌​‌‌‌​‌​‌‌‌‌‌​​​‌​​‌‌‍Elwyn Tinklenberg, Commis individually Transportation,

sioner of officially; Metropoli Minnesota Council; Minnesota, De tan State fendants-Appellees.

No. 03-1517. Appeals, United States Court Eighth Circuit. Dec. Submitted: 20, 2004. Filed: Feb.

Case Details

Case Name: ACLU Nebraska Foundation v. City of Plattsmouth

Court Name: Court of Appeals for the Eighth Circuit

Date Published: Feb 18, 2004

Citation: 358 F.3d 1020

Docket Number: 02-2444

Court Abbreviation: 8th Cir.