*1 Manion, KY, Hope, New Ma- Francis J. County- Daviess grants the the Ordinance Staver, Stanley, Erik for De- thew D. W. monopoly Transfer Station and Landfill fendants-Appellees. market, it creates a multi-state in that actual and sufficiently grievance Before: SUHRHEINRICH prudential satisfy both the to immediate BATCHELDER, RICE, Judges; Circuit requirements for stand- and constitutional Judge.* District ing. ORDER in all other opinion with the concur respects. upon This comes before the court matter banc, rehearing by for en filed petition and the re- appellants,

counsel for the sponse appellees peti- of the thereto. The only circulated not tion has been also to all oth- original panel members but judges regular er of the court active service, have majority less than a of whom LIBERTIES UN CIVIL AMERICAN Ac- rehearing in favor of en banc. voted KENTUCKY; Bart ION OF has returned cordingly, petition been Plaintiffs-Appellants, McQueary, for decision. petition Upon consideration Kentucky; COUNTY, Charles MERCER that the response, concludes McGinnis, capacity official H. his fully were considered issues raised therein Executive, County Judge as upon submission and decision Defendants-Appellees. case, request rehearing for and the is therefore denied.

No. 03-5142. COLE, JR., Judge, Circuit R. GUY Appeals, States Court United DAUGHTREY, MARTIN, whom Circuit. Sixth CLAY, MOORE, Judges, join, Circuit April rehearing the denial of en dissenting from banc. Friedman, American Civil Lib- David A. Counsel, County, 432 F.3d v. Mercer Kentucky General

erties Union (6th Cir.2005), of this Court KY, Lousiville, Plaintiffs-Appellants. for trash). county’s compete would for the point to be that if we viders injuries. I take its injury simply uphold as the ina- imprudent NSWMA's describe it would be I think County, then bility dump case, of Daviess outside see standing because I cannot injuiy-in-fact requirement would be met by injured would be how such collectors options, and by cheaper in-state the loss of dump I do not see inability to out-of-state. requirement would be the zone-of-interests would have in stake such collectors what opportunity to contract the loss of the met the ordi- of whether court’s determination providers regardless of with out-of-state — interstate impermissibly restricted nance opportunity contributed whether that lost commerce, they thus I cannot see how theory injury-in-fact. Such a plaintiff’s pursue claim proper parties to would be uphold standing in a case require us to that it did. imposed on where a similar ordinance Texas, county very even if the in the middle of * Rice, States Walter H. United The Honorable consider there would never waste collectors Judge District for the Southern District county’s out-of-state transporting the trash Ohio, designation. sitting by (and only disposal pro- in-state service thus *2 “[bjecause constitutionality ly challenged display of a certain the [was] the upheld in containing respects the Ten Command identical all material so, In order to do the was display McCreary ments. third and final in Coun precedent of willing to deviate from the ty,” Mercer 432 F.3d at 626. see, Ashbrook, Court, e.g., ACLU v. this only I can assume that the hoped (6th Cir.2004); 375 F.3d 484 ACLU v. Supreme the would abandon Court Cir.2003), (6th McCreary County, 354 F.3d 438 test, the Lemon which would have made ACLU, 'd, McCreary County v. aff preordained its result easier to reach. Cf. — U.S.-,-, 2722, 2733, 125 S.Ct. Books v. Elkhart 401 F.3d 857 (2005); 162 L.Ed.2d 729 Baker v. Adams (7th Cir.2005) (“Lemon days may be num (6th Cir.2002), County, 310 F.3d 927 and to bered; Supreme we are aware the Supreme precedent. miseharacterize Court Court’s resolution of two Ten Command essence, In the announced a new accepted ments cases for review this Term legislative that an overt sectarian rule: here.”). may our According undo work necessary, is as matter test, government the Lemon action can a display before will be invalidated. The purpose not have the exclusive or effect of panel premised principle this novel on a advancing religious agenda, may nor Supreme holding recent Court that an government excessively entangled become purpose avowed sectarian sufficient religious enterprise. See Lemon v. display. invalidate a See Coun Kurtzman, 602, 612, 403 U.S. 91 S.Ct. ty, 125 S.Ct. at 2733. Because the most (1971). 2105, 29 L.Ed.2d 745 panel’s charitable characterization of the Unfortunately panel, for the the Su illogical decision is that it makes an infer preme Court instead fashioned a more ence, respectfully dissent from the order stringent establishment test. See denying rehearing by en banc this Court. 2733; County, 125 S.Ct. at id. panel acknowledged, As the the stories (Scalia, J., at 2748 dissenting); Mercer of the Ten Commandment displays erected County, 432 F.3d at Following 630. McCreary, Mercer and in two counties only not must a state Kentucky, In State are intertwined. purpose evince a secular in its 1999, bordering the summer of two coun- Commandments, pur the secular Pulaski) (McCreary ties erected iden- pose must predominate. 125 S.Ct. at 2733. tical Ten displays. Commandments Both Court, According Supreme whether displays successfully challenged by a purpose predominates such is to be counties, the ACLU and both “[a]fter judged by the “reasonable observer.” Id. counsel,” changing twice revised the exhib- In knowledge addition to response. McCreary its in County, 125 “text, legislative history, implementa S.Ct. at 2727-28. The district court found issue, tion” of the state action at “reason unconstitutional; the third and final display memories, able observers have reasonable this Court and Supreme Court af- [Supreme precedents sensibly Meanwhile, Court] firmed. within months of four eye forbid observer ‘to turn a blind the district court final enjoining order ” display] context which arose.’ county display, [the and Pulaski four (Mercer, Rowan, Garrard, (quoting Indep. other Id. Santa Fe counties Sch. Dist. v. Doe, 290, 315, Grayson) exactly copied 530 U.S. 120 S.Ct. (2000)). fact, on appeal resulting from the L.Ed.2d 295 challenge, expressly rejected McCreary County’s in County abeyance, precise- held the case vitation to use as its lodestar “an absent and the Four- in- Constitution who could observer” objective minded Amendment, Id. “baffling.” as news teenth from the latest “only purpose fer Court found governmental Summing up, in a series of the last about had not “[i]f the content that at 2736-37. Id. actions.” hands, probably he would up thrown his *3 not daunted. be panel But the simply suspect that the Counties the identity that occasioned Despite the keep religious a reaching any way for a more continuance, in the face of and on the walls of courthouse document test, panel up- the stringent establishment required embody reli- constitutionally County display on sum- held the Mercer at 274CMT. gious neutrality.” Id. According panel: judgment. mary pur- McCreary finding of sectarian it identical to the that is Critical McCreary County County display was the ex- County display, in the Mercer pose religious language”; standalone history: “purely the also contains tended Commandments; pas- founda- county’s the exclusion of secular copy of “odd,” of God at equally to the existence tional documents is “baf- speaking tor’s second,- ceremony; a more id. fling,” facially suspicious. See hanging the County pastor and the “ex- distinctly religious display; Admittedly, no Mercer authorizing the But nei- traordinary” hanging ceremony. resolutions at the spoke Court, Court, even repealed Supreme were not nor the displays that ther this display admittedly “Foundations” was that an sectarian after the has ever held objective history necessary, observer as a matter legislative The posted. was finding impermissible and Pulaski Counties of en- of background, and of this deemed aware dorsement. impermissible purpose.

thus saw limited Nor is the reasonable observer at Id. case; in this to the content of the has a context. County display course, that the the Mercer everyone concedes

Of County exact- undisputed It is that Mercer leg- looked at the McCreary County Court of displays in a series of ly copied the third display; legislative history of the islative were, according to this all, counties which is, to what the two after material Court, attempting to ad- understand to observer would reasonable As the religious purpose. vance predominant purpose. government’s be the conceded, to assume it “naive” would be County, 125 at 2737. S.Ct. See ig- would be the reasonable observer However, heavily down- although highly public events Supreme Court norant by panel, played County, 432 counties. Mercer and Pulaski its decision to invalidate premised also equally it naive to n. 6. I think observa- F.3d McCreary County display on its observer would assume that the reasonable display. of that regarding the content tions Court, County’s related not be aware of Mercer McCreary County According to the activity copying disputed “quoted at issue more characteriza- Supreme Court’s Given the language of the Com- purely religious the reasonable display, of which tion of than the first two [invalidated] mandments aware, it can be presumed is also at 2740. The observer had done.” Id. displays the reasonable gainsaid the inclusion of the characterized Court something detect arguably at least Mag- would Independence and the Declaration of purpose secular predominantly than a Carta, contain a refer- less of which na both Re- County’s timely actions? in Mercer God, coupled with the exclusion ence to call, too, posture litiga- the current almost the exact same time. No more do I tion, all are to it a whereby inferences be believe coincidence rele- nonmoving party. gated was far the drawn favor what ACLU’s most powerful argument to a footnote. exactly argued ap- The this on peal. answered that the Su- The added that “the sins of one “ preme government ‘did not decide that should not be revisited on oth [McCreary governments.” ac- past Pulaski] Counties’ er See Mercer any taint ... panel’s tions forever effort to deal F.3d at 632 n. 6. The comment is ” subject legal argument, with the matter.’ See Mercer not a and mischaracterizes (quoting 432 F.3d at 632 n. 6 the central concerns of the Establishment 2741). 125 S.Ct. at Clause. Court establishment *4 panel precedent long The then reasoned that has concerned itself “[i]f with involved in McCreary County public perception, exactly why counties which is it See, may purge of the impermissi- e.g., County themselves looks to the observer. of ACLU, 573, 593-94, purpose, Allegheny ble if follows a that Mer- 492 U.S. fortiori County may 3086, (1989); cer act McCreary free of the 109 106 L.Ed.2d 472 S.Ct. Lemon, 612, County taint.” Id. Excavated from foot- at 403 U.S. 91 S.Ct. 2105. dragged light day, County note six and into the Even if Mercer indisputably were “sin,” it is clear that panel’s response is without the concern remains that the inadequate. display What follows from the Su- “sends a message to nonadherents preme outsiders, day, they Court’s statement is that one that are not full members after there has a “genuine change[] political community, been and an accom conditions,” in constitutionally significant panying message to they adherents that 2741, insiders, 125 at S.Ct. both are favored politi members of the McCreary community.” and Mercer counties will be free cal McCreary County, 125 to revisit their display efforts to at 2733 (quoting County Alleghe S.Ct. 3086). part 594, Commandments as of a ny, civic exhibit. 492 at 109 In U.S. S.Ct. events, light of recent local it defies reason panel The pointed changes to no of con- think County the Mercer non- significance stitutional since adherent passes by the Ten Command unless the would constitu- courthouse, display ments in his state fifty tionalize the Kentucky miles1 of be- opening reads the “Thou words shall have tween the Although courthouses. perhaps me,” gods thinks, no other before fact, best left to the finder of the inference goodness “Thank I my don’t live near un County Mercer had a similar purpose cle in County, where I’d be a of advancing religion as some of its fellow Rather, citizen.” second-class he sees the counties physi- follows not from the sheer and, given context, exhibit its content and proximity, cal but from the observation understandably up throws his hands choreographed activity that it alongside its frustration. them. Somehow doubt that the Mercer County short, officials surprised to find out panel essentially ignored they coincidentally had erected the Court’s characterization of counties, same display as their sister County display. content of the Mercer Horn, 1. See Dan alongside 10 Commandments OK’d at the Ten Commandments other his- Courthouse, documents, though Dec. torical even the U.S. Su- Enquirer, Cincinnati ("A appeals preme 2005 recently Cincinnati court ruled Tues- barred a similar day Kentucky away that a County.]”). courthouse can [in miles Pulaski Court’s flouted The not be observer that the reasonable

charge con-

“absentminded,” viewed legislative histo- coterminous with

text as County, 432 F.3d at Mercer

ry. Compare (“The no recent objective observer has govern- motivated religiously incorporate

mental acts or resolutions display.”)

into (“The position at 2737 Counties’

125 S.Ct. sense; reasonable ob- common

just bucks memories, and reasonable

servers have sensibly forbid precedents

our in which eye to the context

‘to turn a blind ”). read policy arose.’

[the] quickly and ex- County’s action counties’ embattled copying its fellow

actly *5 motivated out religiously Rather, a mat- held as

record. the evi- ostensibly construing

ter of light most favorable

dence ob- that the reasonable

nonmoving party, predominantly perceive

server County’s purpose behind

secular reasons, I dis- respectfully all these

For rehearing en banc.

sent from denial TECHNOLOGY, INC.,

LAKE VIEW

Plaintiff-Appellant, ROBINSON, Defendant-Appellee.

Eric

No. 05-4433. Appeals, States Court

United Circuit.

Seventh

Argued April 2006. 1,May

Decided