Andy Modrovich James Moore v. Allegheny County, Pennsylvania

Before FUENTES, SMITH, and JOHN R. GIBSON,* Circuit Judges.

*The Gibson, Honorable John R. Senior Circui Eighth Circuit, sitting by designation. tJudge for the United States Court Appeals AND BACKGROUND I. FACTUAL COURT THE OF OPINION HISTORY PROCEDURAL Judge.

FUENTES, Circuit the containing whether issue of the plaque raises 1918, a bronze appeal In This text containing the and plaque aof Commandments Ten display the of the text Alle- the on donat- (“the Plaque”) Commandments Ten the of passages biblical Es- the (“the violates County Pennsylvania Courthouse County gheny Allegheny toed Amend- First the of to Clause affixed now tablishment Plaque County”). Appellants Constitution. County the of ment Allegheny the of wall stone the seek Moore and James (Fifth Modrovich Andy street main Courthouse, facing a decision Court’s District of the review Modro- Pittsburgh. Avenue) in downtown of favor in judgment summary granting they had have that alleged Moore and vich dis- that holding County and Allegheny with contact unwelcome and direct regular, the violate does plaque the playing courthouse the entering while Plaque the and Modrovich Clause. Establishment their it on walking past and errands on have atheists, to claim Moore, two avowed and Modrovich work. from to and way with contact unwelcome and regular had and “affronted felt have to claim Moore walking and entering while plaque the as feeling display, the offended” deeply Al- that argue They courthouse. the past outsid- them County views the though the of continued County’s legheny they do not because community in the ers endorse- government a represents plaque message adhere the Estab- of in violation religion of ment ¶ 4. Complaint Commandments. Clause. lishment from attorney 2000, an Phila In Greater October Society Freethought of of Separation for United County, Americans v. Chester delphia then-Chief contacted “Freethougkt”], State and Cir.2003) Church [hereinafter (3d (James County concerning Allegheny of dispute Executive a similar addressed we County of af then-President Roddey) and of plaque a Mo- DeFazio) of in behalf on (John courthouse of a Council fixed fa§ade that found Moore, requesting We Pennsylvania. County, and drovich Chester continued observer, of its aware because removed a that Establishment plaque, 82-year-old violated history of presence County’s refusal Amendment. First viewed of not have Clause endorsement as an assertion with plaque disagreed to remove officials legiti a had addi- county Plaque. remove religion, refused to dis continuing motion a passed purpose County Council mate secular tion, the our sup- In accordance 2001, expressing plaque. play January on be hold that Freethougkt, and DeFazio Roddey in decision the efforts port Ten Commandments cause its removal. prevent on an a fixture been County has in the suit filed Moore Modrovich 1918, is not since courthouse historical on Pennsylvania District Western prominently, displayed highlighted Civil 2001, pursuant March displayed relics historical several is one § 1983 U.S.C. Act Rights County’s re courthouse, Allegheny their 1983”). They claimed (“Section message not send does remove fusal violat- being were rights Amendment First religion government local by a law state color under ed Clause. Establishment violation municipality. They declaratory 26, 2003, Court, sought On June analyzing constitutionality judgment presence the continued of the Chester plaque under both the “Lemon” test and violated the First and Four- test, the “endorsement” reversed the deci- They sought a teenth Amendments. also Freethougkt. sion of the district court injunction permanent prohibiting test, The endorsement a modification of displaying at the the Lemon was first articulated Modrovich and courthouse. Moore filed Lynch Justice Donnelly, O’Connor judgment summary motion for and a mo- 687-88, 668, 1355, 465 U.S. 104 S.Ct. 79 permanent injunction January tion on (1984) (O’Connor, J., L.Ed.2d 604 concur- 31, 2002, arguing that the had the ring). Under approaches, both of these County of endorsing religion. effect The this held County Court that the Chester summary filed a cross-motion for judg- plaque did not violate the Establishment day, ment on the asserting same that be- Freethougkt, Clause. 334 at 251. twenty cause one over then permanent injunction We vacated the historical, political, and cultural relics dis- issued the district court prohibiting courthouse, played at the it has secular Chester from displaying the significance and its continued does plaque. not amount to an unconstitutional endorse- Following precedent, this the District ment of religion. granted Court this summary case judg- While these pending, motions were the ment to Allegheny County and denied Pennsylvania Eastern District of decided summary judgment to Modrovich and Freethougkt, a involving ease almost iden Moore. concerning

tical facts and issues the dis II. THE LEGAL FRAMEWORK play plaque Command ments affixed to a courthouse A. The Establishment Clause County. See Freethougkt Soc'y v. Chester Under the Establishment Clause of (E.D.Pa.2002). County, 191 F.Supp.2d 589 Amendment, the First “Congress shall 6, 2002, court, On March applying the make no respecting law an establishment three-prong test set forth in Lemon v. Const, religion.” U.S. amend. I. The Kurtzman, 602, 612-13, 403 U.S. 91 S.Ct. Fourteenth imposes Amendment this limi 2105, (1971), 29 L.Ed.2d 745 found that the tation on the' states as well as their politi only secular, plaque incidentally cal Jaffree, subdivisions. Wallace v. 472 that Chester officials intended the 38, 49-50, 2479, U.S. 105 S.Ct. 86 L.Ed.2d plaque to religion. advance the Christian (1985). Supreme 29 The Court has articu court, therefore, The held Chester Coun lated' separate three tests for determining ty’s display to be unconstitu governmental whether action violates the tional under Establishment Clause. these, Establishment Clause. The first Freethought, F.Supp.2d 191 at 599. Ches test, the “coercion” not applicable to this ter appealed the district court’s case. It primarily focuses on government decision to this Court. Freethougkt While action in- public education and examines appeal, was on judge District Court school-sponsored religious whether activity the instant parties case advised the has a coercive effect on students. See she would hold their motions for summary Tangipahoa Freiler v. Parish Bd. of judgment in' abeyance (5th pending Educ., our deci Cir.1999), 185 F.3d sion. denied, cert. 120 S.Ct. perceptions centers (2000). test dorsement The second 147 L.Ed.2d however, tests, viewing are both relevant when of the “reasonable observer” third test, second, “Lemon” case. Capitol Square Re- religious display. to be used when approach three-prong is a Pinette, Advisory Bd. & U.S. view challenged action analyzing government 753, 778, 132 L.Ed.2d 650 115 S.Ct. Lemon, Clause. the Establishment under (1995). Thus, in applying the 2105. Under 91 S.Ct. County’s moti- do not examine Lemon, unconsti- challenged action is Plaque, con- displaying but vations (2) (1) purpose, if it lacks a secular tutional on the reasonable Plaque’s effect sider inhi- or either advances primary effect observer, determining the reason- whether (3) it fosters an religion, bits excessive perceive en- able observer religion. government entanglement religion. dorsement test Finally, the “endorsement” Freethought and the B. involving in reli cases modifies Lemon Endorsement Test property. displays government gious Lem with dispenses test began analysis our Freethought, In we and, combining “entanglement” prong on’ s of the constitutionality of the “purpose” of Lemon’s objective version considering which plaque by first prong, asks wheth “effect” prong1 to determine wheth applied should be test with the a observer familiar er the Establishment er the violated display history and context of that the correct test Clause. We decided en government display a perceive (which the district court not Lemon Lynch, 465 U.S. at religion. of dorsement test. the endorsement applied), had but (O’Connor, J., 687, concur 104 S.Ct. 1355 conclusion, noted arriving we In at Allegheny v. ring); see also of begun rely Court had Supreme that the Chapter, 492 Pittsburgh Greater ACLU test increasingly on the endorsement 3086, 573, 592, L.Ed.2d 106 109 S.Ct. U.S. Lemon as and had criticized years recent (1989) test (adopting the endorsement 472 and, consequently, unpredict being vague Court); Tenafly Eruv majority by a of (cit Id. at 256-57 its application. able Ass’n, F.3d Tenafly, 309 Borough Inc. v. 631, at County Allegheny, 492 U.S. ing Cir.2002) (3d the en 144, (applying 174 (O’Connor, J., concurring)); 3086 109 S.Ct. display a government test to dorsement Union Chapel v. Ctr. Moriches Lamb’s religious maintained owned and privately 398-99, Dist., 384, 113 508 Free Sch. test asks objects). The endorsement (1993) (Scalia, 2141, 352 124 L.Ed.2d S.Ct. “the action has government whether Lemon); (criticizing J., concurring) Wal gov communicating message effect of (Rehn 108, 105 lace, 2479 at S.Ct. 472 U.S. of re disapproval ernment endorsement J., Tenafly, 309 dissenting); also see 692, quist, 104 S.Ct. Lynch, 465 U.S. ligion.” (O’Connor, J., en- F.3d at concurring). The 1355 test inquiry the endorsement purpose looking legitimacy

1. Instead fairly may understand Edwards v. County's purposes, see to "what viewers articulated looks 2573, 578, 585, Aguillard, 107 S.Ct. display,” 482 U.S. purpose of the to be the (1987) 595, (stating ACLU, 573, "[t]he 96 L.Ed.2d 510 492 U.S. v. whether prong test asks purpose of the Lemon (1989) (quotation L.Ed.2d purpose is to endorse or government’s actual omitted). omitted)), religion” (quotation disapprove of applying the endorsement the text the Ten Commandments con- identified two factors as particularly criti- tains an “inherently religious message.” first, message cal: the “reason- Freethought, 334 at 262 (citing Stone Graham, display, 39, 41, able observer” receives from the 449 U.S. 101 S.Ct. i.e., (1980)). whether the message However, sends 66 L.Ed.2d 199 posting government religion; still, endorsement of can Commandments under certain second, circumstances, the context in which the reli- be considered a secular dis- gious display appears. play. Aguillard, Edwards v. 482 U.S. (1987), 107 S.Ct. 96 L.Ed.2d 510

[T]he reasonable observer in en- Supreme Court inquiry prior stated that dorsement must be deemed forbidding “decision posting history aware of the Ten and context of the Commandments did not mean that community no use and forum in which the reli- could ever be made of the Ten Command- gious display appears.... Nor can the ments, or that knowledge attributed to the reasonable played an exclusively religious role in observer be limited to the information - history Western Civilization.” Ed- gleaned simply from viewing the chal- .of wards, lenged display..... S.Ct. 2573. Thus, it is well-established that the context hypothetical [O]ur observer also should in which an otherwise display ap- general know the history place pears change can the reasonable observ- [object] displayed.... which the An perception of Lynch, er’s it. See informed member community the will 692, (O’Connor, at 104 J., S.Ct. 1355 con- know how the public space question in curring); County Allegheny, 492 U.S. at past. has been used in the (O’Connor, J., 109 S.Ct. 3086 concur- Square, Capitol 515 at U.S. 115 S.Ct. ring) (stating “history that ubiqui- the and (O’Connor, J., 2440 concurring part in and ty” of a government action to contributes (internal concurring judgment) in the cita- the context that affects the reasonable ob- omitted). Thus, tions the reasonable obr perception endorsement); server’s see presumed server is .to know general the King also County, Richmond 331 F.3d history of religious both the display and (11th Cir.2003) 1271 (holding that superi- community the in which it is erected. The or depicting court’s official seal two tablets reasonable observer is also “more knowl- representing the Ten did Commandments edgeable than the uninformed passerby.” not a message send of endorsement be- Freethought, at 334 F.3d 259. cause of various contextual sur- factors addition, In every Establishment use). rounding the seal’s appearance and Clause challenge requires a fact-specific, case-by-case analysis, Lynch, See 465 Accordingly, in Freethought the Court 1355; U.S. at 104 S.Ct. considered various concerning facts the Allegheny, 492 109 S.Ct. plaque, context of the including history its (O’Connor, J., This concurring). age, and its status as a fix- long-standing mainly due to particular the fact that monument, the on ture an historic and the fact basically context in which a religious dis that it displayed by was itself. The Court play appears can message alter the of this that held “the reasonable observer must display such that it longer is no endorsing certainly presumed be to know that the religion, merely but acknowledging it. plaque See has been affixed to the Courthouse Lynch, 465 U.S. at time,” S.Ct. 1355 for long and would therefore view (O’Connor, J., (rather concurring). Admittedly, the plaque itself than thé text of no County took addition, Chester abstract”) the “in the plaque the celebrate or highlight steps to in Ches- events of historical reminder aas entranceway fact, the contents. its or endorsement anas than County rather ter closed, mak- been had plaque nearest Freeth- officials. county religion sup- prominent, less presence ing its also The Court at 265. ought, leaving that, by perception porting observ- reasonable a model created original its fagade to affixed plaque observer reasonable that It found er. not County was location, Chester historical approximate know would case that content. endorse attempting that Ches- fact plaque, age the loca- changing “In not 266-67. Id. or moved, maintained County had ter entrance main plaque tion erected it was since plaque highlighted attention drawing actively otherwise would observer reasonable The in 1920. its Commis- Chester plaque, history of general to- neutrality “aware also indicates conduct sioners’ Id. at at 260. County.” its text.” plaque Chester ward Thus, Freeth- concurring). J., (Bright, that, based found Court ob- the reasonable held Court ought would observer reasonable knowledge, the not believe would server leave decision conclude attempting were County commissioners motivated significantly place plaque remove refusing to religion endorse as preserve by a desire pláque. Also, a Id. at artifact. historical Lemon Application understand C. observer Freethought Test build- historic additions time over in- courthouse, the case which Court decided Although the as such ings applied test, also of Historic Register National under in the cluded Court Supreme monument Lemon part Places, become can un- issue the review potentially Considering still could 266. Id. history. its and disagreed 250. We Id. at Lemon. der historical interest County’s Chester under analysis court’s district the with observ- the and preservation, relatively little gave as it insofar Lemon signifi- plaque’s understanding er’s the viewpoints actions weight con- history, we courthouse’s cance to County commissioners Chester current remove to refusal county’s that cluded instead plaque, to remove declined who message of send not did plaque motivations on primarily focusing to re- a refusal Such religion. endorsing accepted who officials county very presents artifact historical move 267. Freethought, plaque. example, at- than, for scenario different gov- the relevant Thus, concluded incor- monument a new install tempting decision was the action ernment Id. at Commandments. porating examining and, in plaque, remove instance, a reasonable motivations, latter courts government’s conclude likely more much periods is time both observer consider should en- It attempting events. recent on government emphasis primary attempt contained message sense made little have dorse effect no offensive allegedly because analyze text resi- Chester erecting current plaque motivation secular legitimate original examining only dents, while preserva- historic (such as monument id. it. See erecting purpose tion) apparent. Considering the purpose prong of Lem- burgh. It borders on four main roads on, the Court found that (Grant Chester County Street, Fifth Avenue, 'Street, Ross expressed had legitimate pur- secular Avenue), Forbes and is built around pose for refusing to remove the plaque an interior courtyard. The Courthouse (ie., a desire to retain an historical ele- complex was designed by world-renowned ment of an historical building). As the architect Henry Hobson Richardson and noted, Court the proffered reason for the completed 1888. In the Pitts- decision need not be “exclusively secular,” burgh History and Landmark Foundation purpose prong only requires the designated the Courthouse an historical reviewing court to find that the articulated landmark. On March 1973, it was secular purpose is not a “sham.” Id. at placed on the National Register of Historic 267 (citing Edwards, 482 U.S. at 585-87, Places, and on May it was named 2573). 107 S.Ct. Thus, the accepted Court a National Historical Landmark. Chester County’s reason, citing testimony from Chester Plaque, a commissioners bronze ex- tablet entitled pressing their views of “THE the plaque COMMANDMENTS,” as hav- is four feet ing historical secular, high by as well as three reli- feet wide. It displays the gious, significance. text of the Ten Commandments, largely also supported these views with case law the King James version of Exodus and legal treatises suggesting that the Ten and Deuteronomy. It reads: Commandments “have an independent sec- THOU SHALT HAVE NO OTHER ular meaning in our society because they GODS BEFORE ME. regarded are a significant basis of American law and THOU SHALT American NOT polity.” MAKE UNTO Id. While the Court THEE did not ANY specifically GRAVEN IMAGE, OR consider the Lemon question of ANY whether LIKENESS OF ANY THING the primary effect of retaining the THAT IS IN HEAVEN ABOVE, OR was to advance or religion, inhibit it held THAT IS IN THE EARTH BE- question to be encompassed in NEATH, OR THAT IS IN THE WA- test analysis and, therefore, TER UNDER THE EARTH: concluded that Chester County’s refusal to THOUGH SHALT NOT BOW DOWN remove the plaque was constitutional un- THYSELF THEM, TO NOR SERVE der both the purpose and effect prongs of THEM: Lemon. Additionally, the Court noted FOR I THE LORD THY GOD AAM JEALOUS that Lemon’s entanglement prong was an visiting God, aspect of the effect inquiry and, iniquity fa- such, upon thers THE CHILDREN UNTO THE was also encompassed by its endorsement THIRD AND FOURTH GENERATION OF THEM test analysis. Id. at (citing Agostini v. shewing Felton, 521 that Hate me; mercy 233, 117 unto (1997)). THOUSANDS OF THEM THAT LOVE L.Ed.2d AND ME, KEEP MY COMMANDMENTS.

III. DISCUSSION THOU SHALT NOT TAKE THE NAME OF THE LORD A. Description THY GOD IN of the VAIN: Plaque The Allegheny County Courthouse occu- guilt- For the Lord will not hold him pies full city block in downtown Pitts- less THAT TAKETH HIS NAME IN VAIN. THY ALL WITH AND DAY, SOUL SABBATH THE

REMEMBER MIND. DAYS SIX IT HOLY. KEEP TO THY LOVE SHALT DO THOU AND LABOR THOU SHALT THYSELF. AS SEV- NEIGHBOUR THE BUT WORK: THY ALL OF THE SABBATH IS DAY gift to ENTH awas The IT IN GOD: In- THY LORD organization, THE religious from ANY DO NOT Bureau, SHALT which THOU Reform ternational SON, THY THOU, NOR in- WORK, towas mission lobby whose Christian DAUGHTER, MAN- THY life. public into THY NOR principles troduce MAIDSER- THY SERVANT, NOR in smaller Plaque, the bottom At CATTLE, NOR THY VANT, NOR donat- it was noting that phrase ais type, WITH- IS THAT Plaque’s At the THY STRANGER organization. by this ed John Judge GATES: THY IN ceremony dedication accepting that, stated D. Shafer HEAVEN MADE LORD THE DAYS IN SIX FOR recognizing County was Plaque, IN THAT ALL AND' SEA, THE EARTH, AND in the forma- the Commandments role DAY: SEVENTH THE RESTED AND IS, THEM made the sacrifices our laws tion THE SAB- BLESSED THE LORD WHEREFORE Br. at See I. War World IT. HALLOWED DAY,AND BATH THY wall AND rounded FATHER on a hangs THY HONOR the entrance part MOTHER: forms It courthouse. courtyard interior long upon may thy days That side Avenue Fifth on the hangs GIVETH GOD THY THE LORD WHICH LAND On eye-level. approximately courthouse THEE. courtyard entrance opposite wall KILL. NOT SHALT THOU com- same size of about ais COMMIT NOT SHALT THOU trader, century Polish an 18th memorating ADULTERY. A at 685-718. App. Anthony Sadowski. STEAL. NOT SHALT THOU adjacent immediately sidewalk public FALSE BEAR NOT SHALT THOU separating chains walls, metal NEIGHB- THY AGAINST WITNESS passerby A plaques. pedestrians OUR. ap- as he read easily could THY COVET NOT SHALT THOU other walking it. Someone proaches THOU HOUSE. Plaque, NEIGHBOUR’S see could Avenue of Fifth side THY COVET NOT SHALT to read able not be probably but HIS -WIFE, NOR NEIGHBOUR’S vicinity are admin- the same contents. MAID- HIS MANSERVANT, NOR parking (pertaining signs istrative HIS OX, NOR HIS SERVANT, NOR information). Located courthouse IS THAT ANY THING ASS, NOR court- the facades exterior other on THY NEIGHBOUR’S. pas- arched and walls courtyard house, are courtyard is into leading additional sages Below historic in various commemorating of Matthew Book plaques from language for exam- organizations, “SUM- events, is headed people It Testament. New Indi- French during the reads:, victory a MARY,” ple, Veterans protest, War, War Civil a an LORD THE LOVE SHALT THOU County’s association, the Foreign Wars THINE ALL WITH GOD THY P.O.W.- celebration, National THY bicentennial ALL HEART, WITH AND 40 Day, Pledge Al- text from the Recognition

M.I.A. Old and New Testaments legiance, for private and memorials indi- identical to that of the on the Alle- Id. at 158-63. Above gheny County courthouse. The Chester viduals. courthouse, the Grand Staircase plaque hung original was near the main a depicting there is mural the Goddess of County entrance to the Chester court- referring and an etching Justice to the house. passing order someone “Temple courthouse as Justice.” Id. any heading read text other than the on at 608. plaques aspects Other also note plaque, it necessary would be to climb County’s history, such as a tablet com- entrance, steps leading original Pitt, memorating William for whom the which was in closed addition to City named, Pittsburgh was and mark- plaque, County side of the Chester describing County ers the formation of the hangs courthouse which it contains sev- origins Pittsburgh. Three other signs eral providing administrative infor- plaques note courthouse’s in inclusion are, Also fagade mation. on that plaques state, city, and national historical land- noting regis- the courthouse’s inclusion in registers. mark Id. at 685-713. The county places. ters and national historic originally affixed main case, Unlike in this there are no other (on fagade Street), of the courthouse Grant plaques containing historical, political, or but was moved to its present location images philosophical messages on the 11, 1976, May sometime before when building same side of the where the Ches- was entered into the registry of National However, ter County plaque hangs. Historical Landmarks. party Neither areas of the displays, courthouse contain suggested this case has a reason for this including monuments to World War II and Op. move. See Dist. Ct. at 43. veterans, Civil War an historic Chester Given the fact-specific inquiry required marker, and a with an plaque his- under both endorsement test and the torical description original court- test, Lemon and the District Court’s find house that stood on Freethought, the site. ing that indistinguishable this case is from 334 F.3d at 251-54. Freethought, the factual be similarities tween the in this Application B. of the Tests case and the Chester display are Following reasoning our in Freethought, We, crucial therefore, to our decision. although we find endorsement test provide description of the Chester Coun appropriate thfe standard which to ty case, plaque. As in this the Chester scrutinize Plaque, apply we will both County plaque was affixed to the exterior endorsement test and the Lemon county courthouse,

wall of the which was a higher case court prefers apply the Register listed the National of Historic traditional Freethought, Lemon test. See Places.' plaque gift- was a an 334 F.3d at 261. organization known as Religious Edu cation Council. commis 1. The Endorsement Test accepted sioners public It ceremony important dedication described as initial matter having knowledge both secular and describe the that we over believe tones. County plaque The Chester mea attributable to the reasonable observer sures 50 inches in by tall 39- inches description wide this’case. We base this on (approximately the same size1 as the the for model the reasonable observer set case) Plaque in the instant by and contains forth Justice O’Connor in of nature historic noting the “a marker since Circuit by this applied later and Allegheny, the actually affixed to is Courthouse of the Freethought.2 in Ten Com- to which the fagade east same ob- reasonable that the mind Bearing 266. Id. at is affixed.” mandments is more citizen who informed is an server surrounding Further, circumstances the passerby, average the than' knowledgeable in- acceptance, and donation Plaque’s the to know deemed is observer reasonable the ac- for its motivations secular cluding the the Plaque, Allegheny the of history the on Judge Shafer by articulated ceptance County, and Allegheny history of general 1918, a matter are County in the behalf to affixed been Plaque has the that the fact (citing App. at See record. public at many years. for courthouse the Dedica- at Tablet Discuss War Speakers base, knowledge this With 260, 265-66. Apr. Times, tion, The Gazette facts relevant other glean can the observer is observer 11-18). Thus, reasonable the from history its and Plaque the about do- that, Plaque the although aware context. surrounding its it and viewing organization, by nated that is aware observer The reasonable ac- for reasons secular County expressed twenty oth- approximately is one Plaque conditions social given cepting displays erected cultural and historical er Dis- wartime). note that We (i.e., time hundred past over the courthouse in the similar substantially forth a set trict Court any preferen- given not it is and that years observer reasonable description Al- displays. over tial treatment and Moore Modrovich that and this case County moved Allegheny though Op. at Ct. Dist. it here. See contest do not would observer point, at one Plaque 33. to steps taken it has not recognize out point Moore and Still,' Modrovich 260. Id. at it. or restore maintain concerning factors context-related various deemed also observer reasonable argue, that, they Allegheny courthouse, history .of the know per- observer the reasonable lead would on place and its significance, architectural Alle- religion an endorsement ceive his- registers national state three at- Moore County. Modrovich gheny are presumptions These toric landmarks. case distinguish tempt facts historical as such unreasonable not arguing first Freethought, the court- on actually commemorated are than prominently more hung displayed and tablets plaques walls house They contend County plaque. Plaque. Ten Commandments alongside walk people “[sjeveral hundred ob- noted, reasonable Freethought “[a] As into go dozens Plaque, and Allegheny know presumed must be server it, near entrance archway the Courthouse Courthouse,” particularly history Rather, original). alterations phasis feelings ex subjective Accordingly, specific, requires analysis having endorsement Moore by Modrovich pressed if-a reason determine inquiry sight of fact-based by the "offended” been observer, en various contextual relevant aware not are able courthouse particular wheth do ask factors, not analysis. offended "[W]e be would dorsement an- message of find who could1 any person Plaque sends er there is reason peo Here, some whether religion, religion. endorsement government display, or wheth by the may offended ple observer reasonable found that might [the think person er some County's retention view Square, religion.” Capitol endorsement, endorses State] anas but government Plaque as J., (O'Connor, atU.S. relic. an historical preserve effort (em omitted) (internal citations concurring) during a typical ninety-minute period on a a factor weighing regular business morning.” Appellant Br. against allowing the display. While, as at 47. It is true that the Chester above, discussed prominence is indeed a plaque is in an location, unobtrusive next factor analysis, to an entrance that has been permanently facts these support cases our view closed, and that legible it not from the Plaque was not in an espe However, sidewalk. agree do not cially prominent Schundler, location. the Allegheny Plaque is displayed any the display at issue a 12 by 18 foot more prominently than the Chester Coun- nativity scene located on the front lawn of ty plaque. It hang does not in any pre- City Hall in Jersey City, New Jersey. As place, eminent but is affixed to a side en- noted, Court “[e]ity placed the (as trance on Fifth opposed Avenue to display such that all City visitors to Hall main courthouse entrance on Grant were confronted with prominent religious Street). The Plaque protected is not from symbols.” 104 F.3d at 1446. Similarly, in the weather and hangs at level, street County Allegheny, a nativity scene was unprotected potential vandalism. placed on the Grand Staircase of the coun See Dist. Op. Ct. at 35. The Allegheny ty courthouse. The Grand Staircase was Plaque is no larger than the Chester described “main,” as the beautiful,” “most Plaque, neither ease can the text public” part “most of the courthouse, be viewed from across the street. In both and the nativity “occupied a substantial cases, the text can be read when walking amount space” on the staircase. immediately past plaque, only with the 109 S.Ct. 3086. In compari difference being that pedestrians are less son, the location of the Allegheny Plaque likely pass Chester because could not be prominent. considered It it hangs the top of a staircase near a does not hang in a main part of the court closed entrance. We do not find this mi- and, house as it is at a entrance, side nor difference in placement would never be viewed all visitors to plaques to distinguish the Even if cases. the courthouse as the displays in Schun- one were to concede that the Allegheny dler and County Allegheny were. Plaque is in a slightly more prominent location, the Allegheny Plaque’s location is Modrovich and Moore go on to assert certainly prominent enough to send that, unlike in Chester County, Allegheny message reasonable observer that County officials have taken actions to high- the County is endorsing religion. This is light the Plaque. County, offi- particularly true considering the other cials had done nothing call attention to contextual factors that must be examined (or the plaque any taken action whatsoever in addition to location under the endorse- respect to the plaque) since it was ment including Plaque’s age, its erected. In contrast, Modrovich and history, and the fact is one of Moore suggest that Allegheny County’s several historical plaques displayed at the moving from the Grant Street courthouse. side of the courthouse to its current loca-

Modrovich and Moore cite the Supreme tion was an effort to call attention to it Court’s decision in County Allegheny, because “[t]he County could placed have U.S. at and the in an obscure location after a this Court’s decision in ACLU N.J. v. reason to arose, move it but instead the Schundler, 104 (3d Cir. County relocated the Plaque to promi- 1997), to argue that the prominence of a place nent where it is Appellant now.” Br.

409 sever- displayed courthouse Allegheny the that the assertion disagree 49. We at Modrovich plaques. to al commemorative effort an Plaque shows the moving displays would these that argue Nei- Moore prominent. more presence its make conclude to observer why reasonable to a as lead explanation an offers party ther the substantive County endorses the the no evidence that is There moved. it was because plaques the move of the of each County made content that the record hon- message specific a Fifth Avenue the one contains each it considered because Ap- or text. event, place the person, than Grant oring prominent more entrance However, as discussed at 48. Op. Ct. Br. 53. Dist. pellant entrance. Street a of is aware near location observer above, current the reasonable fact, Plaque’s the its than court- history of the prominent year less is hundred entrance one the side variety courthouse’s the near a fact that wide location and the previous house Furthermore, fact the tenets has philosophical events, entrance. people main once only moved time during that the that commemorated been our supports years As the hundred nearly one its walls. displays on through no special made County has the that observ- out, view reasonable “the points County it. celebrate or highlight to has [it] efforts that more believe no er would to main- action even taken not County has displaying by Testament the Old endorsed any made neither having Plaque, tain believe would or she he than repair, to any funds expended nor effort pan- endorsed County has that Chester 1918. it since polish or clean Greece of ancient religions theistic its towards inaction similar County showed Lady the mural displaying Rome County [Chester] that “The fact plaque. County Staircase.” Grand in the Justice or highlight to any action not taken has 38. Br. at installed it since was plaque celebrate court- Chester The fact ob- the view reinforces a weak is displays similar lacks house County Commissioners server distinguish to attempt on which ground long- a preserve plaque maintained partic- This Freethought. is this case than endorse rather standing plaque” religious aof the context true since ularly Freethought, text. of its message religious message display’s alter the Furthermore, can display Chester at 267. 884 F.3d not observer a reasonable toward such that attitude neutral a County showed See religion. endorsing as location changing perceive by “not plaque 692, 104 S.Ct. other- or entrance Lynch main that “a (stating concurring) (O’Connor, J., drawing attention actively wise neu- J., though setting, concur- (Bright, museum typical Id. at plaque.” religious be- added). Similarly, content religious, tralizing (emphasis ring) nothing to message of endorse- any did negates painting, lieve n this content”). Following Plaque. actively draw attention of that ment display held that reasoning, we attempt also Moore Modrovich more, an en- perceived likely Freethought case from distinguish there religion “where dorsement out pointing context nothing else exterior plaques no had courthouse reason- views change the that would walls, than F.3d at Freethought, observer.” able histori- “any substantive that had plaque, context, we of such example anAs content.” philosophical cal, political, courtroom in the frieze “the above, cited As described Br. at 52. Appellant Court, U.S. Supreme which portrays Mo- the County’s endorsement improperly ses carrying the Ten Commandments places the focus on the events of alongside depictions of figures who rather present than on events and the have impacted law, modern such as John County’s secular motivations for retaining Marshall, Blackstone, William and Caesar Plaque. Furthermore, the reasonable Augustus.” Id. (citing County Alleghe- observer, aware of Plaque’s history, ny, at 3086). U.S. 109 S.Ct. presumed be to know the identity Further, the Freethought that, Court held (or Plaque’s donor at least that even though the County Chester court- donor was religious organization) or with house did not contain several other dis- without an inscription specifically naming plays, the plaque’s age and history alone it. This particularly is true here since the provided sufficient context to prevent circumstances surrounding the Plaque’s reasonable observer from viewing an oth- donation are a matter of public record. erwise religious plaque as an endorsement Thus, this case cannot be distinguished religion. Thus, Id. at 264. Freethought from Freethought on the basis of an in- that, found despite the absence addition- scription on the Allegheny Plaque. al secular displays, the Chester County plaque had a non-religious context because country’s Our interests in historical age history. Under this reason- preservation and recognizing the roots of ing, the perception that the Allegheny modern present law secular goals that Plaque not does religion endorse is only strongly weigh against compelling the re- strengthened by the existence of other dis- moval of Plaque even though its con- plays on courthouse, in addition to the tent is religious. Considering, from a Plaque’s age and history. practical standpoint, the remedy sought by Modrovich and Moore also contend that (removal Modrovich and Moore inscription showing the Plaque), we should not swayed be by par- name of group that donated it distin- subjective ties’ feelings of or affront insult guishes it from the Chester County plaque at sight of a religious display when, as because this group was a “radical here, the facts surrounding the display do organization” and, although the Chester not support a finding of unconstitutional County plaque was also by donated a reli- government. Given gious organization, County our national interest in preserva- historical plaque did contain inscription nam- tion, we believe we would set dangerous ing its Appellant donor. Br. at 53. Modro- precedent if we were to hold that any relic vich and Moore assert a reasonable containing a religious message should be observer, knowing the Plaque was donated removed merely because “any person ... by this Christian group, would have more could find an endorsement of religion” reason to view the continued display of the people “some may government offended” it. endorsement of religion. Capitol Square, 515 We disagree assertion.

First, (O’Connor, J., the primary (internal concurring) focus under both the omitted) endorsement and citations (emphasis Lemon tests altera- events of the time in original). tions which the Our country’s history refused to remove steeped in religious rather than traditions. The fact the events of 1918 the display government when buildings pre- continue to erected. Freethought, 334 F.3d at 267. serve artifacts of that history does not Arguing that the inscription establishes mean that they necessarily support or en- and follow them.” contained in particular messages dorse Similarly, Id. at 18. Modrovich and Moore those artifacts. that numerous residents ex- assert The Lemon Test pressed religious retaining motivations Plaque through letters written to Lemon prong purpose support officials of its continued explained, As test is discussed below. display. County ar requires that the prong simply considering County’s purpose, our legitimate purpose ticulate some secular is on the motivations of current focus Plaque. See refusing for to remove the have County power officials who over Examining at Freethought, 334 F.3d 267. Plaque. decision, decision of whether to remove the are behind we motivations The ultimate decision-maker here was the required legitimate to find that only Allegheny County, of then-Chief Executive by County purpose articulated secular for, Roddey at Roddey. James arrived his “sham.” retaining a. conclusion to retain the after con- Edwards, at 107 S.Ct. sulting County both the and the noted, Solicitor this is a “low Freethought As 2573. President of Council. We threshold,” generally are defer and courts agree conclusion District Court’s proffered secu government’s ential to the legitimate that the record shows secular legitimate. long lar as as purpose Edwards, Roddey’s motivations behind decision to at (citing at 267 2573). Plaque. retain the These motivations 585-87, 107 S.Ct. an largely preserve stem from a desire to argument making their under the a artifact and from view of the historical Moore- Modrovich and being Commandments as one the bases statements made Alle- point out various Roddey explained: of modern law. As they claim to gheny County officials that part [PJlaque important The was However, religion. show endorsement of an historic heritage :the and tradition County’s purpose in of the this evidence [itj really part a building; ... was prop- refusing to remove the more history courthouse and we of Lemon. erly goes purpose prong thought inappropriate it would be cite, example, deposition state- They for . what I have [FJrom take it down. Roddey County Executive ment Chief understand, read, people what I itself, represents an [PJlaque, “the that putting up the responsible that were that I society ethic and a standard [PJlaque [the Commandments] felt that community people of this believe that of the rule of a celebration represented Appellant Br. generally agree to.” rule, law, the foundation that the state- They argue also war, an alternative law was County officials over a ments of various of national strife. types pic- a fuller provide of time period broad Roddey 20-21. Roddey Depo. at County’s desire advance ture of the he deposition his had For ex- conceded at message Plaque. he press release which distributed a public and Moore cite a ample, Modrovich the Ten Command- years stated his belief that before the statement made seven “a statement of represented single by judge commencement on ments of this action values, the crest of the vital to citizens at Pleas the Court of Common many meaningful so century and so last lawyer should . millennium.” Id. of this new and read the the dawn “go the courthouse over to However, at 20-21. explains as he this Depo. at 20-21 (stating that the County statement: “They 1918 County [the offi an “obligation has respect wishes just cials] had come out of ... World War the people gone us, [have] before I.... principle value that I re people of the community before us” to ferring ... just general [w]as rules “keep the [P]laque they expected it to civilized society.” Here, Roddey offers be”). Thus, considering that a display legitimate, secular motivations for his deci need not be by exclusively motivated secu- sion. These motivations are based in his purposes lar under the analysis, Lemon preservation torical and in a recognition of find that Roddey’s articulations contain the role of the Commandments in both sufficient legitimate secular purposes to Allegheny County history and American pass muster. See Lynch, 465 U.S. at law. Even if one not accept did expla his 104 S.Ct. 1355. nation of the statement press his re Additionally, we are not convinced that lease, the purpose of the display need not statements by made other County officials exclusively Edwards, secular. See 482 (such as the Court of Common Pleas U.S. at 107 S.Ct. 2573. Even if judge) by or other residents the Plaque is assumed to incorporate reli through letters are relevant to the Lemon gious meaning values, or the County is not purpose analysis. None of these individu- prohibited from displaying symbols such als was the decision-maker for the County required or to convey only secular mes respect with to the Plaque. Therefore, sages. The Supreme Court simply has their motivations not are relevant required that the display not be “motivat inquiry.4 view, In our the record this ed wholly by religious considerations.” case contains sufficient evidence that Alle- Lynch, 465 U.S. at 104 S.Ct. 1355 gheny County retained the Plaque for added).3 the (emphasis secular reasons of historic preservation Here, Roddey’s statements express suf- and commemoration of the law, rule of ficient secular motivations for his decision. rather than solely for religious the reasons These include the fact that the Plaque is voiced by some members of the communi- part of the heritage of an historical build- ty- ing, as well as Roddey’s belief that the County has an obligation to respect The effect and entanglement prongs of community’s historical decision during Lemon are encompassed by the endorse- World War I to commemorate value test, and, of ment accordingly, we incorporate the rule of law over war. See Roddey our earlier discussion the endorsement 3. Notwithstanding evidence, all of this dey’s motivations are entirely not clear from dissent genuine contends that a dispute of fact record, it is undisputed that he asserted (cid:127)exists as Roddey’s to whether stated secular certain purposes, secular and his asserted his- are motivations simply sincere or "fig a leaf” purpose sham, torical clearly is not a as un- religious cover his purposes. Dissent, See light derstood in of Freethought. 334 F.3d at However, p. noted, 417. as the purpose 262 (concluding that "the articulation of a prong of threshold,” Lemon has a "low simply legitimate purpose secular declining requiring legitimate purpose secular that is remove the satisfy 2001 would not a Freethought, sham. 334 F.3d at 267. prong first added)). (emphasis of Lemon’ We believe that no jury reasonable could find that the purpose historical articulated Rod- addition, 4. dey merely the record sham. shows that Liberty Anderson v. most of Inc., Lobby, 242, 248, 477 correspondence 106 residents (1986). 91 L.Ed.2d 202 While the was actually dis- received Roddey’s after decision may sent be correct suggesting that Rod- was made. Roddey Depo. at 71. .the court used been seal had that F.3d Freethought, See test. secular, legal docu- years for over refusal to County’s that Thus, hold mentation, Other relevant con- purposes.. either violate Plaque does remove relative- the seal’s included factors textual in Part discussed as text on the size, absence ly small test. Lemon III.B.1, Roman contain they did (although tablets X, clearly representing I-through CASES numerals COURT CIRCUIT OTHER IV. Commandments), the fact have Appeal Courts Several (a of secular symbol a sword depicted seal of whether issue considered recently tablets. law) intertwined Ten Commandments displays our supports Thus, decision 1283-84. the Estab- violate property government aof .context overall standpoint these least two At Clause. lishment , can affect depiction basically and Eleventh Fifth decisions, from perceives observer whether holding here. Circuits, our support religion. endorsing (5th Perry, Orden Van postings have held Circuits a Ten Other held Cir.2003), Fifth Circuit Estab- violate Ten Commandments state on Texas monument However, of these each Clause. lishment religion endorse did grounds capítol in- the from distinguishable decisions many contained grounds capítol where therefore, per- is, neither and case stant displays pertaining monuments Ohio In ACLU apposite. included, nor suasive of displays These history of Texas. Ashbrook, F.3d 375 Foundation, v. Inc. a symbol, Aztec example, an held Cir.2004), Circuit (6th the Sixth 484 commemo- a plaque, Confederate judge Pleas Court Common an Ohio Mexico, tribute and a war rating the by dis- Clause Establishment violated The legislators. American to African Com- Ten poster a framed playing Ten Commandments held Court himself ’creatéd mandments, he which effect of primary a not have did monument from across his courtroom computer, his as seen religion, inhibiting advancing or Bill poster framed styled observer, similarly a reasonable a eyes of from This created. he also which Rights, of aas designated were grounds because the instant distinguishable case con- Landmark Historical National rather display a new involves as it case depicting- monuments seventeen tained artifact. an historical than at 175-76. identity. of Texan symbols be- location monument’s addition, case, In ACLU distinguishable another building Court Supreme Texas County, tween 354 McCreary Kentucky v. chosen building was capítol and the held Circuit Cir.2003), Sixth (6th 438 in the role the Commandments’ reflect posting a courthouse’s Id. at law. making a in museum-like hung Commandments, designed postings setting with County, v. Richmond King Similarly, in law, of American foundations display the superior a held that Circuit Eleventh Clause. Establishment violated tablets two depicting seal official court’s con- the secular that,’ despite held Court did the Ten representing Ten Commandments text, be- .text of endorsement message not send be- religion endorsing message sent sur- factors contextual various cause clear in make did not county cause use. appearance seal’s rounding create attempting the fact included These at 1286. 331 F.3d 414

exhibit concerning origins of law. Id. city’s display of a Ten Commandments at 448-49. Again, however, this was a new monument public park since 1965 display, not an and, historical monument amounted to government unconstitutional therefore, this decision persuasive has no endorsement. This case also addresses a effect on holding our here. relatively monument, new not an historical Further, relic. Russ, v. (6th Adland Plattsmouth 307 F.3d 471 monu- Cir.2002), denied, ment stands alone city cert. in a 999, park. 538 U.S. It there- fore S.Ct. lacks the (2003), L.Ed.2d kind historical context Sixth Circuit held that we that a believe monument dis makes the ob- playing a “nonsectarian” server unlikely version of to perceive the Allegheny Ten Commandments, in 1971 donated but an endorsement religion.5 moved to storage could not be The Eleventh Circuit also reiterated placed on the state capítol grounds. Once importance of context in Glassroth v. again, this case involved a placement, new Moore, (11th 335 F.3d 1282 Cir.2003), in not a refusal to remove a longstanding which it held that a two-and-one-half ton plaque. Additionally, the proposed display monument of the Ten Commandments, in Adlcmd would have been in prominent placed in the rotunda of an Alabama State location on state capítol grounds, unlike Courthouse the Chief Justice of the the Allegheny Plaque, hangs which dis Supreme Alabama Court, violated the Es- cretely on the side of the courthouse. tablishment Clause. As with the cases Elkhart, Books City (7th 235 F.3d 292 above, this case involved a new far Cir.2000), denied, cert. prominent more display than the Alleghe- 149 L.Ed.2d (2001), in ny Plaque. Further, the Eleventh Circuit a volved monument similar to that in Ad- distinguished Glassroth from its holding in in land that it also displayed a nonsectari King, a case much more factually similar an version of the Commandments and was case, the instant stating that “he consti- placed on the lawn in of front a local tutionality government’s of a use of a pre- municipal building. The Seventh Circuit dominantly religious symbol depends on found this display to violate the Establish the context in which it appears, and we Clause, ment but this decision does not concluded King [in given ] that the context influence our holding here for the same in which the pietograph of the Ten Com- reasons that Adland unpersuasive. See mandments appeared Seal, on the a rea- also Ind. Civil Liberties Union v. O’Ban sonable observer would not believe that non, (7th 259 F.3d 766 Cir.2001), cert. de the Seal was an endorsement of religion.” nied, 122 152 (internal Id. at 1298-99 omitted). citations (2002) L.Ed.2d 117 (following Elkhart and holding that the state’s intention a erect V. CONCLUSION monument depicting the Ten Command ments on park-like grounds of the For the reasons, foregoing we believe statehouse would violate the Establish Ten Commandments Plaque af- Clause). ment fixed to the Allegheny County Courthouse

Finally, in ACLU Nebraska Foundation does not constitute an endorsement of reli- City v. Plattsmouth, (8th 358 F.3d gion in of violation of the Establishment Cir.2004), Eighth Circuit held that Clause, nor does it violate the test first Additionally, 5. we note Plattsmouth is no tion rehearing granted en banc was on longer binding precedent, as city’s peti- April 2004. movant’s, then the contradicts dence Thus, District Lemon. articulated true. taken must non-movant’s summary judgment grant Court’s summary denial County and omitted). Relying (citations at 1363 Id. will be Moore Modrovich judgment Inc., 477 Lobby, Liberty upon Anderson affirmed. 2505, 91 106 S.Ct. (1986), stated L.Ed.2d dissenting. Judge, GIBSON, Circuit been lik has standard summary judgment “ jury’ directed ‘reasonable ened dissent. respectfully I summary standard,” “at verdict district of the decision my view In is not function judge’s stage the judgment where findings factual upon is based court to determine weigh evidence ... evidence, particularly is eoq|licting there matter, to determine but truth .of of Coun- intent present respect for trial.” issue genuine is a there whether teach- followed court The ty officials. 1362-63. BMW, F.2d Apple Big decision .earlier court’s ing of concluded: We Philadel- Society Greater Freethought has terms, opponent if the practical (3d County, 334 v. Chester phia threshold “mere scintilla” exceeded differing pro- Cir.2003), overlooks but of mate- issue genuine has offered court This that case. posture cedural credit the cannot fact, court then the rial injunc- permanent reviewed Freethought against the of events version movant’s Com- the Ten the removal ordering tion quantity if the even opponent’s, testimony the based mandments outweighs far evidence movant’s the le- believable found court district prov- thus remains It opponent. findings. these upon based conclusions gal to ascertain finder fact ince us contrast, before case Id. evidence. weight of the believability and summary grant appeal is an at 1363. judgment. following Freeth- court, in district teaching of the Consistently with evidence weighing circuits, ought, engaged Court, decisions Supreme teaching contrary to finding fact and Procedure Civil Rule of Federal The dis- BMW_and Anderson. Big Apple judgment “Summary stated,

we have. conclu- on the its decision based court trict issue genuine no where granted be should when “sincere” were officials sion trial at for resolution exists fact of material keep- for reasons secular they articulated judg- is entitled moving party place: Plaque ing Apple Big of law.” matter as a ment America, North BMW, v. BMW Inc. over dispute current regard With Cir.1992). (3d 1358, 1362 Inc., 974 F.2d the reasonable Plaque, retention explained: We know would observer support Roddey,- with Executive, Mr. summary a motion deciding When to not Council, decided cir- role remains court’s ... a judgment he be- because remove [sic] inappropriate it is in that cumscribed part important- “an represented lieved it and to disputes factual resolve court to an his- and tradition heritage credibility determinations.... make com- and that building” toric light drawn should be Inferences law, opposed rule of memorated non-moving party, favorable most war. evh non-moving party’s where Based on the knowledge cumulative of with the facts pertaining to the building, observer, I reasonable find that he its history, the age of the Plaque, and the or she could conclude that continued County’s intention to respect the past and display of the Ten Commandments preserve the artifacts for genera- future an by reflects intent the current tions.” county promote officials to or favor one But the record contains other state- religion over another or even indeed ments Roddey that cast a much promote differ- religion over non-religion. light ent on his motivations. In a press The district court particularly concluded release Roddey stated, “Perhaps the citi- that the County Executive, James Roddey, zens of Allegheny County place a value on expressed legitimate, secular reasons for family, church on religion an$ refusing to remove the Plaque, “analogous vastly different than those who given those by the Chester County dwell in Washington, D.C. But my heart explanation Commissioners whose had sat my instinct tell me to keep ‘The Com- the ‘relatively isfied low threshold required mandments’ and I intend to follow them.” by the purpose prong of Lemon [v. Kurtz Presumably, observer man, 602, 612-13, reads ” local newspapers as well as local (1971) ],’ L.Ed.2d 745 citing Freeth- history books, so this statement has to be ought, 334 F.3d at 267. The district court entered into the mix in deciding what that continued observing that Roddey had observer would Furthermore, think. consulted with the Solicitor and his deposition Roddey stated that “the President of County Council, and their plaque, itself, represents an ethic and a joint conclusion was that “the plaque was standard for society that I believe important part of heritage and tra people of this community dition of an would generally building; historic ... [it] agree to.” This really part statement could history be under- the court stood to house and amount to an thought it adoption inappro official priate to take precepts by it down.” The majority rule, district court there- observed that Roddey by sending had at a “message conceded his to nonadherents deposition that he had press distributed a that they outsiders, are not full members release stating his belief that the Ten political community, and an accom- represented single panying message to adherents that they statement of “values” vital to citizens “at insiders, are favored members of politi- the crest of the last century and so mean cal community.” Freethought, 334 ingful to many the dawn of this new 260 (quoting Capitol Square Review & Ad- millennium.” time, At the same the court visory Pinette, Bd. v. 753, 515 U.S. accepted Roddey’s explanation that 115 S.Ct. (1995)). 132 L.Ed.2d 650 “values” he meant that the people that And had the reasonable observer responsible were attend- for putting up ed the Allegheny County felt that Council The meeting Commandménts represented of January 16, 2001, a celebration he or law, of the she rule of would have and the foundation heard the debate the rule of when the passed law that Council was an “ war, alternative to “sense and “just was Council” general motion stating, ‘The rules of civilized society.” The Commandments’ district reflect values that im- are court then stated: “Mr. Roddey’s portant explana to this community today as they appear tions to be sincere and consistent were in early part of the century.” perceived so been have and would pulses motion, Gastgeb,6 Vince of the sponsor though Even observer. by a reasonable here traditions and stated, “There’s values for, purpose fought Lemon under the have people County that in this exclusively should to be not have does representatives,-we as elected and forward.” moving that the evidence secular, case in this to continue fight stating, speech purpose his the secular Gastgeb finding concluded that support later stated He faith.” to have Aguillard, have v. “We See Edwards figa leaf. was religious ten see rather “I’d press, to 586-87, 107 S.Ct. than none.” courthouse in the expressions (1987) prong (purpose L.Ed.2d Olasz, member, Richard Another Council of secular that assertion requires Lemon debate, “Maybe during Council stated sham”). not a and “sincere purpose to [the object that people of these some pur- religious Moreover, statements remember and go back ought to Plaque] circumstances in public in made were pose foxholes, and atheists are no there that ap- to an rise given have may well that the tomb- sign old to remember religion by of endorsement pearance to and Up Nowhere Dressed All stone: county officials. responsible Go.” consid simply court district Perhaps the a statement in evidence also was There by Freeth- governed case to be ered this judge president by the even makes reliance such Any ought.7 giv- that in Court Pleas County Common pro the distinction significant more County bar for seminar an ethics ing Freethought between postures cedural go over association, them “I told with we dealt Freethought case, this Command- read courthouse hearing after findings made factual them.” follow ments preliminary granting order of an support no reference made court The district the far deal here we injunction the text stating that affidavit expert’s judgment. summary standard different particular ais well come could fact A finder many differing in one Protestant Christian ar court the district that same conclusion Jewish, under accepted ways from was court However, the district at. rived traditions. Catholic, and Lutheran Roman fact, con but was finder sitting as not motion. judgment summary sidering a evidence record significant thus There have not issues should fact disputed These keep the decision of law.8 question as a been decided im- predominantly stemmed the rea- reproduced, was not text cause mo- Council the sense of Gastgeb said “induced therefore was observer sonable has the Council because desirable tion text.” Id. sacred venerate read or courthouse," sug- which over "control whether as to issue unresolved gests an court in Bender the decision authority over aware 8.I am some had Council (3d Dist., 741 F.2d Sch. Williamsport Area Plaque. retain Cir.1984), grounds, vacated on (1986), 89 L.Ed.2d County, F.3d King v. Richmond 7. a school judgment summary reversed by recognized Freeth- Cir.2003), was (11th were case, no carefully there noted but prayer 263. distinguished. 334 ought, but preclude of fact disputes material depicted county of Richmond seal The case merits I-X, consideration with- but numerals with Roman tablet n. 3. at 542 summary judgment. Be- Commandments. the text out view, In my we should remand for Danny fur- Rader, MD; A. Miles, RN; Terri ther consideration of the issues in this Doe, MD; Doe, R.N.; Jane John/Jane case. Doe, Pharmacist; John/Jane John/ Doe,

Jane Pharmacy Technician; Doe, John Agency/Corporation, Third Party Defendants.

Nos. 02-2303. United States Court of Appeals, Fourth Circuit. CHARLESTON AREA MEDICAL Filed: Sept. CENTER, INCORPORATED, Everett, Diana Amy Smith, Marie Step-

Plaintiff-Appellee, Johnson, toe & PLLC, Clarksburg, WV, Parke-Davis, a division of Warner Lambert, Pfizer, Inc., its successor by St. Paul Fire & Marine Insurance merger. Company, Intervenor- Shawn Patrick George, George & Lor- Plaintiff, PLLC, sensen Charleston, WV, v. Charleston Area Medical Center. PARKE-DAVIS, A DIVISION OF WAR- LAMBERT;

NER Pfizer, Incorporat- ed, merger, successor Defen- ORDER OF CERTIFICATION TO dants-Appellants, THE SUPREME COURT OF AP- PEALS OF WEST VIRGINIA WIDENER, Circuit Judge. Danny Rader, A. MD; Miles, Terri RN; This is an appeal from the United States Doe, MD; Doe, R.N.; John/Jane Jane District Court for the Northern District of Doe, Pharmacist; John/Jane John/ West Virginia, at Wheeling. Because the Doe, Jane Pharmacy Technician; resolution of the presented issues on ap- Doe, John Agency/Corporation, Third peal requires resolution of a question of Party Defendants. West Virginia law that may be determina- tive in the pending case, and because it Charleston Area Center, Medical appears to us that there is no controlling Incorporated, Plaintiff- Virginia West appellate decision, constitu- Appellant, provision, tional statute, we request that the following issue be decided the Su- preme Court of Appeals of West Virginia, St. Paul Fire & Marine Insurance pursuant to Virginia West § Code 51-1A-1 Company, Intervenor- (2000). et seq. Plaintiff, I. Question Law to be Answered Parke-Davis, a division of Warner Lam- bert; Pfizer, Incorporated, its succes- following question of Virginia West by merger, sor Defendants-Appellees, may law be determinative in pending

Case Details

Case Name: Andy Modrovich James Moore v. Allegheny County, Pennsylvania

Court Name: Court of Appeals for the Third Circuit

Date Published: Oct 6, 2004

Citation: 385 F.3d 397

Docket Number: 03-3571

Court Abbreviation: 3rd Cir.