Lead Opinion
On the lawn of the City of Elkhart’s Municipal Building stands a monument inscribed with the Ten Commandments. William A. Books and Michael Suetkamp, residents of Elkhart, object to the display of this monument on government property. They brought this action in the district court, claiming that the display of the monument by the City of Elkhart violates the Establishment Clause of the First Amendment to the Constitution of the United States. The district court granted summary judgment for the City of Elkhart. For the reasons set forth in the following opinion, we reverse the judgment of the district court and remand for proceedings consistent with this opinion.
I
BACKGROUND
A. Facts
A monument inscribed with the Ten Commandments is located on the lawn in front of the Municipal Building of the City of Elkhart (“the City” or “Elkhart”). The plaintiffs, residents of Elkhart, object to the presence of this monument in this location. We therefore must determine whether this presence of the monument violates the Establishment Clause of the Constitution of the United States, which has been made applicable to the states through the Fourteenth Amendment.
1.
In the 1940s, a juvenile court judge in Minnesota, E.J. Ruegemer, inaugurated the Youth Guidance Program. Disheartened by the growing number of youths in trouble, he sought to provide them with a common code of conduct. He believed that the Ten Commandments might provide the necessary guidance. Judge Rue-gemer originally planned to post paper copies of the Ten Commandments in juvenile courts, first in Minnesota and then across the country. To help fund his idea, he contacted the Fraternal Order of Eagles (“FOE”), a service organization dedicated to promoting liberty, truth, and justice. At first, FOE rejected Judge Ruegemer’s idea because it feared that the program might seem coercive or sectarian. In response to these concerns, representatives of Judaism, Protestantism, and Catholicism developed what the individuals involved believed to be a nonsectarian version of the Ten Commandments because it could not be identified with any one religious group. After reviewing this version, FOE agreed to support Judge Ruegemer’s program.
Around this same time, motion picture producer Cecil B. DeMille contacted Judge Ruegemer about the program. DeMille, who was working to produce the movie
Elkhart’s newspaper, The Elkhart Truth, published an article about the dedication of the Ten Commandments monument to the City of Elkhart. See R.29, Ex.A, Ceremonies Pay Tribute in Memorial Day Rite-, City Given Decalogue, The Elkhart Truth, May 31, 1958, at 1. The dedication was a part of the City’s Memorial Day ceremonies, and the participants in the dedication included: Robert Long, city controller; Mahlon Hull, past president of the Elkhart Chapter of FOE; Dale Swihart, lodge secretary for FOE; the Reverend William Gieranowski, assistant pastor of St. Vincent’s Catholic Church; the Reverend W.W. Kenhell, outgoing-president of the Elkhart Ministerial Association; and Rabbi M.E. Finkelstein of Temple Israel.
According to the newspaper. Reverend Kenhell spoke at the ceremony, imparting the message that “Americans have inherited moral power from the founding fathers of our country, ... and if they will accept the precepts of the Ten Commandments, it will provide their redemption from today’s strife and fear.” Id. Father Gieranowski also spoke at the ceremony and stated that moral law does not change and that the Ten Commandments should be engraved not only in stone but in the hearts, minds, and consciences of everyone. See id. Finally, the newspaper noted, Rabbi Finkеl-stein explained that the dedication of the monument “should be an occasion for dedication of everyone to the high ideals inherent in the American way of life.” Id.
2.
As we have noted earlier, Elkhart’s Ten Commandments monument is located on the lawn in front of the City’s Municipal Building. The Municipal Building, situated on the corners of Second and High Streets in downtown Elkhart, contains the mayor’s office, the City’s legal and human relations departments, the city court, the prosecutor’s office, and the offices of the Common Council. Above the main entrance to the Municipal Building is a bas-relief of an elk’s head. Directly to the left of the elk’s head is the word “DEDI-CATVM,” and on the immediate right of the elk’s head is the word “JVSTITIAM.”
The lot for the Municipal Building contains the building itself, sidewalks, and a parking area. Between the building and the sidewalks is a grass lawn that is approximately 25 feet wide. Within this lawn are three monuments. The City maintains this lawn surrounding the monuments but does not contribute any time, money, or effort to the maintenance of the monuments themselves.
On the southeast corner of the building’s lot — the corner nearest the intersection— are the Revolutionary War Monument and the Freedom Monument. The Revolutionary War Monument, closest to the street, is a large stone, which bears a plaque and is surrounded by a bed of flowers. See R.29 & 31, Ex.23-24. The plaque explains that the monument was donated by the
On the northeast corner of the lot is the Ten Commandments monument.
The Ten Commandments
I AM the LORD thy God.
Thou shalt have no other gods before me.
Thou shalt not make to thyself any graven images.
Thou shalt not take the Name of the Lord thy God in vain.
Remember the Sabbath day, to keep it holy.
Honor thy father and thy mother, that thy days may be long upon the land which the Lord thy God giveth thee.
Thou shalt not kill.
Thou shalt not commit adultery.
Thou shalt not steal.
Thou shalt not bear false witness against thy neighbor.
Thou shalt not covet thy neighbor’s house.
Thou shalt not covet thy neighbor’s wife, nor his manservant,' nor his maidservant, nor his cattle, nor anything that is thy neighbor’s.
R.29 & 31, Ex.5. This text, as stated previously, is an amalgamation of Jewish, Protestant, and Catholic versions of the Ten Commandments.
At the top of the monument, there are two small tablets that contain ancient Hebrew script. Surrounding both of these tablets is a floral design, and between the two tablets is an eye within a pyramid — an all-seeing eye.
PRESENTED TO
THE CITY OF ELKHART, IND.
BY
ELKHART AERIE NO. 395
FRATERNAL ORDER OF EAGLES
MAY, 1958
Id.
Photos of the Ten Commandments monument and of the front of the Municipal Building were included in the trial record and are attached as appendices to this opinion.
3.
Insofar as this record shows, the presence of the Ten Commandments monu
4.
Plaintiff William Boоks is a resident of Elkhart County and has resided in Elkhart since the early 1980s. In Mr. Books’ affidavit, he states that “[t]o the extent that I must, or wish to, go to the Municipal Building to participate as a citizen of Elk-hart I must come into direct and unwelcome contact with the [Ten Commandments] monument.” R.24, Attachment 1, at 2. Mr. Books explains that, in the past, he has gone to the Municipal Building to pay a traffic ticket and to attend City Council meetings when the issues discussed were ones that interested him. Also, notes Mr. Books, his deposition for this case was conducted in the City Attorney’s office in the Municipal Building. As Mr. Books explains, although he could use the Municipal Building’s side entrance instead of its main entrance in order to avoid the monument, he “know[s] the Ten Commandments monument is there whether [he] see[s] it or not.” Id. at 3.
Mr. Books further explains that he passes the monument in his daily activities, including: riding his bicycle on a route that passes the Municipal Building; patronizing the Elkhart Public Library, which is located across the street from the Municipal Building; and visiting his landlord’s office and his cousin’s house, both of which are located near the Municipal Building. He states that, in order to avoid seeing the Ten Commandments monument, he “would have to assume the special burden of altering [his] daily routine so as to avoid this direct and unwelcome contact.” Id. at 2.
Plaintiff Michael Suetkamp is also a resident of Elkhart County and has lived in Elkhart since the early 1990s. In his affidavit, Mr. Suetkamp states that he is an atheist and is offended deeply by the placement of the Ten Commandments monument on the property of the City of Elkhart. He states that he must come in direct and unwelcome contact with the monument to participate as a citizen of Elkhart. As he explains, he has entered the Municipal Budding to pay a traffic ticket, to attend a City Council meeting, to talk to the City Council’s Clerk, and to have his deposition taken by the City Attorney in this ease.
Mr. Suetkamp also avers that he comes in direct and unwelcome contact with the monument in his daily activities. For example, he states that the route he takes to return home from work passes the Municipal Building and that he sometimes sees the monument when entering the Elkhart Public Library. Although he passes the monument frequently, Mr. Suetkamp admits that he does not look directly at it every time, but he states that “[e]ven if I don’t see it, I certainly know it is there.” R.24, Attachment 4, at 2.
The district court held that the placement of the Ten Commandments monument on the lawn of the Elkhart Municipal Building did not violate the Establishment Clause. When analyzing the placement of the monument under the test set out in Lemon v. Kurtzman,
The court also discussed whether the monument had the effect of endorsing religion. It noted that this question is asked from the perspective of a reasonable observer who is charged with knowledge of the history and context of the display. The court stated that a reasonable observer looking at the monument would know that the Ten Commandments has both religious and historical significance and would acknowledge the significance of the religious symbols on the monument as signs of the major religions of this country at the time of the monument’s donation. The court next pointed out that a reasonable observer would view the Ten Commandments monument as part of the City’s overall collection of displays of historical and cultural significance. As the court explained, the lawn in front of the Municipal Building is small, and the City could not be expected to put all of its displays in one place. The court then held that it does not violate the Establishment Clause for the City of Elkhart to acknowledge the importance of the Ten Commandments in the legal and moral development of the nation by displaying the monument on the lawn of the Municipal Building.
II
DISCUSSION
A. Standard of Review
We review de novo the decision of the district court to grant summary judgment. See Wright v. Illinois Dep’t of Corrections,
B. Standing
1.
Under Article III of the Constitution of the United States, a plaintiff must have
To allege adequately an injury in fact, a plaintiff must show “an invasion of a legally protected interest which is (a) concrete and particularized and (b) actual or imminent, not conjectural or hypothetical.” Id. at 560,
The district court here, however, relied on Doe v. County of Montgomery,
The district court followed the holding of Doe and noted that the plaintiffs had alleged that they must come in direct and unwelcome contact with the Ten Commandments monument to participate fully as citizens of Elkhart and to fulfill their legal obligations. The court questioned whether the plaintiffs had to look at the monument to enter the Municipal Building, as the plaintiffs in Doe had to see the sign over the main entrance to enter the county courthouse, but found that the facts were sufficiently close to fit within the rule of Doe. Therefore, the plaintiffs had standing to challenge the placement of the monument in front of the Municipal Building.
2.
The plaintiffs bear the burden of establishing that they have standing to bring this action. See Doe,
According to the City, the plaintiffs must alter their behavior to avoid the Ten Commandments monument before they can allege that they have suffered an injury in fact. In Doe, the City submits, the plaintiffs wished to avoid the religious sign above the courthouse’s main entrance but could not do so if they wished to use the courthouse and to participate as citizens of the county. Here, the City argues, the plaintiffs could have entered the Municipal Building through alternative entrances, or, even if entering through the main entrance, they could have passed along the back of the Ten Commandments monument. Because of these two options, the City contends, the plaintiffs did not need to come in direct and unwelcome contact with the text on the Ten Commandments monument in order to participate as citizens of Elkhart or to fulfill their legal obligations. Thus, the City asserts, the plaintiffs have not alleged that they suffered an injury in fact by the placement of the Ten Commandments monument on the lawn of the Municipal Building.
3.
As this court discussed in Doe, the Supreme Court has addressed the requirements for standing when a plaintiff must view a religious symbol in his daily routine or when he is forced to come in contact with religious conduct through participation in school or in government. See Doe,
We agree with the distriсt court that there is no principled distinction between the facts of Doe and the facts presented here. In Doe, the plaintiffs were required to come in direct and unwelcome contact with the religious display in order to participate fully in government and to fulfill their legal obligations. Here, the plaintiffs must do the same. Although it is true that the plaintiffs here could have altered their path into the Municipal Building to avoid the monument, an act that would have given them standing under Seventh Circuit precedent, see, e.g., Freedom from Religion Found.,
C. Governing Principles and Application
Although various members of the Supreme Court of the United States have criticized it,
Before turning to the situation before us, we also note that, in more recent cases, the Supreme Court has, on occasion, articulated these first two prongs in terms of an “endorsement” test. See County of Allegheny v. American Civil Liberties Un
1.
The first part of our inquiry must be to determine whether the display of this tablet by the City of Elkhart has the primary purpose of “advancing or inhibiting religion.” Agostini v. Felton,
As a starting point, we do not think it can be said that the Ten Commandments, standing by themselves, can be stripped of their religious, indeed sacred, significance and characterized as a moral or ethical document. Indeed, the Supreme Court made this point clear in Stone v. Graham,
The display of a religious symbol still may, under certain circumstances, have a secular purpose. The text of the Ten Commandments no doubt has played a role in the secular development of our society and can no doubt be presented by the government as playing such a role in our civic order. For example, on the wall of the Supreme Court there is a frieze that contains Moses holding the Ten Commandments. The frieze contains depictions of two other religious figures, Confucius and
The Supreme Court has stressed the importance of the context of a clearly religious symbol in determining whether the purpose in displaying the symbol is religious or secular. We also have emphasized that religious symbols should not be considered in the abstract; instead, courts must ask “whether the particular display at issue, considered in its overall context, could be said to advance religion.” American Jewish Congress v. City of Chicago,
Here, the record discloses no significant attempt by the City of Elkhart to present the text of the Ten Commandments in a way that might diminish its religious character.
Moreover, nothing in the subsequent history of the monument can be said to have in any way transformed that religious purpose. The City’s resolution, issued on the eve of this litigation and proclaiming a secular purpose for the monument’s presence by recognizing the historical and cultural significance of the Ten Commandments, ought to be accorded no more weight than the avowed secular legislative purpose articulated by the Kentucky legislature in Stone. In Stone, the Kentucky statute required the following language at the bottom of each Ten Commandments display: “ ‘The secular application of the Ten Commandments is clearly seen in its adoption as the fundamental legal code of Western Civilization and the Common Law of the United States.’ ”
2.
Even if we were to ignore the primary purpose behind displaying the Ten Commandments monument, we would have to conclude that this particular display has the primary or principal effect of advancing religion. In County of Allegheny, the Court noted that, under this prong, courts have a special responsibility to ensure that a government-sponsored display does not have the purpose or the effect of endorsing a religion. See
In County of Allegheny, the plaintiffs challenged the recurring holiday displays of a creche placed on the Grand Staircase inside the county courthouse and of a Chanukah menorah placed outside the city-
In County of Allegheny, a majority of the Court also held that the menorah placed in front of the city-county building did not violate the Establishment Clause. The menorah was placed next to a 45-foot pine tree that was decorated with lights and ornaments. At the foot of the tree rested a sign that bore the mayor’s name and a text that was entitled “Salute to Liberty.” The Court held that this particular display was not a violation of the Establishment Clause because its specific setting did not have the primary effect of endorsing religion. Instead, the Court stated that the combination of the now secularized Christmas tree with a sign extolling liberty and the giant menorah tended to promote the winter-holiday season. The display, held the Court, did not violate the Establishment Clause.
In fulfilling our responsibility to apply faithfully the Establishment Clause jurisprudence of the Supreme Court of the United States, we have subjected to particularly careful scrutiny displays at the seat of government. We have taken this course because “[a]n important concern of the effects test is ... ‘whether the symbolic union of church and state effected by the challenged governmental action is sufficiently likely to be perceived by adherents of the controlling denominations as an endorsement, and by the nonadherents as a disapproval, of their individual religious choices.’ ” American Jewish Congress,
We reiterated this principle in Harris v. City of Zion,
In assessing the situation before us, we must ask whether an objective observer familiar with the history and placement of the Ten Commandments monument would perceive it as a state endorsement of religion. See Santa Fe Indep. Sch. Dist.,
The format of the monument itself hardly dilutes its religious message. Indeed, this mоnument impermissibly suggests that, in this community, there are “ins” and “outs.” The monument contains the Stars of David and the symbol of Christ, representing respectively Judaism and Christianity, two of the religions no doubt particularly represented in the Elkhart community, but by no means the total of all those who depend on the City of Elk-hart as their local government. The Supreme Court has cautioned that government “sponsorship of a religious message is impermissible because it sends the ancillary message to members of the audience who are nonadherents ‘that they are out
In this regard, the placement of the American Eagle gripping the national colors at the top of the monument hardly detracts from the message of endorsement; rather, it specifically links religion, or more specifically these two religions, and civil government. See City of Zion,
Finally, we cannot say that the monument’s acknowledgment of two religious traditions, rather than one, renders the situation before us in compliance with the strictures of the Constitution. “The simultaneous endorsement of Judaism and Christianity is no less constitutionally infirm than the endorsement of Christianity alone.” County of Allegheny,
3.
This case was decided by the district court on cross-motions for summary judgment. Now that we have reversed the district court’s grant of summаry judgment for the defendants, the district court ought to enter summary judgment for the plaintiffs. The district court must then turn to the question of remedy. In fashioning a remedy, the district court must be guided by the basic rule that the nature of the remedy ought to be determined by the nature and the scope of the constitutional violation. See Milliken v. Bradley,
In crafting equitable relief to comply with our judgment today, the district court must ensure that, although the condition that offends the Constitution is eliminated, Elkhart retains the authority to make decisions regarding the placement of the monument. In making those decisions, Elkhart has the right and, indeed, the obligation to take into consideration the religious sensibilities of its people and to accommodate that aspect of its citizens’ lives in any way that does not offend the strictures of the Establishment Clause. Cf. Zorach v. Clauson,
Conclusion
Cases involving religion pose difficult questions for courts. “Since undoubtedly we are a ‘religious people whose institutions presuppose a Supreme Being,’ deep feelings are aroused when aspects of that relationship are claimed to violate the injunction of the First Amendment that government may make ‘no law respecting an establishment of religion, or prohibiting the free exercisе thereof.’ ” Schempp,
Accordingly, the judgment of the district court is reversed, and the case is remandеd for proceedings in conformity with this opinion.
REVERSED and Remanded
Notes
. See County of Allegheny v. American Civil Liberties Union, Greater Pittsburgh Chapter,
. The bas relief also contains, in smaller lettering, the words "INCORPORATED 1875” on the far left of the elk's head and the words "ERECTED 1915” on the far right of the elk’s head. R.29 & 31, Ex. 16.
. Both the Ten Commandments monument and the War Memorial are approximately the same distance from the main entrance and from the sidewalks. The Ten Commandments monument is 46 feet from the main entrance and 10 feet from the sidewalk, and the War Memorial is 48 feet from the main entrance and 10 feet from the sidewalk. Both are partially shaded by trees.
. The all-seeing eye on the monument is similar to the one depicted on the one-dollar bill.
. The district court also analyzed the placement of the Ten Commandments under several other "tests.” Because we believe that the Lemon test, as refined by Supreme Court precedent, still controls our Establishment Clause jurisprudence, we will not discuss the other tests mentioned by the district court.
. See, e.g., Santa Fe Indep. Sch. Dist. v. Doe,
. See State Oil v. Khan, 522 U.S. 3, 20,
. Given the obvious religious nature of the text itself, it falls to the City of Elkhart to demonstrate that it has taken steps to "obviate its religious purpose.” Gonzales v. North Township,
. As stated above, the Freedom Monument reads: “BEHOLD FRIEND, YOU ARE NOW ON HALLOWED GROUND FOR HERE BURNS FREEDOMS HOLY LIGHT.” R.29 & 31, Ex.25.
. Jacques Maritam, Reflections on America 83-84 (1958).
Concurrence Opinion
The court sets out an accurate presentation of the facts at issue in this case. Suffice it to say that in a Memorial Day ceremony in 1958 the Fraternal Order of the Eagles presented to the City of Elk-hart a stone monument engraved with a version of the Ten Commandments. The City placed it near the north entrance of the City Hall building where it has remained to this day. The plaintiffs claim that the location of the monument is offensive to them and an unconstitutional endorsement of religion by the City.
I agree with the court’s analysis regarding the plaintiffs’ standing to challenge the constitutionality of the placement of the Ten Commandments monument. And while I also agree with the court’s legal summary of the Lemon test, I disagree with its application of Lemon to the facts before us. Rather, applying Lemon and its progeny should lead to the conclusion
I.
A. Lemon Test
In Lemon v. Kurtzman,
1. Secular purpose.
Under Lemon, the government’s challenged practice must have a secular purрose. Thus, in this case, we must ask whether a secular purpose supports the City of Elkhart’s decision not to remove the Ten Commandments monument. Elk-hart presented as evidence of its secular purpose the resolution which its Common Council adopted on May 4, 1998, following consideration of the plaintiffs’ request that the City remove the 40-year-old monument.
The Council’s resolution, which the May- or of Elkhart approved on May 13, 1998, identifies several secular purposes justifying the City’s decision not to remove the Ten Commandments monument. First, as the City recognized, the Ten Commandments represents one of the earliest codes of human conduct and, as such, it “had a significant impact on the development of the fundamental legal principles of Western Civilization.” In fact, the Ten Commandments served as a foundation for the formation of both English Common Law and the Napoleonic Code, which together laid the foundation for American jurisprudence. See State of Colorado v. Freedom From Religion Foundation, Inc., 898 P.2d
The Common Council’s resolution also noted that “the Monument contains symbols that reflect the cross cultural and historical significance of the Ten Commandments,” and that the monument serves as a recognition of those roots and the historical significance of the Ten Commandments. These stated justifications are permissible secular purposes even though a religious symbol is used to accomplish them. Anderson v. Salt Lake City Corp.,
The court acknowledges the validity of Elkhart’s asserted secular purposes, stating “[t]he text of the Ten Commandments no doubt has played a role in the secular development of our society and can no doubt be presented by the government as playing such a role in our civic order.” Opinion at 302. And in this case, Elkhart has explicitly stated in its resolution that it was leaving standing the Ten Commandments monument in order to recognize their “significant impact on the development of the fundamental legal principles of Western Civilization.” Yet the court concludes that “the purpose in displaying the Ten Commandments monument was not secular.” Opinion at 304. How can the court on one hand recognize the legitimacy of this purpose and on the other conclude that Elkhart lacks a legitimate secular purpose for leaving the Ten Commandments monument in place? Apparently, the court just doesn’t believe that the City of Elkhart’s statement of secular purposes is sincere and not a sham. Edwards v. Aguillard,
But there is no evidence that the Common Council’s resolution was a sham, and absent some evidence that the Common Council’s stated reasons for its decision not to remove the monument are insincere, we should defer to those asserted justifications. Cohen v. City of Des Plaines, 8 F.3d 484, 489 (7th Cir.1993). See also American Jewish Congress,
The court seemingly relies on the timing of the resolution (noting that it was passed on the eve of litigation) as evidence that the resolution was insincere. But the timing is totally reasonable. Before the plaintiffs objected to the monument and threatened to sue the City, it had rested unobtrusively on the lawn along with other monuments for nearly forty years, so there was never a need for the Common Council to declare its reasons for allowing the monument to remain. It was not until the plaintiffs demanded that Elkhart remove the monument that it became an issue. At that point the currently governing Common Council convened to consider the plaintiffs’ demands and decided against removing the monument, stating its reasons in the resolution. Given these circumstances, there is nothing suspect about the timing. In fact, in other Establishment Clause cases, this court has relied on the secular purposes proffered during litigation, notwithstanding the timing of the state’s explanation. See Bridenbaugh,
Moreover, even if the City had a religious purpose in displaying the Ten Commandments, that would not destroy the City’s other valid secular purposes. “A law that promotes religion may nevertheless be upheld ... because of the secular purposes that the law also serves....” Metzl v. Leininger,
The court highlights the speeches made when the monument was dedicated in 1958 as proof of Elkhart’s religious purpose in displaying the Ten Commandments. While the speeches made by the various religious leaders were solemn — in line with the occasion — they did not evidence a religious purpose. In fact, those speeches
The speeches, in short, provide little guidance as to Elkhart’s original purpose in accepting the monument donated by the Fraternal Order of Eagles. To the extent that the original purpose would matter, see infra at 315-16, the evidence presented at the summary judgment stage indicates that the City accepted the Ten Commandments monument from the Eagles (a civic, non-religious organization) in order to further the Eagles’ goal of providing “youths with a common code of conduct that they could use to govern their actions,” and “showing these youngsters that there were such recognized codes of behavior to guide them.” Providing youth with a common code of conduct is a valid secular purpose. See Freedom From Religion Foundation,
The court claims that this purpose was not secular because the City chose a religious code to further its goal. But as the Supreme Court recognized in Lynch, a religious symbol can be used to further the secular goal of celebrating both a religious and secular holiday, such as Christmas. Likewise, Elkhart can permissibly choose the Ten Commandments, which includes both religious and secular rules of conduct, to further its secular goal of providing youth with an example of a code of conduct. In fact, it is only logical that when Elkhart chose an example of a “common code of conduct” to display, it chose one that would be recognized by its citizens, and esрecially children, and there can be no doubt that the Ten Commandments is the most well-known and recognizable code of conduct to Americans, as opposed to, say, the Napoleonic Code or the Code of Hammurabi.
In any event, the Ten Commandments monument was donated to Elkhart over forty years ago. What matters, however, is not the City’s purpose in 1958 — when Elkhart could constitutionally have a religious purpose — but the City’s purpose today. BHdenbaugh,
2. Principal or primary effect.
The second prong of Lemon considers whether the government’s practice has the principal or primary effect of advancing or inhibiting religion. Freedom from Religion Foundation v. City of Marshfield,
The court’s conclusion that, based on all of the circumstances, Elkhart’s decision to leave standing the Ten Commandments monument constitutes an endorsement of religion seems to be at odds with the Supreme Court’s decisions in Lynch and Allegheny. In Lynch v. Donnelly,
Five years later in County of Allegheny v. American Civil Liberties Union,
The Court in Allegheny held that the creche display violated the Establishment Clause because “nothing in the content of the display detracts from the creche’s religious message,” as it “stands alone; it is the single element of the display on the Grand Staircase,” which was “the ‘main’ and ‘most beautiful part’ of the building.” Id. at 598-99,
Together Lynch and Allegheny provide significant guidance for our fact-specific analysis of the second prong of Lemon. In those cases, the Supreme Court upheld the constitutionality of government displays of purely religious symbols — a creche and a menorah — when those symbols were part of a larger display. But where the religious display — the creche in Allegheny — stood alone, it violated the Establishment Clause. Here, the Ten Commandments monument stands not alone, but as part of Elkhart’s larger cultural and historical outdoor display. As the court points out, in addition to the Ten Commandments monument, the small, twenty-five-foot-wide courtyard includes a bas-re-lief of an elk’s head with the words “DED-ICATVM” and “JVSTITIAM” inscribed next to this symbol of “Elk”hart; a Revolutionary War Monument surrounded by a flower bed and bearing a plaque explaining that the Daughters of the American Revolution donated the monument in honor of the Revolutionary War soldiers buried in Elkhart County; and the Freedom Monument, which consists of a light standing on top of a brick pillar which reads “BEHOLD FRIEND, YOU ARE NOW ON HALLOWED GROUND FOR HERE BURNS FREEDOM’S HOLY LIGHT.”
These other displays place the Ten Commandments monument in an historical context, and under Lynch and Allegheny context is everything. Thus, in Lynch, the Court held that a solely religious symbol— a creche — was constitutionally permissible because “[w]hen viewed in the proper context,” the creche “depicts the historical origins of the traditional event long recognized as a National Holiday.” Lynch,
True, there were many more holiday displays present in Lynch than are located in the 25-foot-wide courtyard at issue here, but Elkhart’s display still includes more than the total of three involved in Allegheny. In Allegheny, in addition to the menorah, there stood only a Christmas tree and a sign stating “Salute to Liberty.” Compared to Allegheny’s constitutional “salute to liberty” display, Elkhart’s cultural and historical display more fully neu
In its discussion of Lynch and Allegheny, the court does not distinguish these Supreme Court opinions when it concludes that the Ten Commandments monument constitutes an establishment of religion. Rather, the court focuses on the question of whether “an objective observer familiar with the history and placement of the Ten Commandments monument would perceive it as a state endorsement of religion.” Opinion at 306. This is the appropriate question, but for the answer we must consider comparable facts underlying the Supreme Court’s cases involving the Establishment Clause. That precedent leads to the conclusion that a monument of the Ten Commandments is constitutional when part of a larger historical and cultural display. That is what we have in this case.
This circuit’s decisions in American Jewish Congress,
The court also opines that “The format of the monument itself hardly dilutes its religious message. Indeed, this monument impermissibly suggests that, in this community, there are ‘ins’ and ‘outs.’ ” Opinion at 306. This reasoning is misplaced for two reasons. First, the inclusion of Jewish, Catholic, and Protestant symbols actually makes the monument more likely to pass constitutional muster. See Freedom From Religion Foundation,
The court also, believes that the placement of an American Eagle gripping the flag at the top of the monument furthers the impression that Elkhart is endorsing religion.. Opinion at 307. On the contrary, like the “Salute to Liberty” sign placed by the menorah and Christmas tree in Allegheny, here the presence of the American Eagle, our flag and the All-Seeing Eye help place the monument in context for the viewers by reminding passers-by that the Ten Commandments served an important role in our country’s
One final point: It is important to note that while the two plaintiffs involved in this case took offense to the Ten Commandments monument, that is not disposi-five because the question is whether an “objective” observer would believe that the display constituted an endorsement of religion. Santa Fe Indep. Sch. Dist. v. Doe,
B. Stone v. Graham
The court also relies on Stone v. Graham,
Stone is distinguishable for another and more fundamental reason — it involved the mandated posting of Ten Commandments in schools. Where impressionable youths are involved the Supreme Court has taken a harsher view of religion. See, e.g., Lee v. Weisman,
C. Historical Practices
Given the factual similarities to the displays constitutionally permitted in Lynch and Allegheny, Elkhart’s decision to leave the Ten Commandments monument standing should not violate the Lemon test. But even if the Lemon test was not met, where a religious symbol has meaning in history and ubiquity, the Supreme Court has sidestepped the strictures of Lemon because the results would be contrary to the clear intent of the Framers of the Constitution. For instance, in Marsh v. Chambers,
In light of the unambiguous and unbroken history of more than 200 years, there can be no doubt that the practice of opening legislative sessions with prayer has become part of the fabric of oursociety. To invoke Divine guidance on a public body entrusted with making the laws is not, in these circumstances, an “establishment” of religion or a step toward establishment; it is simply a tolerable acknowledgment of beliefs widely held among the people of this country.
Id. at 792,
Significantly, Marsh did not apply Lemon, but in its holding recognized the fact that “[t]here is an unbroken history of official acknowledgment by all three branches of goveimment of the role of religion in American life from at least 1789.” Lynch,
The Supreme Court has long recognized the constitutionality of such religious references. For instance, the Court has acknowledged that its own court proceedings open with an announcement which concludes “God save the United States and this Honorable Court.” Marsh,
Also informative are comments the Supreme Court has made concerning the constitutionality of the 1932 artistic rendition of Moses and the Ten Commandments contained in the frieze surrounding the walls of the highest court. For instance in Lynch,
The circuit courts have also accepted historical references to the Deity, upholding our national motto of “In God We Trust,” and the same inscription on our
The reference to God on the Ten Commandments monument is much like these other references — an acknowledgment of our religious roots. While the display does not date back to our nation’s founding, neither does the Pledge of Alliance’s reference to God, or other such constitutionally approved religious references, such as the “In God We Trust” motto and inscription. Rather, many of the Deity references find their roots in our more recent history — the 1950’s — -just as the Ten Commandments monument in this case does. Therefore, in looking at the monument that still stands before Elkhart’s Municipal Building, it is helpful to view it in light of the time it was placed there.
In the 50’s the Cold War was daunting, and our country — as it often does in times of crisis — acknowledged the importance of God. See 100 Cong. Rec. 1700 (1954) (“[T]he fundamental issue which is the unbridgeable gap between America and Communist Russia is a belief in Almighty God.”) (statement of Rep. Rabaut). In 1952, Congress established the “National Day of Prayer,” H.R.J. Res. 382, 82d Cong., 2d Sess. (1952), recognizing that “the national interest would be much better served if we turn aside for a full day to pray for spiritual help and guidance from the Almighty during these turbulent times.” 98 Cong. Rec. 771 (1952) (statement of Rep. Brooks). That same year, Justice Douglas, writing for the Supreme Court in Zorach v. Clauson,
In 1954, Congress added the phrase “one Nation under God” to the Pledge of Allegiance. This amendment came in response to a sermon delivered by the Reverend George M. Doeherty at the New York Avenue Presbyterian Church in Washington D.C. at a service which President Eisenhower and several Senators and Representatives had attended. In his sermon, Reverend Doeherty noted that our Pledge of Allegiance was missing something — something that would distinguish it from the pledge “little Muscovites might repeat” in a “pledge to their hammer-and-sickle flag in Mosсow.” Steven B. Epstein, Rethinking the Constitutionality of Ceremonial Deism, 96 Colum. L. Rev. 2083, 2118-19 (1996). That something was a recognition of God. After the President signed this legislation, the new Pledge of Allegiance was recited and a bugler played a rendition of “Onward, Christian Soldiers.” 100 Cong. Rec. 6348 (1954) (statement of Sen. Ferguson).
The trend continued: In 1955 Congress mandated the inscription of “In God We Trust” on all coins and paper currency. The bill’s sponsor, Representative Bennett, spoke on the bill’s passage: “In these days when imperialistic and materialistic com
As a nation, we are thankful the Communist wall of separation has fallen. And it is true that following the Supreme Court’s Establishment Clause jurisprudence beginning in the 60’s, our governments are increasingly restricted in invoking the name of God. We have numbed such invocations with terns such as “rote repetition,” moments of silence, and “ceremonial deism.” Yet that does not change the historical fact that the Ten Commandments served as the foundation for our country’s legal system. A monument displaying the Decalogue acknowledges that fact without endorsing it. The Ten Commandments monument also serves as an historical headstone, not only for our nation’s original foundation, but also for the 1950’s, a religious time in America when as a nation we turned to God. A time when divorce, illegitimacy, drug abuse, murder, abortion, youth violence, and the other crises of today were still relatively rare.
In sum, I believe the retention of the 40-year-old Ten Commandments monument displayed outside Elkhart’s Municipal Building is justified bаsed on our country’s early and more recent history as a “tolerable acknowledgment of beliefs widely among Marsh,
D. Remedy
Because I believe that Elkhart’s decision to leave the Ten Commandments monument standing does not constitute an “establishment of religion,” I would conclude that the monument’s placement and design is fine as is. However, the court concludes otherwise, and thus is correctly concerned about the appropriate remedy. While I have no doubt that the City can locate an obscure hiding place for the monument, that should not be necessary. Cemeteries are full of monuments honoring times past. But this monument should not be exiled to the equivalent of a graveyard.' Perhaps it could remain in place if it could be sufficiently diluted with additional plaques and memorials. I don’t think anyone would accept some sort of redaction whereby the preliminary references to God would be chiseled away or otherwise defaced. There must be some other way to minimize any perception of endorsement, and many communities and the State of Indiana seek guidance on where and how the Decalogue can be prominently displayed without offending the Constitution. Yet, if the court’s decision in this case stands, there may be no remedy other than removal because the court concludes that the City lacked a secular purpose
II.
To this point, I have examined most of the tests and distinctions set in place by the Supreme Court. While I am confident this analysis under Lemon is correct, I also recognize that reasonable people can disagree. See Lemon,
The Establishment Clause reads that “Congress shall make no law respecting an establishment of religion.” “The Framers intended the Establishment Clause to prohibit the designation of any church as a ‘national’ one. The Clause was also designed to stop the Federal Government from asserting a preference for one religious dеnomination or sect over others.” Wallace v. Jaffree,
History proves that, and “[t]he true meaning of the Establishment Clause can
The Lemon “three-part test represents a determined effort to craft a workable rule from a historically faulty doctrine; but the rule can only be as sound as the doctrine it attempts to service.” Id. at 110,
For now, however, the history as viewed by these dissenting jurists has been displaced by the Lemon test. Until the Court returns to the original understanding of the Establishment Clause we are bound by Lemon, and we therefore are left to measure the dilution of the religious message and question the sincerity of the government’s secular motive — neither task well suited to the judiciary. Nonetheless, even under these complicated standards, the Ten Commandments monument does not constitute an establishment of religion.
III.
The Ten Commandments monument serves several secular purposes, including a recognition of our country’s legal, historical, and yes, religious roots. Any perceived endorsement of religion is diluted by Elkhart’s incorporation of secular symbols on the monument — placing the Ten Commandments in context of this country’s history — and by the existence of other secular monuments in Elkhart’s municipal building parkway. Moreover, even if we were to conclude that the monument fails the strictures of the Lemon test, I believe that history and ubiquity justify Elkhart’s decision to leave undisturbed a monument which has rested unobtrusively and undisturbed in front of its municipal building for more than forty years in recognition of our country’s religious and legal roots. I therefore Dissent from the court’s holding that Elkhart’s decision to leave in place the Ten Commandments monument constitutes an establishment of religion, and its implicit mandate that it must be removed.
. WHEREAS, the issue of the Ten Commandments Monument outside Elkhart City Hall has been raised by a person who is represented by the Indiana Civil Liberties Union. The Indiana Civil Liberties Union has contacted the Mayor of the City of Elkhart and has stated that a lawsuit will be filed if the Ten Commandments Monument is not removed.
WHEREAS, in recognition of the historical significance of the Ten Commandments, the Fraternal Order of Eagles presented the Ten Commandments monument to the City of Elkhart in May, 1958. In addition to the Ten Commandments, the Monument contains symbols that reflect the cross cultural and historical significance of the Ten Commandments.
WHEREAS, the Ten Commandments Monument hаs stood outside in an unobtrusive location to the north of the entrance of City Hall since 1958. There are numerous other historical and cultural plaques, memorials, and monuments located south of the entrance of city hall, in the foyer just inside the city hall entrance, at the first floor open area of city hall, and at the second and third floor open areas of city hall; and WHEREAS, the Ten Commandments have had a significant impact on the development of the fundamental legal principles 'of Western Civilization.
NOW, THEREFORE, BE IT RESOLVED BY THE COMMON COUNCIL OF THE CITY OF ELKHART, INDIANA, THAT:
The Ten Commandments Monument is a historical and cultural monument that reflects one of the earliest codes of human conduct. It is proper for the Ten Commandments Monument to remain and the defense of this position is strongly endorsed.
. The frieze contained on the south wall of the courtroom of the United States Supreme Court includes a procession of great lawgivers of history, including Hammurabi, the Babylonian king who developed the Code of Hammurabi, and Napoleon Bonaparte, Suhre v. Haywood County, N.C.,
. The court is concerned that this monument could have a religious meaning to someone approaching the building because it uses the words "hallowed” and "holy.” Opinion at 305-06. Considering the words in the context of the display and its location, however, demonstrates that there is nothing religious about the display. Rather, the ground is "hallowed” because freedom's "holy light” burns "here,” and "here” is the municipal building where justice is served through the county government. The choice of the words "hallowed” and "holy” merely serve as a literary device to honor freedom; the words in context do not have a religious meaning. See Webster’s Seventh New Collegiate Dictionary (G. & C. Merriam Co. 1972), offering alternative definitions for "hallow” — one religious, "to make holy,” and one secular, "to respect greatly.”
. While Anderson was decided before Stone v. Graham,
. Although the court insists "the mоnument certainly cannot be fairly characterized as a component of a comprehensive display of the cultural heritage of the people of Elkhart,” the facts point to the opposite conclusion. Within the very small 25-foot-wide courtyard rest four historical displays, including a monument to freedom, the Revolutionary War monument, the Ten Commandments monument, and the Elk bas-relief. These displays represent various aspects of our country and Elkhart's history, and encompass themes relevant to the offices located inside the Municipal Building, including not just the city court, but also the mayor's office, the human relations department, and the offices of the Common Council. Given the limited space available, it is impossible to get much more "comprehensive” than the current display. A more compact layout could lose what Elk-hart strived to create — an aesthetically pleasing visual display, centered by the Elk bas-relief and balanced by the other monuments that flank the walkway. Nor does a display have to be "comprehensive” to dilute the religious aspect of one exhibit, as is clear from the Supreme Court’s decisions in Lynch and Allegheny — displays which were far from comprehensive.
. In fact, the differences between the monument at issue in this case and the display challenged in American Jewish Congress are very similar to the differences the Supreme Court faced in Allegheny: the creche, which was unconstitutionally favored by its prominent and solitary placement inside the county courthouse, and the menorah, which was constitutionally located- outside the courthouse near a Christmas tree and a sign saluting liberty. As noted, the location proved disposi-tive in Allegheny.
. The text of the Ten Commandments monument listed twelve commands so as to serve as an amalgamation of the Jewish, Protestant and Catholic versions of the Ten Commandments. The first six commands refer to God or the Sabbath, while the last six do not. Opinion at 296.
. In this last regard, the Common Council's resolution not only explains its secular purpose, but also serves to inform the citizenry that Elkhart has no desire to endorse religion — it is merely acknowledging religion’s role in our country’s history. Or in the court’s language, Elkhart in passing the reso