William A. Books and Michael Suetkamp v. City of Elkhart, Indiana

1. RIPPLE, Before MANION and WILLIAMS, Judges. Circuit 1940s, juvenile court judge in Minnesota, Ruegemer, E.J. inaugurated RIPPLE, Judge. Circuit the Youth Program. Guidance Disheart- City the lawn On of the of Elkhart’s ened the growing youths number of in Municipal Building stands a monument in- trouble, sought provide he to them with a scribed with the Ten Commandments. common code of conduct. He believed A. William Books and Michael Suetkamp, might pro- Commandments Elkhart, object display residents of to the necessary vide the guidance. Judge Rue- this monument on property. gemer originally planned post paper They brought this action the district copies juve- of the Ten court, claiming that the of the mon- courts, nile first in Minnesota and then City ument of Elkhart violates the the country. help across To fund his Establishment Clause the First Amend- idea, he contacted the Fraternal Order of ment to the Constitution the United (“FOE”), Eagles organization service granted States. The district court sum- truth, dedicated to promoting liberty, mary judgment City for the of Elkhart. justice. first, rejected At Judge FOE For the reasons set forth in following Ruegemer’s idea because it feared that opinion, we judgment reverse the of the the program might seem coercive or sec- district court proceedings and remand for tarian. In response concerns, to these opinion. consistent with this Judaism, representatives Protestantism, developed Catholicism what the indi- I viduals involved believed to be a nonsecta- rian version of the Ten Commandments BACKGROUND because could not any be identified with A. one group. reviewing Facts After this version, agreed FOE support Judge A monument inscribed with the Ten Ruegemer’s program. Commandments is located on the lawn front of Municipal Building time, Around this same picture motion (“the “Elkhart”). City” producer B. Cecil DeMille contacted Judge plaintiffs, Elkhart, object residents of to Ruegemer DeMille, about program. presence of this working who was produce the movie 1. County Allegheny See v. Schempp, American Civil 374 U.S. 83 S.Ct. Union, Liberties Pittsburgh Chapter, Greater (1963) (calling 10 L.Ed.2d 844 principle 573, 588, 492 U.S. 109 S.Ct. settled"); Connecticut, "decisively Cantwell v. (1989); Jaffree, L.Ed.2d 472 Wallace v. 296, 303, 84 L.Ed. 38, 48-55, 86 L.Ed.2d 29 (1940). (1985); Abington School Township Dist. Commandments,” change does not and that the suggested moral law “The Ten that, paper cop- engraved mere should be posting than Ten Commandments rather Commandments, hearts, minds, pro- only in stone but of the Ten ies plaques. Judge id. Fi- everyone. bronze and consciences of gram distribute noted, granite might be Ruegemer replied Rabbi Finkel- nally, newspaper original material because the more suitable explained stein that the dedication written on were Ten Commandments for dedi- monument “should be occasion Judge Rue- agreed DeMille granite. high inher- everyone cation of ideals judge and the thereaf- gemer’s suggestion, way in the American of life.” Id. ent granite with two Minnesota ter worked monuments produce granite companies with the Ten Commandments.

inscribed earlier, Elkhart’s Ten As we have noted financed these chapters Local FOE located then, throughout monuments and granite City’s Municipal the lawn front of the 1950s, to their local com- donated them Municipal Building. Building, The situat- chapter of FOE The Elkhart munities. High ed on the corners of Second and of the Ten Command- donated its version Elkhart, contains the Streets in downtown Elkhart in City to the ments monument office, City’s and human mayor’s legal 1958. court, city departments, relations The Elkhart newspaper, Elkhart’s office, of the prosecutor’s and the offices Truth, an article about the dedi- published main en- Common Council. Above the monu- cation of the Ten Commandments Municipal Building trance to the is bas- R.29, Elkhart. City to the See ment left Directly an elk’s head. to the relief of Ex.A, in Memo- Pay Tribute Ceremonies “DEDI- head is the word of the elk’s Rite-, Decalogue, The Day City rial Given CATVM,” right of and on the immediate 1958, Truth, May at 1. The Elkhart the elk’s head is the word “JVSTITIAM.”2 City’s was a of the Memo- dedication R.29 & Ex.14-16. ceremonies, participants and the Day rial Building con- Municipal The lot for the Long, included: Robert in the dedication itself, sidewalks, building tains the controller; Hull, presi- past Mahlon city building Between the parking area. FOE; Chapter Dale dent of the ap- grass sidewalks is a lawn that is FOE; Swihart, lodge secretary for 25 feet wide. Within this proximately Gieranowski, assistant William Reverend lawn are three monuments. Church; of St. Vincent’s Catholic pastor surrounding the monu- maintains this lawn Kenhell, outgoing- the Reverend W.W. timе, any but does not contribute ments of the Elkhart Ministerial Asso- president money, or effort to the maintenance ciation; M.E. Finkelstein of and Rabbi monuments themselves. Temple Israel. building’s corner of the Reverend On southeast

According newspaper. to the intersection— lot—the corner nearest the ceremony, imparting spoke Kenhell at the Revolutionary Monument and are the War message that “Americans have inherit- Revolution- Freedom Monument. The founding from the fathers power ed moral street, Monument, closest accept ary ... will War country, of our stone, Commandments, plaque which bears a large is a of the Ten precepts by a bed of flowers. today’s is surrounded provide redemption will their explains plaque Ex.23-24. The R.29 & strife and fear.” Id. Father Gieranowski by the the monument was donated ceremony and stated that spoke also at the contains, right the elk’s 1915” on the far let- "ERECTED relief also in smaller The bas tering, 1875” the words "INCORPORATED head. R.29 & Ex. 16. the elk's and the words on the far left of head Daughters the American thy wife, Revolution Thou shalt neighbor’s not covet Revolutionary manservant,' honor of the War soldiers nor his nor his maidser- County. vant, cattle, buried in Elkhart Behind the nor anything his nor that is Revolutionary thy neighbor’s. War Monument is the Free- dom Monument. The Freedom Monument text, R.29 & Ex.5. This previ- as stated pillar light top. is brick with a on its A ously, Jewish, an amalgamation Prot- plaque pillar on the reads: “BEHOLD estant, and Catholic versions FRIEND, ARE HAL- YOU NOW ON Commandments. HERE LOWED GROUND FOR BURNS monument, top At the there are R.29 FREEDOMS HOLY LIGHT.” & two small tablets that contain ancient He- Collectively, Revolutionary Ex.25. War script. brew Surrounding both these Monument and the Freedom Monument design, tablets is a floral and between the are referred to as the War Memorial. eye two tablets is an pyramid within a —an On the northeast corner of the lot is the all-seeing eye.4 Immediately below the Ten Commandments monument.3 The eye all-seeing is an Eagle grasp- American Ten Commandments monument is made of ing the flag. American Below the text on granite and stands high six feet and three the monument are two small Stars of and one-half largest feet wide. The por- David. the center of the two stars is a tion of the monument is consumed similarly symbol sized representing Christ: text of the Ten Commandments. The face letters, Rho, two Greek Chi superim- of the monument reads as follows: posed upon each other. At the base of the scroll,

monument is a small which reads as The Ten Commandments follows: I thy AM the LORD God. PRESENTED TO

Thou gods shalt have no other before me. ELKHART, THE CITY OF IND. thyself Thou shalt not make to any gra- BY images. ven Thou shalt not take the Name of the ELKHART AERIE NO. 395 thy Lord inGod vain. FRATERNAL ORDER OF EAGLES Remember the day, keep Sabbath it holy. MAY, 1958 thy mother, thy Honor father and Id. thy days may long upon be the land Photos of the Ten Commandments mon- thy the Lord giveth God thee. ument and of the Municipal front of the Thou shalt not kill. Building were included the trial record Thou shalt not adultery. commit and are appendices attached as to this Thou shalt not steal. opinion.

Thou shalt not bear false against witness 3.

thy neighbor. Thou shalt thy not covet neighbor’s shows, Insofar as this record pres- house. ence of the Ten Commandments monu- 3. Both the Ten Commandments monument is 48 feet Memorial from the main entrance and the War approximately Memorial are and 10 feet from the sidewalk. Both are partially same distance shaded trees. from the main entrance and from the sidewalks. The Ten Commandments monument is 46 feet from the main entrance all-seeing eye 4. The on the monument is simi- sidewalk, and 10 feet from and the War depicted lar to the one on the one-dollar bill. explains, although he could use Municipal Mr. Books of the Elkhart on the lawn ment in- Municipal Building’s side entrance controversy until no Building produced to avoid of its main entrance order stead mayor was year, City’s In that monument, “know[s] he the Ten Com- that, the monument was unless informed there whether mandments monument After removed, be filed. a lawsuit would Id. at 3. or not.” [he] see[s] received, warning the Common convened on City of Elkhart Council explains that he Mr. Books further 4, 1998, a resolution adopted May activities, daily the monument in his passes Ten Com- display of the “regarding the on a route including: riding bicycle his R.29, public property.” mandments pa- Municipal Building; passes resolution, According to this Ex.B. Library, Elkhart tronizing the Public face symbols on its and the located across the street from the which is signif- and cultural the historiсal recognize Building; visiting his land- Municipal of the Ten Commandments. icance house, both of lord’s office and his cousin’s resolution noted Council Common Municipal near which are located and cultural numerous other historical that, in Building. He states order to avoid Municipal Building. are inside the plaques monu- seeing the Ten Commandments emphasized further The Common Council ment, spe- he “would have to assume the have had that “the Ten Commandments altering daily routine [his] cial burden of development impact on significant avoid this direct and unwelcome so as to of West- legal principles fundamental contact.” Id. at 2. Finally, the Common Id. ern Civilization.” a res- Suetkamp Plaintiff Michael is also that, concluded because Council County and has lived ident of a historical monument “is affi- early Elkhart since the 1990s. his one of cultural monument that reflects davit, that he is an Suetkamp Mr. states conduct,” human codes of the earliest deeply by the atheist and is offended to remain. for the monument proper the Ten Commandments placement of did not Id. Because the Common Council City property monument on monument, two residents remove that he must come Elkhart. He states City of against filed this action Elkhart contact with the direct and unwelcome Elkhart. a citizen of participate to monument he has entered explains,

Elkhart. As he Budding pay a traffic Municipal ticket, City meeting, to to attend a Council Books is resident Plaintiff William Clerk, and to City talk to the Council’s in Elkhart County and has resided City At- taken deposition have his In Mr. Books’ affi- early since the 1980s. torney in ease. I davit, the extent that “[t]o he states he comes Suetkamp also avers that must, to, Municipal Mr. go to the or wish with the and unwelcome contact Elk- in direct as a citizen of Building participate For ex- daily in his activities. and unwel- monument I must come into direct hart that the route he takes ample, he states with the Command- [Ten come contact the Munici- R.24, passes return home from work Attachment monument.” ments] sees that, Building and that he sometimes pal explains past, 2. Mr. Books entering the Elkhart monument when Building to the Municipal to the gone he has Library. Although passes he Public City to attend pay a traffic ticket and ad- Suetkamp Mr. frequently, issues dis- monument meetings when the Council directly at it he not look him. mits that does interested cussed were ones if I time, every “[e]ven he states Also, Books, but deposition Mr. his gion. exists, It noted that this question is asked we must review the record in the from the perspective light of a plaintiffs reasonable ob- most favorable to the and server who is make all charged with reasonable knowledge inferences their history favor. See Liberty and context Anderson v. display. Lobby, of the Inc., 242, 255, 477 2505, U.S. The court 106 S.Ct. stated that a 91 reasonable observ- (1986). Here, L.Ed.2d 202 parties er do looking at the monument would know dispute facts, not the material so we shall that the Ten Commandments has both re- review de novo the district court’s conclu ligious and significance historical and sions of law. Religion See Freedom would acknowledge the significance of the from Found., City Marshfield, Inc. v. 203 religious symbols on the monument as (7th 487, Cir.2000). F.3d 490 signs major of the religions of country at the time of the monument’s donation. Standing B. The court pointed next out that a reason- able observer would view the Ten Com-

mandments monument as Under III Article of the Constitution of City’s overall collection of displays States, of his- the United a plaintiff must have cedent, 5. The analyzed place- district court also still controls our Establishment ment of the Ten Commandments under sever- jurisprudence, Clause we will not discuss the al other "tests.” Because we believe that the by other tests mentioned the district court. test, Lemon Supreme pre- as refined

299 sign, hanging over the main entrance of an action before a feder- standing bring to courthouse, county’s read: “THE standing, the Supreme have al court. To plaintiffs al- WORLD NEEDS GOD.” plaintiff must explained, Court has county and (1) were residents of the wished to an injury suffered lege that he has however, sign; to partic avoid the order (2) traceable to action fairly fact that is county their and (3) ipate citizens of to likely that will be and defendant obligations, they fulfill certain needed legal a favorable decision. See redressed with They alleged to use the courthouse. that Wildlife, Lujan v. 504 U.S. Defenders had to and they come in direct unwelcome 2130, 555, 560-61, 119 L.Ed.2d 112 S.Ct. using sign contact when the court (1992). Here, dispute 351 centers case, that house. we held the plaintiffs whether the first element: allegations they must plaintiffs’ come City’s injury in fact suffered an and in direct unwelcome contact with the gov- Ten Commandments on display of the fully as religious display participate to citi property. ernment county of their to fulfill zens their an adequately injury allege To legal obligations were sufficient to show fact, “an a plaintiff a must show invasion of injury in had an fact. suffered (a) con legally interest which is protected stated, id. at “direct See 1159. As we (b) or particularized crete and actual unwelcome to a exposure mes conjectural hypothetical.” imminent, cannot from the sage distinguished be ‘in (citations 560, at 2130 Id. 112 S.Ct. juries’ plaintiffs other who have had omitted). quotation marks the context standing bring to claims under the Estab Clause, of the Establishment our cases at lishment Id. 1159. We then Clause.” that, allege required properly Court and noted both fact plaintiff injury has suffered standing this court for constitu have found religious object, from the conduct challenges tional when has may individual show he undertaken plaintiffs special not assume a did bur altered his special burden or has behavior alter den or their behavior. Lee v. See, object. e.g., to avoid the offensive Weisman, 2649, 120 577, 112 S.Ct. Found., F.3d Religion Freedom (student (1992) parent L.Ed.2d 467 (avoids park); v. using Gonzales objected planned and bene invocations (7th 1412, Township, North 4 F.3d 1416-17 non-mandatory graduation dictions cer Cir.1993) (avoids park); area of the Harris emonies); Jaffree, v. U.S. Wallace (7th Zion, City 927 F.2d L.Ed.2d 29 Village (alters Cir.1991) routes); travel Doe v. (school objected parents children and (7th Crestwood, of Cir.1990) silence); period one-minute Stone v. (will festival); stay away from Graham, Liberties Union v. American Civil curiam) (students (1980) (per L.Ed.2d 199 (7th Charles, 265, 269 St. 794 F.2d Cir. parents objected posting to Ten 1986) (alters Doe detouring); behavior Commandments); Abing School Dist. of (N.D.Ill. Small, 713, 718-19 F.Supp. v. Schempp, ton v. Township 1989), grounds, rev’d en banc on other 964 205, 1560, 10 224 n. L.Ed.2d 844 Cir.1992) (avoids (7th using F.2d 611 (school parents object children and park). although in school reading ed to of Biblе here, however, The district court relied at time students chose to be absent could Montgomery, County Berger on Doe v. 41 F.3d v. Rensse participate); or to not (7th Cir.1994), Corp., to determine whether laer Cent. Sch. (7th Cir.1993) in fact of school plaintiffs injury (parent the had suffered n. 4 chil objected distribution of Gideon they had not altered their dren though even schools); Bibles in Sherman Com to avoid the Ten Commandments the behavior Wheeling Doe, munity Dist. 21 permanent In metal Consol. Sch. monument. (7th Cir.1992) contends, F.2d Township, plaintiffs did not need (student objected ‍​​‌​‌​​‌​‌‌​‌‌‌​​‌‌‌‌‌‌‌‌​​‌‌​​​​‌‌‌​​​​​‌‌‌‌‌‌‌‍recitation of Pledge to come in direct and unwelcome contact Allegiance). with the text on the Ten Commandments monument in order to participate as citi- The followed holding district court zens of Elkhart or to fulfill their legal plaintiffs Doe and noted had al- Thus, obligations. City asserts, leged that they must come direct and plaintiffs alleged have not they suf- unwelcome contact with the Ten Com- an injury fered in fact by placement mandments monument to participate fully the Ten Commandments monument on the as citizens of Elkhart to fulfill their lawn of the Municipal Building. legal obligations. questioned The court plaintiffs whether the had to look at the Municipal to enter the Building, 3. plaintiffs as the in Doe had to see sign Doe, As this court discussed in over the main entrance county to enter the Supreme Court has require addressed the courthouse, but found that the facts were ments for standing plaintiff when a must sufficiently close to fit within the rule of religious symbol view a daily in his routine Therefore,

Doe. plaintiffs had stand- or when he is forced to come in contact ing to challenge placement of the mon- with religious through conduct partic ument in front of the Municipal Building. ipation in school or in government. See Doe, 41 F.3d at 1160. As we demonstrat 2. Doe, ed in our holding that case is plaintiffs bear the burden of grounded firmly precedent establishing they standing have Therefore, Court. we must con Doe, bring this action. See 41 F.3d at clude plaintiffs that the have standing to burden, To meet plaintiffs challenge placement of the Ten Com Books and Suetkamp allege both that they mandments monument on the lawn of the must come direct and unwelcome con Municipal Building. tact with the Ten Commandments monu ment to participate fully as citizens of Elk- agree We with the district court hart and to fulfill legal certain duties. that there principled is no distinction be Moreover, they allege each specific exam tween the facts of Doe and the pre facts ples in they have entered the Munic Doe, sented here. plaintiffs were ipal Building to participate as a citizen of required to come in direct and unwelcome legal or to fulfill a obligation. contact with display in order

According City, plaintiffs participate fully in government and to must alter their behavior to avoid the Ten fulfill legal their obligations. Here, Commandments monument before they plaintiffs must do the same. Although it is can allege that they have inju- suffered an true plaintiffs here could have ry in Doe, fact. City submits, altered path their into Municipal Build plaintiffs wished to avoid the sign ing to monument, avoid the an act that above the courthouse’s main entrance but would given them standing under could not do so if wished to use see, Seventh precedent, Circuit e.g., Free courthouse participate and to citizens dom Religion Found., 203 F.3d at Here, county. City 489; argues, Charles, 269, St. 794 F.2d at plaintiffs could have entered the Municipal they obligated were not to do so to suffer Building through entrances, or, alternative fact, an injury Doe, in see 41 F.3d at 1160- if even entering through the main en- Moreover, 61. plaintiffs because the trance, they could passed have along the aware of the words written on the front of back of the Ten monument, Commandments monu- merely walking behind it ment. Because of options, these two the will not injury eradicate the they allegedly

301 Brand, 982, (same); v. 104 F.3d the Ten Command by passing suffered Tanford (7th Cir.1997) (same); therefore conclude Farrey, monument. We 986 Kerr v. ments injury (7th Cir.1996) an in fact may allege 472, (same); plaintiff that a 95 F.3d 476-80 object to view a he is forced when v. Directors Sch. Dist. Fleischfresser unable to to avoid but is (7th Cir.1994) that he wishes 200, 680, 15 F.3d 685-86 right duty his or to attend avoid because of Sherman, (same); 8 F.3d at 1163-64 where the ob place government-owned (same). approach by Under the mandatеd Doe, 41 at 1159— ject See F.3d is located. (1) Lemon, we consider: whether the must Therefore, plaintiffs alleged have 61. in government activity question has a secu- facts to demonstrate sufficient (2) activity’s lar purpose, pri- whether the by placement in injury an fact suffered mary religion, effect advances or inhibits monument on of the Ten Commandments (3) government activity whether the Municipal Building. the lawn of the entanglement fosters an excessive with re- Lemon, 612-13, ligion. See 403 U.S. at 91 Governing Principles Applica- C. 2105. action is viola- S.Ct. Governmental tion prohibition tive of constitutional Although various members against religion the establishment of Court of the United States Supreme any prongs. one of three violates these it,6 the test first enunciated criticized 578, Aguillard, v. 482 See Edwards U.S. Kurtzman, in v. 403 U.S. the Court Lemon (1987). 2573, 583, L.Ed.2d 107 S.Ct. 96 510 (1971), 2105, 602, 29 L.Ed.2d 745 case, do not plaintiffs contend analytical tool for prevailing remains the the monument involves that the analysis of Establishment Clause entanglement religion; an with excessive appel As an intermediate federal claims. therefore, we shall confine our discussion court, obliged by the doctrines late we are analysis. prongs to the first two precedent employ of stare decisis before turning Before situation other methodology unless instructed us, that, cases, in more recent we also note See, e.g., Supreme Court.7 wise occasion, has, on artic- Court Found., Religion 203 F.3d Freedom from in prongs ulated these first two terms of in Estab (emphasizing at 493 Lemon test County test. See Bridenbaugh “endorsement” analysis); v. lishment Clause Cir.1999) (7th O’Bannon, 796, Liberties Un- Allegheny v. American Civil 185 F.3d 797 646, 671, Doe, See, Liberty Regan, 444 U.S. e.g., Indep. Sch. v. v. 6. Santa Fe Dist. 2284-85, 2266, J., (1980) (Stevens, S.Ct. 147 dis- 530 U.S. 120 L.Ed.2d 94 63 C.J., (2000) (Rehnquist, dissent- L.Ed.2d ing) (stating (desiring “continuing with senting) to avoid a checkered that “Lemon has had together sisyphean tiying patch task of decisional law of this Court” career in the 'blurred, indistinct, and variable barrier’ Lemon); collecting opinions criticizing omitted)). (citation described in Lemon" Chapel Center Moriches Union Free Lamb’s v. 384, 398-99, Dist., S.Ct. 508 U.S. Sch. 3, 20, Khan, State Oil v. J., (1993) (Scalia, con- 124 L.Ed.2d 352 (1997) (stating 139 L.Ed.2d 199 S.Ct. (comparing curring judgment) in Lemon to Appeals "Court of was correct that the late-night ghoul horror movie that "some despite applying decisis] doсtrine of stare [the up grave repeatedly sits in its and shuffles prior Supreme disagreement [a abroad, being repeatedly killed and bur- after prerogative opinion], for it is this Court’s collecting opinions criticizing ied” and then precedents”); to overrule one of its alone Lemon); County Allegheny, 492 U.S. Felton, 203, 217, Agostini 655-56, J., (Kennedy, concur- 109 S.Ct. 3086 (remind- L.Ed.2d 391 dissenting ring judgment ing appellate "the views of five courts that that, (stating although part) he found the Lem- be reconsidered case should [a] Justices constitutionality judging test useful in to have effected a overruled cannot be said holiday displays, wish to be he did "not law”); see change Establishment Clause advocating, adopting, that let alone seen Carter, n. also DeWalt v. primary guide in this difficult test as our (7th Cir.2000). area”); Religious & Committee Pub. Educ. 302

ion, Pittsburgh Chapter, 492 totality Greater U.S. evaluate the of the circumstances 3086, 573, 592, surrounding placement 109 106 L.Ed.2d 472 S.Ct. and mainte- (1989) (formally accepting the nance of the monument. endorse stating ment test and recent “[i]n a starting point, As we think do not years, paid particularly we have at close it can be said that the Ten Command challenged govern tention to whether the ments, standing by themselves, can be mental practice purpose either has the sacred, of their stripped religious, indeed religion, ‘endorsing’ effect of a concern significance and characterized as a moral long place that has had a our Establish Indeed, or ethical document. Supreme jurisprudence”); ment Clause see also Court made point this clear in Stone v. Doe, Indep. Santa Fe Sch. Dist. v. 530 Graham, 39, 192, 449 U.S. 101 S.Ct. 290, 2266, 2278, U.S. 120 S.Ct. 147 L.Ed.2d (1980), L.Ed.2d 199 when it noted that a (2000) (asking whether the state en simple reading of the Ten Commandments by dorsed religion allowing a student permit not ignore does us to a prayer open high lead school football “arguably matters, transcend secular such games); Capitol Square Review & Adviso as honoring parents, one’s mur killing or Pinette, 753, ry 763-65, Bd. v. 515 U.S. 115 der, adultery, stealing, witness, false (ac 2440, S.Ct. 132 L.Ed.2d 650 Rather, covetousness. the first knowledging endorsement stating test but concerns that it did not apply the ease at hand duties of believers: worshipping the Lord analysis because the correct private alone, God avoiding idolatry, not using the religious speech public in a forum was vain, Lord’s name in observing Clause). under Speech the Free As we Day.” 41-42, Sabbath Id. at 101 S.Ct. 192 recently noted in Freedom Religion (citations omitted). Indeed, when one “[ujnder Foundation, test, this ‘the effect goes beyond the text itself and regards whether, prong irrespective asks gov particular display, the religious nature purpose, practice ernment’s actual un of the document is emphasized by very der conveys review fact a message of format of the Notably, monument. ” disapproval.’ endorsement or prefatory words “I the Lord thy am God” at (quoting Lynch v. Donnelly, 465 are set out in large lettering at top 668, 690, U.S. 79 L.Ed.2d the text. R.29 & Ex.5. This (1984)(O’Connor, J., concurring)). enhanced, from, format is by detracted etchings at the bottom of the tablet of the Stars of sym David and the Chi Rho bol, a symbol. distinctive Christian It can The first part inquiry of our must be to doubted, therefore, not be that this monu determine display whether the of this tab- bearing ment the Ten Commandments let of Elkhart primary has the possesses nature. purpose “advancing or inhibiting reli- Felton, gion.” Agostini display The a religious symbol still 222-23, may, 138 L.Ed.2d 391 circumstances, under certain “ (1997). explained, As the Court has ‘The purpose. The text of the Ten purpose prong of the Lemon test asks Commandments no played doubt has government’s whether the actual purpose role in secular development of our is to endorse or disapprove religion.’” society can presented no doubt be Aguillard, U.S. S.Ct. 2573 the playing such a role (quoting Lynch, 465 our civic order. For example, on the wall (O’Connor, J., concurring)). In de- Court there is a frieze that termining particular whether this contains holding Moses the Ten Command- of the Ten Commandments can be said to depictions ments. frieze contains have a valid secular purpose, we religious figures, must two other Confucius and

303 already, original impetus the noted have Caesar Mohammed, it also includes but of the Ten Com- proliferation the Blackstone, behind Napolon Augustus, William Judge Rue- was mandments monuments Justice Marshall. and John Bonaparte, youths with a provide desire to gemer’s of plаcement that the has stated Stevens they could code of conduct common the on figures together historic of these all accepting actions. govern to their use lawgivers, great for respect a signals frieze monument, pro- to City also aimed the the County See proselytizers. great not of citizens of for the vide a code of conduct 652, 3086 at Allegheny, chosen, The code how- to Elkhart follow. in and dis- (Stevens, J., concurring not ever, code that focuses religious was a message, fitting This is in senting part). legitimate the subjects that are only on a courtroom. us, the wall of he tells for authorities, but also sub- of civil concern display A 3086. id. any gov- beyond the ken of that are jects unconstitutional, Ste- according to Justice directly the re- address ernment in evaluated message, vens, “only when its being the individual human lationship of presented, it is in which the context to en- purpose That the and God. Id at 109 nonsecular.” dorse, sponsorship, through governmental emphasized in Indeed, the Court Stone values is further estab- religious a code of required challenged statute that the at the program speakers the of lished the Ten Commandments posting the of a Protestant of monument: dedication “a case in present not did walls schoolroom minister, a Jewish priest, a Catholic are inte- Ten religious these leaders rabbi. When curriculum, where into the school grated Americans speaker urged spoke, the first in constitutionally be used may Bible of the Ten Com- accept precepts to history, civiliza- study of appropriate provide could mandments because tion, ethics, religion, or the comparative The strife and fear. redemption from 42,101 S.Ct. 192. 449 U.S. at like.” that the Ten Com- speaker stated second has stressed The only engraved be mandments should clearly reli context of importance hearts, minds, and in stone but determining whether symbol gious Finally, the last everyone. consciences of symbol is reli displaying purpose that the dedication speaker recommended empha We also gious or secular. an occasion should be of the monument not bе symbols religious should sized everyone high of for the dedication abstract; instead, courts considered in way in the American inherent ideals particular ask “whether must these influential participation life. context, issue, in its overall considered congrega- members several Ameri religion.” advance be said to could purpose that the tions makes clear Chicago, Congress v. can Jewish only to was not the monument displaying Cir.1987). (7th F.2d a common code ‍​​‌​‌​​‌​‌‌​‌‌‌​​‌‌‌‌‌‌‌‌​​‌‌​​​​‌‌‌​​​​​‌‌‌‌‌‌‌‍youths with provide participation their guide Here, significant conduct discloses no record peo- community urge also to civil but present City of Elkhart attempt re- specific embrace ple Ten Commandments the text of the Ten taught in the code of ligious conduct char- diminish its way might Thus, in applying Indeed, history City’s Commandments. acter.8 Lemon, inherently prong par- purpose placement involvement in the of the Ten Command- religious nature emphasize a serves to ticular monument circum- by the strengthened we ments is As display. religious purpose Cir.1993); (7th Township, F.3d nature of the obvious 8. Given O’Bannon, F.3d Bridenbaugh itself, v. see also City of Elkhart to text it falls (7th Cir.1999); Leininger, 57 v. steps to "obvi- Metzl it has taken demonstrate that 1995). (7th Cir. North F.3d religious purpose.” ate its Gonzales litigation, of not surrounding display the of the sued on the eve “is suffi- stances the conclu- escape cannot cient to avoid conflict the First We with monument. displaying Stone, this purpose at sion that the Amendment.” 449 U.S. 101 religious ide- promote was to that the S.Ct. 192. We therefore hold als. purpose displaying of the Ten Command- ments monument was not secular. The Moreover, subsequent nothing monument, display consequently, of the vi- can said to history of the monument be of Lemon prong the first the test olates way that any have in transformed Clause cannot survive Establishment resolution, City’s issued on purpose. The scrutiny. litigation proclaiming a the eve of this pres purpose for the monument’s

secular and cul by recognizing the historical ence

tural of the Ten Command significance ments, ignore primary no more Even we were to the ought to be accorded weight legislative purpose displaying than the avowed secular behind the Ten Com Kentucky monument, legis articulatеd have to purpose mandments we would Stone, Kentucky In lature Stone. particular conclude display this has following language statute at required primary principal effect of advanc the bottom of each Ten Commandments religion. County Allegheny, ing of “ display: application ‘The secular that, prong, Court noted under this courts clearly Ten Commandments is seen responsibility have a special to ensure adoption legal the fundamental code of government-sponsored display a does not Western Civilization and the Common Law purpose endorsing have the or the effect of ” States.’ 449 U.S. at United religion. a See 492 U.S. at 592. As we 1,§ (quoting Ky. Acts S.Ct. recently Religion noted Freedom from (1980)). § Ky.Rev.Stat. Ann. 158.178 The Foundation, test, this ‘the effect “[u]nder responded to this state whether, prong irrespective gov asks of by stating ment purpose “such an un purpose, practice ernment’s actual purpose ‘avowed’ secular is not sufficient conveys message der review in fact ” to avoid with the conflict First Amend disapproval.’ endorsement or 203 F.3d at Id.; Indep. ment.” see also Santa Fe Sch. Lynch, at (quoting Dist., (reiterating that a (O’Connor, J., concurring)). S.Ct. 1355 governmental entity’s professed secular employing analytical approach, When purpose arguably religious policy for an is charged responsibility we are with the entitled to some but that it deference assessing totality of the circumstances duty of the courts to ensure that the surrounding display to determine sincere); purpose Aguillard, person whether a reasonable would believe 586-87, 107 2573 (stating that courts to an amounts endorse normally should defer to a state’s articula religion. County Alleghe ment of tion of a secular but the purpose, state ny, 492 (stating U.S. at 109 S.Ct. 3086 sincere). ment of purpose such must be government’s that “the use of Gonzales, As we noted in 4 F.3d at symbolism if it is unconstitutional has the although this court “will defer to a munici beliefs, endorsing religious effect of pality’s articulation of a sincere government’s effect use of reli symbol’s purpose,” secular we shall context”). gious symbolism depends on its accept purpose merely a stated seeks County Allegheny, plaintiffs potential to avoid a Establishment Clause challenged recurring holiday displays Similarly, violation. we hold that the purpose placed of a creche on the Grand Staircase Elkhart’s avowed recognizing county cultural of a sig historical and inside courthouse and Cha- Commandments, placed city- nificance of the Ten is- nukah menorah outside the building city-county in front of placed held that The Court county building. the Establishment Clause. the Es- not violate violated did the creche placement to a 45-foot ques- placed was next creche The menorah Clause. tablishment lights three sides pine tree that decorated surrounded tion was poin- fence sat of the tree Along the At the and ornaments. foot fence. wooden ends of settias, mayor’s of the two name sign and on each that bore rested A evergreen tree. a small to was was entitled “Salute fence a that and text that an- fence to the partic- was attached plaque held this Liberty.” The Court that been donated display had that the nounced of the not a display was violation ular The creche Society. Holy Name by the its specific Clause because Establishment weekday setting for as the used was of the effect primary not have setting did local musical caroling by Christmas Instead, the Court religion. endorsing that the creche noted The Court groups. of the now the combination stated that religious a communicating of capable was sign a ex- tree with Christmas secularized “the ef- that explained then message, but tend- giant the menorah tolling liberty and set- turns on its display creche of a fect winter-holiday season. the to promote ed display of the “the context because ting” Court, the did violate display, The held detractQ religious from the creche’s [could] the Establishment Clause. In Id. at message.” apply responsibility our fulfilling In the surrounding the assessing context juris- Clause the Establishment faithfully Allegheny, the Court County creche of of the the Court of prudence nothing that detracted determined States, partic- subjected we United drew The floral border message. religious at the seat scrutiny displays ularly careful fact display, and the to the attention one’s this course have taken We government. of were flowers traditional that Christmas of the important concern “[a]n because perception the further contributed used symbolic ... ‘whether the test is effects gov- by the religion of of the endorsement the effected and state union of church ownership disclosing sign ernment. suffi- action is governmental challenged en- further organization by a Catholic by adherents perceived ciently likely to be government the perception hanced the an en- as controlling denominations of the message. The promoting as a dorsement, by the dis- and nonadherents creche was that the also noted of their individual disapproval, most beautiful on the main played ” Congress, building the American Jewish building and choices.’ Rapids Ac- government. (quoting the seat of as F.2d at Grand served (1985)). Court, Ball, could viewer “[n]o cording Sch. Dist. loca- occupies it this reasonably City think the of Congress, In Jewish American approval of support during tion without Chicago displayed creche had Therefore, concluded government.” city- of holiday lobby season ‘display of Court, “by permitting the seat of noted that county building. We set- particular physical the creche this pres- setting “a where is government county sends unmistakable ting,’ and ines- pervasive government of ence supports promotes message that it held that Id. at 126. We then capable.” that is the creche’s praise God Christian prong of violated second display 599-600, 109 message.” Id. plainly is so City Hall Lemon “[b]ecause 465 U.S. at Lynch, (quoting control, ownership government under J., (O’Connor, concurring)). building activity in every display that the creche held The Court therefore stanip gov- of marked with implicitly Establishment Clause. violated the display In that at 128. Id. approval.” ernment case, of the creche presence majority of Allegheny, a County created “a government lobby of seat the menorah the Court also held impression component comprehensive that the local ized as a strong сlear and tacitly heritage endorsefd] Christiani- the cultural Rather, stands, ty.” people Id. of Elkhart. as City intended it to be when it dedi- principle in Harris v. We reiterated Day cated the monument Memorial (7th Cir.1991). Zion, F.2d 1401 City a sole and stark reminder Zion, plaintiffs challenged injunctions contained in the specific Com- cities because con- the seal of two Indeed, the surrounding mandments. Christianity, the Latin symbols tained dignity prima- area enhances and the stated the cities’ seals cross. We cy of the Commandments. Above the un- containing presented the Latin cross the Municipal Building door of are the religion in vio- ambiguous endorsements Latin words “Dedicatum Justitia.” Those lation of the Establishment Clause. See who view the Ten Commandments are patently these reli- “Depicting id. at 1412. govern- thus informed that the role of the symbols corporate seal that is gious on justice; ment that location is to do the wholly by City and controlled the owned only displayed doing justice “law” for for City’s approval connotes the the mes- bearing the monument the Ten Com- sage conveyed.” Id. at 1414. This en- only display mandments. The other dorsement, held, violated the we Establish- Municipal Building the lawn of the is the Moreover, noted, ment Clause. we the War Memorial that the onlooker reminds finding of a constitutional violation was that space Municipal the front of the compelling even more this situation be- Building ground.” is “hallowed R.29 & permanent cause the were “a state- seals person approaching Ex.25.9 The the year-round.” ment that viewed Id. [was] that, government seat of is thus informed at 1412. location, at government goes the assessing situation before doing justice, about the business of us, objective we must ask whether an ob only displayed “law” is the Command- history server familiar with the ments, and that these Commandments placement of the Ten Commandments displayed designated by on land perceive it would as a state government ground.” as “hallowed religion. endorsement of See Santa Fe Dist., The format of the monument itself hard- Indep. Sch. S.Ct. 2278. We ly Indeed, religious message. dilutes its displayed note first that the monument is government. impermissibly suggests at the seat of As we this monument thаt, just explained, government community, the seat of there “is are “ins” plainly so ownership under and “outs.” The monument contains the every Christ, symbol control” that on its of David Stars and the property implicitly gov representing is marked respectively Judaism and approval. ernmental American Christianity, religions Jewish two of the no doubt Here, Congress, F.2d at in particularly 128. represented the Elkhart building front of gov community, by houses the but no means the total of departments ernmental the City, depend City all those who on the of Elk- religious message. granite stands a This government. hart as their local The Su- permanent preme monument is a fixture on the govern- Court has cautioned that grounds government. of the seat of “sponsorship religious message As ment of a an, passer-by by impermissible viewed individ it because sends the ancil- ual approaching building, lary message the monu members audience certainly fairly ment cannot be character- who are ‘that are out- nonadherents above, 9. As stated the Freedom Monument BURNS FREEDOMS HOLY LIGHT.” R.29 FRIEND, reads: “BEHOLD YOU ARE NOW & Ex.25. ON HALLOWED GROUND FOR HERE political siders, full members mes accompanying

community, and by the was decided district This case insiders, they are adherents sage to summary for judg- on cross-motions court communi political members favored that we have reversed Now ment. ” Dist., 120 Indep. Sch. Fe ty.’ summary Santa grant judg- court’s district defendants, Lynch, district (quoting at 2279 court for ment (O’Connor, J., summary judgment concur ought to enter then court must The district ring)). plaintiffs. remedy. fash- question turn placement of regard, In this court must be ioning remedy, the district col- the national gripping Eagle American the nature rule that by the basic guided hardly top of the monument ors at determined remedy ought be message of endorse- detracts scope and the constitutional nature rather, religion, links ment; specifically Bradley, 433 See Milliken violation. religions, two specifically these or more 267, 280, L.Ed.2d Zion, government. civil (1977). in a proceed It also must Latin (holding that a F.2d at the interests of state respects manner city symbols by other cross surrounded their own manage local authorities only served seal city’s corporate with the life on in manner consistent affairs certаin city approved of that the of the States. id. to show United Constitution 280-81, life, them Christiani- S.Ct. 2749. city among at aspects of ty). comply to equitable relief crafting today, the district court judgment our with the monu- say cannot that Finally, we that, although the condition ensure must religious of two acknowledgment ment’s eliminated, the Constitution offends that one, traditions, renders rather than authority to make de- Elkhart retains compliance before us situation of the regarding placement cisions “The simul- of the Constitution. strictures decisions, making those monument. of Judaism endorsement taneous indeed, and, the obli- right has the in- constitutionally Christianity is no less reli- take into consideration gation to Christianity the endorsement firm than and to ac- people of its gious sensibilities at 492 U.S. County Allegheny, alone.” its citizens’ aspect lives commodate Elkhart’s Although 109 S.Ct. 3086. the stric- way that does not offend any monument does Ten Commandments Establishment Clause. tures of the Cf. it its Christianity only, confines endorse Clauson, 306, 313, U.S. Zorach faiths. the Judeo-Christian approval to (“We a are L.Ed. stated, has Supreme Court As the presup- whose institutions religious people guar- “recognized as Amendment First Being. guarantee a We pose to equality anteeing religious liberty one chooses. We worship as freedom atheist, adherent of infidel, or the ‘the variety of beliefs a room for as wide make or as Islam faith such a non-Christian of man spiritual needs as the and creeds ” Wallace, (quoting Id. Judaism.’ an sponsor attitude necessary. We deem 2479). we Accordingly, at that shows no part of the Ten primary hold that effect Arriving any group.”). one partiality proper- on the with the comports a realistic solution Build- Municipal City of Elkhart’s Clause will ty of the Establishment strictures time, and the district religion. or endorse to advance take some ing is no doubt author- that Elkhart the second ensure consequently, ought fails display, court to address in time and violates ities have reasonable of the Lemon test prong manner the responsible appropriate Clause. Establishment conforming spirit among people to the letter and our “ins” and “outs” on the task of mandate. religion. rеspect, of the constitutional basis of In this latter unique na- acknowledges very religious Conclusion people. ture of our Few of us can look too involving religion pose difficult Cases personal far back our histories —and the undoubtedly questions for courts. “Since Country certainly the cir- ignore cannot ‘religious people are a whose institu- we cumstance of its own birth —without ac- Supreme Being,’ deep presuppose tions knowledging peo- that our ancestors were are when of that feelings aspects aroused ple significantly who suffered because in- relationship are claimed violate the religious their belief and who were ostra- junction First that gov- Amendment cized their national communities or may respecting make ‘no law ernment poverty made to suffer or even worse be- religion, prohibiting establishment of cause of their As one beliefs. ” Schempp, the free exercise thereof.’ shores, refugee visitor to our himself a (Brennan, J., 83 S.Ct. 1560 it, tyranny, Nazi put Americans can (citation omitted). concurring) This is es- say, all “We bruised souls.” We each pecially require true of cases that enforce- carry “the wounds and sorrows ances- ment of the Establishment Clause because tors, memory and that sufferings requires Clause often a restriction on by persecution prejudice caused religious activity on the of a govern- progeny” “spiritual left to their is our entity misperceived ment and is therefore patrimony.”10 The Establishment Clause restricting ability community acknowledges “spiritual patrimony” to acknowledge commitment exercise, requires gov- that we in our people. today As our discussion ernmental manifestations of the clear, scope makes of our Establish- people, nature of our a self-restraint jurisprudence ment Clause far cir- is more prevent anyone becoming will from Rather, cumscribed. Court’s eyes governmental system of our —an cases, and the decisions of our court in “out” on the basis of beliefs. conformity precedents with those Court, High simply prevent government at Accordingly, the judgment of the district any level from intruding into thе reversed, court is case is remand- people by sponsoring life of our or endors- ed for proceedings conformity with this ing particular perspective opinion. prevents, matters. It as Justice O’Connor out, pointed has creating REVERSEDand Remanded Maritam, Jacques on America 83-84 (1958). Reflections offen- the monument is that the location of MANION, concurring in Judge, Circuit en- and an unconstitutional to them sive dissenting part. part religion by City. the dorsement of presenta- an accurate The court sets out regard- analysis I with the court’s agree issue in this case. tion of the facts at challenge the standing ing plaintiffs’ the Day say that a Memorial Suffice it to of the placement the constitutionality the Fraternal Order ceremony in 1958 And monument. Elk- Ten Commandments City Eagles presented the legal court’s agree with the while I also engraved with a monument hart a stone test, disagree I summary of the Lemon The version of the Ten Commandments. the facts of Lemon to application of with it near the north entrance City placed Rather, Lemon and applying us. has re- before building Hall where it City the conclusion lead to the should progeny claim its plaintiffs day. mained to this City Elkhart does not violate focus on the first two prongs of the Lemon by leaving Establishment Clause un- test. disturbed a monument inscribed 1. Secular purpose. Ten that was erected forty years ago. Moreover, more than Lemon, Under government’s chal- even if lenged the monument did satisfy not practice must a pur- have secular test, Thus, pose. case, Lemon up- Court has we must ask held certain whether a religious practices purpose supports secular which have City of become a of the Elkhart’s decision not society. fabric of our to remove the Ten Commandments Leaving the Ten monument. Elk- Commandments monu- presented hart as evidence of its ment where it comfortably now stands falls purpose the resolution which its within Common the historical context country of this Council adopted May 4, on following and is thus constitutional though even plaintiffs’ consideration of the request that retains unequivocal references to Gоd. the City remove the 40-year-old monu- I therefore in part and Dissent Concur ment.1 part. resolution,

The Council’s which the May- or of approved 13, 1998, May I. several identifies secular purposes justify- ing the City’s decision not remove the A. Lemon Test Ten First, Commandments monument. as Kurtzman, Lemon v. 91 the recognized, City the Ten Command- (1971), 29 L.Ed.2d 745 the Su- represents ments one of the earliest codes preme Court adopted three-part test for and, such, human conduct it “had a analyzing Establishment Clause cases. significant impact on the development of First, government’s challenged prac- legal principles fundamental of West- tice must Second, secular purpose. ern fact, Civilization.” In the Ten Com- the principal or primary effect must be one mandments served as a foundation for the that neither religion. advances nor inhibits English formation both Common Law Third, government’s practice must Napoleonic Code, and the together create an entanglement excessive of reli- laid the foundation for American jurispru- gion. court, As noted the third dence. See State Colorado v. Freedom prong is not at issue. Accordingly, Foundation, we From Religion Inc., 898 P.2d WHEREAS, the issue of the Ten memorials, Command- plaques, historical cultural ments City Monument outside Elkhart Hall and monuments located south of the en- by person has been represent- raised who is hall, city foyer just trance inside ed Civil Indiana Liberties Union. The entrance, city hall open first floor Indiana Civil Liberties Union has contacted hall, city area of and at the second and Mayor City of Elkhart and has hall; open third floor city areas of stated that a lawsuit will be filed WHEREAS, the Ten Commandments have Commandments Monument is not removed. significant impact had a develop- on the WHEREAS, recognition of the historical legal ment of the principles fundamental 'of significance Commandments, Ten Western Civilization. Eagles Fraternal presented Order of NOW, THEREFORE, BE RESOLVED IT BY Ten Commandments THE COMMONCOUNCIL OF THE CITYOF May, of Elkhart in 1958. In addition to the ELKHART,INDIANA,THAT: Commandments, Ten con- Monument The Ten Commandments Monument ais symbols tains that reflect the cultural cross and historical cultural monument that re- significance and historical Com- Tеn flects one of the earliest codes of human mandments. WHEREAS, proper conduct. It is the for Ten Com- Commandments Mon- ument has stood outside mandments Monument remain and unobtrusive to the location to north of City the the position of of strongly entrance defense this is en- Hall since There are numerous other dorsed.

313 1999) (the holiday co a fact that also, at (Colo.1995). id. See 1013, 1018 signif that has day incides with a (Ten “monument Commandments 1026 the does not defeat objective intended for Christians icance secular the represents historical, the state holi justifying a outset, of recognition purpose secular the at of American cornerstone day). jurisprudential significance”).

legal of validity acknowledges court The also resolution Council’s Common purposes, stat- secular asserted Elkhart’s sym contains Monument that “the noted Ten Commandments text ing of “[t]he and cultural the cross reflect that bols in the secular a played has role no doubt Ten Com significance historical no society and can our development of monument mandments,” that as presented doubt be roots and of those recognition aas serves order.” civic a role our such playing the Ten Com of significance historical case, Elkhart And at 302. Opinion justifications stated These mandments. in its resolution that explicitly stated has even purposes secular permissible are standing the Ten Command- leaving used to ac is symbol a though recognize order monument ments Lake v. Salt Anderson them. complish develop- impact “significant on their Cir.1973) (10th 29, 34 475 F.2d City Corp., principles legal the fundamental ment of stands (Ten monument court con- Yet the Civilization.” Western historically important of a depiction “a displaying purpose in that “the cludes and sectarian secular with both not monument was Ten Commandments effects”). See, Donnelly, Lynch v. e.g., can the 304. How Opinion at secular.” 1355, L.Ed.2d U.S. legitimacy recognize on one hand court J., (1984) (O’Connor, concurring) conclude other purpose of this holidays, which (“[cjelebration public secular a legitimate also lacks that even significance have cultural Ten Command- leaving seсu legitimate a for purpose is aspects, Apparently, in place? purpose”); id. ments monument lar City depicts the ‍​​‌​‌​​‌​‌‌​‌‌‌​​‌‌‌‌‌‌‌‌​​‌‌​​​​‌‌‌​​​​​‌‌‌‌‌‌‌‍(“The display that believe just creche in doesn’t the court event purposes the traditional origins of historical secular Elkhart’s statement Holiday.... National v. as a recognized a sham. Edwards long and not is sincere City to by the sponsored 578, 586-87, [Tlhe Aguillard, 482 depict the (“While Holiday celebrate 96 L.Ed.2d Jew Holiday.”); American origins of to a State’s normally deferential Chicago, 827 F.2d City v. Congress ish it is re- purpose, secular a articulation Cir.1987) (7th (recognizing 120, 126-27 purpose of such that the statement quired “taking official tradition city’s sham.”). anot be sincere acknowledging of Christmas” note that the Com- no evidence there is But nativity in favor of sentiment public sham, and awas resolution mon Council’s purposes secular permissible are scene Common some evidence absent The fact display). justifying creche its decision stated reasons Council’s God, refers the Ten Commandments insincere, we are the monument to remove major mono all of the world’s and that justifica- those asserted defer to should the Ten Command religions have theistic Plaines, 8 Des Cohen tions. faith, of their does tenets as basic ments Cir.1993). (7th also F.3d purposes. secular the monument’s not alter F.2d Congress, 827 Jewish American Congress, 827 See, Jewish e.g., American (“In any evidence the absence (to purpose, serve at 126 F.2d dis- behind purposes stated city’s un not be need purpose government’s merely nativity scene play Bridenbaugh v. religion). related Cf. the 1985-86 sham, conclude that (7th we must Cir. O'Bannon, 799-800 (inter- display sham, had purpose.”) no invidious the court would have to conclude omitted). nal citation “This in keeping is purpose). there was no In invidious those with the well maxim that settled courts are that, cases we any held absent evidence ‘reluetan[t] attribute unconstitutional justification sham, that the stated was a States, particularly motives when a government we would take the at its word. plausible purpose secular for the State’s Since there is no evidence of an invidious program may be discerned from the face here, motive we take should the Common ” Cohen, of the statute.’ 8 F.3d at 489-90 word, Council at its as set forth in the Allen, (quoting Mueller U.S. resolution. 394-95, L.Ed.2d 721 Moreover, even if the (1983)). had a reli is govern- “This true whether the gious purpose in displaying the Ten Com ing body legislature is a state city or a mandments, Cohen, that not destroy council.” would 8 F.3d at 489. Accord- City’s ingly, rather than assume other valid secular purposes. the Common “A motivations, Council promotes about its law that religion may insincere neverthe we obligated just opposite— are to do upheld less be ... because of the secular ” being assume truthful. purposes that the law also serves.... (7th Leininger, Metzl v. 57 F.3d seemingly The court relies on the timing Cir.1995). Elkhart need Accordingly, of the resolution (noting passed that it was only one secular justifying purpose its de litigation) the eve of as evidence that satisfy cision order to Lemon’s first resolution was insincere. But tim prong. presented It ing totally has several reasonable. Before secular plaintiffs justifications. Therefore, objected Elkhart, to the monument even if City, threatened to sue part, had rested wanted to promote unobtrusively on the lawn along with other aspects Commandments, of .the Ten nearly monuments for forty years, so negate does not its other valid secular there was never a need for the Common justifications leaving for the monument Council to declare its reasons for allowing (“[A] alone. Bridenbaugh, 185 F.3d at 800 the monument to It was not until remain. purpose secular need not be the exclusive plaintiffs demanded that Elkhart re one; it was sufficient move the monument it became an ”) had ‘a purpose.’ (emphasis add issue. At point the currently govern ed). also, Barghout v. Bureau Ko ing Common Council convened to consider Control, sher Meat & Food plaintiffs’ demands and decided (4th (“In Cir.1995) determining against monument, removing the stating whether the [display] has a secular pur reasons the resolution. Given these pose, we note that prong this first circumstances, nothing there is suspect Lemon test is a fairly legis low hurdle. A fact, timing. about the in other Estab lative enactment purpose has no secular cases, lishment Clause this court has re only if ‘there question [is] no lied on the secular purposes proffered dur [display] activity was motivated wholly ing litigation, notwithstanding timing ”) by religious consideration.’ (quoting explanation. the state’s See Briden Lynch, 1355). baugh, 185 (relying F.3d at 799 on testi mony highlights offered The court during litigation speeches as to made Indiana’s when the purpose giving employees was dedicated in 1958 Friday Good holiday); proof religious purpose American Jewish Elkhart’s Congress, displaying 827 F.2d at 127 (relying on affi the Ten Commandments. davit of chief of purpose speeches staff as to the While the made the various display behind creche noting that in leaders were solemn—in line with any the absence of city’s evidence they did not evidence a reli- occasion— purpose stated gious fact, behind the was a purpose. speeches those (“The was monument P.2d at 1023 religious fervor the anything near lacked Youth National of the part as donated made in con- statements legislative the of was purpose Program, whose in the Guidance adopted practices other with nection intent of secular in Such nature. circuits secular various by the upheld and 1950’s the histor- light of logical overtly the donation reli- sponsors’ the notwithstanding Ten Commandments Re- ical fact that 323-25. See messages. gious infra our national a basis for time as un- served over was monument Elkhart call law.”). Day as Memorial on veiled in that cel- Participation City’s festivities. was purpose that this claims The court speeches with leaders by religious ebration a reli- City chose because not secular under- tone is both religious a that had But as goal. its to further gious code recently as As acceptable. and standable a Lynch, recognized Supreme Court Memorial recognized 1998, Congress further be to can used symbol religious may people “during which Day day ais religious celebrating both goal of secular and peace,” permanent for prayer unite in holiday, as Christmas. such secular and “on the peo- should call President that the choose Likewise, permissibly can Elkhart Memo- to observe States ple of the United Commandments, includes Ten their аccording to Day by praying, rial conduct, of rules and secular religious both faith, permanent for religious individual providing goal to further (1998). Further- § 116 U.S.C. peace.” of con- of a code example with an youth leaders’ more, the various even when fact, only logical that it is duct. they gladly demonstrated speeches a “common example chose Elkhart to decision Elkhart’s accepted one chose display, to of conduct” code reli- of monument’s because monument citizens, by its recognized would be leaders were message, the gious can children, there be and especially City’s intent only it is City, and not the Ten that the Commandments no doubt that matters. code recognizable the most well-known short, little provide speeches, to, Americans, opposed to of conduct purpose original Elkhart’s as to guidance or the Code Code Napoleonic say, the by the donated accepting monument Hammurabi.2 To the extent Eagles. Order of Fraternal event, the Ten any matter, see would original purpose that the over Elkhart to donated at monument 315-16, presented evidence infra matters, however, What years ago. forty stage indicates judgment summary in 1958—when City’s purpose is not Command- City accepted that the reli- constitutionally have (a civic, could Eagles from the ments to- City’s purpose gious purpose fur- in order organization) non-religious —but (origi- at 799 BHdenbaugh, 185 F.3d day. “youths providing Eagles’ goal ther the Friday as choosing Good nal reason of conduct code a common v. Metzl dispositive); is not holiday actions,” state their govern could use Cir.1995) (7th 618, 621 Leininger, there were youngsters that “showing these may ago years (state’s purpose guide of behavior recognized codes such justification essential- a secular accrue a common Providing youth with them.” reli- promoting any purpose ly eliminate purpose. a valid secular conduct is code of Congress, Foundation, Jewish American gion); Religion Freedom From N.C., F.Supp.2d County, Haywood south wall frieze contained 2. The possibly (W.D.N.C.1999), figures Supreme States United the courtroom arguing lawgivers lawyеrs great procession recognizable includes learned Court of Hammurabi, Babylo- including Court, history, unlikely famil- but before developed Code of Ham- king who nian laypersons. many iar murabi, Bonaparte, Suhre Napoleon (Mayor’s F.2d at 126 tutionality Pawtucket, comment 1959 that city Rhode Nation,” are a display “We Christian “the Island’s of a creche at Christmas. religion get we can in politics, more the the second applying prong of the Lem- are,” test, better off we while relevant to the on the initially Court noted that the nativity purpose of scene reveals original district “plainly court had erred focus- purpose little' about behind ing the 1985-86 exclusively almost on the creche.” resolution, display). 686, Elkhart ex- Lynch, 104 S.Ct. 1355. plained leaving Rather, its current reasons un- Court, according to the appro- the disturbed the Ten monu- priate question nativity was whether the recognize scene, ment: the historical and religious, while could be said to significance cross-cultural of the Ten Com- advance religion. The Court giv- held that mandments; acknowledge signifi- en the overwhelmingly secular character of impact cant the Ten Commandments had display, Pawtucket “the inclusion of a on the development the fundamental single symbol particular of a historic reli- legal principles civilization; of Western gious event ... [did so ‘taint’ not] to retain an historical city’s and cultural as to exhibit render it violative of the displays monument that one of the earliest Establishment Clause.” display Id. The codes of human conduct. Those Lynch reasons just creche, included not but permissible justifications, house, see also a Santa Clause pulling reindeer 312-13, supra at and therefore Elkhart sleigh, Santa’s candy-striped poles, a has prong. satisfied Lemon’s first tree, carolers, Christmas cutout figures clowns, representing an elephant and a Principal or primary effect. bear, teddy hundreds of lights colored reading banner Greetings.” “Season’s The second prong Lemon considers 671,104 Id. at S.Ct. 1355. government’s practice whether the has the principal primary or effect of advancing or years Five in County later Allegheny inhibiting religion. Freedom Reli Union, v. American Civil Liberties gion Foundation v. City Marshfield, L.Ed.2d (7th Cir.2000). Under (1989), Supreme again Court consid- this prong, question “irrespective ered the constitutionality of religious dis- government’s actual purpose, [does] the plays public property. located One practice under review in convey fact [] a a creche placed on the Grand Staircase message of endorsement disapproval.” county inside a courthouse in downtown (internal omitted). Id. quotations As the Pittsburgh. The creche was surrounded recognizes, court analyze prong this we fence, on three sides a wooden decorat- totality must assess the of the circum ed poinsettias sign and a proclaiming stances surrounding display to deter “Glory to Highest!” God The other mine whether a person reasonable would awas menorah displayed in front of the believe that display amounts to an courthouse. The menorah stood next to a religion. endorsement of This is fact- Christmas sign tree and a rested below the specific inquiry. tree with the words Liberty.” “Salute to The that, court’s conclusion based on all in Allegheny Court held that circumstances, decision Elkhart’s creche display violated the Establishment standing leave the Ten Commandments Clause “nothing because in the content of monument constitutes an endorsement of display detracts from the creche’s reli- religion seems to be at odds with the Su- gious alone; message,” as it “stands it is preme Court’s in Lynch decisions and Alle- single element of display on the gheny. In Lynch v. Donnelly, Staircase,” 465 U.S. Grand which was “the ‘main’ (1984), L.Ed.2d part’ ‘most beautiful of the building.” Supreme Court 598-99, considered consti- Id. at 109 S.Ct. 3086. The Court FRIEND, ARE ON NOW YOU location, “no HOLD on this that based concluded HERE FOR GROUND that it occu- HALLOWED think reasonably could viewer LIGHT.”3 HOLY FREEDOM’S BURNS support without location pies at 599- Id. government.” approval the Ten Com- displays place These other hand, other 3086. On con- in an historical mandments menorah held that Allegheny con- text, Lynch and and under As Justice was constitutional. Thus, Lynch, everything. text is stood the menorah explained, Blackmun symbol— solely religious a held that Court sign a salut- tree and to a Christmas next constitutionally permissible a creche—was “overall thus created liberty, and ing con- proper in the viewed “[w]hen because reli- neutralized which holiday setting” the historical text,” “depicts the creche Id. at the menorah. dimensions gious recog- long event traditional origins of the (Blackman, J., concur- Holiday.” Lynch, nized as a National ring). Similarly, S.Ct. 1355. provide Allegheny Lynch Together the other in context of when viewed fact-specific for our guidance significant Elkhart’s displayed outside monuments of Lemon. prong of the second analysis the Ten Command- building, municipal upheld cases, In those historical “depicts the monument ments dis- constitutionality justice sys- the United States’ origins” of symbols religious purely plays —a solely Moreover, while creche tem. sym- those a menorah —when creche and Ten of the symbol, the text religious a But display. larger a part of were bols context provides itself Commandments in display creche religious where —the includes monument, as the monument alone, Es- it violated Allegheny—stood commands, six rules but religious just not Here, Com- the Ten Clause. tablishment in the secu- meaning of conduct that alone, stands monument mandments presence both lar world. The larger cultural Elkhart’s but Ten Com- in messages religious the court As display. outdoor historical a makes mandments Ten Com- out, in addition points in at issue than the creche case stronger monument, small, twenty- mandments Lynch. a bas-re- courtyard includes five-foot-wide holiday True, many more were there “DED- the words head with an elk’s lief of located than are Lynch present displays inscribed and “JVSTITIAM” ICATVM” issue courtyard 25-foot-wide “Elk”hart; a Revo- symbol to this next includes still here, display Elkhart’s but by a surrounded Monument lutionary War three involved total more than the explaining plaque a bearing flower bed and in addition to Allegheny, Allegheny. Revo- American Daughters menorah, only a Christmas stood there in honor of the monument donated lution Liberty.” stating “Salute sign a in tree and buried Revolutionary War soldiers Allegheny’s constitutional Compared to Freedom Monu- and the County; cul- display, Elkhart’s liberty” standing on “salute ment, light consists which fully neu- more display and historical “BE- tural reads pillar top of brick through the is served building justice where this monument is concerned 3. The court words The choice county government. meaning to someone religious could have lit- merely as a "holy” serve "hallowed” uses the building because approaching the freedom; words in erary honor device to "holy.” Opinion at words "hallowed” meaning. See have a do not context the con- Considering the words 305-06. however, Dictionary location, Collegiate New Webster’s Seventh display and its text of the 1972), offering alterna- (G. Co. Merriam & C. nothing religious there is demonstrates religious, Rather, for "hallow” —one definitions tive ground is display. about secular, respect "to holy,” and one make light” "to "holy freedom's because "hallowed” greatly.” "here,” municipal and "here” is burns tralizes the dimension of display. the Ten That is what we have in this short, Commandments. if the menorah case.5 was in Allegheny, constitutional This circuit’s decisions American must be in this Congress, Jewish and Harris See, e.g., case. Freedom Religion From Zion, (7th v. City F.2d 1401 Cir. Foundation, 898 P.2d (holding 1991), do not alter analysis. Harris Ten Commandments monument on Colora- applied Lemon to a challenge to a Capitol do State Complex constitution- symbol contained in two city different al); Anderson, 475 F.2d at 33 (upholding seals. It helpful is not because it involved Ten Commandments monument displayed two consolidated cases challenging the offi the lawn of a courthouse because it had cial seals of two cities Illinois. Here the attributes”);4 Suhre, “substantial secular government’s display of a monument which F.Supp.2d (holding display of Ten only served as aspect of a larger one his county Commandments in courtroom did torical display similarity has minimal to an Clause).

not violate the Establishment official seal emblazoned on stationery,

In its Lynch discussion of Alleghe- and signs, and numerous other official stan ny, the court distinguish does not these dards. Congress American Jewish is Supreme Court opinions when it concludes more closely related as it involved the the Ten Commandments monument constitutionality of a government-displayed constitutes an establishment of religion. creche. But even the facts in American Rather, the court focuses on the question Jewish Congress significantly differ from whether objective “an observer familiar those involved this case. In American history with the and placement of the Ten Congress, Jewish display, creche Commandments monument would perceive this court held violated the Establishment it as a state Clause, endorsement of religion.” stood in isolation in the center of Opinion at 306. appropriate This is the the City-County building in Chicago. It question, but for the answer we must con- was the creche’s visual isolation from the comparable sider underlying facts holiday Su- other displays place and its of hon- preme Court’s cases involving the Estab- or that caused this court to hold that a lishment Clause. precedent That leads to reasonable observer the creche would the conclusion that a monument of the Ten believe that Chicago was endorsing Chris Commandments is constitutional when tianity. See American Jewish Congress, larger of a historical and cultural 827 F.2d at 128. 4. While ment, Anderson was decided before Stone v. and the Elk bas-relief. displays These Graham, represent aspects various country of our and curiam), L.Ed.2d (per Stone is history, Elkhart's encompass and themes rel- distinguishable because it post- involved the evant to the offices located inside the Munici- ing of the Ten Commandments in the school pal Building, including just city not setting. fact, at 321-22. court, the five- office, mayor's but also infra the human majority Justice in Stone did not even cite to department, relations and the offices of the only Anderson—the circuit decision consider- Common available, space Council. Given the limited ing approving and constitutionality of a impossible get it is much more Ten Commandments monument. "comprehensive” display. than current compact A layout more could lose what Elk- Although hart the court strived to aesthetically pleas- insists "the create—an monument certainly ing fairly display, cannot be visual characterized as a centered the Elk bas- component comprehensive of a relief display and of the balanced the other monuments heritage Elkhart,” cultural people of the that flank walkway. Nor does a display point the facts оpposite "comprehensive” have to be conclusion. to dilute the re- very Within the ligious exhibit, small courtyard aspect 25-foot-wide of one as is clear from rest four historical displays, including a mon- Lynch Court’s decisions in freedom, ument monument, Revolutionary Allegheny displays War which were far from — comprehensive. Commandments monu- 620, 109 S.Ct. also, U.S. at Allegheny, case, Ten- Com- Conversely, (“The (Blackman, J., concurring) . other -sits monument mandments Pittsburgh .alone in Municipal tree of the Christmas lawn on the monuments belief; Christian being prominently not endorse does location opposed Building, us, day-to-day the addition in the center the facts before and on alone displayed Command- understood fairly Ten be county business. the menorah ‘cannot visually isolat- also not is endorsement monument simultaneous ments to’ result walkway, of the faiths.”); side one id. 492 ed, rests on but and Jewish of Christian Freedom (O’Connor, J., monuments —the other while two Revolutionary War (the Monument a menorah display of concurring) side. opposite monument —decorate holiday symbol Christmas a secular from distant equally These monuments religion Judaism not endorse “did Municipal Build- to the the entrance both message of conveyed a rather but general, n. 3. at 296 Opinion the sidewalk. ing and belief....”). freedom of pluralism Elk of sorts —the monument aAnd fourth reasoning court’s Second, implicit center visual bas-relief—adorns ev- must include that a the belief en- building’s over hanging walkway, constitu- to avoid symbol eryone’s religious creche Thus, compared tranceway. Allegheny We infirmity.. know tional Congress, Jewish in American issue case; not such is Lynch that giv- Ten sym- only one there was Lynch, Rather, City. by the special placement en in Christians, a creche—and of bol—that one is monument the Ten Commandments religious only one was there Allegheny in closely placed monuments multiple of Yet, Jews, menorah. a symbol—that leading small, walkway available, yet the those upheld Supreme the Court building.6 municipal into the endorse- any perceived displays because “The format opines also The court by the secular religion was diluted ment its hardly dilutes itself the monument a re- because disрlayed symbols also —not Indeed, monument message. every citizen’s representing symbol ligious that, in this com- suggests impermissibly display. incorporated was beliefs ” Opin- and ‘outs.’ ‘ins’ munity, there all to include display had any Clearly for misplaced reasoning This is at 306. ion “out.” “ins,” would be displays all potential First, of Jew- inclusion the two reasons. place- also, believes court Catholic, symbols actu- ish, Protestant and gripping Eagle of an American ment likely more the monument ally makes furthers flag top at monument Freedom muster. See pass constitutional endorsing is that Elkhart impression Foundation, 898 P.2d Religion From con- On 307. Opinion religion.. the Christian (“The juxtaposition Liberty” sign “Salute trary, like the Star David the Jewish Rho with Chi and tree Christmas the menorah by placed of reconcilia- acknowledgment an reflect presence here Allegheny, any sentiment than diversity more tion and All- and the flag our Eagle, American eye’ ‘eternal ... [and] of intolerance help place the Eye Seeing symbol ais which pyramid, contains reminding pass- by viewers context ‘it itself, has indicating Egypt Ten Commandments ers-by that religions than the three genesis different country’s in our role ”). important an served See the Ten Commandments.’ that use county inside the solitary placement nent fact, the monu- between the differences menorah, con- courthouse, which was this case and at issue ment the courthouse stitutionally outside located- Congress are Jewish challenged American saluting sign tree and a Christmas near differences very similar disposi- noted, proved creche, the location liberty. As Allegheny: faced in Allegheny. tive promi- unconstitutionally favored was See, legal e.g., foundation. Allegheny, 492 five question because the whether 619, (“The atU.S. 109 S.Ct. 3086 [Salute “objective” observer would believe that the Liberty] sign further possi- diminishes the display constituted an endorsement of reli bility that the tree and the menorah will be gion. Indep. Santa Doe, Fe Sch. Dist. v. interpreted as a dual endorsement of Christianity and sign Judaism. The states (2000). L.Ed.2d 295 The fact that during the holiday season the city plaintiffs for that matter many citi —and liberty.”). salutes Coupled with the six -wrongly believe that the Constitu zens— clearly cоmmands, secular flag, eagle requires tion a separation of Church and eye all-seeing broadcast a secular mes- State, ardently wish case, that were the sage justice patriotism, as does the does not alter the test. Lynch, 465 U.S. at inscription that the monument pre- (“Nor 104 S.Ct. 1355 does the Consti sented to the Fraternal Order tution require complete separation of Eagles organization dedicat- —a state; church and it affirmatively man ed to promoting “Liberty, Truth, Justice, accommodation, dates merely toler and Equality.” any event, But in even to ance, all religions, and hostility forbids the extent placement that the of American any.”). Rather, toward the appropriate symbols on the Ten Commandments mon- question is whether citizen knowing the ument does not dilute the religious mes- totality of the facts and the circumstances sage contained in the commands,7 first six would believe that Elkhart seeks to en important to note that religion. dorse Capitol Square Review aspect of the Ten Commandments need and Advisory Pinette, v.Bd. minimized; not be rather it is a message of 780, 115 2440, 132 L.Ed.2d 650 possible endorsement that must be suffi- (O’Connor, J., (“[T]he concurring) reason ciently minimized by its setting and con- able observer in the endorsement inquiry text. See Lynch, 465 U.S. at 104 must be deemed aware of the history and (O’Connor, J., S.Ct. 1355 (“[A] concurring) context the community and in forum typical museum setting, though not neu- which religious display appears.”). See tralizing the religious content of religious also, Gaylor v. States, United painting, negates any message of endorse- (10th Cir.1996) (same). An informed content.”). ment of Thus, that the overall would citizen know that the Ten Com context of a display must any overcome mandments monument was donated in the message of endorsement, and in this case 1950’s—and also know the historical con when the Ten Commandments monument text of those times: that the Eagles who is viewed in park-like its setting with the donated monument were not a reli other three artists’ secular renderings, any gious group; that original purpose was possible view religious endorsement is to recognize general codes conduct and sufficiently diluted to withstand constitu- that the Ten Commandments is an histori tional scrutiny. cal example of code; such a today point: One final It important is Elkhart note leaves standing the monument out that while the plaintiffs two of recognition involved in for that history and in com this case took offense to the Ten Com- memoration of legal roots of our count monument, mandments that is disposi- not ry.8 7. The text of the Ten Commandments monu- 8. In this regard, last the Common Council's ment listed twelve commands so as to serve only explains resolution not pur- amalgamation Jewish, as an pose, Protestant but also serves to inform citizenry and Catholic versions of the Ten Command- that Elkhart has no desire to endorse reli- ments. The first six commands gion refer to God is merely acknowledging religion’s —it Sabbath, or the while the last six do not. role country’s in our history. Or in the Opinion at 296. language, court’s passing Elkhart in the reso- Stone that in statement Court’s testimony demon- own plaintiffs’ theAs “arguably sec- transcends Commandments informed reasonably strates, they are par- matters, one’s honoring such as ular outright demonstrating citizens, but murder, stealing, adultery, ents, killing or non- in private, religion, ‍​​‌​‌​​‌​‌‌​‌‌‌​​‌‌‌‌‌‌‌‌​​‌‌​​​​‌‌‌​​​​​‌‌‌‌‌‌‌‍even hostility to Rather, witness, and covetousness. false See, Depo- Books settings. governmental con- of the Commandments part first by any is offended (stating he sition duties believers: religious cerns organization private reference alone, avoiding Lord God worshiping the (stating that God); Suetkamp Deposition vain, Lord’s name using the idolatry, not Alle- Pledge of when he is offended Day.” Id. at observing Sabbath See, setting). private in a said is giance doubt that 41-42, 192. Without (“In fact, Suhre, at 398 F.Supp.2d e.g., recognizes, But, also as court is true. his from more angst results Plaintiffs may symbol still display of others rights of intolerance own at Opinion 302. purpose. a secular his own atheistic to protect a desire than important when extremely is point This (the convictions.”); Gaylor, F.3d Stone was decided remembers one about “not inquiry is observer reasonable Allegheny Lynch prior to —cases or individuals particular perceptions symbols purely displays which the dis- from nonadherents saving isolated (as Ten Commandments opposed faith viewing symbols comfort and secular contains both which (internal subscribe”) do not rules) of other secu- upheld because were facts, omitted). these Based quotation be- is significant This justifications. lar not believe person would a reasonable the Ten Commandments in Stone cause (which per- religion endorsing walls, while school alone on posted were these two than why, haps explains other monu- Ten Commandments case the to Elkhart complained one no plaintiffs, larger historic of a ment monument Ten Commandments about fact, the Su- message. a secular outside it stood forty years during posting rejecting preme reasons, I For Building). these Municipal they were noted that Ten to leave City’s decision conclude isolation, opposed displayed to be Lemon’s satisfies standing the history, study of into “the incorporated prong. second religion, ethics, comparative civilization, Stone, like.” v. Graham B. Stone Stone distinguishes That factor v. Gra relies on Stone also court in- monument Commandments Ten 192, 66 39, 101 S.Ct. ham, 449 U.S. case, this case and makes in this volved curiam), (1980) sup (per 199 L.Ed.2d Allegheny. and Lynch analogous more decision Elkhart’s its conclusion port for another distinguishable Commandments standing the Ten Stone to leave involved reason —it fundamental an unconstitutional more constitutes Stone, of Ten Commandments posting religion. mandated establishment youths impressionable in (without Where in argument schools. Court Supreme has taken decision) Supreme Court held that involved curiam per a 5-4 See, e.g., Lee v. religion. post view required a harsher Kentucky statute 592, 577, 112 S.Ct. Weisman, U.S. 505 on school ing of (1992) (“[TJhere are 467 2649, L.Ed.2d 120 con unconstitutional. room walls free protecting with concerns heightened impermissible had an cluding coercive from subtle conscience to leave dom it decided when purpose Aguil schools.”); v. Edwards pressure monu Ten Commandments place 2573, 583-84, 578, 107 S.Ct. lard, 482 U.S. on the ment, relies the court ” n. Opinion at 303 purpose.’ steps to ‘obviate "taken has lution 322 (1987) (“The 96 L.Ed.2d 510 Court al has constitutional considerations. Ed Cf. particularly

been vigilant in monitoring v. Aguillard, wards 583-584, 482 U.S. compliance with the Establishment Clause S.Ct., (Establishment 107 at 2577 Clause in elementary secondary schools.”); must applied be special with sensitivity in Abington School Dist. v. 374 Schempp, context.”)). the public-school Again, con 203, 307, 1560, U.S. 83 10 S.Ct. L.Ed.2d critical, text is school context in (“The J., 844 (Goldberg, concurring) Stone result, dictated the as demonstrated pervasive religiosity and direct govern by the Court’s reliance on school prayer mental inhering involvement pre Stone, 42, cases. See 449 U.S. at 101 S.Ct. scription prayer and Bible reading in 192, citing Abington District, School schools, public during and as part of 203, 1560, U.S. 844, 10 L.Ed.2d day, curricular involving young impres and Engel, U.S. 82 S.Ct. sionable children whose school attendance Therefore, L.Ed.2d 601. while Stone statutorily compelled, and utilizing the speaks for the school setting' stu —where prestige, power, and influence of school dent compulsory, attendance is and pupils administration, staff, authority, cannot are particularly susceptible to influence—it realistically be simply termed accommoda does not answer question in the con tion, and fall must within the interdiction text open of an courtyard where citizens Amendment.”); the First Board Ed. may divert their eyes, confronted Westside Community Schools v. Mer discomforting God, reference to to one of gens, 226, 261-62, 496 U.S. 110 S.Ct. the other secular monuments forming the J., L.Ed.2d (Kennedy, concurring) larger See, display. historical e.g., Free (“The inquiry with respect to coercion dom From Religion Foundation, 898 P.2d must be whether imposes at 1022-23 (distinguishing Stone based on pressure upon a participate student to in a the school setting, and upholding the con religious activity. inquiry, course, This stitutionality of a Ten Commandments must be undertaken with sensitivity to the monument on capital state grounds). special circumstances that exist in a sec ondary school where the line vol between C. Historical Practices untary and coerced participation may be Given the factual similarities dis- draw.”). difficult Thus, while the Su plays constitutionally permitted Lynch preme upheld Court has the opening of and Allegheny, Elkhart’s decision to leave legislative sessions prayer, Marsh the Ten Commandments monument stand- Chambers, 783, 786, ing should not violate Lemon test. But (1983), 77 L.Ed.2d 1019 it has de even if the Lemon met, test was not where clared unconstitutional the opening of a religious symbol has meaning history school prayer. sessions with Engel v. Vi and ubiquity, the Supreme Court has side- tale, 8 L.Ed.2d stepped the strictures of Lemon because (1962). Likewise, whereas the Su the results would be contrary to the clear preme upheld the constitutionality intent of the Framers of the Constitution. of the creche and menorah displays in instance, For Chambers, in Marsh v. 463 Lynch Allegheny, and the Court also noted U.S. 77 1019 L.Ed.2d that it would have a different case if the (1983), the upheld Court practice the of displays arose in the See, setting. school Congress opening the legislative session e.g., Allegheny, at U.S. 620 n. with prayer stating: (“This S.Ct. 3086 say not to the combined of a In light Christmas and of tree the unambiguous and unbro- a menorah is constitutional history wherever ken of years, more than 200 may be located on property. there can be no doubt that practice the For example, when located in a of public opening legislative sessions pray- with school, a display such might raise addition- er has part become of the fabric of our includes and guidance,” Divine of on tion guidance Divine invoke society. To embracing religion, practices “government making the with body entrusted public hol and Christmas circumstances, Thanksgiving including an not, in these laws chaplains military and congressional to- step idays, or a religion of “establishment” room, the prayer congressional the a toler- establishment; simply and it is ward presi Allegiance, and motto, of widely Pledge the of beliefs acknowledgment able Day for National country. proclamations of this dential people the among held acknowledging implicitly thus Prayer,” of 792, 103 3330. S.Ct. Id. at As constitutionality practices. of such the apply Lem did not Marsh Significantly, of “Because explained, O’Connor Justice fact recognized holding on, in its but practices those ubiquity, history their of history is an unbroken “[t]here conveying govern as not understood are three by all acknowledgment official be particular of approval ment role of reli goveimment branches 693, 104 S.Ct. 1355. Id. liefs.” at at least 1789.” life from in American gion the Su- comments are informative Also 1355. at S.Ct. 465 U.S. Lynch, concerning the con- has made Court preme three our history fact, predates rendition 1932 artistic stitutionality beginning with government, branches In of Moses and Declaration in our the proclamation surrounding the in frieze contained endowed “are all men dependence instance For highest court. walls unalienable with certain Creator their 1355, in 676, 104 S.Ct. at Lynch, recently as as even and continues Rights,” chal- Clause an considering Establishment to “thank Americans call to the President’s very “[t]he the Court noted character, lenge lives, today for God this arguments oral in which chamber Cole.” the USS crew of courage of a nota- with is decorated were heard case recognized long has Supreme Court symbol permanent ble seasonal— —not ref such constitutionality of Ten Com- Moses with religion: instance, has ac the Court For erences. Allegheny, also mandments.” proceedings court its own knowledged that (Stevens, J., 652-53, 109 at con which an announcement with open (not- dissenting part) concurring part, States and United “God save cludes to exclude” absurd it “would be ing that Marsh, 463 U.S. Court.” Honorable Mo- Moses, Confucius inclusion has also The Court frieze Court’s from hammed Clause does Establishment that the noted lawgivers). because legislative in our “[p]rayers prohibit Rehnquist Justice recently, Chief More in the Almighty halls; appeals to of Muhammad presence justified the Executive; the Chief messages Courtroom, stating frieze wall north Day a making Thanksgiving proclamations in- (“ depiction of Muhammad ‘[t]he in our help me God’ ‘so holiday; national him, among many recognize only to tended ref other and all courtroom oaths —these figure important an lawgivers, other through run Almighty that erences law; It is ... history of [in ... rituals laws, public our [and] our has unit that aesthetic architectural supplication cluding] ”). sixty years.’ more than in place been save ‘God each session: opens ” (quoting Suhre, F.Supp.2d Court.’ Honorable and this States United Rehn- Justice of Chief statement a 1997 312-13, Clauson, 343 U.S. Zorach quist). (1952). Like 679, L.Ed. 954 72 S.Ct. accepted have also courts circuit Donnelly, v. Lynch wise Deity, uphold- to the references 1355, historical O’Connor 674-75, Justice We “In God motto national our ing replete with history is “[o]ur nоted that on our inscription Trust,” same value invoca- to the references official currency, O'Hair Murray, tives to prayer voted establish a room in (5th Cir.1979) (upholding national the Capitol. H.R. Cong. 60, Res. 83d Trust”); motto “In God We Aronow v. Cong., 99 Cong., Cong. Rec. 9073 (9th States, Cir.1970) United (1953). 432 F.2d 242 The Bill’s sponsor explained that (accord), as well as the constitutionality of legislation’s purpose “provide was to the Pledge Allegiance’s reference to place of retreat as an encouragement God. Sherman v. Community Consol. prayer-” (1953) 99 Cong. Rec. 9073 Sch. Dist. 21 (statement Wheeling Township, 980 of Rep. Hays). Congressman (7th Cir.1992). F.2d 437 further, Scrivner went explaining “[a]t this time history, world’s when the The reference to on the Ten Com- God materialistic ideology of the Communists is mandments monument is much like these ... right land, in our own it is comforting other references —an acknowledgment of to know that the Congress of the United our religious roots. While does goes States on record as believing in the not date back to our founding, nation’s spiritual values taught by all religions, and neither does Pledge of Alliance’s refer- also showing to the world their belief in God, ence to or other such constitutionally prayer and opposed meditation approved religious references, such as the teachings barbarous that many so nations “In God We Trust” motto and inscription. have fallen prey to.” 99 Cong. Rec. 9075 Rather, many of the Deity references find (1953) (statement Scrivner). of Rep. their roots in our more recent history —the -just as the Ten 1954, Congress 1950’s— added phrase monument in this Therefore, case does. in “one Nation under God” to the Pledge of looking at the monument that still stands Allegiance. This amendment came in re- before Elkhart’s Municipal Building, it is sponse to a sermon delivered by the Re- helpful view in light of the time it was verend George M. Doeherty at the New placed there. York Avenue Presbyterian Church in Washington D.C. at a service which Presi- In the 50’s the Cold War daunting, dent Eisenhower and several Senators and and our country it often does times —as Representatives had attended. In his ser- acknowledged the importance of crisis— mon, Reverend Doeherty noted that our God. Cong. Sеe 100 Rec. 1700 Pledge Allegiance (“[T]he was missing some- fundamental issue which is the un- thing something that would distinguish it bridgeable gap between — America Com- from the pledge “little might Muscovites munist Russia is a belief in Almighty repeat” in a “pledge their God.”) (statement hammer-and- Rabaut). Rep. sickle flag Moscow.” Steven 1952, Ep- B. Congress established the “National stein, Rethinking the Constitutionality Day of Prayer,” H.R.J. Res. 82d Deism, Ceremonial 96 Colum. L. Rev. Cong., (1952), 2d Sess. recognizing that (1996). 2118-19 That something was “the national interest would be much bet- a recognition of God. After the President ter served we turn aside for day a full signed legislation, the new Pledge of pray for spiritual help guidance Allegiance was bugler recited and a played the Almighty during these turbulent “Onward, rendition Christian Sol- times.” Cong. (1952) (state- Rec. 771 (1954) (state- diers.” Cong. Rec. 6348 Brooks). ment of Rep. That year, same ment of Ferguson). Sen. Justice Douglas, writing for Court in Clauson, Zorach v. The trend continued: In Congress (1952), 96 L.Ed. 954 mandated the inscription of “In God We penned the now-famous line: are a “[w]e Trust” all coins paper currency. religious people whose institutions presup- The bill’s sponsor, Bennett, Representative pose a Supreme Being.” The following spoke on the passage: bill’s “In days these year, the House of Representa- imperialistic when and materialistic com- among ly destroy attack and seeks munism Marsh, contin- us to seek for freedom, proper isit histo- Commandments’ the Ten of Because the founda- strengthen ways to uously for just treated it be should ubiquity, ry and our of At the base freedom. of our tion as the such practices, accepted other as the desire and in God faith our is freedom frieze, national Court’s Supreme His and will by His to live Americans of holidays, con- and Christmas Thanksgiving trusts country this as long As guidance. and the chaplains military and gressional usof all To remind God, prevail. it in will room, national congressional prayer that truth, proper it self-evident this of presiden- Allegiance, of motto, Pledge inspiring carry these currency should our Day of National for a proclamations tial our through to us down words, coming ” opening “God own court’s and our Prayer, Cong. Trust.’ God We history: ‘In Honorable and States the United Bеn- save (statement Rep. Rec. Therefore, Ten Com- if the even codi- Court.” Congress nett). year, following the stric- fail monument would mandments our national Trust” as We “In God fied (which, my in the Lemon test tures of Pub.L. July Act of motto. See may not), I believe view, does § it (codified at U.S.C. No. 84-851 standing. it constitutionally leave later, as (1994)). years Two Eagles the Elkhart project, its national Remedy Ten Commandments D. chapter donated of Elkhart. City monument decision Elkhart’s that I believe Because Com- thankful the nation, arewe aAs monu- Commandments to leave And fallen. has separation wall munist an “es- constitute not standing does ment following it is true conclude I would religion,” tablishment jurispru- Clause Establishment design Court’s and placement monument’s 60’s, govern- our beginning However, dence concludes court is. fine as invok- increasingly restricted are ments correctly concerned otherwise, thus is have numbed God. We the name I ing remedy. While appropriate about “rote such as terns with an invocations locate such can doubt have no silence, “cere- monument, moments repetition,” place for hiding obscure change not that does Yet deism.” necessary. monial Cemeteries be not should Ten Command- that the fact past. historical times honoring full of monuments our foundation as the served exiled ments not be should monument But this dis- A monument system. legal country’s Perhaps it graveyard.' aof equivalent acknowledges that Decalogue suffi- playing could be place if could remain Com- The Ten endorsing it. without plaques fact additional ciently diluted as serves also anyone mandments would think I don’t memorials. na- headstone, only for our whereby the historical redaction sort of accept some foundation, for the also but original be tion’s would to God references preliminary when in America 1950’s, religious time a defaced. or otherwise away chiseled when A time to God. turned nation we mini- way some other must be There murder, abuse, drug divorce, illegitimacy, endorsement, and any perception mize other violence, and the abortion, youth State communities many rare. relatively still today were how crises where guidanсe Indiana seek dis- prominently can Decalogue be sum, the retention I believe Constitution. offending the without played monu- Ten 40-year-old this case decision Yet, court’s Munici- Elkhart’s outside displayed ment remedy other no may be stands, there coun- on our justified based Building is pal concludes court removal because than history as recent and more try’s early purpose City lacked wide- of beliefs acknowledgment “tolerable 326

justifying its decision to leave undisturbed Chapel Lamb’s v. Center Moriches Union the Ten Commandments monument. Dist., Free School 398-99, 508 U.S. Thus, it appears that under the court’s 113 (1993) S.Ct. 124 L.Ed.2d 352 reasoning, no matter what (Scalia, Elkhart J., to does concurring (col in judgment) dilute the religious aspects of the Ten lecting opinions Lemon). criticizing But in Commandments, the monument will still the end there has be a test, to Lemon be unconstitutional because its fails Lem- some other test now that the Court has on's, by first prong not having a secular departed from the text original under purpose. And prove cannot standing of the Establishment Clause. that it legitimate has a purpose The Establishment Clause reads that passing a forty years resolution after the “Congress shall make no law respecting donated, monument was there doesn’t establishment of religion.” “The Framers seem to be much else do prove could intended the Establishment Clause to pro that it has any religious sanitized motive hibit the designation any church aas that has since become unconstitutional. ‘national’ one. The Clause was also de signed stop the Federal Government

II. asserting a preference for one reli gious denomination or sect over others.” To this I point, have examined most of Wallace v. Jaffree, 38, 113, 472 U.S. 105 the tests and distinctions in place set (1985) (Rehn S.Ct. 86 L.Ed.2d 29 the Supreme Court. While I am confident quist, J., dissenting). The this Establishment analysis under correct, Lemon is I Clause further sought “to protect state recognize also that reasonable people can establishments religion from federal in disagree. Lemon, See 408 at 612, U.S. 91 Lee, terference.” 505 (“Candor U.S. at S.Ct. 112 compels acknowledg- (Scalia, J., S.Ct. 2649 dissenting) (emphasis ment ... that we can only dimly pеrceive added). also, See American Jewish Con lines of demarcation in this extraordi- gress, 827 F.2d at (Easterbrook, J., narily sensitive area of constitutional (“The dissenting) law.”). Establishment Clause This variance opinion is inevit- supposed was prevent the federal gov able when one considers what Lemon re- ernment from taxing for the support quires: aof We look to the number of displays, church or requiring religious their placement, observ width, their height, ance.”). What the Establishment Clause distance from other displays (“scrutiny did not intend to do was to build a more wall commonly associated with interior separation, or to mandate that govern decorators than with the judiciary”). ment treat religion and irreligión equally. American Congress, Jewish 827 F.2d at See, e.g., Wallace, 472 38, 98, (Easterbrook, J., dissenting). We S.Ct. 86 L.Ed.2d 29 (Rehnquist, J., question whether symbol religious, (Madison dissenting) “did not see it religious, as could religious, be or is both requiring neutrality on govern religious and secular. We try look be- ment between religion and irreligión.”). hind the words of legislators and Common generally, Wallace, See 91-114, U.S. at Council members to measure their in- 105 S.Ct. 2479 (Rehnquist, J., dissenting); history? God? Some of each? tent — Some Lee, 505 631-46, U.S. at frustrated Justices have been led to (Scalia, J., dissenting); American Jewish discuss the absurdity of the Lemon test. Congress, 827 (Easter- F.2d at 128-40 Weisman, See Lee v. 577, 644, brook, J., dissenting); Leonard Levy, W. 120 L.Ed.2d 467 (Scalia, The Establishment J., Religion Clause: dissenting) (stating that Lemon “has (1986). First Amendment received well-earned criticism from many Members of Court,” and collecting History proves that, and “[t]he true opinions Lemon). criticizing also, meaning of the Establishment Clause can law, it cannot but Wallace, 472 matters history.” in its be seen only Id. history.” J., of matters to (Rehnquist, S.Ct. at U.S. Weisman, also, Lee dissenting). See history as however, viewed now, the For (Scalia, J., 632, 112 S.Ct. at dis- has been dissenting jurists by these aphorism (“Justice Holmes’ dissenting) the test. Until the Lemon by placed of a volume is worth history of ‘a page understand- original the to returns Court to our force particular with applies logic’ arewe Clause Establishment of the ing (in- jurisprudence.”) Clause Establishment left Lemon, therefore and we by bound omitted). shows History citation ternal of the dilution measure to prayer origin, Nation’s our “[f]rоm sincerity of question and message governmen- of part prominent a been has task motive—neither government’s The proclamations. ceremonies tal Nonetheless, judiciary. to the suited well docu- Independence, of Declaration standards, complicated these under even peo- separate aas birth marking our ment does monument Ten Commandments of Judge to ‘appealed] ple, religion. of establishment constitute inten- our of the rectitude world on the firm reliance ‘a and avowed tions’ ” Id. at Providence.’ III. of divine protection fact, George 2649. 633, 112 S.Ct. monument Commandments The Ten address, inaugural in his first Washington, including purposes, several secular serves aon office of his oath swearing “after country’s legal, histori- our of recognition a a a prayer deliberately made Bible, ... Any per- roots. cal, yes, President.” as act official his first of diluted religion endorsement ceived first passed Congress And when Id. sym- of secular incorporation by Elkhart’s Constitution, amendments ten Ten placing bols monument — himself, re- at the Washington “George coun- in context Commandments passed which Congress very quest of oth- existence history try’s —and day of a proclaimed Rights, Bill of munici- in Elkhart’s monuments er secular ob- be prayer, thanksgiving ‘public Moreover, even parkway. building pal grateful acknowledging served monument that the conclude were to we of Al- favors signal many and hearts test, ” I Lemon strictures fails 2649. Id. at mighty God.’ justify ubiquity history and believe summa- succinctly Rehnquist As Justice undisturbed to leave decision Elkhart’s it was whether judge must “History rized: unobtrusively rested has which a monument Country of his Father municipal its in front undisturbed strayed has Court of the majority in rec- years forty than for more building the Establishment meaning of from the and le- country’s our Wallace, ognition Clause.” from I therefore Dissent J., dissenting). gal roots. (Rehnquist, S.Ct. decision Elkhart’s holding that court’s represents test “three-part Lemon place leave a workable craft effort determined an establishment constitutes doctrine; faulty historically rule that it implicit mandate religion, as sound only be as can rule but removed. be must Id. attempts service.” it doctrine view Lemon’s demonstrаbly in- “is Clause Establishment And its history. a matter as correct succeeding forms varying repetition no more it give can

opinions a matter as possesses

authority than to courts may bind

fact; decisis stare notes there.” it, certainly it is see I know City Attor- don’t was conducted this case R.24, at 2. Attachment Municipal Building. As ney’s office in the 29 Proceedings B. in the District Court torical significance. and cultural As the explained, court the lawn in front of the place- district court held that small, Municipal Building is City and the ment of the Ten Commandments monu- ‍​​‌​‌​​‌​‌‌​‌‌‌​​‌‌‌‌‌‌‌‌​​‌‌​​​​‌‌‌​​​​​‌‌‌‌‌‌‌‍expected could not be put all of its ment on the lawn of the Elkhart Municipal displays place. in one The court then held Building did not violate the Establishment that it does violate the Establishment analyzing Clause. When placement City Clause for the of Elkhart to acknowl- the monument under the test set out in edge importance of the Ten Command- Kurtzman, Lemon v. legal ments and moral development (1971), 29 L.Ed.2d 745 of the nation displaying the monument (1) court examined whether the had a on the lawn of Municipal Building.5 secular purpose maintaining the monu- (2) ment, primary whether the effect of the II religion, was to advance DISCUSSION City’s whether the action fostered an ex- entanglement cessive with A. Standard of Review religion. 612-13, See id. at 91 S.Ct. 2105. review We de novo the decision After stating that the third prong did not of the district grant summary court to apply, the court found that Elkhart had a judgment. Wright Dep’t Illinois purpose for the monument. Ac- Corrections, (7th Cir. cording court, City’s purpose in 2000). Summary judgment proper when monument, accepting the promoting moral- the “pleadings, depositions, answers to in ity youths, is a legitimate govern- aim of terrogatories, file, and admissions on to ment and is a traditional of the police gether affidavits, with the if any, show that powers Also, of the state. the court stat- there is genuine no any issue as to materi ed, City’s purpose in continuing to al fact and that moving party is enti monument, display the to maintain exhibits tled to a judgment as a matter of law.” of cultural significance and historical 56(c); Fed.R.Civ.P. Corp. Celotex v. Ca City property, is also secular. trett, 317, 322-23, The court also (1986). discussed whether 91 L.Ed.2d 265 In determining monument had the effect of endorsing reli- genuine whether a issue of material fact

Case Details

Case Name: William A. Books and Michael Suetkamp v. City of Elkhart, Indiana

Court Name: Court of Appeals for the Seventh Circuit

Date Published: Dec 13, 2000

Citation: 235 F.3d 292

Docket Number: 00-1114

Court Abbreviation: 7th Cir.