American Civil Liberties Union of Kentucky v. McCreary County, Kentucky

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RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit Rule 206
ELECTRONIC CITATION: 2004 FED App. 0089P (6th Cir.)
File Name: 04a0089p.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
_________________
AMERICAN CIVIL LIBERTIES
UNION OF KENTUCKY, et al.,
Plaintiffs-Appellees,
v.
MCCREARY COUNTY,
KENTUCKY, et al.,
Defendants-Appellants.
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No. 01-5935
Appeal from the United States District Court
for the Eastern District of Kentucky at London.
Filed: March 23, 2004
Before: RYAN, CLAY, and GIBBONS, Circuit Judges.
_________________
ORDER
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The court having received a petition for rehearing en banc,
and the petition having been circulated not only to the original
panel members but also to all other active judges of this court,
and less than a majority of the judges having favored the
suggestion, the petition for rehearing has been referred to the
original panel.
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The panel has further reviewed the petition for rehearing
and concludes that the issues raised in the petition were fully
considered upon the original submission and decision of the
case. Accordingly, the petition is denied.
ENTERED BY ORDER OF THE COURT
/s/ Leonard Green
_________________________________
Clerk

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1The Court also discussed Stone with approval in County of
Allegheny v. ACLU, 492 U.S. 573, 590-91 n.40 (1989) (“[T]he content of
a public school’s curriculum may not be based on a desire to promote
CLAY, Circuit Judge, concurring in denial of rehearing
en banc, joined by Martin, J.
In Stone v. Graham, 449 U.S. 39 (1980)(per curiam), the
Supreme Court held that it was patently insufficient for the
government to justify schoolhouse displays of the Ten
Commandments merely by asserting that “[t]he secular
application of the Ten Commandments is clearly seen in its
adoption as the fundamental legal code of Western
Civilization and the Common Law of the United States.” Id.
at 40 n.1. The Court reasoned that posting the Ten
Commandments with only this disclaimer served no
“educational function.” Id. at 42.
The Court further opined that the display may have been
permissible had the Ten Commandments been “integrated
into the school curriculum…in an appropriate study of
history, civilization, ethics, comparative religion, or the like.”
Id. (citation omitted). This statement was a critical
component of the Court’s holding. Indeed, the Supreme
Court expressly endorsed this statement in Lynch v. Donnelly,
465 U.S. 668 (1984). See id. at 679 (expressing approval of
Stone and noting that the Stone decision “carefully pointed
out that the Commandments were posted purely as a religious
admonition, not ‘integrated into the school curriculum, where
the Bible may constitutionally be used in an appropriate study
of history, civilization, ethics, comparative religion, or the
like’”) (quoting Stone, 449 U.S. at 442.). The Court further
elaborated that study of the Bible or of religion, “‘when
presented objectively as part of a secular program of
education,’” may be effected consistently with the First
Amendment. Id. at 679-80 (quoting Abbington Sch. Dist. v.
Schempp, 374 U.S. 203, 225 (1963)).1 Thus, both Stone and
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religious beliefs.…For the same reason, posting the T en Comm andments
on the wall of a public-school classroom violates the Establishment
Clause.”) (citing Stone, supra; other citations omitted).
2The dissent’s citation to Capitol Square Review & Advisory Bd. v.
Pinette, 515 U.S. 753 (1995) is baffling. That case is irrelevant because,
there, the disp lay of a cross involved priva te speech, not government
speech as in the case at bar. Id. at 760, 765 (“There is a crucial difference
between government speech endorsing religion, which the Establishment
Clause forbids, and priva te speech endorsing religion, which the Free
Speech and Free Exercise Clauses protect.”) (internal quotation m arks,
punctuation and citation omitted).
Lynch support the view that the government’s presentation of
the Ten Commandments, or religious messages generally, is
constitutional so long as the religious messages are presented
objectively and as an integral component of an overarching
secular subject matter.
This view is manifested even in those Supreme Court
decisions upholding governmental displays containing
patently religious symbols, including the cases cited by the
dissent – Lynch, supra, and County of Allegheny v. ACLU,
supra.2 Lynch approved of a Christmastime display of a
creche because that symbol, as a matter of fact in that case,
shared a common secular link – the holiday season – with the
numerous other secular symbols included in the display. The
display was permissible because the secular connection
between the symbols rendered “indirect, remote and
incidental” the religious message that the creche would have
conveyed standing alone. Lynch, 465 U.S. at 683.
Consistently, the Court struck down a creche display in
County of Allegheny because the creche was the display’s
solitary element. County of Allegheny, 492 U.S. at 599
(holding that “nothing in the context of the display detracts
from the creche’s religious message”). In contrast, through a
series of fractured opinions, a majority of the Court in County
of Allegheny approved the display of a menorah, alongside a

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3A hypothetical from Justice Stevens illustrates how the them atic
integration of the T en Comm andments with secular symbols or m essages,
or the lack thereof, can render a display containing the Ten
Commandments religious or non-religious in nature:
… [A] carving of Moses holding the Ten Commandments, if that
is the only adornment on a courtroom wall, conveys an
equivocal message, perhaps of respect for Judaism, for religion
in general, or for law. T he addition of carvings depicting
Confucius and Mohammed may honor religion, or particular
religions, to an extent that the First Amendment does not tolerate
any more than it does “the permanent erection of a large Latin
cross on the roof of city hall.” See post [492 U.S. at 661]
(KENNEDY, J., concurring in judgment in part and dissenting
in part). Cf. Stone v. Graham, 449 U.S. 39, 101 S. Ct. 192, 66
L.Ed.2d 199 (198 0) (per curiam). Placement of secular figures
such as Caesar Augustus, William Blackstone, Napoleon
Bonaparte, and John M arshall alongside these three religious
leade rs, however, signals respect not for great proselytizers but
for great lawgivers. It would be absurd to exclude such a fitting
message from a courtroom, as it would to exclude religious
paintings by Italian Renaissance masters from a public museum.
Cf. Lynch, 465 U.S., at 712-713, 717, 104 S. Ct., at 1379-1380,
1382 (B REN NAN , J., dissenting).
County of Allegheny, 492 U.S. at 65 2-53 (Stevens, J., concurring, in part,
and dissenting, in part).
Christmas tree and an explanatory sign, because the overall
theme conveyed by the display was one of diversity,
secularism, the holiday season and/or freedom. These
decisions demonstrate that the manner in which a display’s
religious and secular elements integrate with one another is
highly relevant to the inquiry concerning the government’s
purpose behind the display.3
Using this approach, the panel concluded that the
documents and symbols in Defendants’ displays utterly
lacked a unifying secular theme. The dissent has not disputed
this conclusion. Under Stone, Defendants’ mere assertion of
such a unifying theme did not render the displays’ purpose
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secular. Moreover, neither Defendants’ displays, nor their
legal briefs, provided a shred of evidence to support the
principal assertion in the courthouse displays that the Ten
Commandments profoundly influenced the drafting of the
Declaration of Independence. Defendants’ schoolhouse
displays did not even purport to cite to objective historical
evidence, instead relying on the Harlan County School
Board’s subjective “belief” and “opinion” that the displays
will “positively contribute to the …moral character of
students” and “instill qualities desirable of the students in
[their] schools.” Like the display of the Ten Commandments
in Stone, the schoolhouse displays, as a matter of fact, served
no educational mission, as might have been the case had the
Ten Commandments been integrated into the objective study
of a secular subject matter. Defendants’ posting of the Ten
Commandments served no purpose but as a religious
admonition. Accordingly, the content of the displays
sufficiently demonstrated that Defendants’ true purpose for
the displays was religious.
The dissent suggests that as long as the Ten
Commandments are displayed “as part of an array containing
eight or nine otherwise secular, historical documents,” further
inquiry into Defendants’ purpose must cease. This is wrong.
Neither the Supreme Court nor this Court has ever adopted
such a facile approach to the Establishment Clause. The
determination of an Establishment Clause violation is a
highly fact-specific inquiry that requires a court to pay careful
attention to the content and context of the display containing
a religious symbol. See, e.g., County of Allegheny, 492 U.S.
at 597 (stating that the Court’s task was “to determine
whether the display of the creche and the menorah, in their
respective ‘particular physical settings,’” has the effect of
endorsing or disapproving religious beliefs”); Adland v. Russ,
307 F.3d 471, 481 (6th Cir. 2002) (looking at the “intended
physical context” of the Ten Commandments display). The
dissent’s approach would require courts to ignore
disingenuous governmental attempts to convey religious

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4This holding was justified by San ta Fe Indep. Sch. D ist. v. Do e, 530
U.S. 290, 309, 315 (2000) (looking at the “evolution” of the student-led
prayer policy to determine whether an Establishment Clause violation had
occurred ).
messages whenever it has included secular elements in its
speech, no matter how unrelated those secular elements are to
the religious elements. If followed to its logical conclusion,
the dissent’s approach would justify a classroom display of a
crucifix or the Lord’s Prayer, so long as surrounded by the
Magna Carta, the Declaration of Independence, the Star
Spangled Banner and, perhaps, excerpts from the Internal
Revenue Code.
The dissent inaccurately refers to the panel’s “sympathetic
treatment of the district court’s conclusion that the history of
the defendants’ earlier attempts to erect ‘constitutionally
invalid displays’ had “imprinted the defendants’ purpose,
from the beginning, with an unconstitutional taint[.]””
(quoting ACLU v. McCreary County, 354 F.3d 438, 457 (6th
Cir. 2003) (quoting ACLU v. McCreary County, 145 F. Supp.
2d 845, 850 (E.D. Ky. 2001)). In fact, the panel explicitly
rejected the district court’s heavy reliance on past conduct,
instead concluding that “the history of Defendants’
involvement with the displays strongly indicated that the
primary purpose was religious.” McCreary County, 354 F.3d
at 348 (emphasis added; disagreeing with the district court’s
decision “to afford exclusive weight to Defendants’ past
conduct without addressing the specific content of the revised
displays”). Although not dispositive of the issue, Defendants’
prior unconstitutional conduct (initially displaying the Ten
Commandments alone, in clear violation of Stone, then
subsequently displaying the Ten Commandments alongside
documents excerpted solely for their religious content),
combined with the fact that Defendants added secular
material only after this litigation ensued, was relevant
evidence of their purpose behind the displays’ final iteration.4
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A careful reading of the panel’s opinion does not support the
dissent’s attempt to conjure a conflict with Granzeier v.
Middleton, 173 F.3d 568 (6th Cir. 1999).
Finally, the dissent argues that “the lead opinion
erroneously applies the heightened Establishment Clause
standards for public schools to other public buildings such as
courthouses.” This argument is incorrect and misleading.
First, the discussion of the public school and courthouse
settings appeared in my separate discussion of the
“endorsement” prong of the three-part test under Lemon v.
Kurtzman, 403 U.S. 602 (1971). Judge Gibbons did not join
this aspect of my opinion and, therefore, the discussion was
not adopted by a majority of the panel. It would have been
inappropriate for the entire Court to review this non-binding
opinion.
Second, my opinion did not equate the public school and
courthouse settings for all Establishment Clause purposes.
Rather, the opinion observed that citizens typically conduct
business at a courthouse by necessity, many times subject to
the coercive powers of the court, and, therefore, they are a
captive audience, similar to public school students, who are
subject to mandatory attendance requirements. Further, the
fact that a courthouse is so plainly the seat of government
requires courts to exercise special care to ensure that a
governmental display containing religious symbols is not
tantamount to governmental endorsement of those symbols.
See McCreary County, 354 F.3d at 461.
Third, my opinion never suggested that the same concerns
about governmental coercion and endorsement apply to all
public buildings. As the authorities cited above hold, the
inquiry into an alleged Establishment Clause violation is a
highly fact-specific inquiry that depends, in part, on the
particular physical setting of the speech at issue. I expressed
no opinion about a display containing the Ten
Commandments outside of a public school or a courthouse.

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For the foregoing reasons, I concur in the decision of the
en banc Court denying review of the panel opinion.
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BOGGS, Chief Judge, dissenting from the denial of
rehearing en banc, joined by Batchelder, J. The core
question in this case is whether the district court and the panel
majority erred in holding, as a matter of law, that despite the
statement of historical and patriotic secular purpose included
in each display at issue here, and despite the five separate
secular purposes for the displays articulated by the defendants
in the district court, they nonetheless have an essentially
religious purpose because the Ten Commandments appear
beside eight or nine otherwise indisputably secular
documents.
This court has held that in Establishment Clause cases
federal courts must defer to the government’s articulation of
a secular purpose unless the stated purpose is shown to be a
“sham.” Chaudhuri v. Tenn., 130 F.3d 232, 236 (6th Cir.
1997). That rule has been misapplied by the panel majority.
In coming to the conclusion that the defendants’ carefully
articulated secular purposes are a sham, the court ignores the
First Amendment principles laid out in County of Allegheny
v. ACLU, 492 U.S. 573 (1989), and Lynch v. Donnelly, 465
U.S. 668 (1984). It establishes a new and heightened standard
of proof, holding that the displays lacked a secular purpose
because they “provided the viewer with no analytical or
historical connection between the Ten Commandments and
the other historical documents.” ACLU of Ky. v. McCreary
County, 354 F.3d 438, 453 (6th Cir. 2003). Neither the
Supreme Court nor this court has ever adopted such a
standard. On the contrary, the Supreme Court has upheld
displays of a cross, Capitol Square Review & Advisory Bd. v.
Pinette, 515 U.S. 753, 766 (1995) (plurality opinion), a
creche, Lynch, 465 U.S. 668, and a menorah, County of
Allegheny, 492 U.S. 573, none of which made explicit an
“analytical or historical connection” between the religious
item and other, secular items in the displays.

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The implication of the court’s decision is that the presence
of the Ten Commandments, in an array containing
indisputably historical and patriotic secular documents,
converts the whole into a display having a primarily religious
purpose. The panel majority appears to have drawn this rule
from Stone v. Graham, 449 U.S. 39 (1980), a brief, per
curiam disposition that preceded both Lynch and Donnelly,
and that bears no meaningful factual resemblance to this case.
Stone struck down a Kentucky statute that mandated the
posting of the Ten Commandments, standing alone, in every
classroom in the Commonwealth. In dicta, the Court stated
that the Ten Commandments “may constitutionally be used in
an appropriate study of history, civilization, ethics,
comparative religion, or the like.” 449 U.S. at 42 (citing Sch.
Dist. of Abington Township v. Schempp, 374 U.S. 203, 225
(1963)) (emphasis added). I do not believe this language can
be read as an attempt to state binding limits on all future
constitutionally valid displays. And even if it were to be read
in that aggressive fashion, Stone certainly does not suggest
that a display that includes the Ten Commandments as part of
an array containing eight or nine otherwise secular, historical
documents, violates the First Amendment unless the display
also provides an explicit analytical or historical connection
between the clearly secular and the arguably religious items.
Another troubling aspect of the majority opinion concerns
its sympathetic treatment of the district court’s conclusion
that the history of the defendants’ earlier attempts to erect
“constitutionally invalid displays” had “‘imprinted the
defendants’ purpose, from the beginning, with an
unconstitutional taint[.]’” McCreary County, 354 F.3d at 457
(quoting ACLU of Ky. v, McCreary County, 145 F. Supp. 2d
845, 850 (E.D. Ky. 2001)). I think the history of the
defendants’ displays is entitled to considerably less weight
than the majority gives it. Our court has previously expressed
great reluctance to allow a government’s past actions to taint
its future actions from the standpoint of the Establishment
Clause. In Granzeier v. Middleton, 173 F.3d 568 (6th Cir.
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5The holding and reasoning of Granzeier are co nsistent with the
Supreme Court’s dec ision in Santa Fe Independent School District v. Doe,
530 U.S. 290 (2000), relied upon by the panel. While the Santa Fe
majo rity considered both the “text and history” of the school policy at
issue in that case, which authorized a student-elected speaker to make an
“invocation” to “solemnize ” hom e football gam es, id. at 298 & n.6, 315,
it also made clear that the policy was, in fact, invalid on its face. Id. at
306-07, 314-15; see id. at 315 (“The narrow question before us is whether
implementation of the October policy insulates the continuation of such
prayers from constitutional scrutiny.”). M oreo ver, the evidence of a
“continuous” Establishment Clause violation, as well as other troubling
aspects of the case’s history, were far stronger in Santa Fe than in this
case, where the counties have serio usly rethought and reo rganized their
displays in response to constitutional concerns. Cf. id. at 294-98
(detailing various cosm etic alterations made to school district’s
longstanding policy of pregame and graduation prayers, which were
frequently explicitly Christian in nature; also noting that the record
suggested that there had been official harassment and intimidation of the
Santa Fe plaintiffs during the litigation).
1999), we held that the government could close its offices on
Good Friday without violating the Establishment Clause by
adopting a “spring weekend” rationale, even though there was
evidence that the government’s purpose was originally
religious, including a poster put up by a government
employee depicting the Crucifixion. We stated that “the fact
that a particular closing was once constitutionally suspect
does not prevent it from being reinstated in a constitutional
form.” Id. at 574. Our holding in Granzeier reflects an
important principle of equal treatment that is slighted by the
panel’s opinion. In general, governmental bodies, like other
litigants, should be free to take instruction from prior
decisions or arguments, and thus to eschew, or move away
from, practices that are contrary to law.5
Finally, the lead opinion erroneously applies the heightened
Establishment Clause standards for public schools to other
public buildings such as courthouses. See McCreary County,
354 F.3d at 461. This ignores the reasons given by the
Supreme Court for creating a heightened constitutional

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standard in public schools, namely that young children are
impressionable and that the state exercises coercive power
through mandatory school attendance requirements. Edwards
v. Aguillard, 482 U.S. 578, 584 (1987). By applying these
heightened requirements to courthouses and other public
buildings, the lead opinion not only misapplies the law, it also
invites a new round of First Amendment challenges to
religious texts and symbols that are nearly ubiquitous in non-
schoolhouse public buildings throughout the nation,
particularly courthouses.
The court’s decision, that the Ten Commandments’ text is
impermissible as one of ten otherwise secular documents,
gives no further guidance. Would it be permissible as one of
twenty other texts, or one of one hundred? Would it make a
difference if the display involved a pictorial representation,
rather than a text?
I have seen at one institution what seemed to me a possible
solution to some controversies of this type. There was a
representation of two tablets, bearing only the Roman
numerals from “I” to “X.” This left it to all observers to
decide what exact text they wished to impose on that symbol.
But under the court’s decision, I have no idea if even this
display could pass muster.
Believing the panel’s decision to be both draconian and
legally unsupported, I would rehear this case, so that the full
court could give it more nuanced consideration. I therefore
respectfully dissent from the denial of rehearing en banc.

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