Andy Modrovich; James Moore v. ALLEGHENY COUNTY, PENNSYLVANIA On Appeal from the United States District Court for…

PRECEDENTIAL
IN THE UNITED STATES COURT OF
APPEALS
FOR THE THIRD CIRCUIT
________
No. 03-3571
________
ANDY M ODROVICH; JAMES
MOORE,
Appellants
v.
ALLEGHENY COUNTY,
PENNSYLVANIA
________
On Appeal from the United States
District Court
for the Western District of Pennsylvania
District Judge: The Honorable Donetta
W. Ambrose
(Civ. No. 01-cv-00531)
________
Argued March 24, 2004
Before: FUENTES, SMITH, and
GIBSON,* Circuit Judges.
(Opinion Filed: October 6, 2004)
_______________________
OPINION OF THE COURT
_______________________
Ayesha N. Khan
Alex J. Luchenitser (argued)
Americans United for
Separation of Church and State
518 C Street NE
Washington, DC 20002
Counsel for Appellants
Perry A. Napolitano (argued)
Donna M. Doblick
P. Gavin Eastgate
Darren P. O’Neill
Reed Smith LLP
435 Sixth Avenue
Pittsburgh, PA 15219
Ralph A. Finizio
Kevin L. Colosimo
Houston Harbaugh
Two Chatham Center, 12th Floor
Pittsburgh, PA 15219-3463
Counsel for Appellee
* The Honorable John R. Gibson, Senior
Circuit Judge for the United States Court
of Appeals for the Eighth Circuit, sitting
by designation.

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Fuentes, Circuit Judge.
This appeal raises the issue of
whether the display of a plaque containing
the text of the Ten Commandments on the
Allegheny County Courthouse violates the
Establishment Clause of the First
Amendment of the U.S. Constitution.
Appellants Andy Modrovich and James
Moore seek review of the District Court’s
decision granting summary judgment in
favor of Allegheny County and holding
that displaying the plaque does not violate
the Establishment Clause. Modrovich and
Moore, two avowed atheists, claim to have
had regular and unwelcome contact with
the plaque while entering and walking past
the courthouse. They argue that Allegheny
County’s continued display of the plaque
represents a government endorsement of
religion in violation of the Establishment
Clause.
In Freethought Society of Greater
Philadelphia v. Chester County, 334 F.3d
247 (3d Cir. 2003) [hereinafter
“Freethought”], we addressed a similar
dispute concerning a plaque of the Ten
Commandments affixed to the façade of a
c o u r t h o u s e i n C h e s t e r C o u n t y,
Pennsylvania. We found that a reasonable
observer, aware of the history of the 82-
year-old plaque, would not have viewed
Chester County’s refusal to remove the
plaque as an endorsement of religion, and
that the county had a legitimate secular
purpose for continuing to display the
plaque. In accordance with our decision in
Freethought, we hold that because the Ten
Commandments plaque in Allegheny
County has been a fixture on an historical
courthouse since 1918, is not highlighted
or displayed prominently, and is one of
several historical relics displayed on the
courthouse, Allegheny County’s refusal to
remove it does not send a message of
government endorsement of religion in
violation of the Establishment Clause.
I. FACTUAL BACKGROUND AND
PROCEDURAL HISTORY
In 1918, a bronze plaque containing
the text of the Ten Commandments and
other biblical passages (“the Plaque”) was
donated to Allegheny County Pennsylvania
(“the County”). The Plaque is now affixed
to the stone wall of the Allegheny County
Courthouse, facing a main street (Fifth
Avenue) in downtown Pittsburgh.
Modrovich and Moore alleged that they
have had regular, direct and unwelcome
contact with the Plaque while entering the
courthouse on errands and walking past it
on their way to and from work.
Modrovich and M oore claim to have felt
“affronted and deeply offended” by the
display, feeling as though the County
views them as outsiders in the community
because they do not adhere to the religious
message of the Co mm andm ents .
Complaint at ¶4.
In October 2000, an attorney from
the Americans United for Separation of
Church and State contacted the then-Chief
Executive of Allegheny County (James
Roddey) and then-President of the County
Council (John DeFazio) on behalf of
Modrovich and Moore, requesting that the

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Plaque be removed because its continued
presence violated the Establishment
Clause of the First Amendment. County
officials disagreed with that assertion and
refused to remove the Plaque. In addition,
the County Council passed a motion on
January 16, 2001, expressing its support
for the efforts of Roddey and DeFazio to
prevent its removal.
Modrovich and Moore filed suit in
the Western District of Pennsylvania on
March 27, 2001, pursuant to the Civil
Rights Act of 1871, 42 U.S.C. § 1983
(“Section 1983”). They claimed that their
First Amendment rights were being
violated under color of state law by a local
municipality. They sought a declaratory
judgment that the continued presence of
the Plaque violated the First and
Fourteenth Amendments. They also
sought a permanent injunction prohibiting
the County from displaying the Plaque at
the courthouse. Modrovich and Moore
filed a motion for summary judgment and
a motion for a permanent injunction on
January 31, 2002, arguing that the Plaque
had the effect of endorsing religion. The
County filed a cross-motion for summary
judgment on the same day, asserting that
because the Plaque is one of over twenty
historical, political, and cultural relics
displayed at the courthouse, it has secular
significance and its continued display does
not amount to an unconstitutional
endorsement of religion.
While these motions were pending,
the Eastern District of Pennsylvania
decided Freethought, a case involving
almost identical facts and issues
concerning the display of a plaque of the
Ten Commandm ents affixed to a
courthouse in Chester County. See
Freethought Soc’y v. Chester County, 191
F. Supp. 2d 589 (E.D. Pa. 2002). On
March 6, 2002, that court, applying the
three-prong test set forth in Lemon v.
Kurtzman, 403 U.S. 602, 612-13 (1971),
found that the plaque was only incidentally
secular, and that Chester County officials
intended the plaque to advance the
Christian religion. The court, therefore,
held Chester County’s display of the
plaque to be unconstitutional under the
Establishment Clause. Freethought, 191 F.
Supp. 2d at 599. Chester County appealed
the district court’s decision to this Court.
While Freethought was on appeal, the
District Court judge in the instant case
advised the parties that she would hold
their motions for summary judgment in
abeyance pending our decision.
On June 26, 2003, this Court,
analyzing the constitutionality of the
Chester County plaque under both the
“Lemon” test and the “endorsement” test,
reversed the decision of the district court
in Freethought. The endorsement test, a
modification of the Lemon test, was first
articulated by Justice O’Connor in Lynch
v. Donnelly, 465 U.S. 668, 687-88 (1984)
(O’Connor, J., concurring). Under both of
these approaches, this Court held that the
Chester County plaque did not violate the
Establishment Clause. Freethought, 334
F.3d at 251. We then vacated the
permanent injunction issued by the district
court prohibiting Chester County from
displaying the plaque.

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Following this precedent, the
District Court in this case granted
summary judgment to Allegheny County
and denied summary judgm ent to
Modrovich and Moore.
II. THE LEGAL FRAMEWORK
A. The Establishment Clause
Under the Establishment Clause of
the First Amendment, “Congress shall
make no law respecting an establishment
of religion.” U.S. Const. amend. I. The
Fourteenth Amendment imposes this
limitation on the states as well as their
political subdivisions. Wallace v. Jaffree,
472 U.S. 38, 49-50 (1985). The Supreme
Court has articulated three separate tests
for determining whether governmental
action violates the Establishment Clause.
The first of these, the “coercion” test, is
not applicable to this case. It focuses
primarily on government action in public
education and examines whether school-
sponsored religious activity has a coercive
effect on students. See Freiler v.
Tangipahoa Parish Bd. of Educ., 185 F.3d
337, 343 (5th Cir. 1999), cert. denied, 530
U.S. 1251 (2000). The second and third
tests, however, are both relevant to this
case. The second, the “Lemon” test, is a
three-prong approach to be used when
analyzing government action challenged
under the Establishment Clause. Lemon,
403 U.S. at 612-13. Under Lemon, the
challenged action is unconstitutional if (1)
it lacks a secular purpose, (2) its primary
effect either advances or inhibits religion,
or (3) it fosters an excessive entanglement
of government with religion. Id.
Finally, the “endorsement” test
modifies Lemon in cases involving
religious displays on government property.
The endorsement test dispenses with
Lemon’s “entanglement” prong and,
combining an objective version of
Lemon’s “purpose” prong1 with its
“effect” prong, asks whether a reasonable
observer familiar with the history and
context of the display would perceive the
display as a government endorsement of
religion. Lynch, 465 U.S. at 687
(O’Connor, J., concurring); see also
County of Allegheny v. ACLU Greater
Pittsburgh Chapter, 492 U.S. 573, 592
(1989) (adopting the endorsement test by
a majority of the Court); Tenafly Eruv
Ass’n, Inc. v. Borough of Tenafly, 309
F.3d 144, 174 (3d Cir. 2002) (applying the
endorsement test to a government display
of privately owned and maintained
religious objects). The endorsement test
asks whether the government action has
“the effect of communicating a message of
1 Instead of looking to the legitimacy of
the County’s articulated purposes, see
Edwards v. Aguillard, 482 U.S. 578, 585
(1987) (stating that “[t]he purpose prong
of the Lemon test asks whether
government's actual purpose is to endorse
or disapprove of religion” (quotation
omitted)), the purpose inquiry in the
endorsement test looks to “what viewers
may fairly understand to be the purpose of
the display,” County of Allegheny v.
ACLU,492 U.S. 573, 595 (1989)
(quotation omitted).

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government endorsement or disapproval of
religion.” Lynch, 465 U.S. at 692
(O’Connor, J., concurring). The
endorsement test cen ters on the
perceptions of the “reasonable observer”
when viewing a religious display. Capitol
Square Review & Advisory Bd. v. Pinette,
515 U.S. 753, 778 (1995). Thus, in
applying the endorsement test, we do not
examine the County’s motivations in
displaying the Plaque, but consider the
Plaque’s effect on the reasonable observer,
determining whether the reasonable
observer would perceive it as an
endorsement of religion.
B. Freethought and the Endorsement
Test
In Freethought, we began our
analysis of the constitutionality of the
Chester County plaque by first considering
which test should be applied to determine
whether the pla que v iolated the
Establishment Clause. We decided that
the correct test was not Lemon (which the
district court had applied), but the
endorsement test. In arriving at this
conclusion, we noted that the Supreme
Court had begun to rely increasingly on the
endorsement test in recent years and had
criticized Lemon as being vague and,
consequently, unpredictable in its
application. Id. at 256-57 (citing County
of Allegheny, 492 U.S. at 631 (O’Connor,
J., concurring)); Lamb’s Chapel v. Ctr.
Moriches Union Free Sch. Dist., 508 U.S.
384, 398-99 (1993) (Scalia, J., concurring)
(criticizing Lemon); Wallace, 472 U.S. at
108 (Rehnquist, J., dissenting); see also
Tenafly, 309 F.3d at 144.
In applying the endorsement test,
we identified two factors as particularly
critical: first, the message that the
“reasonable observer” receives from the
display, i.e., whether the display sends a
message of government endorsement of
religion; and second, the context in which
the religious display appears.
[T]he reasonable observer in the
endorsement inquiry must be deemed
aware of
the history and context of the community
and forum in which the religious display
appears. . . . Nor can the knowledge
attributed to the reasonable observer be
limited to the information gleaned simply
from viewing the challenged display. . . .
[O]ur hypothetical observer also should
know the general history of the place in
which the [object] is displayed. . . . An
informed member of the community will
know how the public space in question has
been used in the past.
Capitol Square, 515 U.S. at 780
(O’Connor, J., concurring in part and
concurring in the judgment) (internal
citations omitted). Thus, the reasonable
observer is presumed to know the general
history of both the religious display and
the community in which it is erected. The
reasonable observer is also “more
knowledgeable than the uninformed
passerby.” Freethought, 334 F.3d at 259.
In addition, every Establishment

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Clause challenge requires a fact-specific,
case-by-case analysis. See Lynch, 465
U.S. at 678; County of Allegheny, 492
U.S. at 629-30 (O’Connor, J., concurring).
This is mainly due to the fact that the
particular context in which a basically
religious display appears can alter the
message of this display such that it is no
longer endorsing religion, but merely
acknowledging it. See Lynch, 465 U.S. at
692 (O’Conn o r , J ., concurring).
Adm ittedly, the text of the Ten
Commandments contains an “inherently
religious message.” Freethought, 334 F.3d
at 262 (citing Stone v. Graham, 449 U.S.
39, 41 (1980)). However, posting the
Commandments can still, under certain
circumstances, be considered a secular
display. In Edwards v. Aguillard, 482 U.S.
578 (1987), the Supreme Court stated that
a prior “decision forbidding the posting of
the Ten Commandments did not mean that
no use could ever be made of the Ten
Comm andments, or that the Ten
Commandments played an exclusively
religious role in the history of Western
Civilization.” Edwards, 482 U.S. at 593-
94. Thus, it is well-established that the
context in which an otherwise religious
display appears can change the reasonable
observer’s perception of it. See Lynch,
465 U.S. at 692 (O’Connor, J.,
concurring); County of Allegheny, 492
U.S. at 630 (O’Connor, J., concurring)
(stating that the “history and ubiquity” of
a government action contributes to the
context that affects the reasonable
observer’s perception of endorsement); see
also King v. Richmond County, 331 F.3d
1271 (11th Cir. 2003) (holding that a
superior court’s official seal depicting two
t a b l e t s r e p r e s e n t i n g t h e T e n
Commandments did not send a message of
endorsement because of various contextual
factors surrounding the seal’s appearance
and use).
Acco rdingly, the C ourt in
Freethought considered various facts
concerning the context of the plaque,
including its history and age, its status as a
long-standing fixture on an historic
monument, and the fact that it was
displayed by itself. The Court held that
“the reasonable observer must certainly be
presumed to know that the plaque has been
affixed to the Courthouse for a long time,”
and would therefore view the plaque itself
(rather than the text of the Ten
Commandments “in the abstract”) as a
reminder of historical events in Chester
County rather than as an endorsement of
religion by county officials. Freethought,
334 F.3d at 265. The Court also created a
model of the reasonable observer. It found
that the reasonable observer in that case
would know the approximate age of the
plaque, and the fact that Chester County
had not moved, maintained or highlighted
the plaque since it was erected in 1920.
The reasonable observer would also be
“aware of the general history of Chester
County.” Id. at 260.
The Court found that, based on this
knowledge, the reasonable observer would
conclude that the decision to leave the
plaque in place was significantly
motivated by a desire to preserve the
plaque as an historical artifact. Id. at 265.

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Also, a reasonable observer would
understand that over time additions to
historic buildings such as the courthouse,
which is included in the National Register
of Historic Places, can become part of the
monument and its history. Id. at 266.
Considering Chester County’s interest in
historical preservation, and the reasonable
observer’s understanding of the plaque’s
significance to the courthouse’s history,
we concluded that the county’s refusal to
remove the plaque did not send a message
of endorsing religion. Such a refusal to
remove an historical artifact presents a
very different scenario than, for example,
attempting to install a new monument
incorporating the Ten Commandments. Id.
at 265. In the latter instance, a reasonable
observer is much more likely to conclude
that the government is attempting to
endorse the religious message contained in
the text of the Commandments because no
legitimate secular motivation for erecting
the monument (such as historic
preservation) is apparent.
In addition, Chester County took no
steps to highlight or celebrate the plaque or
its contents. In fact, the entranceway
nearest the plaque had been closed,
making its presence less prominent, and
supporting a perception that, by leaving
the plaque affixed to the façade in its
original historical location, Chester County
was not attempting to endorse its religious
content. Id. at 266-67. “In not changing
the location of the plaque to the main
entrance or otherwise actively drawing
attention to the plaque, Chester County
and its Commissioners’ conduct indicates
neutrality toward the plaque and its text.”
Id. at 270 (Bright, J., concurring). Thus,
the Freethought Court held that the
reasonable observer would not believe that
Chester County commissioners were
attempting to endorse religion by refusing
to remove the plaque.
C. Application of the Lemon Test in
Freethought
Although the Court decided the
case under the endorsement test, it also
applied the Lemon test, as the Supreme
Court could still potentially review the
issue under Lemon. Id. at 250. We
disagreed with the district court’s analysis
under Lemon insofar as it gave relatively
little weight to the actions and viewpoints
o f t he c ur re n t C h est e r C o u n ty
commissioners who declined to remove
the plaque, instead focusing primarily on
the motivations of the 1920 county
officials who accepted the plaque.
Freethought, 334 F.3d at 267. Thus, we
concluded that the relevant government
action was the decision not to remove the
p la q u e , and, in exam ining th e
government’s motivations, that courts
should consider both time periods with the
primary emphasis on recent events. It
would have made little sense to attempt to
analyze the allegedly offensive effect of
the plaque on current Chester County
residents, while only examining the
original purpose for erecting it. See id.
Considering the purpose prong of
Lemon, the Court found that Chester
County had expressed a legitimate secular
purpose for refusing to remove the plaque

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(i.e., a desire to retain an historical element
of an historical building). As the Court
noted, the proffered reason for the decision
need not be “exclusively secular,” and the
purpose prong only requires the reviewing
court to find that the articulated secular
purpose is not a “sham.” Id. at 267 (citing
Edwards, 482 U.S. at 585-87). Thus, the
Court accepted Chester County’s reason,
citing testimony from Chester County
commissioners expressing their views of
the plaque as having historical and secular,
as well as religious, significance. Id.
Chester County also supported these views
with case law and legal treatises
suggesting that the Ten Commandments
“have an independent secular meaning in
our society because they are regarded as a
significant basis of American law and the
American polity.” Id. While the Court did
not specifically consider the Lemon
question of whether the primary effect of
retaining the plaque was to advance or
inhibit religion, it held that question to be
encompassed in its endorsement test
analysis and, therefore, concluded that
Chester County’s refusal to remove the
plaque was constitutional under both the
purpose and effect prongs of Lemon.
Additionally, the Court noted that Lemon’s
entanglement prong was an aspect of the
effect inquiry and, as such, was also
encompassed by its endorsement test
analysis. Id. at 258 (citing Agostini v.
Felton, 521 U.S. 203, 233 (1997)).
III. DISCUSSION
A. Description of the
Allegheny Plaque
The Allegheny County Courthouse
occupies a full city block in downtown
Pittsburgh. It borders on four main roads
(Grant Street, Fifth Avenue, Ross Street,
and Forbes Avenue), and is built around an
interior courtyard. The Courthouse
complex was designed by world-renowned
architect Henry Hobson Richardson and
was completed in 1888. In 1968, the
Pittsburgh History and Landmark
Foundation designated the Courthouse an
historical landmark. On March 7, 1973, it
was placed on the National Register of
Historic Places, and on May 11, 1976, it
was named a N ational Historical
Landmark.
The Plaque, a bronze tablet entitled
“THE COMMANDM ENTS,” is four feet
high by three feet wide. It displays the text
of the Ten Commandments, largely from
the King James version of Exodus and
Deuteronomy. It reads:
THOU SHALT HAVE NO
OTHER GODS BEFORE ME.
THOU SHALT NOT MAKE UNTO
THEE ANY GRAVEN IMAGE, OR ANY
LIKENESS OF ANY THING THAT IS
IN HEAVEN ABOVE, OR THAT IS IN
THE EARTH BENEATH, OR THAT IS
IN THE WATER UNDER THE EARTH:
THOUGH SHALT NOT BOW DOWN
THYSELF TO THEM, NOR SERVE
THEM:
FOR I THE LORD THY GOD AM A
JEALOUS GOD, VISITING THE

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INIQUITY OF THE FATHERS UPON THE
CHILDREN UNTO THE THIRD AND
FOURTH GENERATION OF THEM
THAT HATE ME; AND SHEWING
MERCY UNTO THOUSANDS OF THEM
THAT LOVE ME, AND KEEP MY
COMMANDMENTS.
THOU SHALT NOT TAKE THE
NAME OF THE LORD THY GOD IN
VAIN:
FOR THE LORD WILL NOT HOLD HIM
GUILTLESS THAT TAKETH HIS NAME IN
VAIN.
REMEMBER THE SABBATH
DAY, TO KEEP IT HOLY. SIX
DAYS SHALT THOU LABOR
AND DO ALL THY WORK: BUT
THE SEVENTH DAY IS THE
SABBATH OF THE LORD THY
GOD: IN IT THOU SHALT NOT
DO ANY W ORK, THOU, NOR
T H Y S O N , N O R T H Y
D A U G H T E R , T H Y
MANSERVANT, NOR TH Y
MAIDSERVANT, NOR THY
CATTLE, NOR THY STRANGER
THAT IS WITHIN THY GATES:
FOR IN SIX DAYS THE LORD MADE
HEAVEN AND EARTH, THE SEA, AND
ALL THAT IN THEM IS, AND RESTED
THE SEVENTH DAY: WHEREFORE THE
LORD BLESSED THE SABBATH DAY,
AND HALLOWED IT.
HONOR THY FATHER AND
THY MOTHER:
THAT THY DAYS MAY BE LONG UPON
THE LAND WHICH THE LORD THY GOD
GIVETH
THEE.
THOU SHALT NOT KILL.
THOU SHALT NOT COMM IT
ADULTERY.
THOU SHALT NOT STEAL.
THOU SHALT NOT BEAR
FALSE WITNESS AGAINST THY
NEIGHBOUR.
THOU SHALT NOT COVET
THY NEIGHBOUR’S HOUSE.
THOU SHALT NOT COVET
THY NEIGHBOUR’S WIFE, NOR
HIS MANSERVANT, NOR HIS
MAIDSERVANT, NOR HIS OX,
NOR HIS ASS, NOR ANY
T H I N G T H A T I S T H Y
NEIGHBOUR’S.
Below the Commandments is additional
language from the Book of Matthew in the
New Testament. It is headed
“SUM MARY,” and reads:
THOU SHALT LOVE THE LORD
THY GOD WITH ALL THINE
HEART, AND WITH ALL THY
SOUL AND WITH ALL THY
MIND.
THOU SHALT LOVE THY
NEIGHBOUR AS THYSELF.
The Plaque was a gift to the County
in 1918 from a religious organization, the

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International Reform Bureau, which was a
Christian lobby whose mission was to
introduce religious principles into public
life. At the bottom of the Plaque, in
smaller type, is a phrase noting that it was
donated by this organization. At the
Plaque’s dedication ceremony in 1918,
Judge John D. Shafer stated that, in
accepting the Plaque, the County was
r e c o g n i z i n g t h e r o l e o f t h e
Commandments in the formation of our
laws and the sacrifices made in World War
I. See County Br. at 4.
The Plaque hangs on a rounded
wall that forms part of the entrance to the
interior courtyard of the courthouse. It
hangs on the Fifth Avenue side of the
courthouse at approximately eye-level. On
the opposite wall of the courtyard entrance
is a plaque of about the same size
commemorating an 18th century Polish
trader, Anthony Sadowski. App. at 685-
713. A public sidewalk is immediately
adjacent to the walls, with metal chains
separating pedestrians from the plaques. A
passerby could easily read the Plaque as he
approaches it. Someone walking on the
other side of Fifth Avenue could see the
Plaque, but would probably not be able to
read its contents. In the same vicinity are
administrative signs (pertaining to parking
and other courthouse information).
Located on the other exterior facades of
the courthouse, courtyard walls and arched
passages leading into the courtyard are
plaques commemorating various historic
events, people and organizations, for
example, a victory during the French and
Indian War, a Civil War protest, the
Veterans of Foreign Wars association, the
Cou nty’s bicentennial celebration,
National P.O.W.-M.I.A. Recognition Day,
the Pledge of Allegiance, and memorials
for private individuals. Id. at 685-713,
158-63. Above the Grand Staircase of the
courthouse, there is a mural depicting the
Goddess of Justice and an etching
referring to the courthouse as a “Temple of
Justice.” Id. at 608. Other plaques also
note aspects of the County’s history, such
as a tablet commemorating W illiam Pitt,
for whom the City of Pittsburgh was
named, and markers describing the
formation of the County and the origins of
Pittsburgh. Three other plaques note the
courthouse’s inclusion in city, state, and
national historical landmark registers. Id.
at 685-713. The Plaque was originally
affixed to the main façade of the
courthouse (on Grant Street), but was
moved to its present location sometime
before May 11, 1976, when it was entered
into the registry of National Historical
Landmarks. Neither party to this case has
suggested a reason for this move. See
Dist. Ct. Op. at 43.
Given the fact-specific inquiry
required under both the endorsement test
and the Lemon test, and the District
Court’s finding that this case is
indistinguishable from Freethought, the
factual similarities between the display of
the Plaque in this case and the Chester
County display are crucial to our decision.
We, therefore, provide a description of the
Chester County plaque. As in this case,
the Chester County plaque was affixed to
the exterior wall of the county courthouse,

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which was listed in the National Register
of Historic Places. The plaque was a gift
from an organization known as the
Religious Education Council. Chester
County commissioners accepted the plaque
in 1920 in a public dedication ceremony
described as having both secular and
religious overtones. The Chester County
plaque measures 50 inches tall by 39
inches wide (approximately the same size
as the Plaque in the instant case) and
contains text from the Old and New
Testaments identical to that of the Plaque
on the Allegheny courthouse. The Chester
County plaque was hung near the original
main entrance to the Chester County
courthouse. In order for someone passing
by to read any text other than the heading
on the plaque, it would be necessary to
climb the steps leading to the original
entrance, which was closed in 2001. In
addition to the plaque, the side of the
Chester County courthouse on which it
hangs contains several signs providing
administrative information. Also on that
façade are plaques noting the courthouse’s
inclusion in registers of county and
national historic places. Unlike in this
case, there are no other plaques containing
historical, political, or philosophical
images or messages on the same side of
the building where the Chester County
plaque hangs. However, other areas of the
courthouse contain displays, including
monuments to World War II and Civil War
veterans, an historic Chester County
marker, and a plaque with an historical
description of the original courthouse that
stood on the site. Freethought, 334 F.3d at
251-54.
B. Application of the Tests
Following our reasoning in
Freethought, although we find the
endorsement test to be the appropriate
standard by which to scrutinize the Plaque,
we will apply both the endorsement test
and the Lemon test, in case a higher court
prefers to apply the traditional Lemon test.
See Freethought, 334 F.3d at 261.
1. The Endorsement Test
It is important as an initial matter to
describe the knowledge that we believe is
attributable to the reasonable observer in
this case. We base this description on the
model for the reasonable observer set forth
by Justice O’Connor in County of
Allegheny, and later applied by this Circuit
in Freethought.2
2 Accordingly, the subjective feelings
expressed by Modrovich and Moore of
having been “offended” by the sight of the
Plaque on the courthouse are not relevant
to the endorsement analysis. “[W]e do not
ask whether there is any person who could
find an endorsement of religion, whether
some people may be offended by the
display, or whether some reasonable
person might think [the State] endorses
religion.” Capitol Square, 515 U.S. at 780
(O’Connor, J., concurring) (internal
citations omitted) (emphasis and
alterations in original). Rather, the
endorsement analysis requires a specific,
fact-based inquiry to determine if a
reasonable observer, aware of various

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12
Bearing in mind that the reasonable
observer is an informed citizen who is
more knowledgeable than the average
passerby, the reasonable observer is
deemed to know the history of the
Allegheny Plaque, the general history of
Allegheny County, and the fact that the
Plaque has been affixed to the courthouse
for many years. Id. at 259, 260, 265-66.
With this knowledge base, the observer
can glean other relevant facts about the
Plaque and its history from viewing it and
its surrounding context. The reasonable
observer is aware that the Plaque is one of
approximately twenty other historical and
cultural displays erected in the courthouse
over the past hundred years and that it is
not given any preferential treatment over
other displays. Although Allegheny
County moved the Plaque at one point, the
observer would recognize that it has not
taken steps to maintain or restore it. Id. at
260. The reasonable observer is also
deemed to know the history of the
courthouse, its architectural significance,
and its place on three state and national
registers for historic landmarks. These
presumptions are not unreasonable as such
historical facts are actually commemorated
on the courthouse walls in plaques and
tablets hung alongside the Ten
Commandments Plaque. As Freethought
noted, “[a] reasonable observer must be
presumed to know the history of the
Courthouse,” particularly since “a marker
noting the historic nature of the
Courthouse is actually affixed to the same
east façade to w h i ch t he T en
Commandments plaque is affixed.” Id. at
266. Further, the circumstances
surrounding the Plaque’s donation and
acceptance, including the secu lar
motivations for its acceptance articulated
by Judge Shafer on behalf of the County in
1918, are a matter of public record. See
App. at 674 (citing Speakers Discuss War
at Tablet Dedication, THE GAZETTE
TIMES, Apr. 9, 1918, at 11-18). Thus, the
reasonable observer is aware that, although
the Plaque was donated by a religious
organization, the County expressed secular
reasons for accepting it given the social
conditions at the time (i.e., wartime). We
note that the District Court set forth a
substantially similar description of the
reasonable observer in this case and that
Modrovich and M oore do not contest it
here. See Dist. Ct. Op. at 33.
Still, Modrovich and Moore point
out various context-related factors
concerning the Allegheny Plaque that, they
argue, would lead the reasonable observer
to perceive an endorsement of religion by
Allegheny County. Modrovich and Moore
attempt to distinguish this case from
Freethought, first arguing that the Plaque
is displayed more prominently than the
Chester County plaque. They contend that
contextual factors, would be offended for
the particular reason that the Plaque sends
a message of government endorsement of
religion. Here, we found that the
reasonable observer would not view
Allegheny County’s retention of the
Plaque as government endorsement, but as
an effort to preserve an historical relic.

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13
“[s]everal hundred people walk by the
Allegheny Plaque, and dozens go into the
Courthouse archway entrance near it,
during a typical ninety-minute period on a
regular business morning.” Appellant Br.
at 47. It is true that the Chester County
plaque is in an unobtrusive location, next
to an entrance that has been permanently
closed, and that it is not legible from the
sidewalk. However, we do not agree that
the Allegheny Plaque is displayed any
more prominently than the Chester County
plaque. It does not hang in any pre-
eminent place, but is affixed to a side
entrance on Fifth Avenue (as opposed to
the main courthouse entrance on Grant
Street). The Plaque is not protected from
the weather and hangs at street level,
unprotected from potential vandalism. See
Dist. Ct. Op. at 35. The Allegheny Plaque
is no larger than the Chester Plaque, and in
neither case can the text be viewed from
across the street. In both cases, the text
can be read when walking immediately
past the plaque, with the only difference
being that pedestrians are less likely to
pass the Chester Plaque because it hangs at
the top of a staircase near a closed
entrance. We do not find this minor
difference in the placement of the plaques
to distinguish the cases. Even if one were
to concede that the Allegheny Plaque is in
a slightly more prominent location, the
Allegheny Plaque’s location is certainly
not prominent enough to send a message to
the reasonable observer that the County is
endorsing religion. This is particularly
true considering the other contextual
factors that must be examined in addition
to location under the endorsement test,
including the Plaque’s age, its history, and
the fact that it is one of several historical
plaques displayed at the courthouse.
Modrovich and Moore cite the
Supreme Court’s decision in County of
Allegheny, 492 U.S. at 599-600, and this
Court’s decision in ACLU of N.J. v.
Schundler, 104 F.3d 1435, 1446 (3d Cir.
1997), to argue that the prominence of a
religious display is a factor weighing
against allowing the display. While, as
discussed above, prominence is indeed a
factor in the endorsement analysis, the
facts of these cases support our view that
the Allegheny Plaque was not in an
especially prominent location. In
Schundler, the display at issue was a 12 by
18 foot nativity scene located on the front
lawn of City Hall in Jersey City, New
Jersey. As the Court noted, the “[c]ity
placed the display such that all visitors to
City Hall were confronted with prominent
religious symbols.” 104 F.3d at 1446.
Similarly, in County of Allegheny, a
nativity scene was placed on the Grand
Staircase of the county courthouse. The
Grand Staircase was described as the
“main,” “most beautiful,” and “most
public” part of the courthouse, and the
nativity “occupied a substantial amount of
space” on the staircase. 492 U.S. at 580.
In comparison, the location of the
Allegheny Plaque could not be considered
prominent. It does not hang in a main part
of the courthouse and, as it is at a side
entrance, would never be viewed by all
visitors to the courthouse as the displays in
Schundler and County of Allegheny were.

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14
Modrovich and Moore go on to
assert that, unlike in Chester County,
Allegheny County officials have taken
actions to highlight the Plaque. In Chester
County, officials had done nothing to call
attention to the plaque (or taken any action
whatsoever with respect to the plaque)
since it was erected. In contrast,
Modrovich and Moore suggest that
Allegheny County’s moving the Plaque
from the Grant Street side of the
courthouse to its current location was an
effort to call attention to it because “[t]he
County could have placed the Plaque in an
obscure location after a reason to move it
arose, but instead the County relocated the
Plaque to the prominent place where it is
now.” Appellant Br. at 49. We disagree
with the assertion that moving the Plaque
shows an effort to make its presence more
prominent. Neither party offers an
explanation as to why it was moved.
There is no evidence in the record that the
County made the move because it
considered the Fifth Avenue entrance more
prominent than the Grant Street entrance.
Dist. Ct. Op. at 43. In fact, the Plaque’s
current location near a side entrance is less
prominent than its previous location near
the courthouse’s main entra nce.
Furthermore, the fact that the Plaque was
only moved once in nearly one hundred
years supports our view that the County
has made no special efforts to highlight or
celebrate it. The County has not even
taken action to maintain the Plaque, having
neither made any effort nor expended any
funds to repair, clean or polish it since
1918. Chester County showed similar
inaction towards its plaque. “The fact that
[Chester] County has not taken any action
to highlight or celebrate the plaque since it
was installed reinforces the view of the
reasonable observer that the County
Commissioners maintained the plaque to
preserve a longstanding plaque” rather
than endorse the religious message of its
text. Freethought, 334 F.3d at 267.
Furthermore, Chester County showed a
neutral attitude toward the plaque by “not
changing the location of the plaque to the
main entrance or otherwise actively
drawing attention to the plaque.” Id. at
270 (Bright, J., concurring) (emphasis
added). Similarly, we believe that
Allegheny County did nothing to actively
draw attention to the Plaque.
Modrovich and Moore also attempt
to distinguish this case from Freethought
by pointing out that the Chester County
courthouse had no plaques on its exterior
walls, other than the Commandments
plaque, that had “any substantive
historical, political, or philosophical
content.” Appellant Br. at 52. As
described above, the Allegheny courthouse
displayed several commemorative plaques.
Modrovich and Moore argue that these
displays would lead a reasonable observer
to conclude that the County endorses the
substantive content of each of the plaques
because each one contains a specific
message honoring an event, person, place
or text. Appellant Br. at 53. However, as
discussed above, the reasonable observer
is aware of the one hundred year history of
the courthouse and the fact that a wide
variety of events, people and philosophical
tenets has been commemorated during that

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15
time through displays on its walls. As the
County points out, “the reasonable
observer would no more believe that [it]
has endorsed the Old Testament by
displaying the Plaque than he or she would
believe that the County has endorsed the
pantheistic religions of ancient Greece and
Rome by displaying the mural of Lady
Justice in the Grand Staircase.” County
Br. at 38.
The fact that the Chester County
courthouse lacks similar displays is a weak
ground on which to attempt to distinguish
this case from Freethought. This is
particularly true since the context of a
religious display can alter the display’s
message such that a reasonable observer
would not perceive it as endorsing
religion. See Lynch 465 U.S. at 692
(O’Connor, J., concurring) (stating that “a
typical museum setting, though not
neutralizing the religious content of a
religious painting, negates any message of
endorsement of that content”). Following
this reasoning, we held that a religious
display is more likely to be perceived as an
endorsement of religion “where there is
nothing else in the context of the display
that would change the views of the
reasonable observer.” Freethought, 334
F.3d at 265. As an example of such a
context, we cited “the frieze in the
courtroom of the U.S. Supreme Court,
which portrays Moses carrying the Ten
Commandments alongside depictions of
other figures who have impacted modern
law, such as John Marshall, William
Blackstone, and Caesar Augustus.” Id.
(citing County of Allegheny, 492 U.S. at
652-53). Further, the Freethought Court
held that, even though the Chester County
courthouse did not contain several other
displays, the plaque’s age and history
alone provided sufficient context to
prevent the reasonable observer from
viewing an otherwise religious plaque as
an endorsement of religion. Id. at 264.
Thus, Freethought found that, despite the
absence of additional secular displays, the
Chester County plaque had a non-religious
context because of its age and history.
Under this reasoning, the perception that
the Allegheny Plaque does not endorse
religion is only strengthened by the
existence of other displays on the
courthouse, in addition to the Plaque’s age
and history.
Modrovich and Moore also contend
that the inscription on the Plaque showing
the name of the group that donated it
distinguishes it from the Chester County
plaque because this group was a “radical
religious organization” and, although the
Chester County plaque was also donated
by a religious organization, the Chester
County plaque did not contain an
inscription naming its donor. Appellant
Br. at 53. Modrovich and Moore assert
that a reasonable observer, knowing the
Plaque was donated by this Christian
group, would have more reason to view
the continued display of the Plaque as a
government endorsement of religion. We
disagree with this assertion. First, the
primary focus under both the endorsement
and Lemon tests is the events of the time at
which the County refused to remove the
Plaque rather than the events of 1918 when

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16
the display was erected. Freethought, 334
F.3d at 267. Arguing that the inscription
establishes the County’s endorsement
improperly places the focus on the events
of 1918, rather than on present events and
the County’s secular motivations for
retaining the Plaque. Furthermore, the
reasonable observer, aware of the Plaque’s
history, would be presumed to know the
identity of the Plaque’s donor (or at least
that the donor was a religious
organization) with or without an
inscription specifically naming it. This is
particular ly true here since th e
circumstances surrounding the Plaque’s
donation are a matter of public record.
Thus, this case cannot be distinguished
from Freethought on the basis of an
inscription on the Allegheny Plaque.
Our country’s interests in historical
preservation and recognizing the roots of
modern law present secular goals that
strongly weigh against compelling the
removal of the Plaque even though its
content is religious. Considering, from a
practical standpoint, the remedy sought by
Modrovich and Moore (removal of the
Plaque), we should not be swayed by
parties’ subjective feelings of affront or
insult at the sight of a religious display
when, as here, the facts surrounding the
display do not support a finding of
unconstitutional endorsement by the
government. Given our national interest in
historical preservation, we believe we
would set a dangerous precedent if we
were to hold that any relic containing a
religious message should be removed
merely because “any person . . . could find
an endorsement of religion” or “some
people may be offended” by it. Capitol
Square, 515 U.S. at 780 (O’Connor, J.,
concurring) (internal citations omitted)
(emphasis and alterations in original). Our
country’s history is steeped in religious
traditions. The fact that government
buildings continue to preserve artifacts of
that history does not mean that they
necessarily support or endorse the
particular messages contained in those
artifacts.
2. The Lemon Test
The purpose prong of the Lemon
test is discussed below. As explained, this
prong simply requires that the County
articulate some legitimate secular purpose
for refusing to remove the Plaque. See
Freethought, 334 F.3d at 267. Examining
the motivations behind the decision, we
are only required to find that the legitimate
secular purpose articulated by the County
for retaining the Plaque is not a “sham.”
Edwards, 482 U.S. at 585-87. As
Freethought noted, this is a “low
threshold,” and courts are generally
deferential to the government’s proffered
secular purpose as long as it is legitimate.
334 F.3d at 267 (citing Edwards, 482 U.S.
at 585-87).
In making their argument under the
endorsement test, Modrovich and Moore
point out various statements made by
Allegheny County officials that they claim
to show endorsement of religion.

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17
However, this evidence of the County’s
purpose in refusing to remove the Plaque
more properly goes to the purpose prong
of Lemon. They cite, for example, a
deposition statement by Chief County
Executive Roddey that “the [P]laque,
itself, represents an ethic and a standard
for society that I believe that the people of
this community would generally agree to.”
Appellant Br. at 49. They also argue that
the statements of various County officials
over a broad period of time provide a
fuller picture of the County’s desire to
advance the religious message of the
Plaque. For example, Modrovich and
Moore cite a public statement made seven
years before the commencement of this
action by a judge on the Court of Common
Pleas of Allegheny County that a lawyer in
the County should “go over to the
c o u r t h o u s e a n d r e a d t h e T e n
Commandments and follow them.” Id. at
18. Similarly, Modrovich and M oore
assert that numerous County residents
expressed religious motivations for
retaining the Plaque through letters written
to County officials in support of its
continued display.
In considering the County’s
purpose, our focus is on the motivations of
the current County officials who have
power over the decision of whether to
remove the Plaque. The ultimate decision-
maker here was the then-Chief Executive
of Allegheny County, James Roddey.
Roddey arrived at his conclusion to retain
the Plaque after consulting both the
County Solicitor and the President of the
County Council. We agree with the
District Court’s conclusion that the record
shows legitimate secular motivations
behind Roddey’s decision to retain the
Plaque. These motivations stem largely
from a desire to preserve an historical
artifact and from a view of the
Commandments as being one of the bases
of modern law. As Roddey explained:
The [P]laque was an important part of the
heritage and tradition of an historic
building; . . . [it] was really a part of the
history of the courthouse and we thought it
would be inappropriate to take it down. . .
. [F]rom what I have read, and what I
understand, the people that were
responsible for putting up the [P]laque felt
that [the Commandments] represented a
celebration of the rule of law, and the
foundation of the rule of law that was an
alternative to war, and other types of
national strife.
Roddey Depo. at 14, 20-21.
Roddey conceded at his deposition that he
had distributed a press release in which he
stated his beli ef t ha t t h e T en
Commandments represented “a single
statement of values, vital to citizens at the
crest of the last century and so meaningful
to so many at the dawn of this new
millennium.” Id. at 20-21. However, as
he explains this statement: “They [the
1918 County officials] had just come out
of . . . World War I. . . . The principle
value that I was referring to . . . [w]as just
general rules of civilized society.” Id.
Here, Roddey offers legitimate, secular
motivations for his decision. These

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18
motivations are based in historical
preservation and in a recognition of the
role of the Commandments in both
Allegheny County history and American
law. Even if one did not accept his
explanation of the statement in his press
release, the purpose of the display need not
be exclusively secular. See Edwards, 482
U.S. at 585-87. Even if the Plaque is
assumed to incorporate religious meaning
or values, the County is not prohibited
from displaying such symbols or required
to convey only secular messages. The
Supreme Court has simply required that
the display not be “motivated wholly by
religious considerations.” Lynch, 465 U.S.
at 680 (emphasis added).3
Here, Roddey’s statements express
sufficient secular motivations for his
decision. These include the fact that the
Plaque is part of the heritage of an
historical building, as well as Roddey’s
belief that the County has an obligation to
respect the community’s historical
decision during World War I to
commemorate the value of the rule of law
over war. See Roddey Depo. at 20-21
(stating that the County has an “obligation
to respect the wishes of the people that
[have] gone before us, and the people of
the community before us” to “keep the
[P]laque as they expected it to be”). Thus,
considering that a display need not be
motivated by exclusively secular purposes
under the Lemon analysis, we find that
Roddey’s articulations contain sufficient
legitimate secular purposes to pass muster.
See Lynch, 465 U.S. at 680.
Additionally, we are not convinced
that statements made by other County
officials (such as the Court of Common
Pleas judge) or by other County residents
through letters are relevant to the Lemon
purpose analysis. None of these
individuals was the decision-maker for the
County with respect to the Plaque.
Therefore, their motivations are not
3 Notwithstanding all of this evidence,
the dissent contends that a genuine dispute
of fact exists as to whether Roddey’s
stated secular motivations are sincere or
simply a “fig leaf” to cover his religious
purposes. See Dissent, p. 5, line 108.
However, as noted, the purpose prong of
Lemon has a “low threshold,” simply
requiring a legitimate secular purpose that
is not a sham. Freethought, 334 F.3d at
267. We believe that no reasonable jury
could find that the historical purpose
articulated by Roddey was merely a sham.
Anderson v. Liberty Lobby, Inc., 477 U.S.
242, 248 (1986). While the dissent may be
correct in suggesting that Roddey’s
motivations are not entirely clear from the
record, it is undisputed that he asserted
certain secular purposes, and his asserted
historical purpose clearly is not a sham, as
understood in light of Freethought. 334
F.3d at 262 (concluding that “the
articulation of a legitimate secular purpose
for declining to remove the plaque in 2001
would satisfy the first prong of Lemon”
(emphasis added)).

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19
relevant to the inquiry.4 In our view, the
record in this case contains sufficient
evidence that Allegheny County retained
the Plaque for the secular reasons of
historic preservation and commemoration
of the rule of law, rather than solely for the
religious reasons voiced by some members
of the community.
The effect and entanglement prongs
of Lemon are encompassed by the
endorsement test, and, accordingly, we
incorporate our earlier discussion of the
endorsement test. See Freethought, 334
F.3d at 269. Thus, we hold that the
County’s refusal to remove the Plaque
does not violate either the endorsement
test, as discussed in Part III.B.1, or the
Lemon test.
IV. OTHER CIRCUIT COURT
CASES
Several other Courts of Appeal
have recently considered the issue of
w h e t h e r d i s p l a ys o f t h e T e n
Commandments on government property
violate the Establishment Clause. At least
two of these decisions, from the Fifth and
Eleventh Circuits, support our holding
here. In Van Orden v. Perry, 351 F.3d 173
(5th Cir. 2003), the Fifth Circuit held that
a Ten Commandments monument on
Texas state capitol grounds did not
endorse religion where the capitol grounds
contained many monuments and displays
pertaining to the history of Texas. These
displays included, for example, an Aztec
religious symbol, a Confederate plaque, a
plaque commemorating the war with
Mexico, and a tribute to African American
legislators. The Court held that the Ten
Commandments monument did not have a
primary effect of advancing or inhibiting
religion, as seen from the eyes of a
reasonable observer, because the grounds
were designated as a National Historical
Landmark and contained seventeen
monuments depicting symbols of Texan
identity. Id. at 175-76. In addition, the
monument’s location between the Texas
Supreme Court building and the capitol
building was chosen to reflect the
Commandments’ role in the making of
law. Id. at 181.
Similarly, in King v. Richmond
County, the Eleventh Circuit held that a
superior court’s official seal depicting two
t a b l e t s r e p r e s e n t i n g t h e T e n
Commandments did not send a message of
endorsement because of various contextual
factors surrounding the seal’s appearance
and use. 331 F.3d at 1286. These
included the fact that the seal had been
used by the court for over 130 years for
secular, legal documentation purposes.
Other relevant contextual factors included
the seal’s relatively small size, the absence
of text on the tablets (although they did
contain Roman numerals I through X,
clearly representing the Commandments),
and the fact that the seal depicted a sword
(a symbol of secular law) intertwined with
the tablets. Id. at 1283-84. Thus, this
4 In addition, the record shows that most
of the correspondence from County
residents was actually received after
Roddey’s decision was made. Roddey
Depo. at 71.

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20
decision supports our standpoint that the
overall context of a basically religious
depiction can affect whether a reasonable
observer perceives the display as
endorsing religion.
Other Circuits have held that
postings of the Ten Commandments
violate the Establishment Clause.
However, each of these decisions is
distinguishable from the instant case and
is, therefore, neither persuasive nor
apposite. In ACLU of Ohio Foundation,
Inc. v. Ashbrook, 375 F.3d 484 (6th Cir.
2004), the Sixth Circuit held that an Ohio
Common Pleas Court judge violated the
Establishment Clause by displaying a
framed poster of the Ten Commandments,
which he created himself on his computer,
in his courtroom across from a similarly
styled framed poster of the Bill of Rights,
which he also created. This case is
distinguishable from the instant case as it
involves a new display rather than an
historical artifact.
In another distinguishable case,
ACLU of Kentucky v. McCreary County,
354 F.3d 438 (6th Cir. 2003), the Sixth
Circuit held that a courthouse’s posting of
the Ten Commandments, hung in a
museum-like setting with other postings
designed to display the foundations of
American law, violated the Establishment
Clause. The Court held that, despite the
secular context, the text of the Ten
Commandments sent the message of
endorsing religion because the county did
not make clear in the display that it was
attempting to create an exhibit concerning
the origins of law. Id. at 448-49. Again,
however, this was a new display, not an
historical monument and, therefore, this
decision has no persuasive effect on our
holding here.
In Adland v. Russ, 307 F.3d 471
(6th Cir. 2002), cert. denied, 538 U.S. 999
(2003), the Sixth Circuit held that a
monument displaying a “nonsectarian”
version of the Ten Commandments,
donated in 1971 but moved to storage in
1980, could not be placed on the state
capitol grounds. Once again, this case
involved a new placement, not a refusal to
r e m o v e a l o n g s ta n d i n g p l aq u e .
Additionally, the proposed display in
Adland would have been in a prominent
location on state capitol grounds, unlike
the Allegheny Plaque, which hangs
discretely on the side of the courthouse.
Books v. City of Elkhart, 235 F.3d 292
(7th Cir. 2000), cert. denied, 532 U.S.
1058 (2001), involved a monument similar
to that in Adland in that it also displayed a
n o n s e c t a r i a n v e r s i o n o f t h e
Commandments and was placed on the
lawn in front of a local municipal building.
The Seventh Circuit found this display to
violate the Establishment Clause, but this
decision does not influence our holding
here for the same reasons that Adland is
unpersuasive. See also Ind. Civil Liberties
Union v. O’Bannon, 259 F.3d 766 (7th
Cir. 2001), cert. denied, 534 U.S. 1162
(2002) (following Elkhart and holding that
the state’s intention to erect a monument
depicting the Ten Commandments on the
park-like grounds of the statehouse would
violate the Establishment Clause).
Finally, in ACLU Nebraska

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21
Foundation v. City of Plattsmouth, 358
F.3d 1020 (8th Cir. 2004), the Eighth
Circuit held that the city’s display of a Ten
Commandments monument in a public
p a r k s i n c e 1 9 6 5 a m o u n te d t o
unconstitutional government endorsement.
This case also addresses a relatively new
monument, not an historical relic. Further,
the Plattsmouth monument stands alone in
a city park. It therefore lacks the kind of
historical context that we believe makes
the reasonable observer unlikely to
perceive the Allegheny Plaque as an
endorsement of religion.5
The Eleventh Circuit also reiterated
the importance of context in
Glassroth v. Moore, 335 F.3d 1282 (11th
Cir. 2003), in which it held that a two-and-
one-half ton monument of the Ten
Commandments, placed in the rotunda of
an Alabama State Courthouse by the Chief
Justice of the Alabama Supreme Court,
violated the Establishment Clause. As
with the cases above, this case involved a
new and far more prominent display than
the Allegheny Plaque. Further, the
Eleventh Circuit distinguished Glassroth
from its holding in King, a case much
more factually similar to the instant case,
stating that “he constitutionality of a
government’s use of a predominantly
religious symbol depends on the context in
which it appears, and we concluded [in
King] that given the context in which the
pictograph of the Ten Commandments
appeared on the Seal, a reasonable
observer would not believe that the Seal
was an endorsement of religion.” Id. at
1298-99 (internal citations omitted).
V. CONCLUSION
For the foregoing reasons, we
believe that the Ten Commandments
Plaque affixed to the Allegheny County
Courthouse does not constitute an
endorsement of religion in violation of the
Establishment Clause, nor does it violate
the test first articulated in Lemon. Thus,
the District Court’s grant of summary
judgment to Allegheny County and denial
of summary judgment to Modrovich and
Moore will be affirmed.
Modrovich v. Allegheny County
No. 03-3571
GIBSON, Circuit Judge, dissenting.
I respectfully dissent.
In my view the decision of the
district court is based upon factual findings
where there is conflicting evidence,
particularly with respect to the present
intent of County officials. The court
followed the teaching of this court's earlier
decision in Freethought Society of Greater
Philadelphia v. Chester County, 334 F.2d
5 Additionally, we note that Plattsmouth
is no longer binding precedent, as the
city’s petition for rehearing en banc was
granted on April 6, 2004.

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247 (3d Cir. 2003), but overlooks the
differing procedural posture of that case.
This court in Freethought reviewed a
permanent injunction ordering the removal
of the Ten Commandments Plaque based
on testimony the district court found
believable and the legal conclusions based
upon these findings. Id. at 255. In
contrast, the case before us is an appeal
from a grant of summary judgment.
Consistently with the teaching of
the Supreme Court, decisions of other
circuits, and Federal Rule of Civil
Procedure 56, we have stated, "Summary
judgment should be granted where no
genuine issue of material fact exists for
resolution at trial and the moving party is
entitled to judgment as a matter of law."
Big Apple BMW , Inc. v. BMW of North
America, Inc., 974 F.2d 1358, 1362 (3d
Cir. 1992). We explained:
When deciding a motion for
summary judgment . . . a
c o u r t ' s r o l e re m a i n s
circumscribed in that it is
inappropriate for a court to
resolve factual disputes and
t o m a k e c r e d i b i l i t y
determ in ations. . . .
Inferences should be drawn
in the light most favorable
to the non-moving party,
and where the non-moving
party's evidence contradicts
the movant's, then the non-
movant's must be taken as
true.
Id. at 1363 (citations omitted). Relying
upon Anderson v. Liberty Lobby, Inc., 477
U.S. 242, 249-251 (1986), we stated that
the summary judgment standard has been
likened to the "'reasonable jury' directed
verdict standard," and "at the summary
judgment stage the judge's function is not
. . . to weigh the evidence to determine the
truth of the matter, but to determine
whether there is a genuine issue for trial."
Big Apple BMW, 974 F.2d at 1362-63.
We concluded:
In practical terms, if the
opponent has exceeded the
"mere scintilla" threshold
and is offered a genuine
issue of material fact, then
the court cannot credit the
movant's version of events
against the opponent's, even
if the quantity of the
m ovant's evidence far
outweighs that of its
opponent. It thus remains
the province of the fact
finder to ascertain the
believablity and weight of
the evidence.
Id. at 1363.
The district court, in following
Freethought, engaged in weighing of the
evidence and fact finding contrary to the
teaching of Big Apple BMW and
Anderson. The district court based its
decision on the conclusion that officials
were "sincere" when they articulated
secular reasons for keeping the Plaque in

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place:
With regard to the current
dispute over retention of the
Plaque, the reasonable
observer would know that
the County Executive, Mr.
Roddey, with support from
County Council, decided to
not to [sic] remove the
Plaque because he believed
it represented "an important
part of the heritage and
tradition of an historic
building" and that the
Plaque commemorated the
rule of law, as opposed to
war.
B a s e d o n t h e
cumulative knowledge of
the reasonable observer, I
find that he or she could not
conclude that continued
d i s p la y o f t h e T e n
Com man dm ents Plaque
reflects an intent by the
current county officials to
promote or favor one
religion over another or
indeed even to promote
religion over non-religion.
The district court particularly
concluded that the County Executive,
James Roddey, expressed legitimate,
secular reasons for refusing to remove the
Plaque, "analogous to those given by the
Chester County Commissioners whose
explanation had satisfied the 'relatively
low threshold required by the purpose
prong of Lemon [v. Kurtzman, 403 U.S.
602, 612-13 (1971)],'" citing Freethought,
334 F.3d at 267. The district court
continued by observing that Roddey had
consulted with the County Solicitor and
President of the County Council, and their
joint conclusion was that "the plaque was
an important part of the heritage and
tradition of an historic building; . . . [it]
was really a part of the history of the
courthouse and we thought it would be
inappropriate to take it down." The district
court observed that Roddey had conceded
at his deposition that he had distributed a
press release stating his belief that the Ten
Commandments represented a single
statement of "values" vital to citizens "at
the crest of the last century and so
meaningful to many at the dawn of this
new millennium." At the same time, the
court accepted Roddey's explanation that
by "values" he meant that the people that
were responsible for putting up the Plaque
felt that The Commandments represented
a celebration of the rule of law, and the
foundation of the rule of law that was an
alternative to war, and was "just general
rules of civilized society." The district
court then stated: "Mr. Roddey's
explanations appear to be sincere and
consistent with the facts pertaining to the
building, its history, the age of the Plaque,
and the County's intention to respect the
past and preserve the artifacts for future
generations."
But the record contains other
statements by Roddey that cast a much
different light on his motivations. In a

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press release Roddey stated, "Perhaps the
citizens of Allegheny County place a value
on the family, on the church and on
religion that is vastly different than those
who dwell in Washington, D.C. But my
heart and my instinct tell me to keep 'The
Commandments' and I intend to follow
them." Presumably, the reasonable
observer reads local newspapers as well as
local history books, so this statement has
to be entered into the mix in deciding what
that observer would think. Furthermore, in
his deposition Roddey stated that "the
plaque, itself, represents an ethic and a
standard for society that I believe the
people of this community would generally
agree to." This statement could be
understood to amount to an adoption of
official religious precepts by majority rule,
thereby sending a "mess age to
nonadherents that they are outsiders, not
full members of the political community,
and an accompanying message to
adherents that they are insiders, favored
members of the political community."
Freethought, 334 F.3d at 260 (quoting
Capitol Square Review & Advisory Bd. v.
Pinette, 515 U.S. 753, 773 (1995)).
And had the reasonable observer
attended the Allegheny County Council
meeting of January 16, 2001, he or she
would have heard the debate when the
Council passed a "sense of Council"
motion stating, "'The Commandments'
reflect values that are important to this
community today as they were in the early
part of the century." The sponsor of the
motion, Vince Gastgeb,6 stated, "There's
values and traditions here in this County
that people have fought for, and as elected
representatives, we should fight to
continue that moving forward." Gastgeb
concluded his speech by stating, "We have
to have faith." He later stated to the press,
"I'd rather see ten religious expressions in
the courthouse than none." Another
Council member, Richard Olasz, stated
during Council debate, "Maybe some of
these people that object to [the Plaque]
ought to go back and remember that there
are no atheists in foxholes, and to
remember the old sign on the tombstone:
All Dressed Up and Nowhere to Go."
There was also in evidence a
statement by the president judge of the
Allegheny County Common Pleas Court
that in giving an ethics seminar for the
County bar association, "I told them to go
over to the courthouse and read the Ten
Commandments and follow them."
The district court made no reference
to an expert's affidavit stating that the text
of the Commandments Plaque is a
particu lar Christian Protestant one
differing in many ways from that accepted
under the Jewish, Roman Catholic, and
Lutheran traditions.
There is thus significant record
6Gasteb said that the sense of Council
motion was desirable because the Council
has "control over the courthouse," which
suggests an unresolved issue as to whether
the Council had some authority over the
decision to retain the Plaque.

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evidence that the decision to keep the
Plaque stemmed predominantly from
religious impulses and would have been so
perceived by a reasonable observer. Even
though under the Lemon test, the purpose
of the display does not have to be
exclusively secular, in this case the
evidence would support a finding that the
secular purpose was a fig leaf. See
Edwards v. Aguillard, 482 U.S. 578, 586-
87 (1987) (purpose prong of Lemon
requires that assertion of secular purpose
be "sincere and not a sham"). Moreover,
the statements of religious purpose were
made in public in circumstances that may
well have given rise to an appearance of
endorsement of religion by responsible
county officials.
Perhaps the district court simply
considered this case to be governed by
Freethought.7 Any such reliance makes
even more significant the distinction in the
procedural postures between Freethought
and this case, for in Freethought we dealt
with factual findings made after a hearing
in support of an order granting preliminary
injunction and here we deal with the far
different standard for summary judgment.
A finder of fact could well come to the
same conclusion that the district court
arrived at. However, the district court was
not sitting as finder of fact, but was
considering a summary judgment motion.
These disputed fact issues should not have
been decided as a question of law.8
In my view, we should remand for
further consideration of the issues in this
case.
7King v. Richmond County, 331 F.3d
1271 (11th Cir. 2003), was recognized by
Freethought, but distinguished. 334 F.3d
at 263. The county seal of Richmond
County depicted a tablet with Roman
numerals I-X, but without the text of the
Ten Commandments. Because the text
was not reproduced, the reasonable
observer was therefore not "induced to
read or venerate sacred text." Id.
8I am aware that this court in Bender v.
Williamsport Area Sch. Dist., 741 F.2d
538 (3d Cir. 1984), vacated on other
grounds, 475 U.S. 534 (1986), reversed a
summary judgment in a school prayer case,
but carefully noted there were no material
disputes of fact that would preclude
consideration of the merits of the case on
summary judgment. Id. at 542 n.3.

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