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: 2003 FED App. 0447P (6th Cir.)
File Name: 03a0447p.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.
Nos. 99-00507; 99-00508; 99-00509—
Jennifer B. Coffman, District Judge.
Argued: December 4, 2002
Decided and Filed: December 18, 2003
Before: RYAN, CLAY, and GIBBONS, Circuit Judges.
_________________
COUNSEL
ARGUED: Mathew D. Staver, LIBERTY COUNSEL,
Longwood, Florida, for Appellants. David A. Friedman,
AMERICAN CIVIL LIBERTIES UNION OF KENTUCKY,
2 ACLU, et al. v. McCreary County, et al. No. 01-5935
Louisville, Kentucky, for Appellees. ON BRIEF: Mathew
D. Staver, Erik W. Stanley, LIBERTY COUNSEL,
Longwood, Florida, Johnnie L. Turner, LAW OFFICES OF
JOHNNIE L. TURNER, Harlan, Kentucky, for Appellants.
David A. Friedman, AMERICAN CIVIL LIBERTIES
UNION OF KENTUCKY, Louisville, Kentucky, for
Appellees. David R. Huggins, NATIONAL LEGAL
FOUNDATION, Virginia Beach, Virginia, for Amicus
Curiae.
CLAY, J., delivered the opinion of the court. GIBBONS,
J. (pp. 43-44), delivered a separate concurring opinion.
RYAN, J. (pp. 45-80), delivered a separate dissenting
opinion.
_________________
OPINION
_________________
CLAY, Circuit Judge. Defendants, two Kentucky counties
and a county school district, as well as three officials of these
governmental entities, appeal from the district court’s order
granting Plaintiffs’ motion for a supplemental preliminary
injunction prohibiting Defendants from displaying copies of
the Ten Commandments in three separate displays on the
basis that Plaintiffs showed a strong likelihood of succeeding
on their claim that Defendants’ displays violated the
Establishment Clause of the First Amendment. For the
reasons set forth below, we AFFIRM.
I.
BACKGROUND
A. Procedural History
On November 18, 1999, seven individuals in three
Kentucky counties (McCreary County, Harlan County, and
Pulaski County) along with the American Civil Liberties

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No. 01-5935 ACLU, et al. v. McCreary County, et al. 3
1The three lawsuits were considered as one by the district court, and
are so considered on appeal. See ACLU o f Ky. v. McCreary County, Ky.,
96 F. Supp. 2d 679, 682 n.2 (E.D. Ky. 2000) (“This is one of three
companion cases, simultaneously filed, which attack such displays. Any
minimal variances among the three displays possess no legal significance
for the purpose of the motions now pending before the court. Having
observed that the case records also share similar complaints, memoranda,
and motions and that the three cases share identical lead counsel on b oth
sides, the court combined the three for oral argument and today enters
virtually identical opinions— w ith necessary but slight factual
variations— in all three.”). The three opinions of which the district court
spoke are as fo llows: ACLU of Ky. v. McCreary County, Ky., 96 F. Supp.
2d 679 (E.D . Ky. 2000) (“McCreary I”); ACLU of Ky v. Pulaski County,
Ky., 96 F. Sup p. 2d 691 (E.D . Ky. 2000 ); Doe v. Harlan County Sch.
Dist., 96 F. Supp. 2d 667 (E.D . Ky. 2000 ). The district court eventually
consolidated the three cases under case number 99-507. All Defendants
filed a single notice of appeal from the district court’s June 22, 2001,
order granting Plaintiffs’ motion for a supplemental preliminary
injunction. ACLU o f Ky. v. McCreary County, Ky., 145 F. Supp. 2d 845
(E.D. Ky. 2001) (“McCreary II) (order granting Plaintiffs’ motion for
supplemental preliminary injunction).
Union (“ACLU”) filed three lawsuits in the United States
District Court for the Eastern District of Kentucky, alleging
that these counties had erected displays consisting of framed
copies of the Ten Commandments in the county courthouses
of McCreary and Pulaski Counties, as well as in the schools
of the Harlan County School District, in violation of the
Establishment Clause of the First Amendment.1 Plaintiffs
sought a declaration that the displays were unconstitutional,
as well as preliminary and permanent injunctive relief
enjoining the counties from continuing their display of the
Ten Commandments.
Shortly after the complaint was filed, Defendants modified
the displays to include secular historical and legal documents,
some of which were excerpted, and then filed respective
motions to dismiss. Following a hearing held on April 20,
2000, the district court issued an order on May 5, 2000 in
each of the three cases which denied Defendants’ motions to
dismiss and granted Plaintiffs’ motions for preliminary
4 ACLU, et al. v. McCreary County, et al. No. 01-5935
injunctive relief; the court ordered that the displays be
removed and that no similar displays be erected. Defendants
filed a notice of appeal to this Court, and a motion to stay the
injunction pending appeal. The district court denied the
motion to stay, as did this Court.
Defendants allegedly obtained new counsel and then filed
a motion to clarify the district court’s preliminary injunction
as to all Defendants regarding the court’s prohibition against
erecting “similar displays.” The district court denied the
motion for clarification on September 15, 2000, stating that
“the injunction speaks for itself.” (J.A. at 119.)
Defendants, allegedly acting on the belief that a display
containing the Ten Commandments could be erected within
the parameters of the Constitution, voluntarily dismissed their
appeal to this Court and erected new displays containing
several additional secular historical and legal documents in
their entirety, along with the Ten Commandments. The
courthouse displays contained an explanation entitled the
“Foundations of American Law and Government Display”
which explained that the displays included various documents
that played a significant role in the founding of the American
system of law and government. The school district displays
contained similar documents to the courthouse displays,
except instead of the “Foundations of American Law and
Government Display” explanation, the School Board displays
contained a School Board Resolution. The Resolution
addressed the historical context of the displays and opened a
forum for the community to post an unlimited number of
additional historical documents.
As a result of these new displays, Plaintiffs filed a motion
to hold Defendants in contempt for violating the district
court’s preliminary injunction or, in the alternative, to enter
a supplemental preliminary injunction order. Defendants
responded to Plaintiffs’ motion by arguing that the new
displays were not similar to the previous displays, and
contended that the “purpose for the display is to educate

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No. 01-5935 ACLU, et al. v. McCreary County, et al. 5
citizens of the county regarding some of the documents that
played a significant role in the foundation of our system of
law and government.” (J.A. at 151.)
A hearing was held on March 30, 2001, at which time the
district court denied Plaintiffs’ motion for contempt, and on
April 2, 2001, the court entered a corresponding order
denying the motion for contempt, while urging the parties to
settle the matter. The court noted in the order, however, that
if the parties could not reach a settlement by April 30, 2001,
the court would rule upon Plaintiffs’ motion for a
supplemental preliminary injunction. The parties failed to
reach a settlement, and the district court then issued an order
granting Plaintiffs’ motion for a supplemental preliminary
injunction on June 22, 2001. It is from the district court’s
order granting Plaintiffs’ motion for a supplemental
preliminary injunction that Defendants now appeal.
B. Facts
In 1999, McCreary County erected a display of the Ten
Commandments in the McCreary County Courthouse
consisting of “at least one framed copy of one version of the
Ten Commandments and [which] was not part of any larger
educational, historical, or retrospective exhibit.” McCreary
I, supra note 1, at 684. The display was erected pursuant to
an order signed by Defendant Jimmie Greene, McCreary
County Judge Executive. Id. Likewise, Pulaski County
officials erected a copy of the Ten Commandments in the
Pulaski County courthouse in the same fashion. Pulaski,
supra note 1, at 695. The Pulaski display was erected by
Defendant Darrell Beshears, Pulaski County Judge Executive.
Id. The courthouse displays, both in their initial and later in
their modified forms, were “readily visible to the plaintiffs
and the other county citizens who use the courthouse to
conduct civic business, to obtain or renew driver’s licenses
and permits, to register cars, to pay local taxes, and to register
to vote.” McCreary I, supra note 1, at 684; Pulaski, supra
note 1, at 695. The schools in Harlan County School District
6 ACLU, et al. v. McCreary County, et al. No. 01-5935
displayed copies of a version of the Ten Commandments in
their classrooms which, like the courthouse displays, initially
consisted of “framed copies of one version of the Ten
Commandments which were not part of larger educational,
historical or retrospective exhibits.” Harlan, supra note 1, at
671.
After Plaintiffs filed suit, Defendants amended the
respective displays “in an attempt to bring the display[s]
within the parameters of the First Amendment and to insulate
themselves from suit.” McCreary I, supra note 1, at 684.
Specifically, the Courthouse displays were modified to
consist of:
(1) an excerpt from the Declaration of Independence;
(2) the Preamble to the Constitution of Kentucky; (3) the
national motto of “In God We Trust”; (4) a page from the
Congressional Record of Wednesday, February 2, 1983,
Vol. 129, No. 8, declaring it the Year of the Bible and
including a copy of the Ten Commandments; (5) a
proclamation by President Abraham Lincoln designating
April 30, 1863 a National Day of Prayer and
Humiliation; (6) an excerpt from President Lincoln’s
“Reply to Loyal Colored People of Baltimore upon
Presentation of a Bible” reading, “The Bible is the best
gift God has ever given to man.”; (7) a proclamation by
President Ronald Reagan marking 1983 the Year of the
Bible; and (8) the Mayflower Compact.
Id. (footnote omitted); see also Pulaski, supra note 1, at 695-
96. The School Board display was modified to include those
documents included in the modified courthouse displays,
along with the addition of “a recently enacted Kentucky
statute, K.R.S. 158.195, which the defendants allege permits
the posting of the Ten Commandments; and …a Harlan
County School Board resolution permitting the posting of the
Ten Commandments.” Harlan, supra note 1, at 672. Also
common to all three modified displays was the fact that while
some of the added documents were “displayed in their

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No. 01-5935 ACLU, et al. v. McCreary County, et al. 7
2This version of the Ten Com mandments reads as follows:
Thou shalt have no other gods before me.
Thou sha lt 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 underneath the earth: Thou shalt not bow down
thyself to them , nor serve them: for I the LORD thy God am a
jealous God, visiting the iniquity of the fathers upo n the children unto
the third and fourth generation of them that hate me.
entirety, the defendants [] excerpted a small portion of others
to include only that document’s reference to God or the Bible
with little or no surrounding text.” McCreary I, supra note 1,
at 684; Pulaski, supra note 1, at 696; Harlan, supra note 1, at
672.
Despite the modifications, Plaintiffs sought a preliminary
injunction from the district court to enjoin Defendants from
displaying the modified exhibits, and the district court granted
the preliminary injunction as to all three displays. See
McCreary I, supra note 1, at 691. The district court found
that “the amended displays failed the ‘purpose’ and ‘effect’
prongs of the three-part test set out in Lemon v. Kurtzman,
403 U.S. 602 (1971), in that they lacked a secular purpose and
had the effect of endorsing religion.” McCreary II, supra
note 1, at 846 (footnotes omitted). The court ordered that the
displays be removed “immediately” and further ordered that
“similar displays” could not be erected in the future.
McCreary I, supra note 1, at 691.
Defendants then posted a third version of the displays,
presuming that the modified displays were in conformity with
the law as set forth in the district court’s opinions. The new
courthouse displays consisted of the entire Star Spangled
Banner, the Declaration of Independence, the Mayflower
Compact, the Bill of Rights, the Magna Carta, the National
Motto, the Preamble to the Kentucky Constitution, the Ten
Commandments2, Lady Justice and a one-page prefatory
8 ACLU, et al. v. McCreary County, et al. No. 01-5935
Thou sha lt not take the nam e of the L OR D thy G od in vain: for the
LOR D will not hold him guiltless that taketh his name in vain.
Rem emb er the sabba th day, to keep it holy.
Hono ur thy father and mother: that thy days may be long upon the
land which the LORD thy God giveth thee.
Thou sha lt not kill.
Thou sha lt not commit adultery.
Thou sha lt not steal.
Thou shalt not bear false witness against thy neigbour.
Thou shalt not covet thy neighb our’s house, thou shalt not covet thy
neighb our’s wife, nor his manservant, nor his maidservant, nor his
ox, nor his ass, nor any thing that is thy neighbour’s.
Exodus 20: 3-17
King James Version
(J.A. 1 69.)
document entitled “The Foundations of American Law and
Government Display.” (J.A. 161-74.) The prefatory
description states that the “display contains documents that
played a significant role in the foundation of our system of
law and government.” (J.A. at 161.) With regard to the Ten
Commandments, the prefatory description states:
The Ten Commandments have profoundly influenced the
formation of Western legal thought and the formation of
our country. That influence is clearly seen in the
Declaration of Independence, which declared that, “We
hold these truths to be self-evident, that all men are
created equal, that they are endowed by their Creator
with certain unalienable Rights, that among these are
Life, Liberty, and the pursuit of Happiness.” The Ten
Commandments provide the moral background of the

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No. 01-5935 ACLU, et al. v. McCreary County, et al. 9
3The Ten C omm andments are included in a statement of
Represen tative Philip M. Crane of Illinois in which he discusses a Joint
Resolution authorizing then-President Reagan to declare 1983 to be the
“Year of the Bible.” See (J.A. 2 08.) (statement of R ep. C rane; q uoting
H.J. Res. 487, 98th Cong. (198 3)). Representative Crane’s version of the
Ten Com mandments reads:
1. I am the Lord thy God, thou shalt have no other gods before me.
2. Thou shalt not make unto thee any graven image.
3. Thou shalt not take the name of the Lord thy God in vain.
4. Rem emb er the Sabb ath day to keep it holy.
5. Hono r thy father and mother.
6. Thou sha lt not kill.
7. Thou sha lt not commit adultery.
8. Thou sha lt not steal.
9. Tho u shalt not bear false witness.
10. Thou sha lt not covet.
Id.
Declaration of Independence and the foundation of our
legal tradition.
Id. There is no other discussion of the Ten Commandments
and how it purportedly relates to any of the other documents
in the display.
The new School Board displays consisted of the entire Star
Spangled Banner, the Declaration of Independence, the
Mayflower Compact, the Bill of Rights, the Magna Carta, the
National Motto, the Preamble to the Kentucky Constitution,
an excerpt of the Congressional Record containing the Ten
Commandments,3 Kentucky Statute § 158.195 regarding the
10 ACLU, et al. v. McCreary County, et al. No. 01-5935
posting of historical displays and a School Board Resolution
(“the Resolution”). (J.A. at 198-208.) The Resolution stated,
in part:
We believe these … documents positively contribute to
the educational foundations and moral character of
students in our schools. … [I]t is our opinion that these
… documents, taken as a whole, are valuable examples
of documents that may instill qualities desirable of the
students in our schools, and have had particular historical
significance in the development of this country.
(J.A. at 198.) The Resolution also contained a procedure that
would permit any person to request the posting of other
historical documents with the permission of the Harlan
County Board of Education. (J.A. at 198-99.)
The district court, after recognizing the Supreme Court’s
approval of “two constitutionally permissible uses of the Ten
Commandments within the public arena,” found that the new
displays were “clearly outside the bounds of these permissible
uses and [were] violative of the Establishment Clause.”
McCreary II, supra note 1, at 852-53 (citing County of
Allegheny v. ACLU, 492 U.S. 573 (1989) and Stone v.
Graham, 449 U.S. 39 (1980)). The district court thus
enjoined Defendants from continuing with the new displays
and ordered all three to be removed immediately from their
respective locations. McCreary II, supra note 1, at 853.
II.
DISCUSSION
A. Standard of Review
A preliminary injunction is an extraordinary measure that
has been characterized as “one of the most drastic tools in the
arsenal of judicial remedies.” Hanson Trust PLC v. ML SCM
Acquisition Inc., 781 F.2d 264, 273 (2d Cir. 1986) (citation
omitted); see also Detroit Newspaper Publishers. Ass’n v.

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No. 01-5935 ACLU, et al. v. McCreary County, et al. 11
Detroit Typographical Union No. 18, 471 F.2d 872, 876 (6th
Cir. 1972) (emphasizing that a preliminary injunction is the
strong arm of equity which should not be extended to cases
which are doubtful or do not come within well-established
principles of law). This Court reviews the district court’s
decision to grant a preliminary injunction for an abuse of
discretion while giving great deference to the district court’s
determination; however, this Court’s deference to the district
court is not absolute. Mascio v. Pub. Employees Ret. Sys.,
160 F.3d 310, 312-13 (6th Cir. 1998). The injunction will be
disturbed if the district court relied upon clearly erroneous
findings of fact, improperly applied the governing law, or
used an erroneous legal standard. See Blue Cross & Blue
Shield Mut. v. Blue Cross & Blue Shield Ass’n, 110 F.3d 318,
322 (6th Cir. 1997). “A finding is ‘clearly erroneous’ when
although there is evidence to support it, the reviewing court
is left with the definite and firm conviction that a mistake has
been committed.” See United States v. United States Gypsum,
Co., 333 U.S. 364, 395 (1948).
B. Analysis
In the exercise of its discretion with respect to a
motion for preliminary injunction,
a district court must give consideration to four factors:
“(1) whether the movant has a strong likelihood of
success on the merits; (2) whether the movant would
suffer irreparable injury without the injunction;
(3) whether issuance of the injunction would cause
substantial harm to others; and (4) whether the public
interest would be served by issuance of the injunction.”
Rock & Roll Hall of Fame & Museum, Inc. v. Gentile
Prods., 134 F.3d 749, 753 (6th Cir. 1998).
Mascio , 160 F.3d at 312-13. Federal Rule of Civil Procedure
52(c) “requires a district court to make specific findings
concerning each of these four factors, unless fewer are
12 ACLU, et al. v. McCreary County, et al. No. 01-5935
dispositive of the issue.” See In re DeLorean Co., 755 F.2d
1223, 1228 (6th Cir. 1985).
In Elrod v. Burns, 427 U.S. 347, 373 (1976), the Supreme
Court held that when reviewing a motion for a preliminary
injunction, if it is found that a constitutional right is being
threatened or impaired, a finding of irreparable injury is
mandated. In other words, the first factor of the four-factor
preliminary injunction inquiry—whether the plaintiff shows
a substantial likelihood of succeeding on the merits—should
be addressed first insofar as a successful showing on the first
factor mandates a successful showing on the second
factor—whether the plaintiff will suffer irreparable harm. See
id.; see also Connection Distrib. Co. v. Reno, 154 F.3d 281,
288 (6th Cir. 1998) (finding that “[w]hen a party seeks a
preliminary injunction on the basis of the potential violation
of the First Amendment, the likelihood of success on the
merits often will be the determinative factor”).
1. Strong Likelihood of Success on the Merits
The Establishment Clause of the First Amendment provides
that “Congress shall make no law respecting an establishment
of religion.” U.S. Const., amend. I. This clause is made
applicable to the states through the Fourteenth Amendment.
See Everson v. Bd. of Educ., 330 U.S. 1, 8 (1947). As the
Supreme Court has recognized, “[t]he Establishment Clause,
at the very least, prohibits government from appearing to take
a position on questions of religious beliefs or from ‘making
adherence to a religion relevant in any way to a person’s
standing in the political community.’” County of Allegheny
v. Am. Civil Liberties Union, 492 U.S. 573, 593-94 (1989)
(quoting Lynch v. Donnelly, 465 U.S. 668 (1984)).
While sitting en banc, this Court recently observed that
although individual Supreme Court justices have expressed
reservations regarding the test set forth in Lemon v.
Kurtzman, 403 U.S. 602 (1971) for determining whether a
particular government action violates the Establishment

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No. 01-5935 ACLU, et al. v. McCreary County, et al. 13
Clause, see Am. Civil Liberties Union of Ohio v. Capital
Square Review & Advisory Bd., 243 F.3d 289, 306 & n.15
(6th Cir. 2001) (en banc) (collecting cases), this Court, as an
intermediate federal court, is bound to follow the Lemon test
until the Supreme Court explicitly overrules or abandons it.
Adland v. Russ, 307 F.3d 471, 479 (6th Cir. 2002) (citing
Grutter v. Bollinger, 288 F.3d 732, 743 (6th Cir. 2002)).
The Lemon test, as originally formulated, required
reviewing courts to consider whether (1) the government
activity in question has a secular purpose; (2) whether the
activity’s primary effect advances or inhibits religion; and
(3) whether the government activity fosters an excessive
entanglement with religion. Lemon, 403 U.S. at 612-13.
Although this remains the original formulation of the Lemon
test, this Court has recognized in recent years that the
Supreme Court has applied what is known as the
“endorsement” test, which looks to whether a reasonable
observer would believe that a particular action constitutes an
endorsement of religion by the government. See Adland, 307
F.3d at 479 (citing Granzeier v. Middleton, 173 F.3d 568, 573
(6th Cir. 1999) (collecting cases) and Hawley v. City of
Cleveland, 24 F.3d 814, 822 (6th Cir. 1994)). Accordingly,
this Court has held that the endorsement test “should be
treated ‘as a refinement of the second Lemon prong.’” Baker
v. Adams County/Ohio Valley Sch. Bd., 310 F.3d 927, 929
(6th Cir. 2002) (quoting Adland, 307 F.3d at 479). If a
plaintiff establishes a violation of any prong of the Lemon
test, then the government action is unconstitutional. See, e.g.,
Edwards v. Aguillard, 482 U.S. 578, 583 (1987).
a. “Purpose” Prong of the Lemon Test
Although a government’s stated purposes for a challenged
action are to be given some deference, it remains the task of
the reviewing court to “distinguis[h] a sham secular purpose
from a sincere one.” Santa Fe Indep. Sch. Dist. v. Doe, 530
U.S. 290, 308 (2000). Specifically, it is up to this Court to
determine whether Defendants’ inclusion of the Ten
14 ACLU, et al. v. McCreary County, et al. No. 01-5935
Commandments in the displays was a “purposeful or
surreptitious effort to express some kind of subtle
governmental advocacy of a particular religious message.”
Lynch, 465 U.S. at 680. To satisfy this prong of the Lemon
test, Plaintiffs must show that Defendants’ predominate
purpose for the displays was religious. See Adland, 307 F.3d
at 480 (“Although a totally secular purpose is not required, it
is clear that the secular purpose requirement is not satisfied
. . . by the mere existence of some secular purpose, however
dominated by religious purposes.”) (internal quotation marks
and citations omitted). See also Stone, 449 U.S. at 41
(examining “pre-eminent purpose for posting the Ten
Commandments on schoolroom walls”); Aguillard, 482 U.S.
at 599 (Powell , J., concurring) (“A religious purpose alone is
not enough to invalidate an act of a state legislature. The
religious purpose must predominate.”) (citations omitted).
As noted by the district court below, Defendants herein
articulated the following purposes for the latest versions of
the displays:
(1) to erect a display containing the Ten Commandments
that is constitutional;
(2) to demonstrate that the Ten Commandments were
part of the foundation of American Law and
Government;
(3) [to include the Ten Commandments] as part of the
display for their significance in providing “the moral
background of the Declaration of Independence and the
foundation of our legal tradition;”
(4) to educate the citizens of the county regarding some
of the documents that played a significant role in the
foundation of our system of law and government; and
(5) [as stated by the Harlan County School Board] to
create a limited public forum on designated walls within
the school district for the purpose of posting historical
documents which played a significant role in the
development, origins or foundations of American or
Kentucky law. . . .

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No. 01-5935 ACLU, et al. v. McCreary County, et al. 15
McCreary II, supra note 1, at 848 (citations to record and
footnotes omitted). The district court found that the first three
purposes were, “on their face, religious in nature and
therefore impermissible,” and that “the history of the display
belies the secular intentions of the other two.” Id. at 848-49.
We agree with the district court’s ultimate conclusion that the
predominate purpose of the displays was religious. We do
take issue, however, with some of the district court’s
reasoning underpinning that conclusion.
The district court reasoned that the first three articulated
purposes were “facially” unconstitutional under the Supreme
Court’s holding in Stone v. Graham, inasmuch as “that case
established that a state’s desire to proclaim the Ten
Commandments’ foundational value for American law and
government is a religious, rather than secular, purpose.”
McCreary II, supra note 1, at 849. The court went on to note
that in Stone, the Commonwealth of Kentucky sought to post
the Ten Commandments along with the following notation:
“‘The secular application of the Ten Commandments is
clearly seen in its adoption as the fundamental legal code of
Western Civilization and the Common Law of the United
States.’” Id. (quoting Stone, 449 U.S. at 41). The court
opined that this “putatively secular purpose” in Stone was
rejected by the Supreme Court, and “is fundamentally the
same as the defendants’ first three articulated purposes” in the
matter at hand. Id.
This Court disagrees. On its face, the first articulated
purpose – to erect a constitutional display of the Ten
Commandments – has nothing to do with the state’s desire to
proclaim the Ten Commandments’ foundational contribution
to American law and government. Rather, the facial purpose
is simply to comport governmental conduct (i.e., the displays)
with the law. Nevertheless, the first statement of purpose
does not satisfy Defendants’ burden of articulating a secular
purpose for the displays, because this statement merely begs
the ultimate legal question of whether Defendants’ conduct is
constitutional. This avowed purpose fails to shed any light on
16 ACLU, et al. v. McCreary County, et al. No. 01-5935
4The first stated p urpo se might not be question-begging if
Defendants had created the displays in the co ntext of a legal discussion in
order to illustrate the constitutional limits of religious expression by
gove rnmental entities. T his is clearly not the case.
Defendants’ motivation for creating the displays; at most, this
purpose explains certain alterations Defendants made to the
displays, but not the raison d’etre of the displays.4
Accordingly, the first stated purpose does not constitute a
secular purpose as a matter of law. See Adland, 307 F.3d at
482 (finding that government had failed to articulate a secular
explanation for Ten Commandments display where “its
asserted secular justification is intended merely to avoid
Establishment Clause liability rather than to actually further
a legitimate secular purpose”); Books v. City of Elkhart, Ind.,
235 F.3d 292, 304 (7th Cir. 2000) (“… [W]e shall not accept
a stated purpose that merely seeks to avoid a potential
Establishment Clause violation.”)
This Court also disagrees with the district court’s
pronouncement about the second and third stated purposes,
based on the Supreme Court’s decision in Stone, that “a
state’s desire to proclaim the Ten Commandments’
foundational value for American law and government is a
religious, rather than secular, purpose.” McCreary II, supra
note 1, at 849. In Stone, a state statute required the posting of
the Ten Commandments on the wall of each public school
classroom. Underneath the last Commandment appeared the
following disclaimer: “The secular application of the Ten
Commandments is clearly seen in its adoption of the
fundamental legal code of Western Civilization and the
Common Law of the United States.” Id. at 40 n.1. The Court
held that the “pre-eminent purpose for posting the Ten
Commandments on schoolroom walls is plainly religious in
nature” because the Commandments “are undeniably a sacred
text in the Jewish and Christian faiths.” Id. at 41. The Court
rejected the “supposed” secular purpose of teaching the
foundational role the Ten Commandments played in our

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civilization and legal system because merely posting the Ten
Commandments fulfilled no “educational function.” Id. at 42.
The Court further opined that the outcome of the case may
have been different 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).
Stone established no per se rule that displaying the Ten
Commandments in an educational setting is unconstitutional.
See also Aguillard, 482 U.S. at 607-08 (Powell, J.,
concurring) (“[I]t is worth noting that the Establishment
Clause does not prohibit per se the educational use of
religious documents in public school education.”); Lynch,
465 U.S. at 678-79 (“… [A]n absolutist approach in applying
the Establishment Clause is simplistic and has been uniformly
rejected by the Court. … In each case, the inquiry calls for
line drawing; no fixed, per se rule can be framed.”).
Moreover, contrary to the district court’s conclusion, Stone
announced no per se prohibition against displaying the Ten
Commandments for the purpose of demonstrating a
connection with the structure of American law or government.
In fact, several courts have indicated that a display for such a
purpose may be permissible. See Aguillard, 482 U.S. at 593-
94 (“[T]he Court acknowledged in Stone that its decision
forbidding the posting of the Ten Commandments did not
mean that no use could ever be made of the Ten
Commandments, or that the Ten Commandments played an
exclusively religious role in the history of Western
Civilization.”) (citing Stone, 449 U.S. at 42); Books, 235 F.3d
at 302 (“The text of the Ten Commandments no doubt has
played a role in the secular development of our society and
can no doubt be presented by the government as playing such
a role in our civic order.”) Similarly, it is conceivable that the
Ten Commandments could be incorporated into a
comparative religion course or a study of “the nature of the
Founding Father’s religious beliefs and how these beliefs
affected the attitudes of the times and the structure of our
18 ACLU, et al. v. McCreary County, et al. No. 01-5935
government.” Aguillard, 482 U.S. at 606-07 (Powell, J.,
concurring) (discussing the Bible generally).
To comply with Stone, however, a purported historical
display must present the Ten Commandments objectively and
integrate them with a secular message. When such a display
consists almost entirely of reading material posted in a public
school, the most logical way of achieving this goal is by
integrating the Ten Commandments with a secular
curriculum, such as through the objective study of history,
ethics or comparative religion. See Stone, 449 U.S. at 42;
Abington Sch. Dist. v. Schempp, 374 U.S. 203, 225 (1963)
(“… [S]tudy 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.”).
Several factors are relevant when assessing whether the Ten
Commandments have been presented objectively and
integrated with a secular message: the content of the displays,
the physical setting in which the Ten Commandments are
displayed and any changes that Defendants have made to the
displays since their inception. See Santa Fe Indep. Sch.
Dist., 530 U.S. at 315 (holding that school’s original policy
on student-led prayer, which “unquestionably violated the
Establishment Clause,” was relevant to determining
constitutionality of modified policy because the Court’s
inquiry “not only can, but must, include an examination of the
circumstances surrounding its enactment”); Adland, 307 F.3d
at 481 (in assessing state’s avowed secular purpose in
displaying Ten Commandments monument, Court looked to
linguistic content of the statute authorizing the display and the
intended physical context of the display).
The animating principle of Stone applies equally in a
courthouse setting: the government must present the Ten
Commandments objectively and must integrate them with a
secular message. The government achieves this goal by
ensuring that the symbols, pictures and/or words in the
display share a common secular theme or subject matter. See
Adland, 307 F.3d at 481 (applying Stone to display of Ten

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Commandments on State’s capitol grounds; expressing
approval of the frieze on the wall of the Supreme Court,
which depicts Moses carrying the Ten Commandments
alongside Confucius, Mohammed, Caesar Augustus, William
Blackstone, Napoleon Bonaparte and John Marshall because
it does not convey the message that the Ten Commandments
are the only precedent legal code of the State) (citing
Allegheny, 492 U.S. at 652-53 (Stevens, J., concurring in part
and dissenting in part) (noting that Supreme Court’s friezes
convey a message of “respect not for great proselytizers but
for great lawgivers”)). Accordingly, a court examines the
same factors (content, context and the evolution of the
displays) to assess the nature of the governmental purpose,
regardless of whether the display is in a school building or a
courthouse.
The district court failed to apply these legal standards to
Defendants’ second and third articulated purposes, dismissing
them without sufficient analysis. Nevertheless, as discussed
below, the undisputed evidence in the record concerning the
content and context of the displays, as well as the evolution
of the displays, demonstrates that the district court did not
clearly err in finding that Defendants’ actual purposes were
religious. Further, although the district court’s legal analysis
of Defendants’ fourth and fifth articulated purposes was more
substantive, it, too, was incomplete. Again, however, any
flaws in the district court’s reasoning were not outcome-
determinative because the displays’ content, particularly when
viewed in light of Defendants’ past attempts to display the
Ten Commandments in a blatantly religious manner, showed
that Defendants’ predominate purpose for the displays was
religious.
i. Content of the displays
a) School displays
The School Board’s display of, inter alia, the Star Spangled
Banner, the Declaration of Independence, the Mayflower
20 ACLU, et al. v. McCreary County, et al. No. 01-5935
Compact, the Bill of Rights, the Magna Carta, the National
Motto and the Preamble to the Kentucky Constitution was
accompanied by a School Board Resolution (“the
Resolution”), the only document that purported to explain the
significance of the documents. The Resolution stated, in part:
We believe these … documents positively contribute to
the educational foundations and moral character of
students in our schools. … [I]t is our opinion that these
… documents, taken as a whole, are valuable examples
of documents that may instill qualities desirable of the
students in our schools, and have had particular historical
significance in the development of this country.
The Resolution provided the sole source of commentary about
the documents in the display.
Even a generous reading of the Resolution reveals that the
Ten Commandments are not integrated with a secular study
of American law or government. The Resolution merely
asserts, without further elaboration, the School Board’s
“belie[f]” and “opinion” that the documents, including the
Ten Commandments, have educational and moral value, as
well as historical significance. It is difficult to determine
what subject, if any, the display even purports to study.
Moreover, the Resolution in no way connects the Ten
Commandments with the other historical documents. The
likely explanation for this phenomenon is that the “Ten
Commandments are undeniably a sacred text in the Jewish
and Christian faiths,” Stone, 449 U.S. at 41, and the other
historical documents are not. As the Supreme Court has
observed, “the first part of the Commandments concerns the
religious duties of believers: worshipping the Lord God
alone, avoiding idolatry, not using the Lord’s name in vain,
and observing the Sabbath Day.” Id. at 42 (citing Exodus 20:
1-11; Deuteronomy 5: 6-15). None of the other historical
documents concern the religious duties of those who believe
in God. Nor do these documents discuss the Ten

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No. 01-5935 ACLU, et al. v. McCreary County, et al. 21
Commandments’ requirement to honor parents or the
prohibitions against killing, committing adultery, stealing,
bearing false witness and coveting.
The Ten Commandments themselves are contained in an
excerpt from the Congressional Record, which reprints a Joint
Resolution of Congress declaring 1983 to be “Year of the
Bible.” (J.A. 208.) The fact that the Ten Commandments
appear in a historical governmental publication, such as the
Congressional Record, however, does not “secularize” the
Ten Commandments. Rather, the question is whether the
language of the Congressional Record excerpt integrates the
Ten Commandments with an objective discussion of a secular
subject matter. It clearly does not. The excerpt, like the
School Board’s Resolution, asserts an opinion (that of a
Representative) that “it would serve an educational purpose
for our citizens to become familiar with the important role
which the Bible and Ten Commandments have played in
molding our American traditions and laws.” (J.A. 208.) The
excerpt, however, never explains the connection between the
Ten Commandments and American traditions. The Joint
Resolution itself makes assertions about the role of the Bible
in forming the United States and inspiring the Declaration of
Independence and the Constitution of the United States. It
then concludes with the following statements:
Whereas the history of our Nation clearly illustrates the
value of voluntarily applying the teachings of the
Scriptures in the lives of individuals, families, and
societies;
…
Whereas that renewing our knowledge of and faith in
God through Holy Scriptures can strengthen us as a
Nation and a people; Now, therefore, be it
Resolved by the Senate and House of Representatives of
the United States of America in Congress assembled,
That the President is authorized and requested to
designate 1983 as a national “Year of the Bible” in
22 ACLU, et al. v. McCreary County, et al. No. 01-5935
recognition of both the formative influence the Bible has
been for our nation, and our national need to study and
apply the teaching of the Holy Scriptures.”
(J.A. 208.) In short, Defendants’ public school displays of the
Ten Commandments are contained within a text that exhorts
Americans to acknowledge the Bible as “the Word of God ”
and to apply the teachings of the Bible to their lives. The
message is patently religious and in no way resembles an
objective study of the role that the Ten Commandments, or
even the Bible generally, played in the foundation of the
American government.
b) Courthouse displays
The courthouse displays of the Star Spangled Banner, the
Declaration of Independence, the Mayflower Compact, the
Bill of Rights, the Magna Carta, the National Motto, the
Preamble to the Kentucky Constitution, the Ten
Commandments and Lady Justice were preceded by a one-
page prefatory description of the documents entitled “The
Foundations of American Law and Government Display.”
The prefatory description of the Ten Commandments is
limited to the following:
The Ten Commandments have profoundly influenced the
formation of Western legal thought and the formation of
our country. That influence is clearly seen in the
Declaration of Independence, which declared that, “We
hold these truths to be self-evident, that all men are
created equal, that they are endowed by their Creator
with certain unalienable Rights, that among these are
Life, Liberty, and the pursuit of Happiness.” The Ten
Commandments provide the moral background of the
Declaration of Independence and the foundation of our
legal tradition.
Although a bit different in form from the school displays, the
courthouse displays of the Ten Commandments suffer from

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No. 01-5935 ACLU, et al. v. McCreary County, et al. 23
the same fundamental flaw – the lack of a demonstrated
analytical or historical connection with the other documents.
As noted, the prefatory document asserts a connection
between the Ten Commandments and “the formation of our
country” and “our legal tradition.” To support this thesis, the
preface cites to the “clear[]” influence that the Ten
Commandments had on the Declaration of Independence. It
is not facially apparent, and the preface offers no explanation,
how the quotation from the Declaration is in any way
connected with the Ten Commandments, which say nothing
about men being created equal and with the rights to life,
liberty and the pursuit of happiness. The only facial similarity
between the two documents is that they both recognize the
existence of a deity. The concept of a deity, however, is by
no means unique to the Ten Commandments or even the
Judeo-Christian tradition. Thus, this solitary similarity hardly
demonstrates how the Ten Commandments in particular
influenced the writing of the Declaration and, hence, the
foundation of our country and legal tradition.
To buttress this alleged connection, Defendants have
proffered evidence that each of the Ten Commandments was
codified, to one extent or another, into the legal codes of some
American Colonies, and that some of the Commandments
(such as prohibitions against stealing, perjury and killing)
persist to this day in American legal codes. Specifically,
Defendants cite to a 1610 Virginia law requiring its leaders to
give “allegiance” to God; a 1680 New Hampshire law
barring idolatry; a 1610 Virginia law and a 1639 Connecticut
law against taking God’s name in vain; laws from the 1600's
and 1700's recognizing the Sabbath; a 1642 Connecticut law
exhorting children to honor their parents; laws prohibiting
killing; laws from the 1600's and 1700's prohibiting adultery;
laws against stealing; and anti-perjury laws that prohibit
bearing “false witness.” Defendants cite to no particular law
that prohibits “coveting.”
24 ACLU, et al. v. McCreary County, et al. No. 01-5935
The problem with this evidence and Defendants’
accompanying argument is two-fold. One, the evidence does
not appear in the actual display of the Ten Commandments,
so an observer would not actually be made aware of these
facts – a phenomenon equally relevant to the discussion of the
“endorsement” issue below. Two, even assuming that the Ten
Commandments are the sole or primary source of some laws
codified by certain Colonies and State legislatures, this “fact”
is irrelevant to the fundamental assertion in the display that
the Ten Commandments clearly influenced the creation of the
Declaration of the Independence and, thus, the formation of
our country and legal tradition. The dissent expends a
considerable amount of effort discussing “the influence of
religion upon American law.” We have no reason to doubt
the existence of such an influence, but that is not the issue in
this case. Even granting that religion in general influenced
the development of our country and our legal traditions, we
cannot simply take judicial notice of the very different and
very specific claim that the Ten Commandments profoundly
influenced the drafting of the Declaration of Independence.
An assertion of such a connection is not evidence of such a
connection. Thus, the dissent’s discussion, like Defendants’
evidence, simply misses the mark.
The Court finds it significant that neither Defendants nor
the dissent have attempted to buttress the historical claim that
the prefatory document makes about the Ten
Commandments’ foundational role in the drafting of the
Declaration of Independence. To be sure, “[t]he fact that the
Founding Fathers believed devotedly that there was a God
and that the unalienable rights of man were rooted in Him is
clearly evidenced in their writings, from the Mayflower
Compact to the Constitution itself.” Abington Sch. Dist., 374
U.S. at 213. There is by no means a consensus, however, that
the source of Thomas Jefferson’s belief in divinely-bestowed,
unalienable rights, to the extent this belief inspired the writing

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No. 01-5935 ACLU, et al. v. McCreary County, et al. 25
5The Continental Congress appointed a committee of five to decide
who would write the Declaration. Pauline Maier, Am erican Scripture 99
(1998). The committee assigned Jefferson the task of drafting the
doc ument. Id. at 100. The draft was revised based on comments from
Benjamin Franklin and John Ada ms. Id. at 100-02 . After incorporating
their comments, Jefferson reported the revised draft to the Co ngress. Id.
at 100. Once in Congress, the Declaration was revised by other men. Id.
at 105.
6Id. at 19 (“Jefferson’s heterodox religious views were founded on
an Enlightenment outlook in general and the writings of Henry St. John,
Lord Viscount B olingb roke, in particular. It is the God of his heterodoxy
that appears in the Declaration of Independence rather than the God of the
Bible.”); id. at 38 (“Jefferson’s God of the Declaration is … antithetical
to any God who wo uld manifest partiality by choosing one people or
nation over others, as did the God o f the Old Te stament.”). Jayne also
quotes a letter written by Jefferson in which he expressed doubt about the
origin and authenticity of the Ten Commandme nts. Id. at 34 (“‘[T]he
whole history of these books [containing the Ten Co mmandments] is so
defective and d oubtful, that it seems vain to attemp t minute inquiry into
it; and such tricks have b een played with their text, and w ith the other
texts of other bo oks relating to them, that we have a right from that cause
to entertain much doubt what parts of them are genuine.’”) (quoting
January 24 , 182 4, letter fro m Jefferson to John Ada ms).
7See David M cCullough, John Ada ms 121 (2001) (noting that
Jefferson bo rrowed from his previous writings, as well as the writings of
George Mason and Pennsylvania delegate James W ilson; further noting
that Jefferso n was “d rawing on long familiarity with the seminal works of
of the Declaration,5 was the Ten Commandments or even the
Bible. One historian has noted that Jefferson believed in the
“watchmaker God of deism … who established the laws of
nature in the material universe at the time of creation and then
left it alone.” Allen Jayne, Jefferson’s Declaration of
Independence: Origins, Philosophy and Theology 24 (1998).
He therefore posits that the “Nature’s God” Jefferson
referenced in the Declaration was not the God of the Bible
(and thus the Ten Commandments), but the God of deism.6
Further, several historians have concluded that Jefferson was
most inspired by contemporaneous political writings as well
as the musings of European philosophers and writers.7
26 ACLU, et al. v. McCreary County, et al. No. 01-5935
the English and S cottish writers John Lo cke, D avid H ume, Franc is
Hutcheson, and H enry St. John Bo lingbro ke, or such English poets as
Defoe”); Maier, supra note 5, at 104 (noting evidence that Jefferson
hastily produced a draft of the Declaration in a day or two and adapted
two texts to complete a draft in this short time-frame: the preamble to the
Virginia Constitution, “which was itself based on the English Declaration
of Rights,” and a preliminary version of the Virginia Declaration of
Rights that had been drafted by George M ason); id. at 136 (noting that the
Declaration’s reference to “the laws of nature and nature’s god” parallels
the laws applicable to “individua ls in a state of nature, a point,
incidentally, that John Locke made explicitly in his Second Treatise of
Government”); Carl Becker, The Declaration of Independence: A Study
in the History of Ideas 79 (1922) (noting that with respect to “the political
philosophy of Nature and natural rights” referenced in the Declaration that
the “lineage is direct: Jefferson copied Lo cke”); Jayne, supra, at 44
(noting “the similarity of many of the provisions of [Locke’s] Second
Treatise with those of the Declaration, which clearly shows that Jefferson
not only had extensive knowledge of Locke’s work b ut put it to use in
drafting the Declaration”).
8See, e.g., note 7 , supra.
Defendants have not cited the Court to a single historical
source in support of the proposition that the Ten
Commandments inspired the drafting of the Declaration of
Independence.
Although this Court has neither the ability nor the authority
to determine the “correct” view of American history, it is our
role to recognize that (a) Defendants’ displays provided the
viewer with no analytical or historical connection between the
Ten Commandments and the other historical documents; and
(b) Defendants have made no attempt in this litigation to
support the displays’ historical assertions with relevant and
credible evidence. The Court’s reference to historical sources
is intended merely to illuminate these fundamental
deficiencies in Defendants’ argument and to suggest that an
objective presentation of the Ten Commandments would at
least take into account the abundant historical evidence
regarding the sources that influenced the drafters of the
Declaration of Independence.8 Contrary to the dissent’s

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assertion, we do not “envision a display that contains a
recounting of the history of the nation’s founding [or] a
summary of American constitutional law and history.” We do
envision, however, a display that does not go out of its way to
stress the proposition that the Ten Commandments formed the
foundation of the Declaration of Independence while utterly
ignoring (and implicitly denying) all other influences. It is up
to Defendants to determine the most efficient manner of
integrating the Ten Commandments with an objective
historical display.
c) Summary
In sum, the very text in which the Ten Commandments are
contained in the schoolhouse displays manifests a patently
religious purpose. Defendants’ courthouse displays also
manifest a religious purpose because they utterly fail to
integrate the Ten Commandments with a secular subject
matter. When distilled to their essence, the courthouse
displays demonstrate that Defendants intend to convey the
bald assertion that the Ten Commandments formed the
foundation of American legal tradition. The Supreme Court
has held, however, that “such an ‘avowed’ secular purpose is
not sufficient to avoid conflict with the First Amendment”
when no effort has been made to integrate the Ten
Commandments with a discussion or display of a secular
subject matter. Stone, 449 U.S. at 41. Since Defendants’
displays make no such effort, the district court correctly
concluded that Defendants’ primary purpose was religious.
This Court’s decision in Adland, which was rendered after
the district court’s decision, further supports its conclusion.
In Adland, a Kentucky law directed the Department for
Facilities Management to “relocate the monument inscribed
with the Ten Commandments which was displayed on the
Capital grounds for nearly three decades to a permanent site
on the Capital grounds near Kentucky’s floral clock to be
made part of a historical and cultural display including the
display of [the law] to remind Kentuckians of the Biblical
28 ACLU, et al. v. McCreary County, et al. No. 01-5935
foundations of the laws of the Commonwealth.” Id. at 474-
75. In finding that the stated purpose of the law, “to remind
Kentuckians of the Biblical foundations of the laws of the
Commonwealth,” failed the secular purpose prong of the
Lemon test, this Court concluded that “this avowed secular
purpose, which is essentially the same secular purpose that
the Commonwealth of Kentucky put forth in Stone, is
insufficient, standing alone, to satisfy the secular purpose
requirement.” Id. at 481 (citing Stone, 449 U.S. at 42). The
Court further opined:
While the Commonwealth need not commemorate every
arguable historical influence on the laws of the
Commonwealth or keep current with the views of every
scholar to ensure compliance with the Establishment
Clause, we cannot ignore its decision to focus only on the
“Biblical foundations” of the law. … [I]n addressing the
Commonwealth’s avowed secular purpose for displaying
an overtly religious symbol such as the Ten
Commandments, we cannot ignore the Commonwealth’s
adoption of a view that emphasizes a single religious
influence to the exclusion of all other religious and
secular influences.
Id. at 481-82 (citation omitted).
Like the display in Adland, Defendants’ courthouse
displays assert that the Ten Commandments provide “the
moral background of the Declaration of Independence and the
foundation of our legal tradition.” (J.A. 161) (emphases
added). The displays emphasize a single religious influence,
with no mention of any other religious or secular influences.
This fact confirms the rectitude of the district court’s
conclusion that Defendants’ purposes were religious.
ii. Context of the displays
The “intended physical context” of the Ten Commandment
displays also is relevant to a determination of the primary

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No. 01-5935 ACLU, et al. v. McCreary County, et al. 29
purpose behind them. Adland, 307 F.3d at 481. Here, the
displays did not provide undue physical emphasis to the Ten
Commandments. In both the school and courthouse displays,
the Ten Commandments appeared on a single piece of paper,
the same size as that containing the secular documents. With
that said, sandwiching the Ten Commandments between
secular texts does not necessitate a finding that the primary
purpose of the displays is secular. See Indiana Civil Liberties
Union v. O’Bannon, 259 F.3d 766, 771 (7th Cir. 2001)
(“[T]he display of secular texts along with the Ten
Commandments does not automatically lead to a finding that
the purpose in erecting the monument is primarily secular.”).
Thus, where the content of the displays otherwise indicates a
predominate religious purpose, the fact that the Ten
Commandments are not physically prominent is not
dispositive.
A finding of religious purpose is militated by the blatantly
religious content of the displays. The displays do not present
a “passive symbol” of religion like a crèche, which, when
accompanied by secular reminders of the holiday season, has
come to be associated more with the public celebration of
Christmas, rather than that holiday’s religious origins. Lynch,
465 U.S. at 686. Instead, the Ten Commandments are an
active symbol of religion because they “concern[] the
religious duties of believers: worshipping the Lord God
alone, avoiding idolatry, not using the Lord’s name in vain,
and observing the Sabbath Day.” Stone, 449 U.S. at 42
(Biblical citations omitted). The Ten Commandments “are
undeniably a sacred text in the Jewish and Christian faiths,”
id. at 41, and, therefore, are “still an inherently religious text.”
Indiana Civil Liberties Union, 259 F.3d at 771. As such,
Defendants had to exercise special care to present the Ten
Commandments objectively and as an integral part of a non-
religious message. As discussed above, Defendants failed in
this endeavor.
30 ACLU, et al. v. McCreary County, et al. No. 01-5935
iii. Evolution of the displays
Defendants’ conduct from the time it created the Ten
Commandments displays throughout the time it modified the
displays is relevant to determining their primary purpose.
The Supreme Court made this legal principle abundantly clear
in Santa Fe Indep. Sch., supra. That case involved a
challenge to a policy of student-led prayer at high school
football games. Prior to 1995, the school district’s policy
authorized a student elected as “Student Chaplain” to deliver
a prayer over the public address system before each game.
After several students and their parents filed suit challenging
the policy under the Establishment Clause, the school district
adopted a different policy in August 1995. The policy,
entitled “Prayer at Football Games,” authorized two student
elections, the first to determine whether “invocations” and
“benedictions” should be delivered at games, and the second
to select the spokesperson to deliver them. Santa Fe Indep.
Sch., 530 U.S. at 297. The policy omitted any requirement
that invocations and benedictions be nonsectarian and
nonproselytising, but contained a fallback provision that
automatically added the provision if the preferred policy
should be enjoined. Id. The policy was changed again in
October 1995 to omit the word “prayers” from the title, and
to refer to “messages” and “statements” as well as
“invocations.” Id. at 298.
In holding that the school district had run afoul of the
Establishment Clause by sponsoring a religious message, the
Court looked, among other things, to “the evolution of the
current policy from the long-sanctioned office of ‘Student
Chaplain’ to the candidly titled ‘Prayer at Football Games’
regulation.” Id. at 309. The Court held that “[t]his history
indicates that the District intended to preserve the practice of
prayer before football games.” Id. Later in its decision, the
Court held that the school district’s history of noncompliance
with the Establishment Clause not only could be considered,
but had to be considered, in determining whether the school

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No. 01-5935 ACLU, et al. v. McCreary County, et al. 31
district’s latest iteration of the challenged policy was
constitutional. As the Court stated:
This case comes to us as the latest step in developing
litigation brought as a challenge to institutional practices
that unquestionably violated the Establishment Clause.
One of those practices was the District’s long-established
tradition of sanctioning student-led prayer at varsity
football games. The narrow question before us is whether
implementation of the October policy insulates the
continuation of such prayers from constitutional scrutiny.
It does not. Our inquiry into this question not only can,
but must, include an examination of the circumstances
surrounding its enactment. . . . Our discussion in the
previous sections . . . demonstrates that in this case the
District’s direct involvement with school prayer exceeds
constitutional limits.
The District, nevertheless, asks us to pretend that we do
not recognize what every Santa Fe High School student
understands clearly—that this policy is about prayer. The
District further asks us to accept what is obviously
untrue: that these messages are necessary to “solemnize”
a football game and that this single-student, year-long
position is essential to the protection of student speech.
We refuse to turn a blind eye to the context in which this
policy arose, and that context quells any doubt that this
policy was implemented with the purpose of endorsing
school prayer.
Id. at 315.
This Court similarly has held that a government’s earlier
policies or practices involving religious speech are relevant
when determining the primary purpose behind a revised
policy that ostensibly is designed to address earlier violations
of the Establishment Clause. In Adland, this Court was faced
with a Kentucky statute that compelled the location of a
monument inscribed with the Ten Commandments on the
grounds of the state capitol, near a floral clock. Adland, 307
32 ACLU, et al. v. McCreary County, et al. No. 01-5935
F.3d at 474-75. The statute was silent with regard to any
other contents of the display. In the course of litigation,
Kentucky “clarifie[d]” that the display would consist of other
“markers, signs and monuments,” including a sign
commemorating a Civil War event, a “Welcome to Kentucky”
plaque, a prisoner of war marker and markers for other civic
leaders. Id. at 477. The Court found Kentucky’s litigation-
inspired “clarification” to its Ten Commandments display,
which originally consisted only of the Ten Commandments
monument and a clock, to be probative of the
Commonwealth’s religious purpose:
[T]he Commonwealth did not reveal the contents of this
display until it was in the midst of litigation. In our
view, this indicates that the other components of the
display are an afterthought, at best, secondary in
importance to the Ten Commandments, and suggests that
the Commonwealth acted with a predominantly religious
purpose.
Id. at 481.
Contrary to Defendants’ argument, this Court’s decision in
Granzeier, supra, does not deem Defendants’ past
unconstitutional displays of the Ten Commandments
irrelevant to the primary purpose behind the latest version of
the displays. The issue in Granzeier was whether the closing
of county and state courts and offices on Good Friday
violated the Establishment Clause. At one point, an employee
of one of the county defendants, “acting without knowledge
or authorization of any defendant, made signs bearing an
image of the Crucifixion and announcing that the building
would be closed ‘for observance of Good Friday.’”
Granzeier, 173 F.3d at 571. When the county was sued, it
removed the signs from the courthouse and put up new signs
announcing that the building would be closed; at the time of
the litigation, the defendants referred to the Friday before
Easter as “Spring Holiday.” Id. The plaintiffs argued that the
original sign showed that the defendants intention to close for

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No. 01-5935 ACLU, et al. v. McCreary County, et al. 33
9The evidence showed that G ood Friday had b ecome a holida y with
significant “secular effects” (e.g., absent school children, high traffic
volume from vacationers, and low activity at public offices and courts)
and, therefore, the recognition of Good Friday as a secular holiday was
perm issible in the same way that Christmas Day and Thanksgiving are so
recognized . Id. at 574-76.
a Spring holiday on the Friday before Easter was a “sham.”
Id. at 574.
This Court rejected the plaintiffs’ argument because it saw
“no reason that Defendants’ policy here, if otherwise
constitutional, should not remain so after an unauthorized
employee posted an unconstitutional sign for a few days.” Id.
(emphasis added). The sign did not permanently taint all
future closings for a Spring holiday because the evidence
showed that the recognition of Good Friday as a secular
Spring holiday was “otherwise constitutional.”9 Importantly,
Granzeier did not hold that evidence of past unconstitutional
conduct is never probative evidence of present
unconstitutional conduct. Rather, it held that where the
remaining evidence shows that the government policy is
“otherwise constitutional,” past unconstitutional conduct does
not preclude a finding of constitutionality. This holding is
consistent with the Supreme Court’s direction in Santa Fe
Indep. Sch. that courts can, and must, look to prior
unconstitutional practices when determining the primary
purpose behind the government’s present practices.
In looking to the context and history of Defendants’ Ten
Commandments displays, the court below found that “the
history of these displays indicates that the defendants’ overall
purpose is religious in nature: to display the Ten
Commandments.” McCreary II, supra note 1, at 849. The
district court, therefore, held that Defendants fourth and fifth
purported secular purposes (to educate citizens regarding
some of the documents that played a significant role in the
foundation of the American and Kentucky systems of law and
government) were primarily religious. Id. at 850. The district
34 ACLU, et al. v. McCreary County, et al. No. 01-5935
court found it “significant” that Defendants’ original displays,
containing only the Ten Commandments, “were erected in
violation of the Supreme Court’s clear ruling in Stone.” Id. at
849-50 (footnote omitted). “This defiance,” according to the
district court, “imprinted the defendants’ purpose, from the
beginning, with an unconstitutional taint observed not only by
this court, but by anyone acquainted with this litigation.” Id.
at 850 (footnote omitted). The district court’s finding is
consistent with the Supreme Court’s decision in Santa Fe
Indep. Sch., which compels courts to consider the
government’s past violations of the Establishment Clause
when evaluating its present conduct, and with this Court’s
Adland decision, which authorizes courts to rely on evidence
of such prior violations as proof that subsequently-added,
secular components of an otherwise-unconstitutional display
are an “afterthought.”
The district court further noted that Defendants’ amended
displays (which were the subject of the court’s original
preliminary injunction) “accentuated the defendants’ religious
purpose, rather than diminishing it, by posting the
Commandments along with “specific references to
Christianity and texts that, while promulgated by the federal
government, were chosen solely for their religious
references.” McCreary II, supra note 1, at 850 (citing
Pulaski, 96 F. Supp. 2d at 699). Again, the district court was
correct in concluding that the evolution of Defendants’ Ten
Commandments displays bore directly on the primary
purpose behind the ultimate versions of the displays.
Based on “the history of the government’s involvement in
these displays,” the district court held that the final version of
the displays which portrayed the Ten Commandments
alongside the full text of various historical documents and
was erected allegedly “to educate the citizens of McCreary
and Pulaski Counties and the schoolchildren of Harlan
County regarding the history of this nation’s law and
government,” actually was done for a non-secular purpose.
Id. The Court agrees with the district court insofar as the

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No. 01-5935 ACLU, et al. v. McCreary County, et al. 35
history of Defendants’ involvement with the displays strongly
indicated that the primary purpose was religious. This Court
is concerned, however, that the district court appeared to
afford exclusive weight to Defendants’ past conduct without
addressing the specific content of the revised displays.
Nevertheless, as discussed in detail above, the content of the
modified displays patently evidence a religious purpose, and
the district court recognized as much in its subsequent
discussion of the “endorsement” prong. See id. at 851.
Accordingly, the district court did not clearly err in finding
that Defendants’ fourth and fifth avowed secular purposes –
to educate citizens regarding some of the documents that
played a significant role in the foundation of the American
and Kentucky systems of law and government – fail the first
prong of the Lemon test. For the same reasons, the district
court did not clearly err in finding that Defendants’ first three
avowed secular purposes, which specifically mention the Ten
Commandments, were predominated by a religious purpose.
Although the inquiry into the constitutionality of the
displays could end here, inasmuch as failure under any one of
the Lemon prongs deems governmental action violative of the
Establishment Clause, see Edwards, 482 U.S. at 583, we shall
address the “endorsement” prong of Lemon because the
district court addressed the second prong as well.
b. “Endorsement” Prong of the Lemon Test
In determining whether Defendants’ displays impermissibly
endorse religion, this Court must ask “whether an objective
observer, acquainted with the text, legislative history, and
implementation” of the displays would view them as state
endorsement of religion. Santa Fe Indep,. Sch. Dist., 530
U.S. at 308 (citations omitted); Capital Square Review &
Advisory Bd., 243 F.3d at 302. “In making this inquiry, [this
Court] do[es] not allow a state ‘to hide behind the application
of formally neutral criteria and remain studiously oblivious to
the effects of its actions.’” Adland, 307 F.3d at 484 (quoting
Pinette, 515 U.S. at 777). In addition, the inquiry must be
36 ACLU, et al. v. McCreary County, et al. No. 01-5935
10Cf. Alleghen y, 492 U.S. at 596 (noting that Christmas is “a holiday
with strong secular elements”) (citing Lynch, 465 U.S. at 692 (O’Co nnor,
J., concurring)).
viewed under the “totality of the circumstances surrounding
the display.” Books, 235 F.3d at 304. As a result, the Court
must “look to both the specific content of the display and the
context of its presentation.” Adland, 307 F.3d at 484 (citing
Allegheny, 492 U.S. at 598).
The Supreme Court decisions involving Christmas-time
crèche displays demonstrate how the failure to integrate
religious symbols with an overall secular theme can result in
the impermissible endorsement of religion. In Allegheny,
supra, the Court noted that “the crèche itself is capable of
communicating a religious message.” Allegheny, 492 U.S. at
598. The Court struck down a courthouse crèche display
because nothing in the context of the display detracted from
the crèche’s religious message. Id. The Court distinguished
the display from the one at issue in Lynch, supra, which had
been composed of a “series of figures and objects, each group
of which had its own focal point.” Id. The Lynch display had
included numerous purely secular symbols, such as a Santa
Claus house, a lighted Christmas tree, a “talking” wishing
well, a miniature village, a banner proclaiming “SEASONS
GREETINGS,” and candy-striped poles. Lynch, 465 U.S. at
671. In Allegheny, by contrast, “the crèche [stood] alone: it
[was] the single element of the display” in the courthouse,
thereby sending “an unmistakable message that [the county]
supports and promotes the Christian praise to God that is the
crèche’s religious message.” Allegheny, 492 U.S. at 598-99.
Thus, the crèche display in Lynch was permissible because
the symbols shared a common secular link – the holiday
season10 – and the arrangement of the symbols conveyed that
link to the display’s observers. This secular link overcame
any religious message that any one component of the display
(i.e., the crèche) might otherwise have conveyed on its own.

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No. 01-5935 ACLU, et al. v. McCreary County, et al. 37
The dissent appears to read Lynch and Allegheny to hold
that a symbol which is wholly or partially religious no longer
conveys its religious message when it is physically
surrounded by wholly secular symbols. This overly-
simplistic reading of the case law ignores the requirements
that (a) the symbols be interconnected in a manner that is
facially apparent to the observer and (b) the interconnection
be secular in nature. For example, if Defendants in this case
had substituted the Ten Commandments with a depiction of
the Crucifixion or a religious sermon exhorting the citizenry
to worship God and abide by the Ten Commandments, the
religious messages would not have been subordinate to an
overall secular theme simply because the religious document
would have been surrounded by secular documents, such as
the Declaration of Independence and the Magna Carta.
Instead of blending in with an overall secular theme, the
religious document, although physically contiguous, would
have stood apart from the rest from a thematic point of view.
As to the composition of the displays in this case, the
district court opined:
The composition of the current set of displays
accentuates the religious nature of the Ten
Commandments by placing them alongside American
historical documents. Given the religious nature of this
document, placing it among these patriotic and political
documents, with no other religious or moral codes of any
kind, imbues it with a national significance constituting
endorsement. The Ten Commandments are completely
different from the remainder of the displays. The
reasonable observer will see one religious code placed
alongside eight political or patriotic documents, and will
understand that the counties promote that one religious
code as being on a par with our nation’s most cherished
secular symbols and documents. This is
endorsement. . . . [T]he current set of displays conveys
the counties’ comment on the Ten Commandments’ (and
consequently, religion’s) foundational value to our
38 ACLU, et al. v. McCreary County, et al. No. 01-5935
shared history as citizens; a reasonable person would
perceive this message as endorsement.
McCreary II, supra note 1, at 851 (footnotes omitted). We
agree with the district court’s conclusion.
In Books, the Seventh Circuit held that “the placement of
the American Eagle gripping the national colors at the top of
the [Ten Commandments] monument hardly detracts from the
message of endorsement; rather, it specifically links religion
. . . and civil government.” Books, 235 F.3d at 307. See also
Adland, 307 F.3d at 486-87 (agreeing with the Seventh
Circuit’s holding in Books that “the inclusion of an American
eagle gripping the national colors at the top of the monument,
serves to heighten the appearance of government endorsement
of religion”). Here, the same can be said of Defendants’
transparent attempt to “secularize” the displays by
surrounding the Ten Commandments with other patriotic
documents and symbols, such as the Bill of Rights and the
Preamble to the Kentucky Constitution. See Indiana Civil
Liberties Union, 259 F.3d at 773 (holding that display
consisting of Bill of Rights, Preamble to Indiana Constitution
and Ten Commandments would signal to the reasonable
observer “that the state approved of such a link, and was
sending a message of endorsement”) (citing Books, 235 F.3d
at 307).
Ultimately, the displays convey a message of religious
endorsement because of the complete lack of any analytical
connection between the Ten Commandments and the other
patriotic documents and symbols. A reasonable observer of
the displays cannot connect the Ten Commandments with a
unifying historical or cultural theme that is also secular. All
of the other documents relate in some fashion to Western
European or American culture since 1215; several of the
documents are legal in nature, one is an American symbol,
one is an American slogan and one is an American song. The
Ten Commandments are several thousands of years old, were
not a product of European or American culture and, many

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No. 01-5935 ACLU, et al. v. McCreary County, et al. 39
believe, are the word of God. See Baruch J. Schwartz, Ten
Commandments, in The Oxford Dictionary of the Jewish
Religion, 683 (1997) (noting that in both Biblical accounts of
the revelation of the Ten Commandments at Sinai, “[t]he ‘Ten
Words’ were inscribed by God on the first set of Tablets
given to Moses.”) A reasonable observer would not be able
to link all of these texts to the foundation of American law
and government; the displays’ mere assertion of such a link
does not cure the problem any more than a disclaimer stating
that the Ten Commandments has been “adopt[ed] as the
fundamental legal code of Western Civilization and the
Common Law of the United States.” Stone, 449 U.S. at 40
n.1 (holding that such a disclaimer is not sufficient to avoid
a conflict with the First Amendment). See also Adland, 307
F.3d at 488 (noting that “‘no sign can disclaim an
overwhelming message of endorsement’”) (quoting
Allegheny, 492 U.S. at 619). Upon seeing the Ten
Commandments, which sticks out in the displays like a
proverbial “sore thumb,” a “reasonable person will think
religion, not history.” Indiana Civil Liberties Union , 259
F.3d at 773 (holding that reasonable observer would not be
able to make an analytical connection between Ten
Commandments, Bill of Rights and Preamble to Indiana
Constitution).
The district court further found that the location of the
displays – in the McCreary and Pulaski County courthouses
and Harlan County public schools – had “the effect of
advancing religion.” McCreary II, supra note 1, at 852. We
agree. With regard to the school displays, it is noteworthy
that the Supreme Court “has been particularly vigilant in
monitoring compliance with the Establishment Clause in
elementary and secondary schools.” Aguillard, 482 U.S. at
583-84. This is because the public schools hold a position of
trust that parents condition “on the understanding that the
classroom will not purposely be used to advance religious
views that may conflict with the private beliefs of the student
and his or her family.” Id. at 584. Public school students are
especially impressionable due to the coercive power that the
40 ACLU, et al. v. McCreary County, et al. No. 01-5935
State exerts through mandatory attendance requirements, “and
because of the students’ emulation of teachers as role models
and the children’s susceptibility to peer pressure.” Id.
(footnote and citations omitted). Thus, the presence of these
displays in the schools enhances the underlying message of
religious endorsement contained in the displays. As the
Supreme Court has commented, if such displays “are to have
any effect at all, it will be to induce the schoolchildren to
read, meditate upon, perhaps to venerate and obey, the
Commandments. However desirable this might be as a matter
of private devotion, it is not a permissible state objective
under the Establishment Clause.” Stone, 449 U.S. at 42.
The citizenry exhibits a similar impressionability in the
setting of a county courthouse, where the government carries
out one of its quintessential functions – the enforcement of
the civil and criminal laws. Typically, citizens are at the
courthouse by necessity –whether they are on trial for a crime,
have been subpoenaed as witnesses, are seeking to vindicate
their civil rights, have been called to jury duty or are simply
contesting parking tickets, registering to vote or renewing
their driver’s licenses. County courthouses also exude a
coercive pressure, ranging from compulsory jury service to
bench warrants to judicial decrees. Accordingly, a courthouse
display of the Ten Commandments that conveys a religious
message is nothing like a similar display in “a typical
museum setting[;] though not neutralizing the religious
content …, [the museum setting] negates any message of
endorsement of that content.” Lynch, 465 U.S. at 692
(O’Connor, J., concurring). As in Books, Defendants’
courthouse displays posted at the seat of government, which
“‘is so plainly under government ownership and control’ that
every display on its property is marked implicitly with
government approval.” Books, 235 F.3d at 306 (quoting Am.
Jewish Congress v. City of Chicago, 827 F.2d 120, 128 (7th
Cir. 1987)).
Finally, the district court found that the history of the
displays bolstered the reasonable observer’s perception of the

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No. 01-5935 ACLU, et al. v. McCreary County, et al. 41
11The district court did not address the third Lemon factor and,
therefore, neither shall we. As stated, failure under any one of the Lemon
factors invalidates the challenged governmental action, and thus the third
factor need not be addressed . See Edwards, 482 U.S. at 583.
state endorsement of religion inasmuch as the observer is
charged with knowing the history of the respective displays,
and in each case the history indicates that the displays were
originally intended to enshrine the Ten Commandments; it
was only upon fear of litigation that the displays were
modified to include secular material in the hope of rendering
the displays constitutional. McCreary II, supra note 1, at 852.
We agree with the district in this regard as well. See Santa Fe
Indep,. Sch. Dist., 530 U.S. at 308 (crediting the objective
observer with being “acquainted with the text, legislative
history, and implementation” of the displays). As a result,
this Court concludes that the district court did not clearly err
in finding that the displays have the impermissible effect of
endorsing religion.11
2. Other Preliminary Injunction Factors
As Plaintiffs note in their brief, Defendants do not address
the other three preliminary injunction factors on appeal and,
therefore, have abandoned any argument as to these factors.
However, because Plaintiffs have demonstrated a likelihood
of succeeding on the merits of their Establishment Clause
claim, the other three preliminary factors follow in favor of
granting the injunction. See Connection Distrib. Co., 154
F.3d at 288 (finding that “[w]hen a party seeks a preliminary
injunction on the basis of a potential violation of the First
Amendment, the likelihood of success on the merits often will
be the determinative factor”).
III.
CONCLUSION
For the above-stated reasons, the district court’s order
requiring the removal of the displays from the McCreary and
42 ACLU, et al. v. McCreary County, et al. No. 01-5935
Pulaski County courthouses and from the Harlan County
schools is AFFIRMED.

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No. 01-5935 ACLU, et al. v. McCreary County, et al. 43
_____________________
CONCURRENCE
_____________________
JULIA SMITH GIBBONS, Circuit Judge, concurring. The
district court’s decision to grant plaintiffs-appellees’ motion
for a supplemental preliminary injunction enjoining the
continued exhibition of the current displays was proper. With
respect to the “secular purpose” prong of the test used to
determine the constitutionality of the current displays, as set
forth by the Supreme Court in Lemon v. Kurtzman, 403 U.S.
602 (1971), the majority opinion appropriately follows
controlling precedent, and I generally agree with its
application of the law to the facts of this case.
In light of the inherently religious nature of the Ten
Commandments, defendants-appellants’ failure to articulate
a facially secular purpose until after litigation had
commenced, the “overtly religious” quality of the second
display, Am. Civil Liberties Union of Kentucky v. McCreary
County, Kentucky, 145 F.Supp.2d 845, 850 n.19 (E.D. Ky.
2001), the absence of any evidence in the record indicating
that the Ten Commandments have been or will be integrated
into the school curriculum as part of an appropriate program
of study, the absence of any discussion integrating the Ten
Commandments into a secular subject matter other than a
conclusory assertion about the Declaration of Independence,
and the emphasis on the Ten Commandments as the only
religious text in the displays, plaintiffs-appellees have shown
a strong or substantial likelihood of success on the merits of
their claim that the displays lack a secular purpose. I
therefore concur in the result. I write separately, however, to
emphasize that, as the majority opinion notes, “the inquiry
into the constitutionality of the displays could end here,
inasmuch as failure under any one of the Lemon prongs
deems governmental action violative of the Establishment
Clause.” Consequently, I express no opinion as to whether
44 ACLU, et al. v. McCreary County, et al. No. 01-5935
the displays violate the “effect/endorsement” prong of the
Lemon test.
Finally, I offer two further observations relating to the
dissenting opinion. First, the dissent concludes that the
majority opinion questions a link between religion and our
laws and government. In my view, the majority opinion says
nothing whatsoever about this topic. Its subject is the
application of the Lemon test to this particular case, and the
only discussion to which the dissent could possibly refer in
reaching this conclusion concerns defendants’ failure to
include in the displays any support for their conclusory
assertion about the relationship between the Ten
Commandments and the Declaration of Independence.
Second, the dissent seeks to characterize the majority
opinion’s descriptions of the facts on which its conclusion
rests as statements of broad rules. For example, the dissent
says that the majority opinion creates rules that the
government may display the Ten Commandments in a public
building only if they are integrated into a secular curriculum
and that any display must include a narration of proof of the
relationship between religion and the foundation of American
law. In my view, this reading of the majority opinion is
unjustified. Rather, the majority considers the lack of
integration of the displays into a secular curriculum and the
lack of recited proof of a relationship between the Ten
Commandments and the Declaration of Independence as
factors that support a lack of secular purpose in this case and
considers these factors, along with other evidence in this
record, in reaching its result.

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No. 01-5935 ACLU, et al. v. McCreary County, et al. 45
______________
DISSENT
______________
RYAN, Circuit Judge, dissenting. The majority holds that
the displays mounted on the walls of the county courthouses
in McCreary and Pulaski counties and in the school buildings
in Harlan County, Kentucky, offend the Establishment Clause
of the First Amendment of the United States Constitution, and
it affirms the district court’s order that the displays be
removed. I disagree and, with respect, must dissent.
The defendants’ displays comport with the requirements of
the Constitution in every respect, as is clearly indicated by the
Supreme Court’s two landmark cases permitting the use of
religious symbols on public property: Lynch v. Donnelly, 465
U.S. 668 (1984), and County of Allegheny v. ACLU, 492 U.S.
573 (1989). Rather than address these authorities in a
meaningful fashion, the majority conjures a rule from the case
of Stone v. Graham, 449 U.S. 39 (1980), a two-page, per
curiam decision of the Court that preceded both Lynch and
Allegheny, that was decided without the benefit of oral
argument or briefs on the merits, and that bears no factual
similarity to the case before us.
With one exception, the majority’s analysis fails to properly
apply the relevant Supreme Court precedent to the facts of the
case before us. Inasmuch as my colleagues have expressed
their disagreement with the reasoning that led the district
court to conclude that the displays are unconstitutional, there
is no need to point out why that is an eminently correct
judgment. Nevertheless, having rejected much of the district
court’s analysis, the majority now affirms the judgment of
that court by employing a wholly independent rationale that
was not developed below and not presented to this court for
review.
46 ACLU, et al. v. McCreary County, et al. No. 01-5935
I.
As the majority has correctly said, the controlling law in
this case is the three-part “Lemon test” found in Lemon v.
Kurtzman, 403 U.S. 602 (1971), as refashioned, it should be
added, in Lynch v. Donnelly, 465 U.S. 668, and County of
Allegheny v. ACLU, 492 U.S. 573. The Lemon test has
proved difficult to apply in many Establishment Clause cases
because its three elements are frequently ill-suited to ever
more imaginative Establishment Clause challenges. Indeed,
the Supreme Court has cautioned against mechanically
applying the test to every Establishment Clause case, Lynch,
465 U.S. at 679, and has variously criticized, modified, and
even ignored it. See, e.g., Lamb’s Chapel v. Ctr. Moriches
Sch. Dist., 508 U.S. 384, 398-99 (1993) (Scalia, J.,
concurring) (citing cases).
Of the current members of the Supreme Court, six have
criticized the Lemon test. For example, in Wallace v. Jaffree,
472 U.S. 38 (1985), then-Justice Rehnquist stated:
[T]he Lemon test has no more grounding in the history of
the First Amendment than does the wall theory upon
which it rests. The three-part test represents a
determined effort to craft a workable rule from a
historically faulty doctrine; but the rule can only be as
sound as the doctrine it attempts to service.
Id. at 110 (Rehnquist, J., dissenting). Justice O’Connor once
called the analysis under the Lemon test “problematic” and
warned that there are “certain difficulties inherent in the
Court’s use of the test.” Corp. of the Presiding Bishop of the
Church of Jesus Christ of Latter-Day Saints v. Amos, 483
U.S. 327, 346 (1987) (O’Connor, J., concurring in the
judgment). Justice Stevens has lamented “the sisyphean task
of trying to patch together the ‘blurred, indistinct, and
variable barrier’ described in Lemon.” Comm. for Pub. Educ.
& Religious Liberty v. Regan, 444 U.S. 646, 671 (1980)

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No. 01-5935 ACLU, et al. v. McCreary County, et al. 47
(Stevens, J., dissenting). Also registering his dissatisfaction
with Lemon, Justice Kennedy stated:
I . . . do not wish to be seen as advocating, let alone
adopting, [the Lemon] test as our primary guide in this
difficult area. Persuasive criticism of Lemon has
emerged. Our cases often question its utility in providing
concrete answers to Establishment Clause questions,
calling it but a helpful signpos[t] or guidelin[e], to assist
our deliberations rather than a comprehensive test.
Substantial revision of our Establishment Clause doctrine
may be in order.
Allegheny, 492 U.S. at 655-56 (Kennedy, J., concurring in the
judgment in part and dissenting in part) (internal quotation
marks and citations omitted). Finally, Justice Thomas joined
the refrain when he signed on to a dissent written by Justice
Scalia, the Court’s severest critic of Lemon, who had this to
say about the much-maligned test:
Our Religion Clause jurisprudence has become
bedeviled (so to speak) by reliance on formulaic
abstractions that are not derived from, but positively
conflict with our long-accepted constitutional traditions.
Foremost among these has been the so-called Lemon test,
which has received well-earned criticism from many
Members of this Court.
Lee v. Weisman, 505 U.S. 577, 644 (1992) (Scalia, J., joined
by, inter alios, Thomas, J., dissenting) (citation omitted).
The Court has also modified the Lemon test by adopting
Justice O’Connor’s “endorsement test” from Lynch:
[Justice O’Connor’s] concurrence articulates a method
for determining whether the government’s use of an
object with religious meaning has the effect of endorsing
religion. The effect of the display depends upon the
message that the government’s practice communicates:
48 ACLU, et al. v. McCreary County, et al. No. 01-5935
the question is “what viewers may fairly understand to be
the purpose of the display.”
Allegheny, 492 U.S. at 595 (quoting Lynch, 465 U.S. at 692
(O’Connor, J., concurring)). The test has been further
modified by “fold[ing] the entanglement inquiry into the
primary effect inquiry.” Zelman v. Simmons-Harris, 536 U.S.
639, 668 (2002) (O’Connor, J., concurring).
In some cases, the Supreme Court has simply ignored the
Lemon test. In Larson v. Valente, 456 U.S. 228 (1982), the
Court, holding that Minnesota’s charitable solicitation statute
violated the Establishment Clause, stated that the “application
of the Lemon tests is not necessary to the disposition of the
case before us.” Id. at 252. Chief Justice Warren Burger,
himself the author of Lemon, also declined to apply the test in
an Establishment Clause challenge to Nebraska’s practice of
paying a chaplain to offer prayers at the opening of the state’s
legislative sessions. See Marsh v. Chambers, 463 U.S. 783
(1983).
Not surprisingly, the Court has consistently emphasized
that the Lemon test is not the sine qua non of Establishment
Clause jurisprudence. In Mueller v. Allen, 463 U.S. 388
(1983), the Court stated that the Lemon test “provides ‘no
more than [a] helpful signpos[t]’ in dealing with
Establishment Clause challenges.” Id. at 394 (quoting Hunt
v. McNair, 413 U.S. 734, 741 (1973)). And in Lynch, citing
cases in which it did not utilize the Lemon test at all, the
Court stated: “[W]e have repeatedly emphasized our
unwillingness to be confined to any single test or criterion in
this sensitive area.” 465 U.S. at 679. In the Lemon case
itself, the Supreme Court grappled with the question whether
statutes in Pennsylvania and Rhode Island that authorized
limited state financial aid to church-related schools violated
the Establishment Clause. The Court said they did, because
neither statute could pass the new test Chief Justice Warren
Burger conjured, mid-opinion, which provides:

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No. 01-5935 ACLU, et al. v. McCreary County, et al. 49
First, the statute must have a secular legislative purpose;
second, its principal or primary effect must be one that
neither advances nor inhibits religion; [and] finally, the
statute must not foster an excessive government
entanglement with religion.
Lemon, 403 U.S. at 612-13 (internal quotation marks and
citations omitted).
Over the years, the Supreme Court has broadened the test
to apply not only to legislative enactments, but to any
government action. For example, in Widmar v. Vincent, 454
U.S. 263 (1981), the Court applied the test to a university
policy that excluded religious groups from a public forum.
After experiencing considerable difficulty applying the test to
various Establishment Clause challenges, especially its
second part which proscribes government action whose
primary effect either advances or inhibits religion, the Court
modified that part of the test to prohibit government action
that has the principal or primary effect of “endorsing”
religion. Allegheny, 492 U.S. at 595 (citing Lynch, 465 U.S.
at 691-94 (O’Connor, J., concurring)).
While judges, lawyers, and constitutional law scholars
continue to criticize Lemon, and repeatedly urge the Supreme
Court to fashion a new, more workable test for determining
whether a unit of government has made a “law respecting an
establishment of religion,” U.S. Const. amend. I, we (the
lower federal courts) are stuck with the three-part Lemon test,
and we must apply it in this case.
Having done so, I conclude that the three displays the
plaintiffs have challenged, easily and obviously pass the
Lemon test, and that, perforce, my colleagues’ conclusion to
the contrary is mistaken.
50 ACLU, et al. v. McCreary County, et al. No. 01-5935
II.
The majority opinion has partially misstated the proper
standard of review in this case. It is certainly true that we
review a district court’s decision to grant a preliminary
injunction for an abuse of discretion. Sandison v. Mich. High
Sch. Athletic Ass’n, 64 F.3d 1026, 1030 (6th Cir. 1995).
However, in determining whether the district court abused its
discretion, we review its findings of fact for clear error and its
legal conclusions de novo. Id. Moreover, we will overturn a
district court’s decision to grant a preliminary injunction “if
the district court relied upon clearly erroneous findings of
fact, improperly applied the governing law, or used an
erroneous legal standard.” Blue Cross & Blue Shield Mut. v.
Blue Cross & Blue Shield Ass’n, 110 F.3d 318, 322 (6th Cir.
1997). In this case, because the district court based its
decision to grant the injunction on the legal conclusion that
the displays failed the purpose and effect prongs of the Lemon
test, that conclusion should properly be reviewed de novo.
III.
What the district court and my colleagues have held
unconstitutional is an arrangement of ten framed documents
on the courthouse lobby walls in McCreary and Pulaski
counties and in the Harlan County school buildings.
The courthouse displays consist of the following
documents:
1. The Star Spangled Banner;
2. The Declaration of Independence;
3. The Mayflower Compact;
4. The Bill of Rights;
5. The Magna Carta;

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No. 01-5935 ACLU, et al. v. McCreary County, et al. 51
6. The National Motto;
7. The Preamble to the Kentucky Constitution;
8. The Ten Commandments;
9. A printed figure of the Lady Justice; and
10. An explanatory sign identifying the foregoing
documents and stating that the entire display is of
“documents that played a significant role in the
foundation of our system of law and government.”
In addition, the courthouse displays are prominently
identified as: “Foundations of American Law and
Government Display.”
The Harlan County School Board display is essentially
identical to the McCreary and Pulaski courthouse displays,
except that it is not identified as the “Foundations of
American Law and Government Display,” and the Lady
Justice document and the explanatory sign are omitted. In
their places are the text of Kentucky Revised Statute
§ 158.195, authorizing the posting of historical displays, and
a lengthy Harlan County School Board resolution, stating,
among other things, that the “many documents [comprising
the display], taken as a whole, have special historical
significance to our community, our country, and our country’s
history.” No one of the framed documents in any of the
displays has, by its size or location in the arrangement, any
greater prominence than any other.
The defendants claim their purposes were to assemble and
post in the courthouse and school district buildings, an array
of historical documents that, taken together, have the
educational and patriotic value of illustrating some of the
ideas and influences that “were part of the foundation of
American Law and Government” and “played a significant
role in the development, origins or foundations of American
52 ACLU, et al. v. McCreary County, et al. No. 01-5935
or Kentucky law.” ACLU v. McCreary County (McCreary
II), 145 F. Supp. 2d 845, 848 (E.D. Ky. 2001) (internal
quotation marks and citations omitted). They argue that these
purposes are entirely secular.
The district court correctly summarized the defendants’
secular purposes as follows:
1. To erect a display containing the Ten
Commandments that is constitutional;
2. To demonstrate that the Ten Commandments are
part of the foundation of American law and
government;
3. To include the Ten Commandments as part of the
display for their significance in providing the moral
background of the Declaration of Independence and
the foundation of our legal tradition;
4. To educate the citizens of the county regarding some
of the documents that played a significant role in the
foundation of our system of law and government;
and
5. As designated by the Harlan School Board, to create
a limited public forum on designated walls within
the school district for the purpose of posting
historical documents that played a significant role in
the development, origins, or foundations of
American and Kentucky law.
See id.
IV.
Inquiry into the constitutionality of the defendants’ displays
must begin, as I have said, with the Supreme Court case of
Lemon v. Kurtzman, 403 U.S. 602. That inquiry, of necessity,
includes Lynch v. Donnelly, 465 U.S. 668, and County of

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No. 01-5935 ACLU, et al. v. McCreary County, et al. 53
Allegheny v. ACLU, 492 U.S. 573, in which the Supreme
Court directly addressed the issue of whether a government
may display an inherently religious, even sectarian symbol,
on public property. The Court held in both Lynch and
Allegheny that a government may use a religious symbol to
accomplish a secular purpose, if the symbol is displayed in a
way that does not create an impression of endorsement in the
mind of the reasonable observer. A review of the facts in this
case indicates that the defendants have rigorously complied
with the criteria established by the Court in both Lynch and
Allegheny, and that their displays in no way constitute an
establishment of religion.
A.
The first question we must consider under the Lemon test
is whether the government’s display has a secular purpose.
Lemon, 403 U.S. at 612. “A statute or practice that is
motivated in part by a religious purpose may satisfy the first
Lemon criterion so long as it is not motivated entirely by a
purpose to advance religion.” ACLU v. City of Birmingham,
791 F.2d 1561, 1565 (6th Cir. 1986).
Furthermore, the Supreme Court has informed us that we
have “no license to psychoanalyze . . . legislators” and that we
must refrain from ascribing improper motives to legislators
who “express[] a plausible secular purpose.” Wallace, 472
U.S. at 74. If the government offers an explanation of its
purpose, that explanation is owed deference by the judiciary
unless and until shown to be a “sham,” for “[w]e must be
cautious about attributing unconstitutional motives to state
officials.” Chaudhuri v. Tennessee, 130 F.3d 232, 236 (6th
Cir. 1997).
Five legitimate secular purposes motivated the defendants
to erect the displays in their current format. First, the
defendants desired to erect a display of the Ten
Commandments that is constitutional. I find in this stated
desire nothing that even hints at a primarily religious purpose,
54 ACLU, et al. v. McCreary County, et al. No. 01-5935
much less a sham. Neither the Supreme Court, nor this court,
nor any federal appellate court, insofar as I know, has ever
suggested that displaying the Ten Commandments is an
impermissible objective under the Establishment Clause. In
fact, quite the contrary is true. As we stated on one occasion:
[W]e believe that the Supreme Court’s opinion in Stone
and Justice Stevens’ statements in Allegheny not only
acknowledge that the Ten Commandments may be
constitutionally displayed, they provide considerable
guidance how they can be displayed.
Adland v. Russ, 307 F.3d 471, 489 (6th Cir. 2002), cert.
denied, 123 S. Ct. 1909 (2003).
Similarly, there is no reason to doubt the legitimacy of the
second and third secular purposes for the displays, namely, to
demonstrate that the Ten Commandments were part of the
foundation of American law and government, and to
recognize the significance of the Ten Commandments in
providing the moral and cultural background of the
Declaration of Independence and the foundation of our legal
tradition. With respect to these two iterations of the
defendants’ secular purposes, the majority singles out the
Declaration of Independence and complains that “[t]here is by
no means a consensus . . . that the source of Thomas
Jefferson’s belief in divinely-bestowed, unalienable rights, to
the extent this belief inspired the writing of the Declaration,
was the Ten Commandments or even the Bible.” Maj. op. at
25. In fact, the majority seems to hold that no government
could ever plausibly proclaim the religious heritage of this
nation because the prevailing view among historians is that
our founders were primarily inspired by secular influences.
See id. Not only is this observation a complete non sequitur,
it is highly debatable as an historical matter. But more
significantly, the source of Thomas Jefferson’s “belief in
divinely-bestowed, unalienable rights” proclaimed in the
Declaration of Independence is utterly immaterial, because it
does not resolve the real issue before us today, which is

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No. 01-5935 ACLU, et al. v. McCreary County, et al. 55
whether the defendants’ avowed secular purposes are shams.
The Declaration of Independence is not the sole source of
evidence that religion, of which the Ten Commandments are
a nearly universal symbol, was a significant influence upon
the foundation of American law and government. My
colleagues’ interesting diversion about Thomas Jefferson, the
Declaration of Independence, and the Bible offers no basis
whatever to conclude, as a matter of law, as my colleagues
do, that the defendants’ avowed secular purposes are shams.
The influence of religion upon American law and
government is a fact of American history and politics that has
been widely recognized by scholars, jurists, legislators,
presidents, and, not least, the Founders themselves.
In his Farewell Address to the nation, George Washington
stated that religion was not only a part of the foundation of
our law and government, it was a necessity:
Of all the dispositions and habits which lead to
political prosperity, Religion and morality are
indispensable supports. In vain would that man claim the
tribute of Patriotism, who should labour to subvert these
great Pillars of human happiness, these firmest props of
the duties of Men and citizens. The mere Politician,
equally with the pious man ought to respect and to
cherish them. A volume could not trace all their
connections with private and public felicity. . . .
Whatever may be conceded to the influence of refined
education on minds of peculiar structure, reason and
experience both forbid us to expect that National
morality can prevail in exclusion of religious principle.
George Washington, Farewell Address (Sept. 19, 1796), in 1
The Founder’s Constitution 681, 684 (Philip B. Kurland &
Ralph Lerner eds., 1987). Similarly Thomas Jefferson, in his
First Inaugural Address, listed religion as one of the necessary
sources of our nation’s prosperity:
56 ACLU, et al. v. McCreary County, et al. No. 01-5935
[E]nlightened by a benign religion, professed, indeed,
and practiced in various forms, yet all of them
inculcating honesty, truth, temperance, gratitude, and the
love of man; acknowledging and adoring an overruling
Providence, which by all its dispensations proves that it
delights in the happiness of man here and his greater
happiness hereafter—with all these blessings, what more
is necessary to make us a happy and a prosperous
people?
Thomas Jefferson, First Inaugural Address (Mar. 4, 1801), in
id. 140, 141.
In fact, in recognition of religion’s foundational role in our
law and government, both Thomas Jefferson and Benjamin
Franklin independently proposed that the new American seal
depict Moses leading Israel through the wilderness under the
protection of God, with the motto, “Rebellion to Tyrants is
Obedience to God.” James H. Hutson, Religion and the
Foundation of the American Republic 50-51 (1998).
Although the Continental Congress never accepted
Jefferson’s and Franklin’s proposals, it did adopt a seal with
numerous religious references. “What is unmistakable . . . is
the theistic framework in which the Continental Congress
sought to have the world understand the creation of the
American republic.” Derek H. Davis, Religion and the
Continental Congress, 1774-1789: Contributions to Original
Intent 144 (Oxford Univ. Press 2000).
Like Washington, the Continental Congress also drew the
connection between religion and government. On October
11, 1782, in a Thanksgiving proclamation near the end of the
Revolutionary War, the Congress asked Americans
to testify their gratitude to God for his goodness, by a
cheerful obedience to his laws, and by promoting . . . the
practice of true and undefiled religion, which is the great
foundation of public prosperity and national happiness.

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No. 01-5935 ACLU, et al. v. McCreary County, et al. 57
23 Journals of the Continental Congress, 1774-1789, 647
(Gaillard Hunt ed., Government Printing Office 1914). These
same sentiments were expressed by the Congress the day after
the First Amendment was proposed when it urged President
Washington to proclaim “‘a day of public thanksgiving and
prayer, to be observed by acknowledging with grateful hearts
the many signal favours of Almighty God.’” See Davis,
supra at 89 (citation omitted).
President John Adams likewise described the importance of
religion to the American system of government:
As the safety and prosperity of nations ultimately and
essentially depend on the protection and the blessing of
Almighty God, and the national acknowledgment of this
truth is not only an indispensable duty which the people
owe to Him, but a duty whose natural influence is
favorable to the promotion of that morality and piety
without which social happiness can not exist nor the
blessings of a free government be enjoyed.
John Adams, Fast Day Proclamation (Mar. 23, 1798), in A
Compilation of the Messages and Papers of the Presidents,
1789-1897, 268, 268-69 (James D. Richardson ed., 1899).
These are only a few of the numerous statements by our
early political leaders drawing the same conclusion as did the
defendants in this case: that religion played a foundational
role in American law and government. This is a conclusion,
incidentally, that is widely accepted by scholars. As one of
the earliest observers of American political life, Alexis de
Tocqueville recognized, religion is an essential component of
American government:
Religion in America takes no direct part in the
government of society, but it must be regarded as the first
of the political institutions; for if it does not impart a
taste for freedom, it facilitates the use of it. Indeed, it is
in this same point of view that the inhabitants of the
58 ACLU, et al. v. McCreary County, et al. No. 01-5935
United States themselves look upon religious belief. I do
not know whether all Americans have a sincere faith in
their religion—for who can search the human
heart?—but I am certain that they hold it to be
indispensable to the maintenance of republican
institutions.
Alexis de Tocqueville, Democracy in America 305-06 (Alfred
A. Knopf, Inc. 1972) (1835). De Tocqueville’s observation
is confirmed by historical scholarship:
As intellectual heirs of a tradition which had entwined
republicanism and Christian theism, New Englanders in
the last two decades of the [eighteenth] century were
unable to perceive religion as free from matters of civil
government. From ancient history they were convinced
that “the state cannot stand without religion” and from
their own experience that “Rational Freedom cannot be
preserved without the aid of Christianity.”
Nathan O. Hatch, The Sacred Cause of Liberty: Republican
Thought and the Millennium in Revolutionary New England
168 (Yale Univ. Press 1977) (footnotes and citations omitted).
The distinguished jurist and professor of law, Thomas M.
Cooley, also recognized the close relationship between
religion and American law:
It was never intended that by the Constitution the
government should be prohibited from recognizing
religion . . . . The Christian religion was always
recognized in the administration of the common law; and
so far as that law continues to be the law of the land, the
fundamental principles of that religion must continue to
be recognized in the same cases and to the same extent as
formerly.
Thomas M. Cooley, The General Principles of Constitutional
Law in the United States of America 205-06 (The Lawbook
Exchange 2000) (1880).

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No. 01-5935 ACLU, et al. v. McCreary County, et al. 59
Relevant to our purposes here, the Supreme Court has
repeatedly stated that there is a crucial link between religion
and our laws and government, for “[w]e are a religious people
whose institutions presuppose a Supreme Being.” Zorach v.
Clauson, 343 U.S. 306, 313 (1952). This link has been
consistently celebrated by our political leaders from the
founding to the present day and nowhere has this practice
been questioned as fiercely as the majority does today. In
fact, the majority’s incredulity as to the avowed relationship
between religion and our public life is unprecedented:
There is an unbroken history of official
acknowledgment by all three branches of government of
the role of religion in American life from at least
1789. . . .
Our history is replete with official references to the
value and invocation of Divine guidance in deliberations
and pronouncements of the Founding Fathers and
contemporary leaders.
Lynch, 465 U.S. at 674-75.
With regard to the Ten Commandments, the legitimacy of
the defendants’ view of American history as expressed in
their displays is supported by the Supreme Court’s own
appraisal of its Establishment Clause precedent:
[I]n Stone . . . [our] decision forbidding the posting of the
Ten Commandments did not mean that no use could ever
be made of the Ten Commandments, or that the Ten
Commandments played an exclusively religious role in
the history of Western Civilization.
Edwards v. Aguillard, 482 U.S. 578, 593-94 (1987).
Moreover, every one of our sister circuits that has
considered a challenge to the public display of the Ten
Commandments has recognized its foundational role in
60 ACLU, et al. v. McCreary County, et al. No. 01-5935
American law and government and, consequently, has
declared that such displays can have a secular purpose.
Most recently, the Fifth Circuit in Van Orden v. Perry, No.
02-51184, 2003 WL 22664490 (5th Cir. Nov. 12, 2003),
approved of a granite monument inscribed with the Ten
Commandments and displayed at the Texas Capitol. Having
concluded that the State had a valid secular purpose for the
display, the court also affirmed the relationship between the
Ten Commandments and American law:
To say this is not to diminish the reality that it is a sacred
text to many, for it is also a powerful teacher of ethics, of
wise counsel urging a regimen of just governance among
free people. The power of that counsel is evidenced by
its expression in the civil and criminal laws of the free
world. No judicial decree can erase that history and its
continuing influence on our laws--there is no escape from
its secular and religious character.
Id. at *7.
In Freethought Society v. Chester County, 334 F.3d 247 (3d
Cir. 2003), the Third Circuit upheld the display of a bronze
plaque inscribed with the Ten Commandments that hung
alone on the exterior of a county courthouse. The county
commissioners had stated at trial that they wanted to maintain
the plaque, in part, because they believed that the Ten
Commandments contributed to the development of American
law. The court held that this was a “‘non-sham’ secular
purpose” and that there was a
well documented history . . . to the effect 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. at 267.

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No. 01-5935 ACLU, et al. v. McCreary County, et al. 61
The Eleventh Circuit recently approved of a court clerk seal
that included an outline of two stone tablets inscribed with the
Roman numbers I through X, because the Ten
Commandments are a popularly recognized symbol of the
law. King v. Richmond County, Ga., 331 F.3d 1271, 1278
(11th Cir. 2003). In its consideration of the seal’s secular
purpose, the court was satisfied “that during the 1870s the
outline of the Ten Commandments presumably would have
enabled illiterate citizens to recognize the legal validity of
documents displaying the Seal.” Id.
The Seventh Circuit, while striking down as
unconstitutional a large granite monument bearing an
inscription of the Ten Commandments, situated on the
Elkhart, Indiana, City Hall grounds, nonetheless noted:
The display of a religious symbol still may, under
certain circumstances, have a secular purpose. The text
of the Ten Commandments no doubt has played a role in
the secular development of our society and can no doubt
be presented by the government as playing such a role in
our civic order.
Books v. City of Elkhart, 235 F.3d 292, 302 (7th Cir. 2000).
The Tenth Circuit, using the Lemon test, approved of the
display of a granite Ten Commandments monument at a city-
county courthouse in Salt Lake City. Anderson v. Salt Lake
City Corp., 475 F.2d 29 (10th Cir. 1973). In doing so, the
court stated that
the Decalogue is at once religious and secular, as, indeed,
one would expect, considering the role of religion in our
traditions. . . .
It does not seem reasonable to require removal of a
passive monument, involving no compulsion, because its
accepted precepts, as a foundation for law, reflect the
religious nature of an ancient era. . . . [W]e cannot say
62 ACLU, et al. v. McCreary County, et al. No. 01-5935
that the monument, as it stands, is more than a depiction
of a historically important monument with both secular
and sectarian effects.
Id. at 33-34. Although Anderson predates the Supreme
Court’s decisions in Stone, Lynch, and Allegheny, neither the
Supreme Court nor the Tenth Circuit has overruled Anderson
and it remains good law. See Summum v. Callaghan, 130
F.3d 906, 912 n.8 (10th Cir. 1997).
Thus, in their reasoned judgment, our sister circuits that
have had the opportunity to consider this question have
unanimously declared the validity of the very same premise
that the defendants advance here today: “The Ten
Commandments have profoundly influenced the formation of
Western legal thought and the formation of our country.”
This judgment is not precluded by any decision of this court,
and, in fact, would seem to be welcomed by it. Having had
the opportunity to consider the place of the Ten
Commandments in our public life, we have never rejected the
historical relationship between the Ten Commandments and
our law and government. In Adland v. Russ, 307 F.3d 471,
we struck down a Kentucky legislative resolution directing
that a six-foot tall granite monument inscribed with the Ten
Commandments be displayed on the lawn at the State Capitol.
The monument, which was totally different from the display
at issue here, was essentially a stand alone piece, save for an
accompanying clock and some small plaques nearby.
Notwithstanding our objections to the monument in that case,
we explicitly acknowledged that the Commonwealth could
cure the defects in the display. Although we declined to
render an advisory opinion on the constitutionality of
alternative displays, we applauded the plaintiffs for proposing
“to their credit, . . . a historical display showcasing the
various influences on our law by both secular and religious
sources.” Id. at 489-90 (emphasis added).
This collection of sources is not intended to settle the issue
of whether the Decalogue is in fact a foundational document

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No. 01-5935 ACLU, et al. v. McCreary County, et al. 63
in American law and government, for that is not the question
before us today. What we must decide is whether the displays
were motivated by a secular purpose. In answering that
particular question, our only concern is with the defendants’
subjective belief, because government action will fail the
purpose prong of the Lemon test if the “government intends
to convey a message of endorsement or disapproval of
religion.” Lynch, 465 U.S. at 691 (O’Connor, J., concurring).
Specifically, given the defendants’ articulation of a secular
purpose, we must consider whether such a purpose is a sham,
i.e., whether the defendants subjectively believed that the
Decalogue was part of the foundation of American law and
government and that it provided the moral background of the
Declaration of Independence and the foundation of our legal
tradition.
Not only is the record utterly devoid of any evidence that
the defendants subjectively intended to convey a message of
endorsement, but the historical evidence dispels any suspicion
that the defendants’ theory of American law and history is a
sham. In common, ordinary English usage, a sham means a
fraud, a hoax, or an intentionally deceptive counterfeit. See
15 Oxford English Dictionary 159 (2d ed. 1989). Given the
“unbroken history of official acknowledgment by all three
branches of government of the role of religion in American
life,” Lynch, 465 U.S. at 674, and the consistent view of the
courts that “[t]he text of the Ten Commandments no doubt
has played a role in the secular development of our society,”
Books, 235 F.3d at 302, it cannot plausibly be said that the
defendants’ desire to demonstrate the foundational role of the
Ten Commandments is a fraud or hoax. The voluminous
historical evidence, common sense, and the decisional law of
the federal courts all lead to one inevitable conclusion in the
case before us: that the defendants’ second and third
articulated purposes are not shams and should, therefore, be
accepted by this court as legitimate secular purposes.
Similarly, there is no evidence in the record that would
justify this court in questioning the sincerity of the
64 ACLU, et al. v. McCreary County, et al. No. 01-5935
defendants’ fourth articulated purpose: to educate the citizens
of the county regarding some of the documents that played a
significant role in the foundation of our system of law and
government. The displays unquestionably contain numerous
documents in “a historical display showcasing the various
influences on our law by both secular and religious sources.”
Adland, 307 F.3d at 490. Lest there be any confusion about
the displays’ educative purpose, the defendants have posted
signs explaining that all the documents “played a significant
role in the foundation of our system of law and government.”
The signs go on to describe in considerable detail the
significance of each document, including the Ten
Commandments, which, the defendants assert, “provide[d] the
moral background of the Declaration of Independence and the
foundation of our legal tradition.” As my earlier discussion
of the historical evidence indicates, the defendants’ purpose
of educating their citizens about the relationship between
religion and the American system of law and government is
grounded in clear and indisputable fact and, as such, cannot
be justifiably characterized as a sham. In their assessment of
the relationship between religion and the Declaration of
Independence, the defendants got it absolutely right:
[T]he numerous references to God were enough to place
the Declaration in an overall theistic framework so as to
satisfy virtually anyone who held a theistic worldview.
Thus in drafting the Declaration of Independence,
Thomas Jefferson and his congressional colleagues
seized upon, and indeed helped to further shape, a bond
between Enlightenment latitudinarianism and Christian
orthodoxy that made it possible to formally dissolve all
bonds with Great Britain and at the same time
confidently assert “the protection of Divine Providence.”
Davis, supra at 109.
Nevertheless, according to my colleagues, the displays in
this case are defective because they “provided the viewer with
no analytical or historical connection between the Ten

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No. 01-5935 ACLU, et al. v. McCreary County, et al. 65
Commandments and the other historical documents,” maj. op.
at 27, and, thus, fail to prove conclusively the defendants’
thesis: that the Decalogue has a historical connection to
American law and government. The majority rejects the
evidence, as it appeared in the defendants’ brief, “that each of
the Ten Commandments were codified, to one extent or
another, into the legal codes of some American Colonies, and
that some of the Commandments . . . persist to this day in
American legal codes.” Maj. op. at 24. In doing so the
majority complains that this “evidence does not appear in the
actual display of the Ten Commandments, so an observer
would not actually be made aware of these facts.” Maj. op. at
24. Thus, the majority seems to envision a display that
contains a recounting of the history of the nation’s founding,
a summary of American constitutional law and history,
perhaps a syllogism incorporating the foregoing, and, I
suppose, at least as much evidence as was presented to this
court in the official record of more than 200 pages.
In support of their reasoning, my colleagues cite Stone v.
Graham, 449 U.S. 39 (1980) (per curiam), a case that the
majority has both misapplied and misinterpreted and that,
nevertheless, bears no factual relation to the case before us.
Stone was a case about the constitutionality of a Kentucky
statute mandating the posting of a copy of the Ten
Commandments, standing alone, in every school classroom
in Kentucky. Acting upon a petition for a writ of certiorari,
and without benefit of oral argument or briefing on the merits,
the Court, in a two-page, per curiam opinion from which four
justices dissented, summarily reversed the Kentucky Supreme
Court’s judgment of constitutionality, stating:
We conclude that Kentucky’s statute requiring the
posting of the Ten Commandments in public
schoolrooms had no secular legislative purpose, and is
therefore unconstitutional.
Id. at 41. Noting that the Court’s holding was without
precedent, then-Justice Rehnquist called the decision “a
66 ACLU, et al. v. McCreary County, et al. No. 01-5935
cavalier summary reversal” having “no support beyond [the
Court’s] own ipse dixit.” Id. at 43, 47 (Rehnquist, J.,
dissenting).
Although they cite no authority, my colleagues are
apparently relying on Stone when they state that “a purported
historical display must present the Ten Commandments
objectively and integrate them with a secular message.” Maj.
op. at 18. If this is, in fact, the rule that my colleagues glean
from Stone, it is not the rule they apply to the facts of the case
before us. Rather, the defendants are faulted because they did
not choose to display the Ten Commandments in “the most
logical way,” which the majority defines as “integrating the
Ten Commandments with a secular curriculum, such as
through the objective study of history, ethics or comparative
religion.” Maj. op. at 18. This is the actual standard by
which my colleagues judge the defendants’ displays.
Accordingly, my colleagues condemn the defendants’
displays because “the Ten Commandments are not integrated
with a secular study of American law or government,” maj.
op. at 21 (emphasis added), and because of “the lack of a
demonstrated analytical or historical connection with the
other documents [in the displays],” maj. op. at 23 (emphasis
added). These criticisms demonstrate that my colleagues
think that it is no longer sufficient for a display to serve a
secular purpose, for the majority now demands that such a
display be “integrat[ed] . . . with a secular curriculum.” Maj.
op. at 18.
It should first be observed that there is no obligation to
display the Ten Commandments in an otherwise secular
exhibit in a way that appeals to the logic of scrutinizing
federal judges. I am not aware of any authority that would
require us to condemn a government display simply because
it did not choose “the most logical way” of conveying a
message. Furthermore, insofar as the majority relies on Stone
for guidance in forming its rule that “a purported historical
display must present the Ten Commandments objectively and
integrate them with a secular message,” maj. op. at 18, it is

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better to quote this portion of Stone in full. What the Court
actually said in Stone was the following:
This is not a case in which the Ten Commandments are
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.
Stone, 449 U.S. at 42. Clearly, this statement by the Court is
a gratuitous hypothetical, describing one possible scenario in
which the Kentucky legislature could have mandated the use
of the Ten Commandments in the classroom. But this
hypothetical simply does not establish a rule that all efforts to
post the Ten Commandments on public property must
integrate them into a curriculum of study. If that were the
case, the Court would have to condemn its own display of
Moses, who, bearing the Ten Commandments, is represented
among other historical figures in a frieze on the south wall of
the Supreme Court courtroom:
Placement of secular figures such as Caesar Augustus,
William Blackstone, Napoleon Bonaparte, and John
Marshall alongside [Moses, Confucius, and Mohammed],
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 be to
exclude religious paintings by Italian Renaissance
masters from a public museum.
Allegheny, 492 U.S. at 652-53 (footnote omitted) (Stevens, J.,
concurring in part and dissenting in part).
Rather than attempting to divine a rule from Stone, this
court should apply the actual rules from the Supreme Court’s
landmark decisions approving the government’s use of
religious symbols: Lynch and Allegheny. It is revealing that
my colleagues are unable to offer any meaningful citation to
either of these cases to support their reasoning. This is not
68 ACLU, et al. v. McCreary County, et al. No. 01-5935
surprising given the fact that the Court has never even
suggested that there is any validity to the rules my colleagues
have crafted today: that a government may display the Ten
Commandments in a public building only if they are
integrated into a secular curriculum, and that the display must
include a narration of the proof of the relationship between
religion and the ideas and impulses that contributed to the
foundation of American law and government.
In Lynch, the Court approved of the use of a crèche in a
Christmas display that contained other symbols of the holiday
such as a Santa Claus house and reindeer, even though the
display contained no signs explaining the secular purpose of
the display and the defendants made no attempt to
demonstrate the link between the crèche and the celebration
of Christmas. Despite the defendant’s failure to integrate the
crèche into “a secular curriculum, such as . . . the study of
history, ethics or comparative religion,” see maj. op. at 18, the
Court held that the defendant had nonetheless achieved its
purpose of “tak[ing] note of a significant historical religious
event long celebrated in the Western World.” Lynch, 465
U.S. at 680.
Similarly in Allegheny, where the Court approved of a
Christmas display containing a Christmas tree, a menorah,
and a sign bearing the phrase “Salute to Liberty,” there is not
even a hint of the need to integrate the menorah into a secular
curriculum. The only other message at the menorah display
was the following: “‘During this holiday season, the city of
Pittsburgh salutes liberty. Let these festive lights remind us
that we are the keepers of the flame of liberty and our legacy
of freedom.’” Allegheny, 492 U.S. at 582 (citation omitted).
Justice Blackmun concluded that this “sign serves to confirm
what the context [of the display] already reveals: that the
display of the menorah is not an endorsement of religious
faith but simply a recognition of cultural diversity.” Id. at
619 (Blackmun, J., concurring). Thus, the defendant was able
to achieve the secular purpose of recognizing cultural
diversity merely through the context of the display, and not

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by integrating the menorah into a secular curriculum.
Moreover, the defendant’s sign confirmed that same secular
purpose even though it made no mention of diversity and,
therefore, required the reader to make an inferential step in
order to draw the connection between “our legacy of
freedom” and the “recognition of cultural diversity.”
Thus, neither Lynch, nor Allegheny, nor any other decision,
and certainly not Stone, support the majority’s rule that a
government that wishes to use a religious symbol in a public
display must integrate that symbol into a secular curriculum.
As if the absence of authority were not enough, common
sense militates against such a rule. Government monuments
and displays appear in a context in which the displays must
speak for themselves, for they do not present an opportunity
to attach lengthy disclaimers and statements of purpose.
However, in order to integrate the Ten Commandments into
a secular curriculum in a manner that would satisfy the
majority’s new rule, the defendants would have to append to
their displays a library of learned treatises and court briefs, or
perhaps audio or video accompaniment, explaining beyond all
reasonable doubt and in great detail what most Americans
already know and the courts have expressly recognized: that
“the Ten Commandments no doubt has played a role in the
secular development of our society.” Books, 235 F.3d at 302.
Significantly, the majority has dismissed out of hand the signs
accompanying the displays, which, among other things
explain that “[t]he Ten Commandments have profoundly
influenced the formation of Western legal thought and the
formation of our country.” This statement succinctly
describes the secular purposes for the displays and, under
Lynch and Allegheny, is more than sufficient.
In its review of the context of the defendants’ displays, the
majority objects that the displays are “blatantly religious”
because they contain an “active symbol of religion”
“‘concern[ing] the religious duties of believers.’” Maj. op. at
30 (quoting Stone, 449 U.S. at 42). This, again, is a novel
statement of the law that finds no support in the Supreme
70 ACLU, et al. v. McCreary County, et al. No. 01-5935
Court’s landmark decisions of Lynch and Allegheny. In
Lynch, the Court approved the display of the crèche despite
the fact that the crèche has “special meaning to those whose
faith includes the celebration of religious Masses.” Lynch,
465 U.S. at 685. In Allegheny, the Court approved of the
display containing the menorah even though it also concerned
certain religious duties of the Jewish faith:
[T]he Talmud prescribes that it is a mitzvah (i.e., a
religious deed or commandment) . . . for Jews to place a
lamp with eight lights just outside the entrance to their
homes or in a front window during the eight days of
Chanukah.
Allegheny, 492 U.S. at 583 (emphasis added) (footnote
omitted). In both cases, the Court held that these religious
icons, which necessarily concerned the religious duties of
believers, were also symbols of a holiday that had both
secular and religious meaning. See Lynch, 465 U.S. at 680;
Allegheny, 492 U.S. at 613-14. Therefore, simply because the
Ten Commandments may prescribe religious duties for Jews
and Christians, that fact alone does not detract from its place
as a symbol of the religious origins of our law and
government.
Finally, there is no evidence that would undermine the
defendants’ fifth articulated purpose: to create a limited
public forum on the walls of the Harlan County school
buildings for the purpose of posting historical documents that
played a significant role in the development, origins, or
foundations of American and Kentucky law. “The
establishment of a public forum is a laudable goal, and part of
a worthy tradition dating back to the Greek agora and the
Roman forum.” Americans United for Separation of Church
& State v. City of Grand Rapids, 980 F.2d 1538, 1543 (6th
Cir. 1992). There is simply no indication in the record that
the defendants have manipulated the forum in any way or
have excluded other speakers from using the forum in a
manner that would cause us to believe that this purpose is a

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sham. See Capitol Square Review & Advisory Bd. v. Pinette,
515 U.S. 753, 766 (1995) (plurality opinion).
The majority raises an objection to the “evolution” of the
displays. In doing so, it adopts the reasoning of the district
court, which held that the history of the defendants’ earlier
attempts to erect constitutionally invalid displays
conclusively “imprinted the defendants’ purpose, from the
beginning, with an unconstitutional taint[.]” McCreary II,
145 F. Supp. 2d at 850. This theory of indelible,
unconstitutional “taint” not only offends common sense, it is
also contrary to the law of this circuit.
We have explicitly rejected the idea that the government’s
past unconstitutional conduct forever taints its actions in the
future. In Granzeier v. Middleton, 173 F.3d 568 (6th Cir.
1999), we considered whether closing government offices on
Good Friday was done for a religious purpose, violating the
Establishment Clause. The county’s claimed secular purpose
was that Good Friday had become part of an extended spring
weekend in which many people took a short vacation and
very little business was conducted. As evidence that this
explanation was a sham, the plaintiffs produced a government
sign the defendant had previously posted that depicted a
crucifix and stated that the offices were being closed in
observance of Good Friday. We rejected the plaintiffs’
contention that the defendant’s earlier religious purpose
forever tainted the secular purpose it proffered at trial. “[T]he
fact that a particular closing was once constitutionally suspect
does not prevent it from being reinstated in a constitutional
form.” Id. at 574.
We noted our agreement with Judge Posner of the Seventh
Circuit who reasoned in a case factually similar to Granzeier,
that “Illinois can accomplish much the same thing either by
officially adopting a ‘spring weekend’ rationale for the law,
in place of the governor’s proclamation of a state religious
holiday, or by moving to a system of local option for school
72 ACLU, et al. v. McCreary County, et al. No. 01-5935
districts.” Metzl v. Leininger, 57 F.3d 618, 623-24 (7th Cir.
1995).
If a unit of government’s past unconstitutional conduct
forever taints its actions in the future, we would not have
advised the defendants in Adland, 307 F.3d 471, that they
could cure the constitutional defects in their Ten
Commandments display by changing its composition.
While we cannot pass on the merits of plaintiffs’
proposals [to amend the display], we are nevertheless
confident that with careful planning and deliberation, and
perhaps consultation with the plaintiffs, the
Commonwealth can permissibly display the [Ten
Commandments] monument in question.
Id. at 490 (emphasis added).
Our sister circuits have likewise rejected the idea that a
prior unconstitutional display forever taints a subsequent
display as religious. In ACLU v. Schundler, 168 F.3d 92 (3d
Cir. 1999), the Third Circuit approved a city’s Christmas
display that had been modified in response to an
Establishment Clause challenge:
The mere fact that Jersey City’s first display was held to
violate the Establishment Clause is plainly insufficient to
show that the second display lacked a secular legislative
purpose, or that it was intend[ed] to convey a message of
endorsement or disapproval of religion.
Id. at 105 (internal quotation marks and citations omitted). In
fact, in Books, 235 F.3d 292, the Seventh Circuit actually
imposed on the defendant an affirmative duty to modify an
unconstitutional display:
[T]he district court must ensure that, although the
condition that offends the Constitution is eliminated, [the
city] retains the authority to make decisions regarding the

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No. 01-5935 ACLU, et al. v. McCreary County, et al. 73
placement of the monument. In making those decisions,
[the city] has the right and, indeed, the obligation to take
into consideration the religious sensibilities of its people
and to accommodate that aspect of its citizens’ lives in
any way that does not offend the strictures of the
Establishment Clause.
Id. at 307 (emphasis added).
The U.S. Supreme Court’s holding in Santa Fe Independent
School District v. Doe, 530 U.S. 290 (2000), did not overrule
these cases; nor does it require us to find that the defendants’
displays are unconstitutional merely due to some past
constitutional violation. In Santa Fe, the plaintiffs challenged
a school district practice that permitted students to deliver
invocations and benedictions at graduation ceremonies and
football games through the elected office of student council
chaplain. In response, the defendants modified their policy in
order to permit students, “with the advice and counsel of the
senior class principal” to decide by vote whether to have an
invocation at graduation. Id. at 296 (internal quotation marks
and citation omitted). Later, the District drafted another
policy entitled “Prayer at Football Games” that permitted
students to decide whether to have an invocation at football
games. Id. at 297. The final iteration of the policy, the
“October policy,” permitted students to vote whether they
wanted to have a student-led “invocation and/or message” at
football games, and, if so, who should give the invocation or
message. Id. at 298 & n.6. It was the October policy that was
at issue in Santa Fe.
Significantly, the Court announced its holding by stating
that “the text of the October policy alone reveals that it has an
unconstitutional purpose.” Id. at 314 (emphasis added).
Thus, while the Court discussed the evolution of the District’s
prayer policy, see id. at 315, it expressly limited its holding to
“[t]he narrow question . . . [of] whether implementation of the
October policy insulates the continuation of such prayers
from constitutional scrutiny.” Id. At most, Santa Fe held that
74 ACLU, et al. v. McCreary County, et al. No. 01-5935
a modified policy, or display, cannot be used as a shield to
prevent litigation. However, Santa Fe does not state that a
history of unconstitutional displays can be used as a sword to
strike down an otherwise constitutional display.
Based on the record before us, there is abundant evidence
to conclude that the defendants’ declared purposes for
erecting these displays were primarily secular, a complete
lack of evidence that their purpose was primarily religious,
and, therefore, no evidence whatever that the defendants’
declared purposes constitute a hoax or fraud upon this court.
I conclude that the defendants’ displays do not violate the first
prong of the Lemon test.
B.
The second element of the Lemon test, as modified in
Lynch, is whether a reasonable observer would believe that
the challenged government action constitutes an
“endorsement” of religion. Lynch, 465 U.S. at 691-94
(O’Connor, J., concurring). Incidentally, the opinions of my
brother, Judge Clay, on this issue, are his own and do not
represent those of the majority of the panel.
The first thing that must be said about the Lemon
endorsement test, is that it asks whether a “reasonable
observer”—not a proselytizing religious zealot committed to
the establishment of a state religion, or, on the other hand, an
indefatigable professional litigant dedicated, in the name of
civil liberty, to expunging God, religion, and all reference to
religion from the public square—would understand these
displays as having a primarily religious purpose and the
principal or primary effect of endorsing religion.
As it did with respect to the secular purpose issue, Justice
O’Connor’s concurrence in Lynch “provides a sound
analytical framework for evaluating governmental use of
religious symbols” to decide the endorsement issue.
Allegheny, 492 U.S. at 595. Lynch, the reader will recall,

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upheld a Christmas display that included a crèche, a Santa
Claus house, reindeer, clowns, an elephant, a teddy bear,
colored lights, and a sign bearing the phrase “Seasons
Greetings.” Lynch, 465 U.S. at 671. Justice O’Connor
concluded that although the crèche was an inherently
religious symbol, a reasonable observer would not view the
overall display as an endorsement of religion:
Although the religious and indeed sectarian significance
of the crèche, as the District Court found, is not
neutralized by the setting, the overall holiday setting
changes what viewers may fairly understand to be the
purpose of the display—as a typical museum setting,
though not neutralizing the religious content of a
religious painting, negates any message of endorsement
of that content.
Id. at 692 (O’Connor, J., concurring).
Justice O’Connor cited “legislative prayers . . . ,
government declaration of Thanksgiving as a public holiday,
printing of ‘In God We Trust’ on coins, and opening court
sessions with ‘God save the United States and this honorable
court,’” as examples of “government acknowledgments of
religion” rather than endorsements of it. Id. at 693 (internal
citations omitted). She stated: “[The] history and ubiquity
[of] those practices are not understood as conveying
government approval of particular religious beliefs.” Id.
They
serve, in the only ways reasonably possible in our
culture, the legitimate secular purposes of solemnizing
public occasions, expressing confidence in the future,
and encouraging the recognition of what is worthy of
appreciation in society.
Id.
76 ACLU, et al. v. McCreary County, et al. No. 01-5935
The Supreme Court returned to the issue of government use
of religious symbols and the endorsement issue in Allegheny,
when it considered the legality of two separate holiday
displays. The Court held that the first display, a crèche that
stood alone in a prominent location inside the county
courthouse, violated the Establishment Clause because
“nothing in the context of the display detracts from the
crèche’s religious message.” Allegheny, 492 U.S. at 598. The
Court found it significant that, unlike the crèche in Lynch, the
Allegheny County crèche was not accompanied by other
secular symbols of Christmas. However, the Court approved
the second challenged display—a Christmas tree, a menorah,
and a sign entitled “Salute to Liberty”—which was located at
the city-county building. Justice Blackmun concluded that
the second display, in which a religious symbol, the menorah,
stood alongside two secular symbols, the Christmas tree and
the sign, would not be perceived by the reasonable observer
as an endorsement of religion: “[F]or purposes of the
Establishment Clause, the city’s overall display must be
understood as conveying the city’s secular recognition of
different traditions for celebrating the winter-holiday season.”
Id. at 620 (Blackmun, J., concurring) (emphasis added).
Applying the analysis from Lynch and Allegheny, this court
in Adland found that a reasonable observer would perceive a
six-foot granite monument of the Ten Commandments as an
endorsement of religion and that nothing in the overall
display, which included a clock and several small plaques,
reduced or diluted this message of endorsement. The court
said it came to that conclusion largely because the monument
“physically dominate[d]” the display and “‘dwarf[ed]’ all the
other memorials . . . in the vicinity.” Adland, 307 F.3d at 487
(internal quotation marks and citation omitted). But we
explicitly left the door open for the possibility that some other
display that included the Ten Commandments, in addition to
secular articles, might pass the Lemon endorsement test if the
overall display conveyed “an easily discernible, unified theme
to a reasonable observer.” Id. at 488.

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Without a unifying theme to hold the display together, a
reasonable observer could only view the monuments
separately. If a reasonable observer views the
monuments separately, unconnected by a common
context, his or her attention is naturally drawn to the Ten
Commandments monument, the largest monument in the
display, and its accompanying religious message.
Id.
But that is not this case. Here, the exhibition of ten
documents, one religious and the rest secular, all of identical
size, none having a position of prominence greater than
another, and the whole labeled as contributing to “the
foundation of American Law and Government,” possesses a
“unifying theme” that “hold[s] the display together” and
conveys a single secular message that is spelled out in each
display. No reasonable observer would ignore the nine
secular documents in the display, including the one explicitly
declaring the secular purpose for the display, and focus
exclusively on the single religious document in order to
conclude that the display is an endorsement of religion.
Just like the menorah, the Christmas tree, and the “Salute
to Liberty” sign in Allegheny, and the crèche, the reindeer, the
Santa Claus house, and related secular paraphernalia in
Lynch, and in each display in this case, it is the documents in
their totality that comprise the defendants’ displays.
Therefore, it is the documents in their totality, their unifying
theme, that must be assessed to determine whether a
reasonable observer would see them as having the “principal
or primary effect” of endorsing religion.
My colleague rejects as “transparent” the defendants’
“attempt to ‘secularize’ the displays by surrounding the Ten
Commandments with other patriotic documents and
symbols.” Maj. op. at 39. Thus, contrary to the directives of
the Supreme Court on this issue, my colleague refuses to
evaluate the displays in their totality, including the statement
78 ACLU, et al. v. McCreary County, et al. No. 01-5935
of educational purpose that is part of each display, but instead
focuses exclusively on the single framed copy of the Ten
Commandments and the history of the defendants’ repeated
efforts to assemble a display that would satisfy even federal
judges.
My colleague makes much of the fact that the Ten
Commandments have a “‘religious nature.’” Maj. op. at 38
(quoting McCreary II, 145 F. Supp. 2d at 851). This
indisputable characterization of the Ten Commandments,
however, has nothing to do with the issue of our endorsement
inquiry, which asks “‘what viewers may fairly understand to
be the purpose of the display.’” Allegheny, 492 U.S. at 595
(emphasis added) (quoting Lynch, 465 U.S. at 692
(O’Connor, J., concurring)). In both Lynch and Allegheny,
the Supreme Court approved of displays that contained
inherently religious, even sectarian, symbols: the crèche and
the menorah. The crucial fact of both of those cases was not
that the symbols were religious, but that they were
accompanied by secular symbols that, taken together,
conveyed no message of endorsement. See Lynch, 465 U.S.
at 679-81; Allegheny, 492 U.S. at 613-14. By focusing on the
religious aspect of only one part of the defendants’ displays,
my colleague conducts precisely the same analysis that the
Supreme Court rejected in Lynch:
The District Court plainly erred by focusing almost
exclusively on the crèche. When viewed in the proper
context of the Christmas Holiday season, it is apparent
that, on this record, there is insufficient evidence to
establish that the inclusion of the crèche is a purposeful
or surreptitious effort to express some kind of subtle
governmental advocacy of a particular religious message.
In a pluralistic society a variety of motives and purposes
are implicated.
Lynch, 465 U.S. at 680. My colleague’s error may be
summed up as follows: “Focus exclusively on the religious

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component of any activity would inevitably lead to its
invalidation under the Establishment Clause.” Id.
In concluding that a reasonable observer would understand
these displays, in their totality, as conveying a message of
endorsement of religion, because of the religious “taint”
imparted by the Ten Commandments, my colleague attributes
to reasonable observers an utter lack of common sense, a
profound ignorance of American history, and, arguably, an
outright hostility to religion in our nation’s public life. In my
judgment, no reasonable observer, gazing at these displays in
McCreary, Pulaski, and Harlan counties could fail to
appreciate what, apparently, my colleague does not: that from
the founding of the republic, religion was and always has
been, an inherent component of the law and culture of our
pluralistic society, and that saying so in the public square
acknowledges religion, but does not endorse it.
The Supreme Court itself has declared that “religion has
been closely identified with our history and government.”
Abington Sch. Dist. v. Schempp, 374 U.S. 203, 212 (1963).
It is uncontested that depictions of the Ten Commandments
and Moses appear in secular context in, among other places,
the United States House chamber, the entrance to the national
archives, and in three separate locations in the United States
Supreme Court, as well as numerous courtrooms and legal
settings across the country.
The history and ubiquity of the Ten Commandments in
public buildings throughout the country and the universal
practice of courts and legislatures publicly invoking God’s
blessing and guidance each day, before beginning the public’s
business, confirm the obvious: The inclusion of the Ten
Commandments in these displays did nothing more than
acknowledge the indisputable historical role of religion, and
especially the canons of the Decalogue, as one of many
principles, ideas, values, and impulses that, taken together,
influenced the founders of this republic in shaping our law
and government. Indeed, to have omitted the Ten
80 ACLU, et al. v. McCreary County, et al. No. 01-5935
Commandments from the collage of documents the
defendants labeled “part of the foundations of American Law
and Government,” would have been historically inaccurate.
No reasonable observer would consider the defendants’
displays to have the “principal or primary effect” of endorsing
religion.
V.
My colleagues’ reasoning and conclusions are faithful
neither to the language and meaning of the Establishment
Clause nor to the Supreme Court’s interpretation of it. What
the Supreme Court said about the Christmas display in Lynch
is perfectly applicable to the historical document displays in
this case:
The Court has acknowledged that the fears and
political problems that gave rise to the Religion Clauses
in the 18th century are of far less concern today. We are
unable to perceive the Archbishop of Canterbury, the
Bishop of Rome, or other powerful religious leaders
behind every public acknowledgment of the religious
heritage long officially recognized by the three
constitutional branches of government. Any notion that
these symbols pose a real danger of establishment of a
state church is far-fetched indeed.
Lynch, 465 U.S. at 686 (internal quotation marks and citations
omitted) (emphasis added).
The district court erred in the legal analysis it applied and
clearly erred in its findings of fact in holding that these
displays violate the Establishment Clause. Therefore, it also
erred in its conclusion that the plaintiffs have a likelihood of
success on the merits of their claim, and perforce, abused its
discretion in issuing its preliminary injunction.
I would reverse the district court’s judgment and set aside
the preliminary injunction.

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