American Civil Liberties Union of Ohio Foundation, Inc. v. ROBERT ASHBROOK, Sued Here in His Official Capacity as Richland County Commissioner

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RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit Rule 206
ELECTRONIC CITATION: 2004 FED App. 0224P (6th Cir.)
File Name: 04a0224p.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
_________________
AMERICAN CIVIL LIBERTIES
UNION OF OHIO FOUNDATION,
INC.,
Plaintiff-Appellee,
v.
ROBERT ASHBROOK, Sued
Here in His Official Capacity
as Richland County
Commissioner,
Defendant,
JAMES DEWEESE, Hon., Sued
Here in His Official Capacity
as a Judge of the Richland
County Court of Common
Pleas,
Defendant-Appellant.
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No. 02-3667
Appeal from the United States District Court
for the Northern District of Ohio at Cleveland.
No. 01-00556—Kathleen McDonald O’Malley,
District Judge.
Argued: October 31, 2003
2 Am. Civil Liberties Union
v. Ashbrook, et al.
No. 02-3667
*The Honorable Joseph M. Hood, United States District Judge for the
Eastern District of Kentucky, sitting by designation.
Decided and Filed: July 14, 2004
Before: BATCHELDER and COLE, Circuit Judges;
HOOD, District Judge.*
_________________
COUNSEL
ARGUED: Francis J. Manion, AMERICAN CENTER FOR
LAW AND JUSTICE, New Hope, Kentucky, for Appellant.
Raymond Vasvari, AMERICAN CIVIL LIBERTIES UNION
OF OHIO FOUNDATION, Cleveland, Ohio, for Appellee.
ON BRIEF: Francis J. Manion, AMERICAN CENTER
FOR LAW AND JUSTICE, New Hope, Kentucky, for
Appellant. Raymond Vasvari, AMERICAN CIVIL
LIBERTIES UNION OF OHIO FOUNDATION, Cleveland,
Ohio, for Appellee. David R. Langdon, LAW OFFICE OF
DAVID R. LANGDON, Cincinnati, Ohio, for Amicus Curiae.
HOOD, D. J., delivered the opinion of the court, in which
COLE, J., joined. BATCHELDER, J. (pp. 19-42), delivered
a separate dissenting opinion.
_________________
OPINION
_________________
HOOD, District Judge. Defendant, a judge in the General
Division of the Court of Common Pleas in Richland County,
Ohio, appeals the district court’s order granting Plaintiff’s
motion for partial summary judgment and denying summary
judgment for Defendant on the issue of whether his courtroom

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1The text of the T en Comm andments hanging in his courtroom reads
as follows:
I. Thou shalt have no other gods before me.
II. Thou shalt not make unto thee any graven image.
Thou shalt not bow down thyself to them, nor
serve them for I the LORD thy God am a jealous
God.
III. Thou shalt not take the name of the LORD they
God in vain; for the LORD will not ho ld him
guiltless that taketh his name in vain.
display of the Ten Commandments violated the Establishment
Clause of the First Amendment. For the reasons set forth
below, we AFFIRM the decision of the district court.
I. BACKGROUND
In July 2000, James DeWeese, the elected judge of the
General Division of the Court of Common Pleas in Richland
County, Ohio, hung a poster of the Ten Commandments in a
gilded frame on the wall of his courtroom, Courtroom
Number One. The poster hung on a side wall of the
courtroom, near the front of the audience section. Directly
opposite and across the gallery from the poster of the Ten
Commandments, he hung a similarly styled and framed poster
of the Bill of Rights.
DeWeese had created both of these posters on his computer
and had them enlarged and framed at a local framing store, all
at his personal expense. The style of the posters is identical.
At the top, in the largest size print on the page, are the words
“the rule of law.” Next, in smaller-sized and all-capital
typeface, one poster bears the words “THE TEN
COMMANDMENTS.” In identical typeface, the other poster
bears the words “BILL OF RIGHTS.” Finally, each poster
contains the text of the relevant documents.1 No captions or
4 Am. Civil Liberties Union
v. Ashbrook, et al.
No. 02-3667
IV. Remember the sabbath d ay, to keep it holy. Six
days thou shalt labor, and do all thy work. But the
seventh day is the sabbath of the LORD thy God:
in it thou shalt not do any work.
V. Honor thy father and thy m other: that thy days
may be long upon the land which the LORD God
giveth thee.
VI. Thou sha lt not kill.
VII. Thou sha lt not commit adultery.
VIII. Thou sha lt not steal.
IX. Thou shalt not bear false witness against thy
neighbor.
X. Thou shalt not covet thy neighbor’s house, thou
shalt not cove thy neighb or’s wife, nor his
manservant, nor his maidservant, nor his ox, nor
his ass, nor anything that is thy neighbor’s.
plaques accompany these posters to describe or explain their
purpose or to tie either of the posters together into a unified
display with one another or any other items displayed in the
courtroom or in the vicinity of the courtroom.
Also in the courtroom are three posters featuring portraits
of and quotations from Thomas Jefferson, James Madison,
and Alexander Hamilton concerning the virtues of the jury
trial system. The posters were hung on the rear wall of the
courtroom in 1993. Above the jury box hangs a portrait of
Abraham Lincoln already present in the courtroom when
DeWeese came onto the bench in 1991. On the front wall
hangs the seal and the motto of the State of Ohio, “With God
All Things Are Possible.” These items were placed in the
courtroom in 1991 or 1992.

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2The County Co mmissioners were not the subject of the district
court’s order granting Plaintiff’s motion for partial summary judgment
and denying De fendant DeW eese’s motion for summary judgment and are
not parties to this appeal.
DeWeese’s courtroom is located on the third floor of the
Richland County Courthouse and shares a lobby area with the
three other courtrooms located on that floor. On the third
floor, there are also several elevators, stairwells, offices, and
restrooms. There are two displays in the lobby area. The
first, the “Freedom Shrine,” is a display of twenty-nine
reproductions of historical documents arranged and donated
by the National Exchange Club. The historical documents
include the Mayflower Compact, presidential inaugural
speeches, and the text of the “Star Spangled Banner,” and
were chosen to memorialize the founding of the country and
subsequent moments of historical import. The display was
hung sometime in the 1980s. There is also a separate poster
containing the portraits of nine historical figures and
quotations regarding the history of the jury system.
Plaintiff-Appellee American Civil Liberties Union of Ohio
Foundation, Inc. (“ACLU-Ohio”), brought this action on
behalf of members in Richland County, Ohio, against
DeWeese and the Commissioners of Richland County, Ohio,
all in their official capacities.2 ACLU-Ohio asserted that the
hanging and continued display of the Ten Commandments
violated the Establishment Clause of the First Amendment to
the United States Constitution and Article I, § 7, of the Ohio
Constitution. ACLU-Ohio requested a permanent injunction
and order directing removal of the Ten Commandments
poster. The district court granted ACLU-Ohio’s motion for
partial summary judgment against DeWeese, denied
Defendants’ cross-motion for summary judgment, and
ordered DeWeese to remove the poster immediately. This
appeal followed.
6 Am. Civil Liberties Union
v. Ashbrook, et al.
No. 02-3667
II. STANDARD OF REVIEW
We review district court orders granting summary judgment
de novo. Black v. Roadway Express, Inc., 297 F.3d 445, 448
(6th Cir. 2002). More to the point, it is taught that:
...in reviewing a district court's grant of a permanent
injunction, we review the district court's conclusions of
law and its findings of constitutional, or ultimate, facts
de novo. See Grutter v. Bollinger, 288 F.3d 732, 743 (6th
Cir.2002). We review the district court's findings of
subsidiary facts for clear error. Deja Vu v. Metro. Gov't
of Nashville, 274 F.3d 377, 389 (6th Cir. 2001).
Adland v. Russ, 307 F.3d 471, 477 (6th Cir. 2002).
III. DISCUSSION
A. STANDING
Standing to sue requires an individual to demonstrate
(1) actual or threatened injury which is (2) fairly traceable to
the challenged action and (3) a substantial likelihood the relief
requested will redress or prevent the plaintiff's injury.
Adland, 307 F.3d at 477-78. A voluntary membership
organization has standing to sue on behalf of its members
“when (a) its members otherwise have standing to sue in their
own right; (b) the interests it seeks to protect are germane to
the organization's purpose; and (c) neither the claim asserted
nor the relief requested requires participation of individual
members in the lawsuit.” Hunt v. Washington State Apple
Adver. Comm., 432 U.S. 333, 343 (1977); Adland, 307 F.3d
at 478. Thus, in Adland, the court found standing where
individual plaintiffs frequently traveled to the Kentucky State
Capitol to engage in political advocacy for a variety of
organizations and would endure direct and unwelcome
contact as a result of legislation proposing erection of a

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3Unlike Judge Batchelder, we d o not take the S upreme C ourt’s
decision in Valley Forge Christian College v. Americans United for the
Separation of Church and State to stand for the proposition that
psychological injury can never be a sufficient basis for the conferral of
Article III standing. See Valley Forge Christian College v. Americans
United for the Separation of Ch urch and State, 454 U.S. 464 (1982). In
that case, the Supreme Court held that the individuals in whose name the
organization brought suit had failed to establish that they had actually
been injured by the D epartment of Ed ucation’s decision to transfer some
of its surplus land to a private, Christian college, operating under the
auspices of the Assemblies of God Church. Although the Supreme Court
explicitly stated that injuries that mere ly amount to “the psychological
consequence presumably produced by observation of conduct with which
one disagrees” are insufficient to confer standing under Article III, we
believe that this statement cannot be read without taking the particular
circumstances of that case into account. In fact, the S upreme C ourt’s
decision that the Valley Forge plaintiffs lacked standing b ecause its
members had suffered no direct injury was based, in large part, on the fact
that although the prope rty transfer o ccurred in C hester C ounty,
Pennsylvania, while the named plaintiffs resided in Maryland and
Virginia and “learned of the transfer through a news release.” Id. at 487.
Accordingly, this circuit and other circuits have read Valley Forge’s
language as depending in no small part on the directness of the harm
alleged. Thus, in Washegesic v. Bloo mingda le Pu blic Scho ols, the court
held that a former student had standing to challenge a school’s hanging
of a picture of Je sus in the school’s hallway. Washeg esic v. B loom ingd ale
Public Schools, 33 F.3d 679, 682-83 (6th Cir. 1994). There, the court
found that the matter was distinguishable from Valley Forge because of
the plaintiff’s “continuing direct contact with the object at issue.” In
Adland v. Russ, the court conferred standing on a group of plaintiffs who
challenged the placement of a Ten Comm andments monument on the
capitol grounds. Adland v. Russ, 307 F.3d 471 (6th Cir. 2002). The court
found that the fact that the plaintiffs “frequently travel[ed] to the State
Capitol to engage in political advocacy for a variety of organizations and
that they will endure direct and unwelcome contact with the Ten
Commandments monument,” was sufficient to meet the “injury-in-fact”
requirement for stand ing. Id. at 478. Contrary to what the dissent deems
to be a mis-reading of the Valley Forge precedent, this circuit’s
elaboration of Valley Forge is consistent with both the principles
established therein, and with the articulations of our sister circuits. See
Murray v. Austin, 947 F.2d 14 7, 151 (5th Cir. 1991); ACLU v. St. James,
proposed Ten Commandments monument there.3 Adland,
8 Am. Civil Liberties Union
v. Ashbrook, et al.
No. 02-3667
794 F.2d 265, 268 (7th Cir. 1986); Rabun County, 698 F.2d 1098, 1108
(11th Cir. 1983).
4There is a “crucial difference between government speech endorsing
religion, which the Establishment Clause forbids, and priva te speech
endorsing religion, which the Free Speech and Free Exercise Clauses
protect.” Santa Fe Independent School Dist. v. Doe, 530 U.S. 290, 302
307 F.3d at 478. Standing for their co-Plaintiff, the American
Civil Liberties Union, a voluntary membership organization,
followed from their own standing under the test set out above.
Id. at 478-79.
ACLU-Ohio has identified member Bernard Davis, a
lawyer who travels to and must practice law within
DeWeese’s courtroom from time to time. There, Davis has
and would continue to come into direct, unwelcome contact
with the Ten Commandments display, the removal of which
would, no doubt, prevent further injury to him. The interest
protected by this challenge on his behalf is, no doubt,
germane to the ACLU-Ohio’s stated purpose, the preservation
of the constitutional separation of church and state. The
declaratory and injunctive relief and attorneys fees sought in
this matter would not require the direct participation of any
ACLU-Ohio member. It follows that the ACLU-Ohio has
standing to assert the instant challenge to DeWeese’s display.
B. THE LEMON TEST
The Establishment Clause of the First Amendment, made
applicable to the states by the Fourteenth Amendment, states
that “Congress shall make no law respecting an establishment
of religion.” U.S. CONST., amend. I; Everson v. Bd. of Educ.,
330 U.S. 1, 8 (1947). Thus, “[t]he Establishment
Clause...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.’”4 County of Allegheny

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(2000) (quoting Board of Educ. of Westside Commun ity Schools v.
Mergens, 496 U.S. 226 , 250 (1990) (O’C onno r, J., concurring) (emp hasis
in original)). DeW eese’s p osters are situated in a courtroo m, a public
space, and were placed on the wall by a sitting judge charged with the
decoration of that space while in office and presiding in the same
courtroom. As such, we reject Judge DeW eese’s contention that the
display constitutes private religious expre ssion protected by the Free
Speech Clause, falling beyond the bound s of Establishment Clause
scrutiny. Indeed, they constitute government speech subject to the
strictures of the Establishment Clause.
5Notwithstanding oft-aired criticism and debate abo ut the Lemon test,
sentime nts shared and vo iced in App ellant’s brief, Lemon remains the
law, providing the framework in Establishment Clause cases such as the
instant matter and binding this interm ediate federal court until such time
as it is explicitly overruled or ab andoned by the Supreme Court. ACLU
of Ohio v. Capital Square Review & Advisory Bd., 243 F.3d 289, 306 &
n. 15 (6th Cir. 2001) (en banc); Adland, 307 F.3d at 479 (6th Cir. 2002)
(citing Grutter v. Bollinger, 288 F.3d 73 2, 743) (6th Cir. 2002)).
v. Am. Civil Liberties Union, 492 U.S. 573, 593-94 (1989)
(quoting Lynch v. Donnelly, 465 U.S. 668 (1984)), quoted in
American Civil Liberties Union of Kentucky v. McCreary
County, Kentucky, 354 F.3d 438, 445 (6th Cir. 2003). To
determine whether a particular action by the government
violates the Establishment Clause, we apply the test set forth
in Lemon v. Kurtzman, asking (1) whether the challenged
government action has secular purpose, (2) whether the
action’s primary effect advances or inhibits religion, and
(3) whether the action fosters an excessive entanglement with
religion.5 Lemon v. Kurtzman, 403 U.S. 602, 612-13 (1971);
Adland, 307 F.3d at 479.
1. PURPOSE
“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.’” McCreary County, 354 F.3d at 446
10 Am. Civil Liberties Union
v. Ashbrook, et al.
No. 02-3667
(quoting Santa Fe Indep. Sch. Dist. v. Doe, 530 U.S. 290, 308
(2000)). Thus, a plaintiff must show that the predominate
purpose for a challenged display is religious, although a
totally secular purpose is not required. Id. (citing Adland, 307
F.3d at 480). At the end of the day, the display must not
constitute a “purposeful or surreptitious effort to express
some kind of subtle governmental advocacy of a particular
religious message.” Id. (quoting Lynch, 465 U.S. at 680).
“The Ten Commandments are undeniably a sacred text in
the Jewish and Christian faiths, and no legislative recitation
of a supposed secular purpose can blind us to that fact[....,]”
but the Supreme Court has established no per se rule that
displaying the Ten Commandments in an public setting is
unconstitutional. Stone v. Graham, 449 U.S. 39, 41-42
(1980); see Edwards v. Aguillard, 482 U.S. 578, 593-94 and
607-08 (Powell, J., concurring) (1987) . While not holding
that all displays or uses of the Ten Commandments evinced
a sectarian purpose, the Supreme Court has determined that,
as a text:
...the Commandments do not confine themselves to
arguably secular matters....Rather, the first part of the
commandments concerns the religious duties of
believers: worshiping the Lord God alone, avoiding
idolatry, not using the Lord’s name in vain, and
observing the Sabbath day.
Id. at 41-42.
This is to say that, notwithstanding the contents of the text,
it would be possible for a government actor to use the
Decalogue in a constitutionally permissible manner where, for
example, it is “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. see Aguillard, 482 U.S. at 594
(“[Stone] did not mean that no use could ever be made of the

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Ten Commandments, or that the Ten Commandments played
an exclusively religious role in the history of Western
Civilization.”). This was not the case in Stone, where the
Supreme Court was faced with a Kentucky statute requiring
that the Ten Commandments be posted in each classroom
with a notation indicating the secular application of the Ten
Commandments as it was incorporated into the “fundamental
legal code of Western Civilization and the Common Law of
the United States.” Stone v. Graham, 449 U.S. 39, 41 (1980);
see Lynch, 465 U.S. at 679 (“The Court [in Stone] carefully
pointed out that the Commandments were posted purely as a
religious admonition, not integrated into the school
curriculum.”).
Accordingly and considering the facts in the instant matter,
we agree with the district court that DeWeese has not posted
his display with a permissible secular purpose. DeWeese has
testified that:
My intent in posting these documents was to use them
occasionally in educational efforts when community
groups come to the courtroom and ask me to speak to
them. These documents are useful in talking about the
origins of law and legal philosophy and about the rule of
law as opposed to the rule of man.
J.A. at 75. He continued, stating that he chose the Ten
Commandments because they were emblematic of moral
absolutism and that he chose them to express the belief that
law comes either from God or man, and to express his belief
that the law of God is the “ultimate authority.” J.A. at 135-
37. He explained that in the course of his educational efforts
he would point to the Ten Commandments as an example of
God as the ultimate authority in law. J.A. at 153.
As a result, the district court noted that DeWeese’s purpose
was:
12 Am. Civil Liberties Union
v. Ashbrook, et al.
No. 02-3667
...(1) to instruct individuals that our legal system is based
on moral absolutes from divine law handed down by God
through the Ten Commandments and (2) to help foster
debate between the philosophical position of moral
absolutism (as set forth in the Ten Commandments) and
moral relativism in order to address what he perceives to
be a moral crisis in this country.
American Civil Liberties Union of Ohio Foundation, Inc. v.
Ashbrook, 211 F.Supp.2d 873, 888 (N.D. Ohio 2002). The
district court concluded that “[a] state actor officially
sanctioning a view of moral absolutism in his courtroom by
particularly referring to the Ten Commandments espouses an
innately religious view and, thus, crosses the line created by
the Establishment Clause.” Id. at 889 (emphasis in original).
Despite his stated intent to use the display for educational
purposes, DeWeese has not described a role for the Ten
Commandments poster in his educational errand other than to
admonish participants in talks or programs in his courtroom
to look to the Commandments as a source of law. His own
testimony belies the secular purpose he wishes to ascribe to
it, and, as he acted alone in posting the display, his stated
purpose for the display must guide the decision in this matter.
Accordingly, we find that the district court properly applied
the first prong of the Lemon test and did not misapply the
teaching of Stone v. Graham, as Appellant contends.
DeWeese wore his “heart” on his shirt sleeve during his
deposition, and the district court properly relied upon his
testimony when it determined that DeWeese’s purpose in
posting the Ten Commandments revealed a predominate non-
secular purpose for the display. The display fails the first
prong of the test and constitutes a violation of the
Establishment Clause of the First Amendment.

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2. ENDORSEMENT
In order to ascertain the primary effect of the action under
the second prong of the Lemon test, we apply the
“endorsement” test, asking whether or not a reasonable
observer would believe that a particular action constitutes an
endorsement of religion by the government. Baker v. Adams
County/Ohio Valley Sch. Bd., 310 F.3d 927, 929 (6th Cir.
2002); Adland, 307 F.3d at 479. We ask whether a reasonable
observer “acquainted with the text,...history, and
implementation” of DeWeese’s display of the Ten
Commandments in his courtroom would view it as a state
endorsement of religion. Santa Fe Indep., Sch. Dist., 530
U.S. at 308; McCreary County, 354 F.3d at 458. “[T]he
inquiry must be viewed under the ‘totality of the
circumstances surrounding the display....[,]’” including the
contents and the presentation of the display, because the
effect of the government’s use of religious symbolism
depends on context. McCreary County, 354 F.3d at 458
(quoting Books v. City of Elkhart, Indiana, 235 F.3d 292, 304
(7th Cir. 2000)).
In identifying the appropriate context in which to consider
a religious symbol, the Supreme Court has rejected expansive
notions of context in decisions involving Christmas-time
creche displays, demonstrating how the failure to integrate
religious symbols with an overall secular theme can result in
the endorsement of religion. County of Allegheny, 492 U.S.
at 598. In Allegheny, the Supreme Court determined that
secular holiday symbols located elsewhere in the courthouse
and at a distance from what it deemed to be an impermissible
creche display could not:
...negate the endorsement effect of the creche. The
record demonstrates clearly that the creche, with its floral
frame, was its own display distinct from any other
decorations or exhibitions in the building.
14 Am. Civil Liberties Union
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No. 02-3667
Id. at 598, n. 48. It refused to equate this creche display with
another located in the midst of contemporaneously erected
secular holiday symbols.
In determining what constitutes a constitutionally
permissible display of the Ten Commandments in a
government building, the McCreary County court stated that
“the symbols must be interconnected in a manner that is
facially apparent to the observer[,] and...the interconnection
must be secular in nature.” McCreary County, 354 F.3d at
459. When secular and non-secular items are displayed
together, we consider whether the secular image “detracts
from the message of endorsement; [or if] rather, it specifically
links religion ... and civil government.” Books, 235 F.3d at
307. In the case of a single religious symbol or document
placed alongside symbols of patriotic or political importance,
it is understood that:
the reasonable observer will see one religious code
placed alongside...political or patriotic documents, and
will understand that the [government actor] promote[s]
that one religious code as being on a par with our
nation’s most cherished secular symbols and documents.
This is endorsement....
American Civil Liberties Union of Kentucky v. McCreary
County, Kentucky, 145 F. Supp. 2d 845, 851 (E.D. Ky. 2001),
quoted in McCreary County, 354 F.3d at 459.
Thus, this Court has condemned transparent attempts to
“secularize” displays of the Ten Commandments by
surrounding them with other patriotic documents and
symbols. McCreary County, 354 F.3d at 460 (citing Indiana
Civil Liberties Union v. O'Bannon, 259 F.3d 766, 773 (7th
Cir.2001) (holding that a display consisting of Bill of Rights,
Preamble to Indiana Constitution and Ten Commandments
would signal to reasonable observer that “the state approved
of such a link, and was sending a message of endorsement.”)).

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Similarly, the Seventh Circuit Court of Appeals found in
Books that a Ten Commandments monument topped with an
American eagle gripping the national colors had the
impermissible effect of linking religion and civil government.
Books, 235 F.3d at 304, cited in McCreary County, 354 F.3d
at 460, and Adland, 307 F.3d at 486-87.
The Ten Commandments display in DeWeese’s courtroom
is certainly separate and distinct from the items contained in
the Freedom Shrine in the adjacent lobby, notwithstanding his
argument that one must pass through that lobby to reach his
courtroom. Beyond noting the distance between the items in
his courtroom and the items in the lobby, we note that the
items in each display were posted at different times, by
different parties, and are not even displayed in a similar
aesthetic fashion. There has been no attempt, such as the
posting of a sign, to create a connection between the two
displays for observers. Similarly, the Ten Commandments
display is divorced from the other items displayed in
DeWeese’s courtroom – the portrait of President Abraham
Lincoln, posters extolling the jury system, the Ohio seal, and
the Ohio state motto – each posted at different times, in
different portions of the courtroom, by various parties, and
without any apparent concern for their connection, aesthetic
or otherwise, to the other items displayed. Any argument that
DeWeese’s display of the Ten Commandments must be
considered in the context of these other items posted in the
courthouse is contrived at best. The relative placement of the
items simply does not suggest a cohesive display, theme, or
secular message that could mitigate any message of
endorsement on the part of DeWeese in posting the Ten
Commandments in his courtroom.
Accordingly, we are left to consider the Ten
Commandments display in context with DeWeese’s Bill of
Rights poster, contemporaneously created and placed on
display by DeWeese. Demonstrating a unity of typeface, font
size, and framing, these two items have been placed opposite
16 Am. Civil Liberties Union
v. Ashbrook, et al.
No. 02-3667
6As noted earlier in this opinion, D eW eese’s own testimony certainly
suggests that he intended nothing less.
one another on otherwise blank walls in DeWeese’s
courtroom. Insofar as there is a cohesiveness suggesting a
unified display, the Bill of Rights poster does nothing to
negate the endorsement effect of the Ten Commandments
poster, and the joint display affords Appellant no relief.
DeWeese’s display conveys a message of religious
endorsement because of the complete lack of any analytical
connection between the Ten Commandments and the Bill of
Rights that could yield “a unifying historical or cultural theme
that is also secular” for a reasonable observer. McCreary
County, 354 F.3d at 460. The Bill of Rights is not only a
cherished secular document – it is a legal document securing
the rights of parties appearing in DeWeese’s courtroom and
binding DeWeese as a jurist. “The Ten Commandments are
several thousands of years old, [are] not a product of
...American culture and, many believe, are the word of God.”
Id. They bind no jurist and are not “law” in any courtroom,
notwithstanding any similarities or historical associations
between the Decalogue and our Constitution, the Bill of
Rights, statutes, and common law.
Thus, even though the Ten Commandments poster is posted
opposite the Bill of Rights, 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), cited in McCreary County, 354 F.3d at 460.
By placing the Decalogue in apparent equipoise with the Bill
of Rights in this manner, DeWeese has created the effect of an
endorsement of a particular religious code, vis à vis the Ten
Commandments, by the government.6 Thus, even had
Appellant’s non-secular purpose not been announced so
clearly in his deposition testimony, we could still find that

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this particular display of the Ten Commandments constitutes
an impermissible government endorsement of religion in
violation of the Establishment Clause of the First
Amendment. Nonetheless, as a government action “violates
the Establishment Clause if it fails to satisfy any of [the
Lemon test] prongs,” we limit our holding under the Lemon
test to the conclusion that the district court did not err in
determining that DeWeese demonstrated a non-secular
purpose in posting the Ten Commandments in his courtroom.
Aguillard, 482 U.S. at 583; McCreary County, 354 F.3d at
462 (Gibbons, J., concurring).
C. HISTORICAL PRECEDENT AND CEREMONIAL
DEISM
DeWeese proposes that his Ten Commandments poster
should not be considered impermissible by virtue of Lemon
analysis for it is supported by historical precedent. He
suggests that it is similar to a constitutionally permissible
invocation recited at the beginning of state legislative
sessions, addressed in Marsh v. Chambers as “part of the
fabric of our society.” Marsh v. Chambers, 463 U.S. 783
(1983). While he argues that his poster is nothing more than
a similar “tolerable acknowledgment of beliefs widely held
among the people of this country....,” his comparison is
inappropriate as he has identified no long standing national
practice or tradition of posting the Ten Commandments in
county courthouses. Id. at 792.
Finally, DeWeese also relies heavily on the recent decision
in ACLU of Ohio v. Capitol Square Review & Advisory Board
to suggest that the Decalogue is more or less like the state
motto of Ohio, “With God All Things Are Possible” because
it does not “purport to compel belief or acquiescence....[,]
command participation in any form of religious exercise....[,]
assert a preference for one religious denomination or sect over
others,...[or] involve the state in the governance of any
church.” ACLU of Ohio v. Capitol Square Review &
18 Am. Civil Liberties Union
v. Ashbrook, et al.
No. 02-3667
Advisory Board, 243 F.3d 289, 299-300 (6th Cir. 2001). The
Sixth Circuit determined that:
The motto is merely a broadly worded expression of a
religious/philosophical sentiment that happens to be
widely shared by the citizens of Ohio. As such, we
believe, the motto fits comfortably within this country’s
long and deeply entrenched tradition of civic piety, or
“ceremonial deism”...
Id. The same cannot be said of the Ten Commandments. As
discussed in Stone, they necessarily serve as an
admonishment to an observer because the first part of the
commandments “concerns the religious duties of believers:
worshiping the Lord God alone, avoiding idolatry, not using
the Lord’s name in vain, and observing the Sabbath day.”
Stone, 449 U.S. at 41-41. This prescriptive quality is distinct
from the type of ceremonial deism described in Capitol
Square and cannot redeem this display.
IV. CONCLUSION
For the reasons stated above, we find that Judge DeWeese’s
display of the Ten Commandments violates the Establishment
Clause of the First Amendment. Accordingly, we AFFIRM
the decision of the district court.

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______________
DISSENT
______________
ALICE M. BATCHELDER, Circuit Judge, dissenting. I
respectfully dissent. I question whether the ACLU has
standing to bring this action, but certainly that issue is worthy
of more discussion than the majority opinion devotes to it.
Assuming that the ACLU does have standing, I disagree with
the district court’s and the majority’s applications of the
Lemon test. The facts of this case clearly indicate that Judge
DeWeese’s purpose in posting the Ten Commandments was
sufficiently secular to survive this Establishment Clause
challenge.
I.
I believe that the issue of standing is an open question, and
one deserving of significant discussion. The majority is
correct in noting that the ACLU, as a voluntary membership
organization, has standing to bring a case by virtue of an
alleged injury on behalf of one of its members. A voluntary
membership organization has standing to sue on behalf of its
members when “(a) its members would otherwise have
standing to sue in their own right; (b) the interests it seeks to
protect are germane to the organization’s purpose; and
(c) neither the claim asserted nor the relief requested requires
the participation of individual members in the lawsuit.” Hunt
v. Washington State Apple Adver. Comm., 432 U.S. 333, 343
(1977); see also Adland v. Russ, 307 F.3d 471, 478 (2002).
Assuming that the ACLU has properly brought the lawsuit to
protect interests that are germane to its member Bernard
Davis, the question remains whether Mr. Davis would have
standing to sue in his own right. It appears to me that, under
the plain holdings of the United States Supreme Court, he
does not.
20 Am. Civil Liberties Union
v. Ashbrook, et al.
No. 02-3667
The ACLU and Davis have alleged no injury other than the
“psychological consequence presumably produced by
observation of conduct with which one disagrees” - an injury
that the Supreme Court has specifically found insufficient to
give standing under Article III. See Valley Forge Christian
College v. Americans United for Separation of Church and
State, Inc., 454 U.S. 464, 485 (1982). Despite being
“distinguished” by a number of district and circuit courts,
Valley Forge remains good law, and has been cited by the
Supreme Court more than three dozen times without so much
as a hint of disapproval. The ACLU nonetheless relies upon
several decisions of this Court that have found standing in
similar circumstances. In my view, these cases can and
should be distinguished from the present case.
In order to have standing under Article III, a party must
show (1) an actual or threatened injury which is (2) fairly
traceable to the challenged action, and (3) a substantial
likelihood that the relief requested will redress or prevent the
plaintiff’s injury. Adland, 307 F.3d at 477-78. The first
prong of this test is most important for our purposes. In Steel
Co. v. Citizens for a Better Environment, 523 U.S. 83 (1998),
the Supreme Court elaborated on the actual injury
requirement, stating that the injury must not only be alleged,
but ultimately proven, and the injury must be “concrete” or
“actual or imminent, not ‘conjectural’ or ‘hypothetical.’” Id.
at 103.
In Valley Forge, the Supreme Court found insufficient
injury to confer standing where plaintiffs “fail[ed] to identify
any personal injury suffered by them as a consequence of the
alleged constitutional error, other than the psychological
consequence presumably produced by observation of conduct
with which one disagrees.” Valley Forge, 454 U.S. at 485.
“That is not an injury sufficient to confer standing under Art.
III, even though the disagreement is phrased in constitutional
terms.” Id. at 485-86 (emphasis added). This was plainly
reiterated in Steel Co., where the Supreme Court stated that

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1Indeed, in Valley Forge the Suprem e Co urt harshly criticized the
Establishment Clause exceptions to the taxpayer-standing rules that had
been read into the Court’s decisions in Frothingham v. Mellon, 262 U.S.
447 (1923) and Flast v. Cohen, 292 U.S. 83 (1 968 ). See Valley Forge,
454 U.S. at 484-85 n.20 (“Justice Brennan’s dissent is premised on a
revisionist reading of our precedents . . . . [T]he dissent must shoulder the
burden of exp laining why taxpayers with standing have no ‘legal interest’
in congressional expenditures except when it is possible to allege a
violation of the Establishment Clause . . . . [B]oth claims have been
rejected, precisely because Art. III requires a demonstration of redressable
injury that is not satisfied b y a claim that tax moneys have been spent
unlawfully.”)
“psychic satisfaction is not an acceptable Article III remedy
because it does not redress a cognizable Article III injury.”
Steel Co., 523 U.S. at 107. As Judge DeWeese quite aptly
argued to this Court, the Supreme Court has not carved out
any special exceptions to the rules governing standing for
Establishment Clause claims.1 “It does not become more
palatable when the underlying merits concern the
Establishment Clause.” Valley Forge, 454 U.S. at 489.
Various other federal courts, including this Court, have long
attempted to redefine this rule by “distinguishing” the cases
that come before them. The Supreme Court, however, has not
merely failed to reverse Valley Forge, but in fact regularly
cites it with approval.
The ACLU countered that this Court has held that in First
Amendment, and especially Establishment Clause cases, the
injury can be non-economic. In Washegesic v. Bloomingdale
Public Schools, 33 F.3d 679 (6th Cir. 1994), a high school
senior brought suit to remove a portrait of Christ from a
hallway outside of the Bloomingdale Secondary School
gymnasium. In cases such as this, we have held that “[t]he
use of governmental authority to encourage a sectarian
religious view is a sufficient injury if directed toward the
plaintiff.” Id. at 682. While abstract offense at a religious
display may not be enough to confer standing, repeated
22 Am. Civil Liberties Union
v. Ashbrook, et al.
No. 02-3667
2Unlike the district court, the majo rity of this panel does not address
the issue o f “impairment of beneficial use of a public facility” at all.
3In addition to ignoring binding Supreme Court preced ent, this Court
has also at times disregarded even the most basic jurisdictional rules. In
Adland we ruled on the constitutionality of a proposed historical and
cultural display that had not yet been erected. In my view, the claim in
Adland was no t ripe for adjudicatio n, and we therefore lacked subject
matter jurisdiction. Adland, 307 F.3d at 490-91 (Batchelder, J.,
dissenting); see Bigelow v . Mic h. Dep ’t of Natura l Res., 970 F.2d 154,
157 (6th Cir. 199 2) (“If a claim is unripe, federal co urts lack subject
matter jurisdiction and the complaint must be dismissed.”).
“‘unwelcome’ direct contact with the offensive object” is. Id.
(citation omitted). Because the plaintiff had “continuing
direct contact with the object at issue,” we found that his
grievance was not “remote . . . or generalized as in Valley
Forge.” Id. at 683. The district court relied on both
Washegesic and Hawley v. City of Cleveland, in which this
Court found that the injury that conferred standing was the
“impairment of [plaintiffs’] beneficial use of a public facility
which they frequently use.” Hawley v. City of Cleveland, 773
F.2d 736, 740 (6th Cir. 1985).2 In Hawley, citizens
challenged the lease of public space for a chapel at the
Cleveland airport. Taxpayer standing was denied, but we
found that plaintiffs had standing to sue for their actual injury
when they used the airport. Similarly, in Adland v. Russ we
found standing where individual plaintiffs frequently traveled
to the Kentucky State Capitol to engage in political advocacy,
and would endure unwelcome contact as a result of legislation
proposing erection of a Ten Commandments monument there.
Adland, 307 F.3d at 478.
I believe that the above cases are inconsistent with the
holdings in Valley Forge and Steel Co., and in that regard
were wrongly decided.3 Assuming arguendo that they were
adequately distinguished from those Supreme Court cases,
however, their rule is applicable to the present case only to

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the extent that this case too can be distinguished from the
Supreme Court precedent. The present case is in fact much
more easily differentiated from this Court’s precedents than
those of the Supreme Court. As I will discuss below, the
posting of the Ten Commandments in Judge DeWeese’s
courtroom does not constitute the use of governmental
authority to encourage a sectarian religious view, as did the
portrait of Christ in Washegesic. It is either part of a display
including nearly forty other posters and objects or, at a
minimum, coexistent with the items in that display. It can,
and does, serve a function other than encouraging a sectarian
religious view. The portrait of Christ in Washagesic did not
and, standing alone as it did, arguably could not serve another
purpose. Importantly, the government action complained of
in Hawley—the leasing of public space for a chapel—could
also have served no purpose other than encouraging a
sectarian religious view, and is therefore also easily
distinguished from the present case. Even a cursory reading
of the facts indicates that this case is quite dissimilar from
Washegesic and Hawley.
Adland is the case most directly on point, and is also
distinguishable. In that case, the Ten Commandments
monument would have been part of a proposed historical and
cultural display. The extent and contents of the display had
not been made final, but the plan contemplated the inclusion
of a series of unrelated objects, including—but not limited
to—a large granite statue on which the Decalogue was posted;
a memorial sign commemorating “A Civil War Reprisal”; a
“Welcome to Kentucky” bronze plaque; the Kentucky Coffee
Tree Marker commemorating author Joe Cross Creason; the
Freedom Tree Marker memorializing Kentucky Vietnam
Prisoners of War; a stone marker in memory of Charles
Wickliffe; a plaque in memory of Governor Bert Combs; a
memorial for John Stony Spicer; and Kentucky’s Floral
Clock, one of the largest such clocks in the world. Adland,
307 F.3d at 476-77. The Ten Commandments monument was
to be the largest monument in the area, except for the Floral
24 Am. Civil Liberties Union
v. Ashbrook, et al.
No. 02-3667
Clock. The Resolution authorizing the display’s creation
specifically referenced the United States as a “Christian
nation.” Id. at 476. We held that the monument, as a part of
this collection of seemingly unrelated objects, would not
serve a secular purpose. Id. at 482-83.
In contrast to the proposed display in Adland, the
Decalogue in Judge DeWeese’s courtroom is not a large
granite monument but a poster whose text is so small that it
cannot be read from the jury box, the witness stand, or the
bench. The poster is not surrounded by unrelated objects such
as those found in Adland. Instead, the poster hangs in a
courtroom that also displays a poster of the Bill of Rights;
three framed posters of Jefferson, Hamilton, and Madison that
praise the jury system; the seal of the State of Ohio and the
state motto “With God All Things Are Possible”; a portrait of
Lincoln; and the United States and Ohio state flags. Visitors
to Judge DeWeese’s courtroom also observe other documents
and portrayals in the hall outside the courtroom. Judge
DeWeese testified that he displayed these items so that he
could use them in addressing community groups that come to
the courtroom to learn about the origins of the law and legal
philosophy.
I think it strains both logic and common sense to find that
DeWeese’s poster, like the stand-alone Christ portrait in
Washegesic, constitutes “the use of governmental authority to
encourage a sectarian religious view” that is “directed toward
the plaintiff.” Washegesic, 33 F.3d at 682. The portrait of
Christ was prominent, conspicuous and unmistakably
Christian in its message. In contrast, the poster at issue here
is small, difficult to read from plaintiff’s location in the
courtroom, and — according to the only person who knows
for sure—is not directed toward plaintiff but toward the
educational efforts of the Judge when he is engaged by
community groups. Nor does the presence of this poster
constitute the kind of repeated “‘unwelcome’ direct contact

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with the offensive object” that conferred standing in
Washegesic. See id. (emphasis added).
It is somewhat instructive that the ACLU did not, in its
initial filing, even allege a specific injury to one of its
members. Rather, when later prompted to identify a member
who was personally offended by the display, the ACLU
produced an affidavit of one Bernard Davis, who claimed that
the display offended him, diminished his enjoyment of a
public facility, and made him feel as though a religious creed
was being forced on him. Davis’ claim is little more than a
statement that he is offended by something a government
representative is doing because he disagrees with it. This is
explicitly the type of injury that the Supreme Court held
insufficient to confer standing in Valley Forge. See 454 U.S.
at 485-86. Furthermore, although it may be exactly what is
required for standing under this Court’s precedents, that is
true only because it is a mere recitation of the language from
applicable case law, utilized here to make out a colorable
claim of standing. See Washegesic, 33 F.3d at 682; Hawley,
773 F.3d at 740.
In its efforts to gloss over Davis’ lack of standing, and its
own, the ACLU argued to the district court that the group “is
a perennial litigant in Establishment Clause cases” and that
“nothing about this suit [] requires the direct participation of
ACLU members in this litigation.” To the contrary, however,
the Supreme Court has specifically rejected the idea that the
Constitution permits federal courts to adjudicate claims
brought by, as Judge DeWeese has called them, the “self-
appointed Establishment Clause police”:
Their claim that the Government has violated the
Establishment Clause does not provide a special license
to roam the country in search of governmental
wrongdoing and to reveal their discoveries in federal
court. The federal courts were simply not constituted as
ombudsmen of the general welfare.
26 Am. Civil Liberties Union
v. Ashbrook, et al.
No. 02-3667
Valley Forge, 454 U.S. at 487 (emphasis added). And yet,
that is exactly what has occurred here. It is quite obvious
from the filings that the ACLU in fact “roamed the country in
search of wrongdoing,” filed suit in the present case, and
later, only after being prompted to do so, produced the
affidavit of a member claiming to be offended by the display.
The tension between the cases cited by the district court and
the plain statements of the Supreme Court is clear.
Furthermore, the facts of the present case are distinguishable
from those of the precedents cited by the district court. They
are also distinguishable from a great many other “Ten
Commandments” cases nationwide, which often involve facts
much more similar to Washegesic or Adland. I do not agree
with the majority that the facts of this case give the ACLU
standing to pursue this claim. In any event, this issue was
worthy of more discussion than the short shrift that it has
received, both from the district court and the majority here
today. Irrespective of standing, moreover, Judge DeWeese’s
display of the Ten Commandments in his courtroom—as part
of an educational display also that also contained nearly forty
other objects—plainly did not violate the Establishment
Clause.
II.
As an en banc panel of this Court recently stated in ACLU
v. Capitol Square Review and Advisory Board, 243 F.3d 289
(6th Cir. 2001), the drafters of the Establishment Clause never
intended to banish all mention of religion from the public
square. “The provision was not understood as prohibiting the
state from merely giving voice, in general terms, to religious
sentiments widely shared by those of its citizens who profess
a belief in God.” Id. at 293. Indeed, as we also recognized,
the Supreme Court has explicitly made this same point.
“[T]here 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.” Id. (quoting Lynch v.

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Donnelly, 465 U.S. 668, 674 (1984)). As Judge DeWeese and
amicus curiae Judge Randy T. Rogers pointed out at length in
their briefs, and we discussed at length in Capitol Square, this
nation’s history is replete with examples of government actors
expressing religious sentiments without offending the
Constitution. See id. at 293-99.
The Supreme Court has developed a number of tests for
evaluating the constitutionality of governmental action under
the Establishment Clause. First is the so-called “Lemon test,”
from the Supreme Court’s opinion in Lemon v. Kurtzman, 403
U.S. 602, 612-13 (1971). This test was itself modified by the
“endorsement test” in Lynch v. Donnelly, 465 U.S. 668, 688
(1984), which I use in analyzing this case under the Lemon
test. Last is the “historical precedent test” from Marsh v.
Chambers, 463 U.S. 783 (1983), which I will discuss
separately.
1. The Lemon test
The Lemon test requires a court to determine (1) that the
challenged government action has a secular purpose; (2) that
the action’s primary effect neither advances nor inhibits
religion; and (3) that the action does not foster an excessive
entanglement with religion. Lemon, 403 U.S. at 612-13. The
government action “violates the Establishment Clause if it
fails to satisfy any of these prongs.” Edwards v. Aguillard,
482 U.S. 578, 583 (1987). Plaintiffs have not made an
excessive entanglement claim, so only the first two prongs are
relevant to our analysis. Although the majority suggests that
Judge DeWeese’s display of the Ten Commandments could
constitute an impermissible endorsement of religion, it
affirms the district court based on the first prong of the
analysis, and limits its holding to the conclusion that the
district court did not err in determining that DeWeese
demonstrated a non-secular purpose in posting the Ten
Commandments in his courtroom. For the reasons discussed
28 Am. Civil Liberties Union
v. Ashbrook, et al.
No. 02-3667
below, however, I believe that Judge DeWeese’s display
survives both prongs of the Lemon analysis.
A. Judge DeWeese’s display of the Decalogue had a
secular purpose
In my view, the district court committed reversible error in
finding that the display did not have a secular purpose. The
Supreme Court has stated that the first prong of Lemon may
be satisfied if “a” secular purpose can be articulated. “The
Court has invalidated legislation or governmental action on
the ground that a secular purpose was lacking, but only when
it has concluded there was no question that the statute or
activity was motivated wholly by religious considerations.”
Lynch, 465 U.S. at 680 (emphasis added). In addition to the
procedural requirement that the district court view factual
evidence in the light most favorable to the non-moving party,
this Court has held that “the government’s assertion of a
legitimate secular purpose is entitled to deference.” Brooks
v. City of Oak Ridge, 222 F.3d 259, 265 (6th Cir. 2000);
Chaudhuri v. Tennessee, 130 F.3d 232, 236 (6th Cir. 1997).
The district court should defer to the government’s assertion
of a legitimate secular purpose unless the assertion is a
“sham.” Chaudhuri, 130 F.3d at 236. In the absence of clear
evidence to the contrary, Judge DeWeese’s stated reason
should stand. See Lynch, 465 U.S. at 680.
In contrast to the majority opinion, which today holds that
Judge DeWeese’s stated objective in putting up the display
was a “sham” that constituted a “purposeful or surreptitious
effort to express [] governmental advocacy of a particular
religious message,” I do not believe that a court viewing the
factual evidence in the light most favorable to DeWeese
(remembering that this matter was before the district court on
motion for summary judgment) could have concluded that his
posting of the Ten Commandments was motivated wholly, or
even predominantly, by religious considerations. The only
competent evidence as to DeWeese’s purpose is his own

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assertion, in his affidavit, that his “intent in posting these
documents was to use them occasionally in educational
efforts when community groups come to the courtroom and
ask [him] to speak to them.” This is not a statement of
religious consideration, and there is nothing unconstitutional
about it.
The ACLU asserted—and both the district court and the
majority opinion today have found— that Judge DeWeese’s
stated purpose is a sham and that he has an ulterior purpose
that is predominantly religious in nature. The district court
rejected DeWeese’s proffered motive for two reasons. First,
the court relied heavily upon selected quotes from Stone v.
Graham, 449 U.S. 39 (1980), to find a presumption against a
secular purpose in Ten Commandments cases. Second, the
court carefully parsed statements in DeWeese’s deposition
testimony concerning his privately-held beliefs to divine an
additional, unstated religious purpose for the display that is
not apparent from the testimony taken as a whole. The
majority opinion summarily adopts these errors.
In Stone the Supreme Court was faced with a Kentucky
statute that required the Ten Commandments to be posted in
each classroom. The Court invalidated the statute, noting in
the process that “[t]he Ten Commandments are undeniably a
sacred text in the Jewish and Christian faiths, and no
legislative recitation of a supposed secular purpose can blind
us to that fact.” 449 U.S. at 42. From this statement the
district court concluded that “[g]iven the religious
significance of the text of the Ten Commandments, their
display may be considered constitutional where, but only
where, a state or governmental body attempts to and does
dilute the religious aspect of the display in favor of a secular
message or purpose.” ACLU of Ohio Found., Inc. v.
Ashbrook, 211 F. Supp. 2d 873, 884 (2002).
It is clear that the district court’s conclusion is not required
by Stone. First, a finding that the Decalogue necessarily has
30 Am. Civil Liberties Union
v. Ashbrook, et al.
No. 02-3667
some religious purpose is not the same as a finding that the
Decalogue serves a wholly religious purpose, the finding
upon which a violation of the first prong of the Lemon test
must rest. See Lynch, 465 U.S. at 680. As the Supreme Court
later clarified, the Ten Commandments can serve both
religious and secular purposes. “[Stone] 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.” Aguillard, 482 U.S.
at 593-94. Even the Stone court itself noted that the
Decalogue could be “integrated into the school curriculum,
where the Bible may constitutionally be used in an
appropriate study of history, civilization . . . or the like.”
Stone, 449 U.S. at 42. Those are precisely the kinds of
activities, albeit not within the physical confines of a school,
for which DeWeese uses the display when talking to
community groups about the origins of the law and legal
philosophy. The district court’s interpretation of Stone is
flawed, and its conclusion that the Decalogue’s display is
only constitutional where “diluted” directly conflicts with the
Supreme Court’s interpretation of Lemon in Lynch. A secular
purpose need not be the only purpose, nor even the primary
one. It simply must be a purpose which prevents the display
from being motivated wholly by religious considerations.
Lynch, 465 U.S. at 680.
Judge DeWeese has stated his purpose for the display, and
he has suggested only the educational purposes for the display
that have been explicitly endorsed by the Supreme Court.
The ACLU has presented portions of DeWeese’s deposition
testimony as evidence that “DeWeese did not have a purely
secular philosophical purpose in displaying the
Commandments in his courtroom, nor a strictly secular
understanding of the meaning of their display.” But it is
patently unnecessary for DeWeese to have had a purely
secular purpose. He merely needed not to have a purely
religious purpose. The majority circumvents this principle
by relying on this Court’s decision in ACLU of Kentucky v.

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McCreary County, 354 F.3d 438, 446 (2003), for the
erroneous proposition that DeWeese’s display should be
found unconstitutional if the ACLU can “show that the
predominate [sic] purpose for a challenged display is
religious.” That is also an erroneous statement of the proper
standard. The Supreme Court has spoken clearly on this
issue, and it is not the prerogative of this Court to continue to
chip away at the proper analysis by applying selective
readings of only those precedents with which we agree.
Even applying McCreary County’s erroneous “predominate
[sic] purpose” standard, however, DeWeese’s display easily
passes muster. Although DeWeese concedes that the
Commandments are emblematic of moral absolutes, and that
“there are limits in the philosophy of law beyond which
people are not permitted to go,” there is nothing in his
testimony that can be fairly construed as proving that his
purpose was predominantly religious. Judge DeWeese
specifically stated that he put up the display “as a matter of
jurisprudence and legal philosophy”—some of the specific
matters that he discusses in his educational talks with
community groups. Nonetheless, the district court and the
majority opinion today have relied on DeWeese’s deposition
testimony to conclude that DeWeese’s purpose was:
(1) to instruct individuals that our legal system is based
on moral absolutes from divine law handed down by God
through the Ten Commandments and (2) to help foster
debate between the philosophical positions of moral
absolutism (as set forth in the Ten Commandments) and
moral relativism in order to address what he perceives to
be a moral crisis in this country.
Ashbrook, 211 F. Supp. 2d at 888.
Having read DeWeese’s deposition, I believe this
pronouncement appreciably overstates his testimony, and in
fact blurs the distinction between his personal beliefs and his
32 Am. Civil Liberties Union
v. Ashbrook, et al.
No. 02-3667
motives for the display. Even if this were a correct reading of
DeWeese’s testimony, however, it would merely demonstrate
that one of his purposes was religious. It proves neither that
DeWeese did not have a secular purpose nor that his stated
secular purpose was not the predominant purpose for the
display. Nor do I agree with the majority’s incredible
assumption that fostering debate between the philosophical
positions of moral absolutism and moral relativism “crosses
the line created by the Establishment Clause.” A great many
state educational institutions will be shocked, I suspect, to
learn that fostering debate between philosophical positions is
now unconstitutional in the Sixth Circuit.
The majority opinion finds that DeWeese has described no
role for the Ten Commandments poster in his educational
errand other than as an admonition that listeners or
participants in his programs look to them as a source of law.
In my view, the majority seriously errs in its apparent
assumption that the Constitution forbids all governmental
recognition of the Decalogue’s important historical role in the
development of Western and American law and legal
philosophy.
The district court erred in finding that there was no secular
purpose for DeWeese’s posting of the Ten Commandments in
his courtroom. The court was required to view factual
evidence in the light most favorable to DeWeese, as well as
to show substantial deference to DeWeese’s assertion that he
had a legitimate secular purpose for the display. It did neither
of these things. The majority opinion’s subsequent
determination that DeWeese’s assertion of secular purpose
was a “sham” also evinces a failure to show the proper
deference to that assertion. Like the court in McCreary
County, 354 F.3d at 446, the majority today imposes a higher
bar than that either required or permitted by the Supreme
Court, and demands either an entirely secular purpose or a
primarily secular purpose for the display, where as a matter of
law only an ascertainable secular purpose is required. Lynch,

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465 U.S. at 680. The district court’s finding that DeWeese’s
actions lacked a secular purpose should be reversed.
B. A reasonable observer would not deem the display
to be an endorsement of religion
In evaluating the “effects” prong of the Lemon test, I apply
the “endorsement test” first explicated by Justice O’Connor
in her concurring opinion in Lynch, 465 U.S. at 690, and later
embraced by the Supreme Court’s decision in County of
Allegheny v. ACLU, 492 U.S. 573 (1989). As we have noted,
the key question is “whether a reasonable observer would
conclude that the government endorses religion” by allowing
the challenged practice. Hawley, 24 F.3d at 822; see
Allegheny, 492 U.S. at 592-94. Endorsement is to be judged
by a “reasonable observer” standard, and the reasonable
observer is deemed to be aware of the history and context of
the community and forum in which the religious display
appears. See Capitol Square Review and Advisory Board v.
Pinette, 515 U.S. 753, 780 (1995) (O’Connor, J., concurring)
[hereinafter “Pinette”]. While there is always someone who
might perceive a particular action as an endorsement of
religion, that person does not personify the reasonable
observer. “A State has not made religion relevant to standing
in the political community simply because a particular viewer
of a display might feel uncomfortable.” Id.
The endorsement test is a fact-intensive inquiry that
requires us to analyze fully the nature of the display and its
relationship to the surrounding displays. DeWeese has argued
that the totality of the circumstances surrounding the display
at issue here would not lead a reasonable observer to conclude
that the presence of the Ten Commandments in his courtroom
constitutes government endorsement of religion. The Ten
Commandments themselves are printed on a poster that Judge
DeWeese hung in the spectator section of his courtroom. The
Bill of Rights is found on an identical poster, hung on the
opposite wall of that area of the courtroom. The text of these
34 Am. Civil Liberties Union
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No. 02-3667
posters is too small to be read from the jury box, the witness
stand, or the bench. At the top of each of the posters, in much
larger type than the main text, appears the legend: “the rule
of law.” Also hanging in the spectator section of the
courtroom are three framed posters in which Jefferson,
Hamilton, and Madison praise the jury trial system. In front
of the bar, flanking the judge’s bench, are the United States
and Ohio state flags. A portrait of Lincoln hangs on one side
of the bench. Directly behind the bench and above the
judge’s chair is the seal of the State of Ohio, with a ribbon-
like device bearing the words of Ohio’s motto: “With God All
Things Are Possible.”
Visitors arriving at Judge DeWeese’s courtroom no doubt
observe in the hall outside the courtroom the “Freedom
Shrine,” donated by the Exchange Club of Mansfield “to
strengthen citizen appreciation of our American heritage.”
This “Shrine” displays the texts or excerpts from more than
two dozen noteworthy orations in American history, including
various Presidents’ inaugural addresses. At least half of these
texts contain explicit references to the connection between
religion and civic order. See, e.g., John F. Kennedy’s
Inaugural Address (“And yet the same revolutionary beliefs
for which our forbears fought are still at issue around the
globe - the belief that the rights of man come not from the
generosity of the state, but from the hand of God.”). Except
for the posters of the Decalogue and the Bill of Rights, all of
the display (or displays, if, like plaintiffs, one believes the
courtroom display is completely separate from the lobby
display) was in the courtroom, hallway, and lobby in the fall
of 2000. DeWeese added these posters at that time, for the
purpose of using them in conjunction with the other items in
the display in his educational efforts when community groups
come to the courtroom.
The district court went to great lengths to demonstrate that
the poster of the Decalogue was “prominent and relatively
isolated,” and concluded that because the “Freedom Shrine”

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and the portrayals inside the courtroom were erected at
different times and are geographically distinct, there is no
cohesive display, theme, or secular message. Ashbrook, 211
F. Supp. 2d at 892. The majority opinion adopts this flawed
reasoning. It is certainly true that the Decalogue poster
appears on the wall by itself; however, focusing on this fact
ignores the overall context in which the poster appears. As
DeWeese argued in his brief, “no one is simply ‘beamed up’
into DeWeese’s courtroom; visitors must pass by the Freedom
Shrine in order to get there.” In reviewing Establishment
Clause challenges, courts have employed much more
expansive contexts than the two-room context urged here by
DeWeese. See Books v. City of Elkhart, 235 F.3d 292 (7th
Cir. 2000), cert. denied, 121 S. Ct. 2209 (2001) (context
considered was the entire lawn of Elkhart city building,
including Decalogue monument and two other monuments,
all of which had been placed at different times); State v.
Freedom from Religion Found, 898 P.2d 1013 (Colo. 1995),
cert. denied, 516 U.S. 1111 (context considered sprawled
over three blocks).
Taken as a part of the larger display both within the
courtroom and extending into the hallway and lobby, the
Decalogue poster is merely one part of a forty-piece display
that “signal[s] respect not for great proselytizers but for great
lawgivers.” See ACLU of Kentucky v. McCreary County, 145
F. Supp. 2d 845, 853 (E.D. Ky. 2001) (quotation omitted).
The majority ignores DeWeese’s stated purpose for the
display and suggests that it is a “transparent attempt” to
“secularize” a display of the Ten Commandments. I have
seen no evidence that this is the case, and I believe that Judge
DeWeese presented the Ten Commandments objectively and
integrated them with a secular message. See McCreary
County, 354 F.3d 449. Even if we were to exclude the
Freedom Shrine, I believe that the ten-object display within
the courtroom itself provides sufficient context for the poster.
36 Am. Civil Liberties Union
v. Ashbrook, et al.
No. 02-3667
While there will always be someone, such as Bernard
Davis, who might perceive a particular action as an
endorsement of religion and lacking any secular purpose, that
person does not personify the reasonable observer. See
Pinette, 515 U.S. at 780. To the contrary, “[the] proper
application of First Amendment principles demands a sense
of proportion.” Van Orden v. Perry, 351 F.3d 173, 178 (5th
Cir. 2003). In Lynch, the Supreme Court upheld Pawtucket,
Rhode Island’s display of a purely religious symbol—a
creche—against an Establishment Clause challenge. The
majority found that the district court erred in holding that the
inclusion of a creche in an overall Christmas display had no
secular purpose. Lynch, 465 U.S. at 680. The Court further
rejected the contention that the primary effect of the creche
was to confer a substantial and impermissible benefit on
religion. Id. at 681-82. In her concurrence, Justice O’Connor
developed the endorsement test and found “clearly erroneous”
the district court’s holding that “the city’s use of an
unarguably religious symbol ‘raises an inference’ of intent to
endorse.” Id. at 691. Even though the sectarian significance
of the creche was not neutralized by the setting, the
composition of the overall display made the government’s use
of the creche no more an endorsement of religion than such
acknowledgments of religion as legislative prayers or the
opening of court sessions with “God save the United States
and this honorable court.” Id. at 693.
The majority relies on portions of Allegheny for the
proposition that the Supreme Court has rejected expansive
notions of context when analyzing displays challenged under
the Establishment Clause. Although the Allegheny Court
invalidated the government’s display of a creche on a
courthouse staircase, the circumstances surrounding that
display were completely dissimilar from those of the present
case. Secular holiday symbols were located in other parts of
the building, but the creche—a purely religious symbol—was
alone on the staircase. In this case, the Ten
Commandments—a religious text that may also have a

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secular purpose within a larger display—is posted in a room
with nine other objects that share some relation.
Importantly, the Allegheny Court decided a second case, not
discussed by the majority opinion, that seems more applicable
to the facts before us now. The Court allowed the public
display of a menorah as part of a larger “Salute to Liberty”
display. See Allegheny, 492 U.S. at 582. The Court
specifically noted that the menorah had both religious and
secular aspects: “The menorah, one must recognize, is a
religious symbol . . . But the menorah’s message is not
exclusively religious.” Id. at 613. In the present case, the
Ten Commandments were posted in a room with nine other
depictions related to law and government, and were used by
DeWeese as part of his educational presentations. The
reasonable observer defined by the Supreme Court would not
conclude that DeWeese’s inclusion of the Decalogue in a
display that also includes the Bill of Rights, a portrait of
Abraham Lincoln, accolades to the jury system, the Great
Seal of Ohio, and the items comprising the Freedom Shrine,
constitutes the government’s endorsement of religion. “To
say otherwise retreats from the objective test of an informed
person to the heckler’s veto of the unreasonable or ill-
informed—replacing the sense of proportion and fit with
uncompromising rigidity at a costly price to the values of the
First Amendment.” Van Orden, 351 F.3d at 182.
2. Marsh and “Historical Precedent”
The majority opinion also rejects DeWeese’s contention
that his posting of the Ten Commandments is similar to the
constitutionally permissible invocation addressed in Marsh v.
Chambers, 463 U.S. 783 (1983). In that case the Supreme
Court upheld the Nebraska legislature’s practice of opening
each legislative day with a prayer by a chaplain paid by the
state. The Marsh Court simply ignored the Lemon test,
finding that “[i]n light of the unambiguous and unbroken
history of more than 200 years, there can be no doubt that the
38 Am. Civil Liberties Union
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No. 02-3667
practice of opening legislative sessions with prayer has
become part of the fabric of our society.” Id. at 792. The
Court described the practice as “simply a tolerable
acknowledgment of beliefs widely held among the people of
this country.” Id.
The majority finds that this type of comparison is
inappropriate because DeWeese “has identified no long
standing national practice or tradition of posting the Ten
Commandments in county courthouses.” But DeWeese is
clearly correct in arguing that government acknowledgment
of the important foundational role of the Ten Commandments
is indeed part of the fabric of our society. DeWeese pointed
us to a multitude of depictions of the Decalogue found in our
public buildings, including the United States Supreme Court,
which itself has no fewer than three depictions of Moses
and/or the Ten Commandments; the U.S. Capitol; various
state capitols; and numerous federal courthouses. This
includes, ironically, the district courthouse in Cleveland
where this case was decided, which is adorned with a large,
magnificent mural of the Ten Commandments flanked by
angels.
DeWeese’s position is also reinforced by the proliferation
of lawsuits exactly like this one— at least a dozen of which
have been decided in the past five years. See, e.g., McCreary,
354 F.3d 438; Freethought Society v. Chester County, 334
F.3d 247 (3d Cir. 2003); Turner v. Habersham County, 290
F. Supp. 2d 1362 (N.D. Ga., 2003); ACLU v. Mercer County,
219 F. Supp. 2d 777 (E.D. Ky., 2002); ACLU of Tenn. v.
Rutherford County, 219 F. Supp. 2d 799 (M.D. Tenn., 2002);
ACLU of Tenn. v. Hamilton County, 202 F. Supp. 2d 757
(E.D. Tenn., 2002); Kimbley v. Lawrence County, 119 F.
Supp. 2d 856 (S.D. Ind., 2000); Suhre v. Haywood County, 55
F. Supp. 2d 384 (W.D. N.C., 1999). This may not prove that
there is a tradition of posting the Decalogue in county
courthouses, but it certainly counsels against the majority’s
dismissive attitude toward DeWeese’s “historical precedent”

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argument. Nor am I convinced that such an analysis should
be limited merely to county courthouses, as opposed to all
courthouses, or government buildings in general.
The majority makes what is, at best, an unconvincing
attempt to distinguish between the present case and our
holding in Capitol Square, where we noted that the state
motto of Ohio, “With God All Things Are Possible,” does not
“purport to compel belief or acquiescence . . . . [,] command
participation in any form of religious exercise . . . . [,] assert
a preference for one religious denomination or sect over
others, . . . [or] involve the state in the governance of any
church.” Capitol Square, 243 F.3d at 299-300. Judge
DeWeese’s display does none of these things either, despite
the majority opinion’s claim that the Decalogue serves as an
admonishment to observers because the first part of the
Commandments concerns only the religious duties of
believers.
No one can seriously oppugn the importance of the Ten
Commandments in the development of the law in our secular
society. Whether palatable to plaintiffs or not,
“[i]nnumerable civil regulations enforce conduct which
harmonizes with religious canons. State prohibitions . . .
reinforce commands of the decalogue.” McGowan v.
Maryland, 366 U.S. 420, 462 (1961) (Frankfurter, J.,
concurring). As a historical matter, this has been true of all
of the Commandments and not, as the majority seems to
imply, merely the latter ones. Consider, for example, the
myriad of states’ “Blue Laws” or “Sunday Closing Laws” that
have their roots in the Decalogue’s command to “remember
the Sabbath day, to keep it holy.” The Supreme Court has
even upheld such laws despite recognizing their original
purpose. See id. at 446 (noting that the predecessors of
modern Sunday laws “are undeniably religious in origin”).
The Commandment against “using the Lord’s name in
vain” is still applied in daily secular life, most notably where
40 Am. Civil Liberties Union
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No. 02-3667
witnesses and government officials swear to tell the truth or
uphold the law “so help me God.” In any event, that
Commandment played an undeniable role in early American
law, which even included prohibitions against, and
prosecutions for, the crime of blasphemy. See, e.g., State v.
Chandler, 2 Del. (2 Harr.) 553 (Del. 1837) (affirming
defendant’s conviction for blasphemy); People v. Ruggles,
8 Johns. 290, 293 (N.Y. 1811) (same). Nor can one discount
even the Commandment against worshipping idols, which
was offered in the Revolutionary era as a reason for fighting
the British monarchy. See THOMAS PAINE, COMMON SENSE
73 (Isaac Kramnick ed., Penguin Books 1976) (“And when a
man seriously reflects on the idolatrous homage which is paid
to the persons of the Kings, he need not wonder that the
Almighty . . . should disapprove a form of government which
so impiously invades the prerogative of heaven.”).
As a historical matter, the Stone Court’s oft-repeated truism
that the first three or four Commandments are “exclusively
religious” is simply not true. Including these rules as part of
a historical display about the development of American law
is accurate, appropriate, and, until today, legally permissible.
III.
Judge DeWeese began his brief by pointing out the
absurdity of this case, wherein a federal judge, sitting beneath
“a magnificent mural of the Ten Commandments flanked by
two angels,” has ordered a state judge to remove from his
courtroom a poster containing the plain text of the same Ten
Commandments. The ACLU responded that this was a mere
“ironic curiosity,” and nothing more. Indeed, the ACLU
argued that “[t]he courts speak through their journals, and not
their frescos. Their judgments are recorded in the [] reporters,
and not on their walls.” In the latter observation, the ACLU
is entirely correct. The irony lies in the fact that the ACLU
does not dispute that DeWeese, in resolving the cases that
come before him and whose judgments are entered in the

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reporters, does not use and has not used these documents.
Ashbrook, 211 F. Supp. 2d at 888.
As Justice Thomas has so aptly noted:
For nearly half a century, [the Supreme] Court has
extended First Amendment protection to a multitude of
forms of “speech,” such as making false defamatory
statements, filing lawsuits, dancing nude, exhibiting
drive-in movies with nudity, burning flags, and wearing
military uniforms . . . . [T]he Courts of Appeals have []
concluded that the First Amendment protects, for
example, begging, shouting obscenities, erecting tables
on a sidewalk, and refusing to wear a necktie.
Nixon v. Shrink Missouri Gov’t PAC, 528 U.S. 377, 411-12
(2000) (Thomas, J., dissenting). But the majority opinion
holds today that that same First Amendment does not protect
the posting, in a historical display used for educational
purposes, of a set of rules that has played an undeniable role
in the formation of this nation’s laws.
I cannot join the majority in finding that the Establishment
Clause is so inelastic as to not “permit[] government some
latitude in recognizing and accommodating the central role
religion plays in our society.” Allegheny, 492 U.S. at 657
(Kennedy, J., concurring in part and dissenting in part) (citing
Lynch, 465 U.S. at 678)). In the matter before us, Judge
DeWeese displayed a small, unobtrusive copy of the Ten
Commandments in his courtroom, as part of a series of
documents and depictions that he uses for the express purpose
of educating community groups on the history and philosophy
of the law. It is not unconstitutional to make observations of
historical fact. As Justice Goldberg wisely reminded us more
than four decades ago, “[n]either government nor this Court
can or should ignore the significance of the fact that . . . many
of our legal, political and personal values derive historically
from religious teachings.” School Dist. of Abington Township
42 Am. Civil Liberties Union
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v. Schempp, 374 U.S. 203, 306 (1962) (Goldberg, J.,
concurring). It seems to me that the majority today does
exactly that.
I respectfully dissent.

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