Books, William A. v. City Elkhart ( 2000 )


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  • In the
    United States Court of Appeals
    For the Seventh Circuit
    No. 00-1114
    WILLIAM A. BOOKS and
    MICHAEL SUETKAMP,
    Plaintiffs-Appellants,
    v.
    CITY OF ELKHART, INDIANA,
    Defendant-Appellee.
    Appeal from the United States District Court
    for the Northern District of Indiana, South Bend
    Division.
    No. 98 C 230--Allen Sharp, Judge.
    ARGUED MAY 12, 2000--DECIDED DECEMBER 13, 2000
    Before RIPPLE, MANION and WILLIAMS, Circuit
    Judges.
    RIPPLE, Circuit Judge. On the lawn of
    the City of Elkhart’s Municipal Building
    stands a monument inscribed with the Ten
    Commandments. William A. Books and
    Michael Suetkamp, residents of Elkhart,
    object to the display of this monument on
    government property. They brought this
    action in the district court, claiming
    that the display of the monument by the
    City of Elkhart violates the
    Establishment Clause of the First
    Amendment to the Constitution of the
    United States. The district court granted
    summary judgment for the City of Elkhart.
    For the reasons set forth in the
    following opinion, we reverse the
    judgment of the district court and remand
    for proceedings consistent with this
    opinion.
    I
    BACKGROUND
    A. Facts
    A monument inscribed with the Ten
    Commandments is located on the lawn in
    front of the Municipal Building of the
    City of Elkhart ("the City" or
    "Elkhart"). The plaintiffs, residents of
    Elkhart, object to the presence of this
    monument in this location. We therefore
    must determine whether this presence of
    the monument violates the Establishment
    Clause of the Constitution of the United
    States, which has been made applicable to
    the states through the Fourteenth
    Amendment./1 This task requires that we
    examine the history of the monument’s
    placement and maintenance as well as the
    physical characteristics of the monument
    and of the surrounding area.
    1.
    In the 1940s, a juvenile court judge in
    Minnesota, E. J. Ruegemer, inaugurated
    the Youth Guidance Program. Disheartened
    by the growing number of youths in
    trouble, he sought to provide them with a
    common code of conduct. He believed that
    the Ten Commandments might provide the
    necessary guidance. Judge Ruegemer
    originally planned to post paper copies
    of the Ten Commandments in juvenile
    courts, first in Minnesota and then
    across the country. To help fund his
    idea, he contacted the Fraternal Order of
    Eagles ("FOE"), a service organization
    dedicated to promoting liberty, truth,
    and justice. At first, FOE rejected Judge
    Ruegemer’s idea because it feared that
    the program might seem coercive or
    sectarian. In response to these concerns,
    representatives of Judaism,
    Protestantism, and Catholicism developed
    what the individuals involved believed to
    be a nonsectarian version of the Ten
    Commandments because it could not be
    identified with any one religious group.
    After reviewing this version, FOE agreed
    to support Judge Ruegemer’s program.
    Around this same time, motion picture
    producer Cecil B. DeMille contacted Judge
    Ruegemer about the program. DeMille, who
    was working to produce the movie "The Ten
    Commandments," suggested that, rather
    than posting mere paper copies of the Ten
    Commandments, the program distribute
    bronze plaques. Judge Ruegemer replied
    that granite might be a more suitable
    material because the original Ten
    Commandments were written on granite.
    DeMille agreed with Judge Ruegemer’s
    suggestion, and the judge thereafter
    worked with two Minnesota granite
    companies to produce granite monuments
    inscribed with the Ten Commandments.
    Local chapters of FOE financed these
    granite monuments and then, throughout
    the 1950s, donated them to their local
    communities. The Elkhart chapter of FOE
    donated its version of the Ten
    Commandments monument to the City of
    Elkhart in 1958.
    Elkhart’s newspaper, The Elkhart Truth,
    published an article about the dedication
    of the Ten Commandments monument to the
    City of Elkhart. See R.29, Ex.A,
    Ceremonies Pay Tribute in Memorial Day
    Rite; City Given Decalogue, The Elkhart
    Truth, May 31, 1958, at 1. The dedication
    was a part of the City’s Memorial Day
    ceremonies, and the participants in the
    dedication included: Robert Long, city
    controller; Mahlon Hull, past president
    of the Elkhart Chapter of FOE; Dale
    Swihart, lodge secretary for FOE; the
    Reverend William Gieranowski, assistant
    pastor of St. Vincent’s Catholic Church;
    the Reverend W. W. Kenhell, outgoing
    president of the Elkhart Ministerial
    Association; and Rabbi M. E. Finkelstein
    of Temple Israel.
    According to the newspaper, Reverend
    Kenhell spoke at the ceremony, imparting
    the message that "Americans have
    inherited moral power from the founding
    fathers of our country, . . . and if they
    will accept the precepts of the Ten
    Commandments, it will provide their
    redemption from today’s strife and fear."
    Id. Father Gieranowski also spoke at the
    ceremony and stated that moral law does
    not change and that the Ten Commandments
    should be engraved not only in stone but
    in the hearts, minds, and consciences of
    everyone. See id. Finally, the newspaper
    noted, Rabbi Finkelstein explained that
    the dedication of the monument "should be
    an occasion for dedication of everyone to
    the high ideals inherent in the American
    way of life." Id.
    2.
    As we have noted earlier, Elkhart’s Ten
    Commandments monument is located on the
    lawn in front of the City’s Municipal
    Building. The Municipal Building,
    situated on the corners of Second and
    High Streets in downtown Elkhart,
    contains the mayor’s office, the City’s
    legal and human relations departments,
    the city court, the prosecutor’s office,
    and the offices of the Common Council.
    Above the main entrance to the Municipal
    Building is a bas relief of an elk’s
    head. Directly to the left of the elk’s
    head is the word "DEDICATVM," and on the
    immediate right of the elk’s head is the
    word "JVSTITIAM."/2 R.29 & 31, Ex.14-
    16.
    The lot for the Municipal Building
    contains the building itself, sidewalks,
    and a parking area. Between the building
    and the sidewalks is a grass lawn that is
    approximately 25 feet wide. Within this
    lawn are three monuments. The City
    maintains this lawn surrounding the
    monuments but does not contribute any
    time, money, or effort to the maintenance
    of the monuments themselves.
    On the southeast corner of the
    building’s lot--the corner nearest the
    intersection--are the Revolutionary War
    Monument and the Freedom Monument. The
    Revolutionary War Monument, closest to
    the street, is a large stone, which bears
    a plaque and is surrounded by a bed of
    flowers. See R.29 & 31, Ex.23-24. The
    plaque explains that the monument was
    donated by the Daughters of the American
    Revolution in honor of the Revolutionary
    War soldiers buried in Elkhart County.
    Behind the Revolutionary War Monument is
    the Freedom Monument. The Freedom
    Monument is a brick pillar with a light
    on its top. A plaque on the pillar reads:
    "BEHOLD FRIEND, YOU ARE NOW ON HALLOWED
    GROUND FOR HERE BURNS FREEDOMS HOLY
    LIGHT." R.29 & 31, Ex.25. Collectively,
    the Revolutionary War Monument and the
    Freedom Monument are referred to as the
    War Memorial.
    On the northeast corner of the lot is
    the Ten Commandments monument./3 The
    Ten Commandments monument is made of
    granite and stands six feet high and
    three and one-half feet wide. The largest
    portion of the monument is consumed by
    the text of the Ten Commandments. The
    face of the monument reads as follows:
    the Ten Commandments
    I AM the LORD thy God.
    Thou shalt have no other gods before me.
    Thou shalt not make to thyself any graven
    images.
    Thou shalt not take the Name of the Lord
    thy God in vain.
    Remember the Sabbath day, to keep it
    holy.
    Honor thy father and thy mother, that thy
    days may be long upon the land which the
    Lord thy God giveth thee.
    Thou shalt not kill.
    Thou shalt not commit adultery.
    Thou shalt not steal.
    Thou shalt not bear false witness against
    thy neighbor.
    Thou shalt not covet thy neighbor’s
    house.
    Thou shalt not covet thy neighbor’s wife,
    nor his manservant, nor his maidservant,
    nor his cattle, nor anything that is thy
    neighbor’s.
    R.29 & 31, Ex.5. This text, as stated
    previously, is an amalgamation of Jewish,
    Protestant, and Catholic versions of the
    Ten Commandments.
    At the top of the monument, there are
    two small tablets that contain ancient
    Hebrew script. Surrounding both of these
    tablets is a floral design, and between
    the two tablets is an eye within a
    pyramid--an all-seeing eye./4
    Immediately below the all-seeing eye is
    an American Eagle grasping the American
    flag. Below the text on the monument are
    two small Stars of David. In the center
    of the two stars is a similarly sized
    symbol representing Christ: two Greek
    letters, Chi and Rho, superimposed upon
    each other. At the base of the monument
    is a small scroll, which reads as
    follows:
    PRESENTED TO
    THE CITY OF ELKHART, IND.
    BY
    ELKHART AERIE NO. 395
    FRATERNAL ORDER OF EAGLES
    MAY, 1958
    Id.
    Photos of the Ten Commandments monument
    and of the front of the Municipal
    Building were included in the trial
    record and are attached as appendices to
    this opinion.
    3.
    Insofar as this record shows, the
    presence of the Ten Commandments monument
    on the lawn of the Elkhart Municipal
    Building produced no controversy until
    1998. In that year, the City’s mayor was
    informed that, unless the monument was
    removed, a lawsuit would be filed. After
    this warning was received, the Common
    Council of the City of Elkhart convened
    on May 4, 1998, and adopted a resolution
    "regarding the display of the Ten
    Commandments on public property." R.29,
    Ex.B. According to this resolution, the
    monument and the symbols on its face
    recognize the historical and cultural
    significance of the Ten Commandments. The
    Common Council noted in its resolution
    that numerous other historical and
    cultural plaques are inside the Municipal
    Building. The Common Council further
    emphasized that "the Ten Commandments
    have had a significant impact on the
    development of the fundamental legal
    principles of Western Civilization." Id.
    Finally, the Common Council concluded
    that, because the Ten Commandments
    monument "is a historical and cultural
    monument that reflects one of the
    earliest codes of human conduct," it was
    proper for the monument to remain. Id.
    Because the Common Council did not remove
    the monument, two residents of Elkhart
    filed this action against the City of
    Elkhart.
    4.
    Plaintiff William Books is a resident of
    Elkhart County and has resided in Elkhart
    since the early 1980s. In Mr. Books’
    affidavit, he states that "[t]o the
    extent that I must, or wish to, go to the
    Municipal Building to participate as a
    citizen of Elkhart I must come into
    direct and unwelcome contact with the
    [Ten Commandments] monument." R.24,
    Attachment 1, at 2. Mr. Books explains
    that, in the past, he has gone to the
    Municipal Building to pay a traffic
    ticket and to attend City Council
    meetings when the issues discussed were
    ones that interested him. Also, notes Mr.
    Books, his deposition for this case was
    conducted in the City Attorney’s office
    in the Municipal Building. As Mr. Books
    explains, although he could use the
    Municipal Building’s side entrance
    instead of its main entrance in order to
    avoid the monument, he "know[s] the Ten
    Commandments monument is there whether
    [he] see[s] it or not." Id. at 3.
    Mr. Books further explains that he
    passes the monument in his daily
    activities, including: riding his bicycle
    on a route that passes the Municipal
    Building; patronizing the Elkhart Public
    Library, which is located across the
    street from the Municipal Building; and
    visiting his landlord’s office and his
    cousin’s house, both of which are located
    near the Municipal Building. He states
    that, in order to avoid seeing the Ten
    Commandments monument, he "would have to
    assume the special burden of altering
    [his] daily routine so as to avoid this
    direct and unwelcome contact." Id. at 2.
    Plaintiff Michael Suetkamp is also a
    resident of Elkhart County and has lived
    in Elkhart since the early 1990s. In his
    affidavit, Mr. Suetkamp states that he is
    an atheist and is offended deeply by the
    placement of the Ten Commandments
    monument on the property of the City of
    Elkhart. He states that he must come in
    direct and unwelcome contact with the
    monument to participate as a citizen of
    Elkhart. As he explains, he has entered
    the Municipal Building to pay a traffic
    ticket, to attend a City Council meeting,
    to talk to the City Council’s Clerk, and
    to have his deposition taken by the City
    Attorney in this case.
    Mr. Suetkamp also avers that he comes in
    direct and unwelcome contact with the
    monument in his daily activities. For
    example, he states that the route he
    takes to return home from work passes the
    Municipal Building and that he sometimes
    sees the monument when entering the
    Elkhart Public Library. Although he
    passes the monument frequently, Mr.
    Suetkamp admits that he does not look di
    rectly at it every time, but he states
    that "[e]ven if I don’t see it, I
    certainly know it is there." R.24,
    Attachment 4, at 2.
    B.   Proceedings in the District Court
    The district court held that the
    placement of the Ten Commandments
    monument on the lawn of the Elkhart
    Municipal Building did not violate the
    Establishment Clause. When analyzing the
    placement of the monument under the test
    set out in Lemon v. Kurtzman, 
    403 U.S. 602
     (1971), the court examined (1)
    whether the City had a secular purpose in
    maintaining the monument, (2) whether the
    primary effect of the monument was to
    advance religion, and (3) whether the
    City’s action fostered an excessive
    entanglement of government with religion.
    See 
    id. at 612-13
    . After stating that the
    third prong did not apply, the court
    found that Elkhart had a secular purpose
    for the monument. According to the court,
    the City’s purpose in accepting the
    monument, promoting morality in youths,
    is a legitimate aim of government and is
    a traditional part of the police powers
    of the state. Also, the court stated, the
    City’s purpose in continuing to display
    the monument, to maintain exhibits of
    cultural and historical significance on
    City property, is also secular.
    The court also discussed whether the
    monument had the effect of endorsing
    religion. It noted that this question is
    asked from the perspective of a
    reasonable observer who is charged with
    knowledge of the history and context of
    the display. The court stated that a
    reasonable observer looking at the
    monument would know that the Ten Command
    ments has both religious and historical
    significance and would acknowledge the
    significance of the religious symbols on
    the monument as signs of the major
    religions of this country at the time of
    the monument’s donation. The court next
    pointed out that a reasonable observer
    would view the Ten Commandments monument
    as part of the City’s overall collection
    of displays of historical and cultural
    significance. As the court explained, the
    lawn in front of the Municipal Building
    is small, and the City could not be
    expected to put all of its displays in
    one place. The court then held that it
    does not violate the Establishment Clause
    for the City of Elkhart to acknowledge
    the importance of the Ten Commandments in
    the legal and moral development of the
    nation by displaying the monument on the
    lawn of the Municipal Building./5
    II
    DISCUSSION
    A.   Standard of Review
    We review de novo the decision of the
    district court to grant summary judgment.
    See Wright v. Illinois Dep’t of
    Corrections, 
    204 F.3d 727
    , 729 (7th Cir.
    2000). Summary judgment is proper when
    the "pleadings, depositions, answers to
    interrogatories, and admissions on file,
    together with the affidavits, if any,
    show that there is no genuine issue as to
    any material fact and that the moving
    party is entitled to a judgment as a
    matter of law." Fed. R. Civ. P. 56(c);
    Celotex Corp. v. Catrett, 
    477 U.S. 317
    ,
    322-23 (1986). In determining whether a
    genuine issue of material fact exists, we
    must review the record in the light most
    favorable to the plaintiffs and make all
    reasonable inferences in their favor. See
    Anderson v. Liberty Lobby, Inc., 
    477 U.S. 242
    , 255 (1986). Here, the parties do not
    dispute the material facts, so we shall
    review de novo the district court’s
    conclusions of law. See Freedom From
    Religion Found., Inc. v. City of
    Marshfield, 
    203 F.3d 487
    , 490 (7th Cir.
    2000).
    B.   Standing
    1.
    Under Article III of the Constitution of
    the United States, a plaintiff must have
    standing to bring an action before a
    federal court. To have standing, the
    Supreme Court has explained, the
    plaintiff must allege (1) that he has
    suffered an injury in fact (2) that is
    fairly traceable to the action of the
    defendant and (3) that will likely be
    redressed with a favorable decision. See
    Lujan v. Defenders of Wildlife, 
    504 U.S. 555
    , 560-61 (1992). Here, the dispute
    centers on the first element: whether the
    plaintiffs suffered an injury in fact by
    the City’s display of the Ten
    Commandments on government property.
    To allege adequately an injury in fact,
    a plaintiff must show "an invasion of a
    legally protected interest which is (a)
    concrete and particularized and (b)
    actual or imminent, not conjectural or
    hypothetical." 
    Id. at 560
     (citations and
    quotation marks omitted). In the context
    of the Establishment Clause, our cases
    have required that, to allege properly
    that a plaintiff has suffered an injury
    in fact from the display of a religious
    object, the individual may show he has
    undertaken a special burden or has
    altered his behavior to avoid the
    offensive object. See, e.g., Freedom From
    Religion Found., 
    203 F.3d at 489
     (avoids
    using the park); Gonzales v. North
    Township, 
    4 F.3d 1412
    , 1416-17 (7th Cir.
    1993) (avoids area of the park); Harris
    v. City of Zion, 
    927 F.2d 1401
    , 1405 (7th
    Cir. 1991) (alters travel routes); Doe v.
    Village of Crestwood, 
    917 F.2d 1476
    , 1478
    (7th Cir. 1990) (will stay away from
    festival); American Civil Liberties Union
    v. City of St. Charles, 
    794 F.2d 265
    , 269
    (7th Cir. 1986) (alters behavior by
    detouring); Doe v. Small, 
    726 F. Supp. 713
    , 718-19 (N.D. Ill. 1989), rev’d en
    banc on other grounds, 
    964 F.2d 611
     (7th
    Cir. 1992) (avoids using park).
    The district court here, however, relied
    on Doe v. County of Montgomery, 
    41 F.3d 1156
     (7th Cir. 1994), to determine
    whether the plaintiffs had suffered an
    injury in fact even though they had not
    altered their behavior to avoid the Ten
    Commandments monument. In Doe, a
    permanent metal sign, hanging over the
    main entrance of the county’s courthouse,
    read: "THE WORLD NEEDS GOD." The
    plaintiffs were residents of the county
    and wished to avoid the sign; however, in
    order to participate as citizens of their
    county and to fulfill certain legal
    obligations, they needed to use the
    courthouse. They alleged that they had to
    come in direct and unwelcome contact with
    the sign when using the courthouse. In
    that case, we held that the plaintiffs’
    allegations that they must come in direct
    and unwelcome contact with the religious
    display to participate fully as citizens
    of their county and to fulfill their
    legal obligations were sufficient to show
    that they had suffered an injury in fact.
    See 
    id. at 1159
    . As we stated, "direct
    and unwelcome exposure to a religious
    message cannot be distinguished from the
    ’injuries’ of other plaintiffs who have
    had standing to bring claims under the
    Establishment Clause." 
    Id. at 1159
    . We
    then noted that both the Supreme Court
    and this court have found standing for
    constitutional challenges to religious
    conduct when the plaintiffs did not
    assume a special burden or alter their
    behavior. See Lee v. Weisman, 
    505 U.S. 577
     (1992) (student and parent objected
    to planned invocations and benedictions
    at non-mandatory graduation ceremonies);
    Wallace v. Jaffree, 
    472 U.S. 38
     (1985)
    (school children and parents objected to
    one-minute period of silence); Stone v.
    Graham, 
    449 U.S. 39
     (1980) (per curiam)
    (students and parents objected to posting
    of Ten Commandments); School Dist. of
    Abington Township v. Schempp, 
    374 U.S. 203
    , 205, 224 n.9 (1963) (school children
    and parents objected to reading of Bible
    in school although students could chose
    to be absent at time or to not
    participate); Berger v. Rensselaer Cent.
    Sch. Corp., 
    982 F.2d 1160
    , 1164 n.4 (7th
    Cir. 1993) (parent of school children
    objected to distribution of Gideon Bibles
    in the schools); Sherman v. Community
    Consol. Sch. Dist. 21 of Wheeling
    Township, 
    980 F.2d 437
    , 441 (7th Cir.
    1992) (student objected to recitation of
    Pledge of Allegiance).
    The district court followed the holding
    of Doe and noted that the plaintiffs had
    alleged that they must come in direct and
    unwelcome contact with the Ten
    Commandments monument to participate
    fully as citizens of Elkhart and to
    fulfill their legal obligations. The
    court questioned whether the plaintiffs
    had to look at the monument to enter the
    Municipal Building, as the plaintiffs in
    Doe had to see the sign over the main
    entrance to enter the county courthouse,
    but found that the facts were
    sufficiently close to fit within the rule
    of Doe. Therefore, the plaintiffs had
    standing to challenge the placement of
    the monument in front of the Municipal
    Building.
    2.
    The plaintiffs bear the burden of
    establishing that they have standing to
    bring this action. See Doe, 
    41 F.3d at 1159
    . To meet that burden, plaintiffs
    Books and Suetkamp both allege that they
    must come in direct and unwelcome contact
    with the Ten Commandments monument to
    participate fully as citizens of Elkhart
    and to fulfill certain legal duties.
    Moreover, they each allege specific
    examples in which they have entered the
    Municipal Building to participate as a
    citizen of Elkhart or to fulfill a legal
    obligation.
    According to the City, the plaintiffs
    must alter their behavior to avoid the
    Ten Commandments monument before they can
    allege that they have suffered an injury
    in fact. In Doe, the City submits, the
    plaintiffs wished to avoid the religious
    sign above the courthouse’s main entrance
    but could not do so if they wished to use
    the courthouse and to participate as
    citizens of the county. Here, the City
    argues, the plaintiffs could have entered
    the Municipal Building through
    alternative entrances, or, even if
    entering through the main entrance, they
    could have passed along the back of the
    Ten Commandments monument. Because of
    these two options, the City contends, the
    plaintiffs did not need to come in direct
    and unwelcome contact with the text on
    the Ten Commandments monument in order to
    participate as citizens of Elkhart or to
    fulfill their legal obligations. Thus,
    the City asserts, the plaintiffs have not
    alleged that they suffered an injury in
    fact by the placement of the Ten
    Commandments monument on the lawn of the
    Municipal Building.
    3.
    As this court discussed in Doe, the
    Supreme Court has addressed the
    requirements for standing when a
    plaintiff must view a religious symbol in
    his daily routine or when he is forced to
    come in contact with religious conduct
    through participation in school or in
    government. See Doe, 
    41 F.3d at 1160
    . As
    we demonstrated in Doe, our holding in
    that case is grounded firmly in the
    precedent of the Supreme Court.
    Therefore, we must conclude that the
    plaintiffs have standing to challenge the
    placement of the Ten Commandments
    monument on the lawn of the Municipal
    Building.
    We agree with the district court that
    there is no principled distinction
    between the facts of Doe and the facts
    presented here. In Doe, the plaintiffs
    were required to come in direct and
    unwelcome contact with the religious
    display in order to participate fully in
    government and to fulfill their legal
    obligations. Here, the plaintiffs must do
    the same. Although it is true that the
    plaintiffs here could have altered their
    path into the Municipal Building to avoid
    the monument, an act that would have
    given them standing under Seventh Circuit
    precedent, see, e.g., Freedom From
    Religion Found., 
    203 F.3d at 489
    ; City of
    St. Charles, 
    794 F.2d at 269
    , they were
    not obligated to do so to suffer an
    injury in fact, see Doe, 
    41 F.3d at
    1160-
    61. Moreover, because the plaintiffs are
    aware of the words written on the front
    of the monument, merely walking behind it
    will not eradicate the injury they
    allegedly suffered by passing the
    TenCommandments monument. We therefore
    conclude that a plaintiff may allege an
    injury in fact when he is forced to view
    a religious object that he wishes to
    avoid but is unable to avoid because of
    his right or duty to attend the
    government-owned place where the object
    is located. See Doe, 
    41 F.3d at 1159-61
    .
    Therefore, the plaintiffs have alleged
    sufficient facts to demonstrate that they
    suffered an injury in fact by the
    placement of the Ten Commandments
    monument on the lawn of the Municipal
    Building.
    C.   Governing Principles and Application
    Although various members of the Supreme
    Court of the United States have
    criticized it,/6 the test first
    enunciated by the Court in Lemon v.
    Kurtzman, 
    403 U.S. 602
     (1971), remains
    the prevailing analytical tool for the
    analysis of Establishment Clause claims.
    As an intermediate federal appellate
    court, we are obliged by the doctrines of
    stare decisis and precedent to employ
    that methodology unless instructed
    otherwise by the Supreme Court./7 See,
    e.g., Freedom From Religion Found., 
    203 F.3d at 493
     (emphasizing Lemon test in
    Establishment Clause analysis);
    Bridenbaugh v. O’Bannon, 
    185 F.3d 796
    ,
    797 (7th Cir. 1999) (same); Tanford v.
    Brand, 
    104 F.3d 982
    , 986 (7th Cir. 1997)
    (same); Kerr v. Farrey, 
    95 F.3d 472
    , 476-
    80 (7th Cir. 1996) (same); Fleischfresser
    v. Directors of Sch. Dist. 200, 
    15 F.3d 680
    , 685-86 (7th Cir. 1994) (same);
    Sherman, 8 F.3d at 1163-64 (same). Under
    the approach mandated by Lemon, we must
    consider: (1) whether 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. See Lemon,
    
    403 U.S. at 612-13
    . Governmental action
    is violative of the constitutional
    prohibition against the establishment of
    religion if it violates any one of these
    three prongs. See Edwards v. Aguillard,
    
    482 U.S. 578
    , 583 (1987). In this case,
    the plaintiffs do not contend that the
    display of the monument involves an
    excessive entanglement with religion;
    therefore, we shall confine our
    discussion to the first two prongs of the
    analysis.
    Before turning to the situation before
    us, we also note that, in more recent
    cases, the Supreme Court has, on
    occasion, articulated these first two
    prongs in terms of an "endorsement" test.
    See County of Allegheny v. American Civil
    Liberties Union, Greater Pittsburgh
    Chapter, 
    492 U.S. 573
    , 592 (1989)
    (formally accepting the endorsement test
    and stating that "[i]n recent years, we
    have paid particularly close attention to
    whether the challenged governmental
    practice either has the purpose or effect
    of ’endorsing’ religion, a concern that
    has long had a place in our Establishment
    Clause jurisprudence"); see also Santa Fe
    Indep. Sch. Dist. v. Doe, 
    120 S. Ct. 2266
    , 2278 (2000) (asking whether the
    state endorsed religion by allowing a
    student to lead a prayer to open high
    school football games); Capitol Square
    Review & Advisory Bd. v. Pinette, 
    515 U.S. 753
    , 763-65 (1995) (acknowledging
    endorsement test but stating that it did
    not apply in the case at hand because the
    correct analysis for private religious
    speech in a public forum was under the
    Free Speech Clause). As we noted recently
    in Freedom From Religion Foundation,
    "[u]nder this test, ’the effect prong
    asks whether, irrespective of
    government’s actual purpose, the practice
    under review in fact conveys a message of
    endorsement or disapproval.’" 
    203 F.3d at 493
     (quoting Lynch v. Donnelly, 
    465 U.S. 668
    , 690 (1984) (O’Connor, J.,
    concurring)).
    1.
    The first part of our inquiry must be to
    determine whether the display of this
    tablet by the City of Elkhart has the
    primary purpose of "advancing or
    inhibiting religion." Agostini v. Felton,
    
    521 U.S. 203
    , 222-23 (1997). As the Court
    has explained, "’The purpose prong of the
    Lemon test asks whether the government’s
    actual purpose is to endorse or
    disapprove of religion.’" Aguillard, 
    482 U.S. at 585
     (quoting Lynch, 
    465 U.S. at 690
     (O’Connor, J., concurring)). In
    determining whether this particular
    display of the Ten Commandments can be
    said to have a valid secular purpose, we
    must evaluate the totality of the
    circumstances surrounding the placement
    and maintenance of the monument.
    As a starting point, we do not think it
    can be said that the Ten Commandments,
    standing by themselves, can be stripped
    of their religious, indeed sacred,
    significance and characterized as a moral
    or ethical document. Indeed, the Supreme
    Court made this point clear in Stone v.
    Graham, 
    449 U.S. 39
     (1980), when it noted
    that a simple reading of the Ten
    Commandments does not permit us to ignore
    that they transcend "arguably secular
    matters, such as honoring one’s parents,
    killing or murder, adultery, stealing,
    false witness, and covetousness. Rather,
    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 41-42 (citations
    omitted). Indeed, when one goes beyond
    the text itself and regards this
    particular display, the religious nature
    of the document is emphasized by the very
    format of the monument. Notably, the
    prefatory words "I am the Lord thy God"
    are set out in large lettering at the top
    of the text. R.29 & 31, Ex.5. This
    religious format is enhanced, not
    detracted from, by the etchings at the
    bottom of the tablet of the Stars of
    David and the Chi Rho symbol, a
    distinctive Christian symbol. It cannot
    be doubted, therefore, that this monument
    bearing the Ten Commandments possesses a
    religious nature.
    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. For example, on the wall of
    the Supreme Court there is a frieze that
    contains Moses holding the Ten
    Commandments. The frieze contains
    depictions of two other religious
    figures, Confucius and Mohammed, but it
    also includes Caesar Augustus, William
    Blackstone, Napoleon Bonaparte, and John
    Marshall. Justice Stevens has stated that
    the placement of all of these historic
    figures together on the frieze signals a
    respect for great lawgivers, not great
    proselytizers. See County of Allegheny,
    
    492 U.S. at 652
     (Stevens, J., concurring
    in part and dissenting in part). This is
    a fitting message, he tells us, for the
    wall of a courtroom. See 
    id. at 653
    . A
    display is unconstitutional, according to
    Justice Stevens, "only when its message,
    evaluated in the context in which it is
    presented, is nonsecular." 
    Id. at 652
    .
    Indeed, the Court in Stone emphasized
    that the challenged statute that required
    the posting of the Ten Commandments on
    schoolroom walls did not present "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." 449 U.S. at 42.
    The Supreme Court has stressed the
    importance of the context of a clearly
    religious symbol in determining whether
    the purpose in displaying the symbol is
    religious or secular. We also have
    emphasized that religious symbols should
    not be considered in the abstract;
    instead, courts must ask "whether the
    particular display at issue, considered
    in its overall context, could be said to
    advance religion." American Jewish
    Congress v. City of Chicago, 
    827 F.2d 120
    , 125 (7th Cir. 1987).
    Here, the record discloses no
    significant attempt by the City of
    Elkhart to present the text of the Ten
    Commandments in a way that might diminish
    its religious character./8 Indeed, the
    history of the City’s involvement in the
    placement of this particular monument
    serves to emphasize a religious purpose
    in its display. As we have noted already,
    the original impetus behind the
    proliferation of the Ten Commandments
    monuments was Judge Ruegemer’s desire to
    provide youths with a common code of
    conduct that they could use to govern
    their actions. In accepting the monument,
    the City also aimed to provide a code of
    conduct for the citizens of Elkhart to
    follow. The code chosen, however, was a
    religious code that focuses not only on
    subjects that are the legitimate concern
    of civil authorities, but also subjects
    that are beyond the ken of any government
    and that address directly the
    relationship of the individual human
    being and God. That the purpose was to
    endorse, through governmental
    sponsorship, a code of religious values
    is further established by the program of
    speakers at the dedication of the
    monument: a Protestant minister, a
    Catholic priest, and a Jewish rabbi. When
    these religious leaders spoke, the first
    speaker urged Americans to accept the
    precepts of the Ten Commandments because
    they could provide redemption from strife
    and fear. The second speaker stated that
    the Ten Commandments should be engraved
    not only in stone but in the hearts,
    minds, and consciences of everyone.
    Finally, the last speaker recommended
    that the dedication of the monument
    should be an occasion for the dedication
    of everyone to the high ideals inherent
    in the American way of life. The
    participation of these influential
    members of several religious
    congregations makes it clear that the
    purpose for displaying the monument was
    not only to provide youths with a common
    code of conduct to guide their
    participation in the civil community but
    also to urge the people of Elkhart to em
    brace the specific religious code of
    conduct taught in the Ten Commandments.
    Thus, in applying the purpose prong of
    Lemon, the inherently religious nature of
    the Ten Commandments is strengthened by
    the circumstances surrounding the display
    of the monument. We cannot escape the
    conclusion that the purpose in displaying
    this monument was to promote religious
    ideals.
    Moreover, nothing in the subsequent
    history of the monument can be said to
    have in any way transformed that
    religious purpose. The City’s resolution,
    issued on the eve of this litigation and
    proclaiming a secular purpose for the
    monument’s presence by recognizing the
    historical and cultural significance of
    the Ten Commandments, ought to be
    accorded no more weight than the avowed
    secular legislative purpose articulated
    by the Kentucky legislature in Stone. In
    Stone, the Kentucky statute required the
    following language at the bottom of each
    Ten Commandments display: "’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.’" 449 U.S. at 41 (quoting
    
    1978 Ky. Acts 436
    , sec. 1, Ky. Rev. Stat.
    Ann. sec. 158.178 (1980)). The Supreme
    Court responded to this statement of
    purpose by stating that "such an ’avowed’
    secular purpose is not sufficient to
    avoid conflict with the First Amendment."
    Id.; see also Santa Fe Indep. Sch. Dist.,
    
    120 S. Ct. at 2278
     (reiterating that a
    governmental entity’s professed secular
    purpose for an arguably religious policy
    is entitled to some deference but that it
    is the duty of the courts to ensure that
    the purpose is sincere); Aguillard, 
    482 U.S. at 586-87
     (stating that courts
    should normally defer to a state’s
    articulation of a secular purpose, but
    the statement of such purpose must be
    sincere). As we noted in Gonzales, 
    4 F.3d at 1419
    , although this court "will defer
    to a municipality’s sincere articulation
    of a religious symbol’s secular purpose,"
    we shall not accept a stated purpose that
    merely seeks to avoid a potential
    Establishment Clause violation.
    Similarly, we hold that the City of
    Elkhart’s avowed secular purpose of
    recognizing the historical and cultural
    significance of the Ten Commandments,
    issued on the eve of litigation, "is not
    sufficient to avoid conflict with the
    First Amendment." Stone, 449 U.S. at 41.
    We therefore hold that the purpose
    ofdisplaying the Ten Commandments
    monument was not secular. The display of
    the monument, consequently, violates the
    first prong of the Lemon test and cannot
    survive Establishment Clause scrutiny.
    2.
    Even if we were to ignore the primary
    purpose behind displaying the Ten
    Commandments monument, we would have to
    conclude that this particular display has
    the primary or principal effect of
    advancing religion. In County of
    Allegheny, the Court noted that, under
    this prong, courts have a special
    responsibility to ensure that a
    government-sponsored display does not
    have the purpose or the effect of
    endorsing a religion. See 
    492 U.S. at 592
    . As we noted recently in Freedom of
    Religion Foundation, "[u]nder this test,
    ’the effect prong asks whether,
    irrespective of government’s actual
    purpose, the practice under review in
    fact conveys a message of endorsement or
    disapproval.’" 
    203 F.3d at 493
     (quoting
    Lynch, 
    465 U.S. at 690
     (O’Connor, J.,
    concurring)). When employing this
    analytical approach, we are charged with
    the responsibility of assessing the
    totality of the circumstances surrounding
    the display to determine whether a
    reasonable person would believe that the
    display amounts to an endorsement of
    religion. See County of Allegheny, 
    492 U.S. at 597
     (stating that "the
    government’s use of religious symbolism
    is unconstitutional if it has the effect
    of endorsing religious beliefs, and the
    effect of the government’s use of
    religious symbolism depends on its
    context").
    In County of Allegheny, the plaintiffs
    challenged the recurring holiday displays
    of a creche placed on the Grand Staircase
    inside the county courthouse and of a
    Chanukah menorah placed outside the city-
    county building. The Court held that the
    placement of the creche violated the
    Establishment Clause. The creche in
    question was surrounded on three sides by
    a wooden fence. Along the fence sat
    poinsettias, and on each of the two ends
    of the fence was a small evergreen tree.
    A plaque was attached to the fence that
    announced that the display had been
    donated by the Holy Name Society. The
    creche was used as the setting for
    weekday Christmas caroling by local
    musical groups. The Court noted that the
    creche was capable of communicating a
    religious message, but then explained
    that "the effect of a creche display
    turns on its setting" because "the
    context of the display [could] detract[ ]
    from the creche’s religious message." 
    Id. at 598
    . In assessing the context
    surrounding the creche in County of
    Allegheny, the Court determined that
    nothing detracted from its religious
    message. The floral border drew one’s
    attention to the display, and the fact
    that traditional Christmas flowers were
    used further contributed to the
    perception of the endorsement of religion
    by the government. The sign disclosing
    ownership by a Catholic organization
    further enhanced the perception that the
    government was promoting a religious
    message. The Court also noted that the
    creche was displayed on the main and most
    beautiful part of the building and that
    the building served as the seat of
    government. According to the Court, "[n]o
    viewer could reasonably think that it
    occupies this location without the
    support and approval of the government."
    Therefore, concluded the Court, "by
    permitting the ’display of the creche in
    this particular physical setting,’ the
    county sends an unmistakable message that
    it supports and promotes the Christian
    praise to God that is the creche’s
    religious message." 
    Id. at 599-600
    (quoting Lynch, 
    465 U.S. at 692
    (O’Connor, J., concurring)). The Court
    therefore held that the creche display
    violated the Establishment Clause.
    In County of Allegheny, a majority of
    the Court also held that the menorah
    placed in front of the city-county
    building did not violate the
    Establishment Clause. The menorah was
    placed next to a 45-foot pine tree that
    was decorated with lights and ornaments.
    At the foot of the tree rested a sign
    that bore the mayor’s name and a text
    that was entitled "Salute to Liberty."
    The Court held that this particular
    display was not a violation of the
    Establishment Clause because its specific
    setting did not have the primary effect
    of endorsing religion. Instead, the Court
    stated that the combination of the now-
    secularized Christmas tree with a sign
    extolling liberty and the giant menorah
    tended to promote the winter-holiday
    season. The display, held the Court, did
    not violate the Establishment Clause.
    In fulfilling our responsibility to
    apply faithfully the Establishment Clause
    jurisprudence of the Supreme Court of the
    United States, we have subjected to
    particularly careful scrutiny displays at
    the seat of government. We have taken
    this course because "[a]n important
    concern of the effects test is . . .
    ’whether the symbolic union of church and
    state effected by the challenged
    governmental action is sufficiently
    likely to be perceived by adherents of
    the controlling denominations as an
    endorsement, and by the nonadherents as a
    disapproval, of their individual
    religious choices.’" American Jewish
    Congress, 
    827 F.2d at 127
     (quoting Grand
    Rapids Sch. Dist. v. Ball, 
    473 U.S. 373
    ,
    390 (1985)). In American Jewish Congress,
    the City of Chicago had displayed a
    creche during the holiday season in the
    lobby of the city-county building. We
    noted that the seat of government is "a
    setting where the presence of government
    is pervasive and inescapable." Id. at
    126. We then held that the display
    violated the second prong of Lemon
    "[b]ecause City Hall is so plainly under
    government ownership and control, every
    display and activity in the building is
    implicitly marked with the stamp of
    government approval." Id. at 128. In that
    case, the presence of the creche in the
    lobby of the seat of government created
    "a clear and strong impression that the
    local government tacitly endorse[d]
    Christianity." Id.
    We reiterated this principle in Harris
    v. City of Zion, 
    927 F.2d 1401
     (7th Cir.
    1991). In City of Zion, the plaintiffs
    challenged the seal of two cities because
    they contained symbols of Christianity,
    the Latin cross. We stated that the
    cities’ seals containing the Latin cross
    presented unambiguous endorsements of
    religion in violation of the
    Establishment Clause. See 
    id. at 1412
    .
    "Depicting these patently religious
    symbols on a corporate seal that is
    wholly owned and controlled by the City
    connotes the City’s approval for the
    message conveyed." 
    Id. at 1414
    . This
    endorsement, we held, violated the
    Establishment Clause. Moreover, we noted,
    the finding of a constitutional violation
    was even more compelling in this
    situation because the seals were "a
    permanent statement that [was] viewed
    year-round." 
    Id. at 1412
    .
    In assessing the situation before us, we
    must ask whether an objective observer
    familiar with the history and placement
    of the Ten Commandments monument would
    perceive it as a state endorsement of
    religion. See Santa Fe Indep. Sch. Dist.,
    
    120 S. Ct. at 2278
    . We note first that
    the monument is displayed at the seat of
    government. As we have just explained,
    the seat of government "is so plainly
    under government ownership and control"
    that every display on its property is
    marked implicitly with governmental
    approval. American Jewish Congress, 
    827 F.2d at 128
    . Here, in front of the
    building that houses the governmental
    departments of the City, stands a
    religious message. This granite monument
    is a permanent fixture on the grounds of
    the seat of government. As viewed by the
    passer-by or by an individual approaching
    the building, the monument certainly
    cannot be fairly characterized as a
    component of a comprehensive display of
    the cultural heritage of the people of
    Elkhart. Rather, it stands, as the City
    intended it to be when it dedicated the
    monument on Memorial Day in 1958, as a
    sole and stark reminder of the specific
    injunctions contained in the
    Commandments. Indeed, the surrounding
    area enhances the dignity and the primacy
    of the Commandments. Above the door of
    the Municipal Building are the Latin
    words "Dedicatum Justitia." Those who
    view the Ten Commandments are thus
    informed that the role of the government
    in that location is to do justice; the
    only "law" displayed for doing justice is
    the monument bearing the Ten
    Commandments. The only other display on
    the lawn of the Municipal Building is the
    War Memorial that reminds the onlooker
    that the space in front of the Municipal
    Building is "hallowed ground." R.29 & 31,
    Ex.25./9 The person approaching the
    seat of government is thus informed that,
    at that location, the government goes
    about the business of doing justice, that
    the only "law" displayed is the
    Commandments, and that these Commandments
    are displayed on land designated by the
    government as "hallowed ground."
    The format of the monument itself hardly
    dilutes its religious message. Indeed,
    this monument impermissibly suggests
    that, in this community, there are "ins"
    and "outs." The monument contains the
    Stars of David and the symbol of Christ,
    representing respectively Judaism and
    Christianity, two of the religions no
    doubt particularly represented in the
    Elkhart community, but by no means the
    total of all those who depend on the City
    of Elkhart as their local government. The
    Supreme Court has cautioned that
    government "sponsorship of a religious
    message is impermissible because it sends
    the ancillary message to members of the
    audience who are nonadherents ’that they
    are outsiders, not full members of the
    political community, and the accompanying
    message to adherents that they are
    insiders, favored members of the
    political community.’" Santa Fe Indep.
    Sch. Dist., 
    120 S. Ct. at 2279
     (quoting
    Lynch, 
    465 U.S. at 688
     (O’Connor, J.,
    concurring)).
    In this regard, the placement of the
    American Eagle gripping the national
    colors at the top of the monument hardly
    detracts from the message of endorsement;
    rather, it specifically links religion,
    or more specifically these two religions,
    and civil government. See City of Zion,
    
    927 F.2d at 1412
     (holding that a Latin
    cross surrounded by other symbols of city
    life on the city’s corporate seal only
    served to show that the city approved of
    certain aspects of city life, among them
    Christianity).
    Finally, we cannot say that the
    monument’s acknowledgment of two
    religious traditions, rather than one,
    renders the situation before us in
    compliance with the strictures of the
    Constitution. "The simultaneous
    endorsement of Judaism and Christianity
    is no less constitutionally infirm than
    the endorsement of Christianity alone."
    County of Allegheny, 
    492 U.S. at 615
    .
    Although Elkhart’s Ten Commandments
    monument does not endorse Christianity
    only, it confines its approval to the
    Judeo-Christian faiths. As the Supreme
    Court has stated, the First Amendment is
    "recognized as guaranteeing religious
    liberty and equality to ’the infidel, the
    atheist, or the adherent of a non-
    Christian faith such as Islam or Judaism.’"
    
    Id.
     (quoting Wallace, 
    472 U.S. at 52
    ).
    Accordingly, we hold that the primary
    effect of the Ten Commandments monument
    on the property of the City of Elkhart’s
    Municipal Building is to advance or
    endorse religion. The display,
    consequently, fails the second prong of
    the Lemon test and violates the
    Establishment Clause.
    3.
    This case was decided by the district
    court on cross-motions for summary
    judgment. Now that we have reversed the
    district court’s grant of summary
    judgment for the defendants, the district
    court ought to enter summary judgment for
    the plaintiffs. The district court must
    then turn to the question of remedy. In
    fashioning a remedy, the district court
    must be guided by the basic rule that the
    nature of the remedy ought to be
    determined by the nature and the scope of
    the constitutional violation. See
    Milliken v. Bradley, 
    433 U.S. 267
    , 280
    (1977). It must also proceed in a manner
    that respects the interests of state and
    local authorities to manage their own
    affairs in a manner consistent with the
    Constitution of the United States. See
    
    id. at 280-81
    .
    In crafting equitable relief to comply
    with our judgment today, the district
    court must ensure that, although the con
    dition that offends the Constitution is
    eliminated, Elkhart retains the authority
    to make decisions regarding the placement
    of the monument. In making those
    decisions, Elkhart 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. Cf. Zorach v.
    Clausen, 
    343 U.S. 306
    , 313 (1952) ("We
    are a religious people whose institutions
    presuppose a Supreme Being. We guarantee
    the freedom to worship as one chooses. We
    make room for as wide a variety of
    beliefs and creeds as the spiritual needs
    of man deem necessary. We sponsor an
    attitude on the part of government that
    shows no partiality to any one group.").
    Arriving at a realistic solution that
    comports with the strictures of the
    Establishment Clause will no doubt take
    some time, and the district court ought
    to ensure that Elkhart authorities have a
    reasonable time to address in a
    responsible and appropriate manner the
    task of conforming to the letter and
    spirit of the constitutional mandate.
    Conclusion
    Cases involving religion pose difficult
    questions for courts. "Since undoubtedly
    we are a ’religious people whose
    institutions presuppose a Supreme Being,’
    deep feelings are aroused when aspects of
    that relationship are claimed to violate
    the injunction of the First Amendment
    that government may make ’no law
    respecting an establishment of religion,
    or prohibiting the free exercise thereof.’"
    Schempp, 
    374 U.S. at 230
     (Brennan, J.,
    concurring) (citation omitted). This is
    especially true of cases that require
    enforcement of the Establishment Clause
    because that Clause often requires a
    restriction on religious activity on the
    part of a government entity and is
    therefore misperceived as restricting the
    ability of the community to acknowledge
    the religious commitment of its people.
    As our discussion today makes clear, the
    scope of our Establishment Clause
    jurisprudence is far more circumscribed.
    Rather, the Supreme Court’s cases, and
    the decisions of our court in conformity
    with those precedents of the High Court,
    simply prevent government at any level
    from intruding into the religious life of
    our people by sponsoring or endorsing a
    particular perspective on religious
    matters. It prevents, as Justice O’Connor
    has pointed out, government from creating
    among our people "ins" and "outs" on the
    basis of religion. In this latter
    respect, it acknowledges the very unique
    religious nature of our people. Few of us
    can look too far back in our personal
    histories--and the Country certainly
    cannot ignore the circumstance of its own
    birth--without acknowledging that our
    ancestors were people who suffered
    significantly because of their religious
    belief and who were ostracized by their
    national communities or made to suffer
    poverty or even worse because of their
    religious beliefs. As one visitor to our
    shores, himself a refugee from Nazi
    tyranny, put it, Americans can all say,
    "We are bruised souls." We each carry
    "the wounds and sorrows of ancestors, and
    that memory of the sufferings caused by
    persecution and prejudice which they left
    to their progeny" is our "spiritual
    patrimony."/10 The Establishment
    Clause acknowledges that "spiritual
    patrimony" and requires that we exercise,
    in our governmental manifestations of the
    religious nature of our people, a self-
    restraint that will prevent anyone from
    becoming in the eyes of our governmental
    system--an "out" on the basis of
    religious beliefs.
    Accordingly, the judgment of the
    district court is reversed, and the case
    is remanded for proceedings in conformity
    with this opinion.
    REVERSED and REMANDED
    /1 See County of Allegheny v. American
    Civil Liberties Union, Greater
    Pittsburgh Chapter, 
    492 U.S. 573
    ,
    588 (1989); Wallace v. Jaffrey, 
    472 U.S. 38
    , 48-55 (1985); School Dist.
    of Abingdon Township v. Schempp,
    
    374 U.S. 203
    , 215 (1963) (calling
    the principle "decisively settled");
    Cantwell v. Connecticut, 
    310 U.S. 296
    , 303 (1940).
    /2 The bas relief also contains,
    in smaller lettering, the words "INCORPO-
    RATED 1875" on the far left of
    the elk’s head and the words "ERECTED
    1915" on the far right of the elk’s
    head. R.29 & 31, Ex.16.
    /3 Both the Ten Commandments monument
    and the War Memorial are approxi-
    mately the same distance from the
    main entrance and from the sidewalks.
    The Ten Commandments monument is 46
    feet from the main entrance and 10
    feet from the sidewalk, and the War
    Memorial is 48 feet from the main
    entrance and 10 feet from the sidewalk.
    Both are partially shaded by
    trees.
    /4 The all-seeing eye on the monument
    is similar to the one depicted on
    the one-dollar bill.
    /5 The district court also analyzed
    the placement of the Ten Commandments
    under several other "tests." Because
    we believe that the Lemon test,
    as refined by Supreme Court precedent,
    stillcontrols our Establishment
    Clause jurisprudence, we will not
    discuss the other tests mentioned by
    the district court.
    /6 See, e.g., Santa Fe Indep. Sch.
    Dist. v. Doe, 
    120 S. Ct. 2266
    , 2284-85
    (2000) (Rehnquist, C.J., dissenting)
    (stating that "Lemon has had a
    checkered career in the decisional
    law of this Court" and collecting
    opinions criticizing Lemon); Lamb’s
    Chapel v. Center Moriches Union
    Free Sch. Dist., 
    508 U.S. 384
    , 398-99
    (1993) (Scalia, J., concurring
    in judgment) (comparing Lemon to
    "some ghoul in a late-night horror
    movie that repeatedly sits up in its
    grave and shuffles abroad, after
    being repeatedly killed and buried"
    and then collecting opinions
    criticizing Lemon); County of Allegheny,
    
    492 U.S. at 655-56
     (Kennedy,
    J., concurring in the judgment
    in part and dissenting in part) (stating
    that, although he found the Lemon test
    useful in judging the constitu-
    tionality of holiday displays, he
    did "not wish to be seen as
    advocating, let alone adopting, that
    test as our primary guide in this
    difficult area"); Committee for Pub.
    Educ. & Religious Liberty v.
    Regan, 
    444 U.S. 646
    , 671 (1980) (Stevens,
    J., dissenting) (desiring to
    avoid "continuing with the sisyphean
    task of trying to patch together
    the ’blurred, indistinct, and variable
    barrier’ described in Lemon"
    (citation omitted)).
    /7
    See State Oil v. Kahn, 
    522 U.S. 3
    , 20
    (1997) (stating that the "Court
    of Appeals was correct in applying [the
    doctrine of stare decisis]
    despite disagreement with [a prior
    Supreme Court opinion], for it is
    this Court’s prerogative alone to
    overrule one of its precedents");
    Agostini v. Felton, 
    521 U.S. 203
    , 217
    (1997) (reminding appellate
    courts that "the views of five Justices
    that [a] case should be
    reconsidered or overruled cannot
    be said to have effected a change in
    Establishment Clause law"); see also
    DeWalt v. Carter, 
    224 F.3d 607
    ,
    617 n.5 (7th Cir. 2000).
    /8 Given the obvious religious nature
    of the text itself, it falls to the
    City of Elkhart to demonstrate that
    it has taken steps to "obviate its
    religious purpose." Gonzales v. North
    Township, 
    4 F.3d 1412
    , 1421 (7th
    Cir. 1993); see also Bridenbaugh v.
    O’Bannon, 
    185 F.3d 796
    , 798 (7th
    Cir. 1999); Metzl v. Leininger, 
    57 F.3d 618
    , 621 (7th Cir. 1995).
    /9 As stated above, the Freedom Monument
    reads: "BEHOLD FRIEND, YOU ARE
    NOW ON HALLOWED GROUND FOR HERE
    BURNS FREEDOMS HOLY LIGHT." R.29 & 31,
    Ex.25.
    /10 Jacques Maritain, Reflections
    on America 83-84 (1958).
    APPENDIX
    MANION, Circuit Judge,   concurring in part and
    dissenting in part. The    court sets out an
    accurate presentation of   the facts at issue in
    this case. Suffice it to   say that in a Memorial
    Day ceremony in 1958 the   Fraternal Order of the
    Eagles presented to the City of Elkhart a stone
    monument engraved with a version of the Ten
    Commandments. The City placed it near the north
    entrance of the City Hall building where it has
    remained to this day. The plaintiffs claim that
    the location of the monument is offensive to them
    and an unconstitutional endorsement of religion
    by the City.
    I agree with the court’s analysis regarding the
    plaintiffs’ standing to challenge the
    constitutionality of the placement of the Ten
    Commandments monument. And while I also agree
    with the court’s legal summary of the Lemon test,
    I disagree with its application of Lemon to the
    facts before us. Rather, applying Lemon and its
    progeny should lead to the conclusion that the
    City of Elkhart does not violate the
    Establishment Clause by leaving undisturbed a
    monument inscribed with the Ten Commandments that
    was erected more than forty years ago. Moreover,
    even if the monument did not satisfy the Lemon
    test, the Supreme Court has upheld certain
    religious practices which have become a part of
    the fabric of our society. Leaving the Ten
    Commandments monument where it now stands
    comfortably falls within the historical context
    of this country and is thus constitutional even
    though it retains the unequivocal references to
    God. I therefore CONCUR in part and DISSENT in part.
    I.
    A.
    Lemon Test
    In Lemon v. Kurtzman, 
    403 U.S. 602
     (1971), the
    Supreme Court adopted a three-part test for
    analyzing Establishment Clause cases. First, the
    government’s challenged practice must have a
    secular purpose. Second, the principal or primary
    effect must be one that neither advances nor
    inhibits religion. Third, the government’s
    practice must not create an excessive
    entanglement of religion. As noted by the court,
    the third prong is not at issue. Accordingly, we
    focus on the first two prongs of the Lemon test.
    1. Secular purpose.
    Under Lemon, the government’s challenged
    practice must have a secular purpose. Thus, in
    this case, we must ask whether a secular purpose
    supports the City of Elkhart’s decision not to
    remove the Ten Commandments monument. Elkhart
    presented as evidence of its secular purpose the
    resolution which its Common Council adopted on
    May 4, 1998, following consideration of the
    plaintiffs’ request that the City remove the 40-
    year-old monument./1
    The Council’s resolution, which the Mayor of
    Elkhart approved on May 13, 1998, identifies
    several secular purposes justifying the City’s
    decision not to remove the Ten Commandments
    monument. First, as the City recognized, the Ten
    Commandments represents one of the earliest codes
    of human conduct and, as such, it "had a
    significant impact on the development of the
    fundamental legal principles of Western
    Civilization." In fact, the Ten Commandments
    served as a foundation for the formation of both
    English Common Law and the Napoleonic Code, which
    together laid the foundation for American
    jurisprudence. See State of Colorado v. Freedom
    From Religion Foundation, Inc., 
    898 P.2d 1013
    ,
    1018 (Col. 1995). See also, id. at 1026 (Ten
    Commandments "monument represents the secular
    objective intended at the outset, recognition of
    a historical, jurisprudential cornerstone of
    American legal significance").
    The Common Council’s resolution also noted that
    "the Monument contains symbols that reflect the
    cross cultural and historical significance of the
    Ten Commandments," and that the monument serves
    as a recognition of those roots and the
    historical significance of the Ten Commandments.
    These stated justifications are permissible
    secular purposes even though a religious symbol
    is used to accomplish them. Anderson v. Salt Lake
    City Corp., 
    475 F.2d 29
    , 34 (10th Cir. 1973) (Ten
    Commandments monument stands as "a depiction of
    a historically important monument with both
    secular and sectarian effects"). See, e.g., Lynch
    v. Donnelly, 
    465 U.S. 668
    , 691 (1984) (O’Connor,
    J., concurring) ("[c]elebration of public
    holidays, which have cultural significance even
    if they also have religious aspects, is a
    legitimate secular purpose"); 
    id. at 680
     ("The
    creche in the display depicts the historical
    origins of the traditional event long recognized
    as a National Holiday. . . . [T]he display is
    sponsored by the City to celebrate the Holiday
    and to depict the origins of that Holiday.");
    American Jewish Congress v. City of Chicago, 
    827 F.2d 120
    , 126-27 (7th Cir. 1987) (recognizing
    that a city’s tradition in "taking official note
    of Christmas" and acknowledging public sentiment
    in favor of the nativity scene are permissible
    secular purposes justifying creche display). The
    fact that the Ten Commandments refers to God, and
    that all of the world’s major monotheistic
    religions have the Ten Commandments as basic
    tenets of their faith, does not alter the
    monument’s secular purposes. See, e.g., American
    Jewish Congress, 
    827 F.2d at 126
     (to serve a
    secular purpose, the government’s purpose need
    not be unrelated to religion). Cf. Bridenbaugh v.
    O’Bannon, 
    185 F.3d 796
    , 799-800 (7th Cir. 1999)
    (the fact that a secular holiday coincides with
    a day that has religious significance for
    Christians does not defeat the secular purpose
    justifying the state holiday).
    The court acknowledges the validity of Elkhart’s
    asserted secular purposes, stating "[t]he 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." Opinion
    at 19. And in this case, Elkhart has explicitly
    stated in its resolution that it was leaving
    standing the Ten Commandments monument in order
    to recognize their "significant impact on the
    development of the fundamental legal principles
    of Western Civilization." Yet the court concludes
    that "the purpose in displaying the Ten
    Commandments monument was not secular." Opinion
    at 22. How can the court on one hand recognize
    the legitimacy of this purpose and on the other
    conclude that Elkhart lacks a legitimate secular
    purpose for leaving the Ten Commandments monument
    in place? Apparently, the court just doesn’t
    believe that the City of Elkhart’s statement of
    secular purposes is sincere and not a sham.
    Edwards v. Aguillard, 
    482 U.S. 578
    , 586-87 (1987)
    ("While the Court is normally deferential to a
    State’s articulation of a secular purpose, it is
    required that the statement of such purpose be
    sincere and not a sham.").
    But there is no evidence that the Common
    Council’s resolution was a sham, and absent some
    evidence that the Common Council’s stated reasons
    for its decision not to remove the monument are
    insincere, we should defer to those asserted
    justifications. Cohen v. City of Des Plaines, 
    8 F.3d 484
    , 489 (7th Cir. 1993). See also American
    Jewish Congress, 
    827 F.2d at 127
     ("In the absence
    of any evidence that the city’s stated purposes
    behind the display of the nativity scene are
    merely a sham, we must conclude that the 1985-86
    display had no invidious purpose.") (internal
    citation omitted). "This is in keeping with the
    well settled maxim that courts are ’reluctan[t]
    to attribute unconstitutional motives to the
    States, particularly when a plausible secular
    purpose for the State’s program may be discerned
    from the face of the statute.’" Cohen, 
    8 F.3d at 489-90
     (quoting Mueller v. Allen, 
    463 U.S. 388
    ,
    394-95 (1983)). "This is true whether the
    governing body is a state legislature or a city
    council." Cohen, 
    8 F.3d at 489
    . Accordingly,
    rather than assume the Common Council is
    insincere about its motivations, we are obligated
    to do just the opposite--assume they are being
    truthful.
    The court seemingly relies on the timing of the
    resolution (noting that it was passed on the eve
    of litigation) as evidence that the resolution
    was insincere. But the timing is totally
    reasonable. Before the plaintiffs objected to the
    monument and threatened to sue the City, it had
    rested unobtrusively on the lawn along with other
    monuments for nearly forty years, so there was
    never a need for the Common Council to declare
    its reasons for allowing the monument to remain.
    It was not until the plaintiffs demanded that
    Elkhart remove the monument that it became an
    issue. At that point the currently governing
    Common Council convened to consider the
    plaintiffs’ demands and decided against removing
    the monument, stating its reasons in the
    resolution. Given these circumstances, there is
    nothing suspect about the timing. In fact, in
    other Establishment Clause cases, this court has
    relied on the secular purposes proffered during
    litigation, notwithstanding the timing of the
    state’s explanation. See Bridenbaugh, 
    185 F.3d at 799
     (relying on testimony offered during
    litigation as to Indiana’s purpose for giving
    employees a Good Friday holiday); American Jewish
    Congress, 
    827 F.2d at 127
     (relying on affidavit
    of chief of staff as to the purpose behind creche
    display and noting that in the absence of any
    evidence that the city’s stated purpose behind
    the display was a sham, the court would have to
    conclude there was no invidious purpose). In
    those cases we held that, absent any evidence
    that the stated justification was a sham, we
    would take the government at its word. Since
    there is no evidence of an invidious motive here,
    we should take the Common Council at its word, as
    set forth in the resolution.
    Moreover, even if the City had a religious
    purpose in displaying the Ten Commandments, that
    would not destroy the City’s other valid secular
    purposes. "A law that promotes religion may
    nevertheless be upheld . . . because of the
    secular purposes that the law also serves. . . ."
    Metzl v. Leininger, 
    57 F.3d 618
    , 620 (7th Cir.
    1995). Accordingly, Elkhart need have only one
    secular purpose justifying its decision in order
    to satisfy Lemon’s first prong. It has presented
    several secular justifications. Therefore, even
    if Elkhart, in part, wanted to promote the
    religious aspects of the Ten Commandments, that
    does not negate its other valid secular
    justifications for leaving the monument alone.
    Bridenbaugh, 
    185 F.3d at 800
     ("[A] secular
    purpose need not be the exclusive one; it was
    sufficient if the government had ’a secular
    purpose.’") (emphasis added). See also, Barghout
    v. Bureau of Kosher Meat & Food Control, 
    66 F.3d 1337
    , 1345 (4th Cir. 1995) ("In determining
    whether the [display] has a secular purpose, we
    note that this first prong of the Lemon test is
    a fairly low hurdle. A legislative enactment has
    no secular purpose only if ’there [is] no
    question that the [display] or activity was
    motivated wholly by religious consideration.’")
    (quoting Lynch, 
    465 U.S. at 680
    ).
    The court highlights the speeches made when
    the monument was dedicated in 1958 as proof of
    Elkhart’s religious purpose in displaying the Ten
    Commandments. While the speeches made by the
    various religious leaders were solemn--in line
    with the occasion--they did not evidence a
    religious purpose. In fact, those speeches lacked
    anything near the religious fervor of the
    legislative statements made in connection with
    other practices adopted in the 1950’s and upheld
    by the various circuits notwithstanding the
    sponsors’ overtly religious messages. See infra
    at 59-62. Recall that the Elkhart monument was
    unveiled on Memorial Day as part of the City’s
    festivities. Participation in that celebration by
    religious leaders with speeches that had a
    religious tone is both understandable and
    acceptable. As recently as 1998, Congress
    recognized that Memorial Day is a day "during
    which the people may unite in prayer for
    permanent peace," and that the President should
    call "on the people of the United States to
    observe Memorial Day by praying, according to
    their individual religious faith, for permanent
    peace." 36 U.S.C. sec. 116 (1998). Furthermore,
    even if the various religious leaders’ speeches
    demonstrated that they gladly accepted Elkhart’s
    decision to display the monument because of the
    monument’s religious message, the religious
    leaders were not the City, and it is only the
    City’s intent that matters.
    The speeches, in short, provide little guidance
    as to Elkhart’s original purpose in accepting the
    monument donated by the Fraternal Order of
    Eagles. To the extent that the original purpose
    would matter, see infra at 43, the evidence
    presented at the summary judgment stage indicates
    that the City accepted the Ten Commandments
    monument from the Eagles (a civic, non-religious
    organization) in order to further the Eagles’
    goal of providing "youths with a common code of
    conduct that they could use to govern their
    actions," and "showing these youngsters that
    there were such recognized codes of behavior to
    guide them." Providing youth with a common code
    ofconduct is a valid secular purpose. See Freedom
    From Religion Foundation, 898 P.2d at 1023 ("The
    monument was donated as part of the National
    Youth Guidance Program, whose purpose was secular
    in nature. Such secular intent of the donation is
    logical in light of the historical fact that the
    Ten Commandments have served over time as a basis
    for our national law.").
    The court claims that this purpose was not
    secular because the City chose a religious code
    to further its goal. But as the Supreme Court
    recognized in Lynch, a religious symbol can be
    used to further the secular goal of celebrating
    both a religious and secular holiday, such as
    Christmas. Likewise, Elkhart can permissibly
    choose the Ten Commandments, which includes both
    religious and secular rules of conduct, to
    further its secular goal of providing youth with
    an example of a code of conduct. In fact, it is
    only logical that when Elkhart chose an example
    of a "common code of conduct" to display, it
    chose one that would be recognized by its
    citizens, and especially children, and there can
    be no doubt that the Ten Commandments is the most
    well-known and recognizable code of conduct to
    Americans, as opposed to, say, the Napoleonic
    Code or the Code of Hammurabi./2
    In any event, the Ten Commandments monument was
    donated to Elkhart over forty years ago. What
    matters, however, is not the City’s purpose in
    1958--when Elkhart could constitutionally have a
    religious purpose--but the City’s purpose today.
    Bridenbaugh, 
    185 F.3d at 799
     (original reason for
    choosing Good Friday as state holiday is not
    dispositive); Metzl v. Leininger, 
    57 F.3d 618
    ,
    621 (7th Cir. 1995) (state’s religious purpose 53
    years ago may accrue a secular justification and
    essentially eliminate any purpose of promoting
    religion); American Jewish Congress, 
    827 F.2d at 126
     (Mayor’s comment in 1959 that "We are a
    Christian Nation," and that "the more religion we
    can get in politics, the better off we are,"
    while relevant to the original purpose of
    nativity scene reveals little about purpose
    behind the 1985-86 display). In its resolution,
    Elkhart explained its current reasons for leaving
    undisturbed the Ten Commandments monument: to
    recognize the historical and cross-cultural
    significance of the Ten Commandments; to
    acknowledge the significant impact the Ten
    Commandments had on the development of the
    fundamental legal principles of Western
    civilization; and to retain an historical and
    cultural monument that displays one of the
    earliest codes of human conduct. Those reasons
    are permissible secular justifications, see supra
    at 37-39, and therefore Elkhart has satisfied
    Lemon’s first prong.
    2. Principal or primary effect.
    The second prong of Lemon considers whether the
    government’s practice has the principal or
    primary effect of advancing or inhibiting
    religion. Freedom of Religion Foundation v. City
    of Marshfield, 
    203 F.3d 487
    , 493 (7th Cir. 2000).
    Under this prong, the question is "irrespective
    of government’s actual purpose, [does] the
    practice under review in fact convey [ ] a
    message of endorsement or disapproval." 
    Id.
    (internal quotations omitted). As the court
    recognizes, to analyze this prong we must assess
    the totality of the circumstances surrounding the
    display to determine whether a reasonable person
    would believe that the display amounts to an
    endorsement of religion. This is a fact-specific
    inquiry.
    The court’s conclusion that, based on all of
    the circumstances, Elkhart’s decision to leave
    standing the Ten Commandments monument
    constitutes an endorsement of religion seems to
    be at odds with the Supreme Court’s decisions in
    Lynch and Allegheny. In Lynch v. Donnelly, 
    465 U.S. 668
     (1984), the Supreme Court considered the
    constitutionality of the city of Pawtucket, Rhode
    Island’s display of a creche at Christmas. In
    applying the second prong of the Lemon test, the
    Court initially noted that the district court had
    "plainly erred by focusing almost exclusively on
    the creche." Lynch, 
    465 U.S. at 686
    . Rather,
    according to the Court, the appropriate question
    was whether the nativity scene, while religious,
    could be said to advance religion. The Court held
    that given the overwhelmingly secular character
    of the Pawtucket display, "the inclusion of a
    single symbol of a particular historic religious
    event . . . [did not] so ’taint’ the city’s
    exhibit as to render it violative of the
    Establishment Clause." 
    Id.
     The display in Lynch
    included not just the creche, but also a Santa
    Clause house, reindeer pulling Santa’s sleigh,
    candy-striped poles, a Christmas tree, carolers,
    cutout figures representing clowns, an elephant
    and a teddy bear, hundreds of colored lights and
    a banner reading "Season’s Greetings." 
    Id. at 671
    .
    Five years later in County of Allegheny v.
    American Civil Liberties Union, 
    492 U.S. 573
    (1989), the Supreme Court again considered the
    constitutionality of religious displays located
    on public property. One was a creche placed on
    the Grand Staircase inside a county courthouse in
    downtown Pittsburgh. The creche was surrounded on
    three sides by a wooden fence, decorated with
    poinsettias and a sign proclaiming "Glory to God
    in the Highest!" The other was a menorah
    displayed in front of the courthouse. The menorah
    stood next to a Christmas tree and a sign rested
    below the tree with the words "Salute to
    Liberty."
    The Court in Allegheny held that the creche
    display violated the Establishment Clause because
    "nothing in the content of the display detracts
    from the creche’s religious message," as it
    "stands alone; it is the single element of the
    display on the Grand Staircase," which was "the
    ’main’ and ’most beautiful part’ of the
    building." 
    Id. at 598-99
    . The Court concluded
    that based on this location, "no viewer could
    reasonably think that it occupies this location
    without the support and approval of the
    government." 
    Id. at 599-600
    . On the other hand,
    the Supreme Court held that the menorah display
    was constitutional. As Justice Blackmun
    explained, the menorah stood next to a Christmas
    tree and a sign saluting liberty, and thus
    created an "overall holiday setting" which
    neutralized the religious dimensions of the
    menorah. 
    Id. at 614
     (Blackman, J., concurring).
    Together Lynch and Allegheny provide significant
    guidance for our fact-specific analysis of the
    second prong of Lemon. In those cases, the
    Supreme Court upheld the constitutionality of
    government displays of purely religious symbols--
    a creche and a menorah--when those symbols were
    part of a larger display. But where the religious
    display--the creche in Allegheny--stood alone, it
    violated the Establishment Clause. Here, the Ten
    Commandments monument stands not alone, but as
    part of Elkhart’s larger cultural and historical
    outdoor display. As the court points out, in
    addition to the Ten Commandments monument, the
    small, twenty-five-foot-wide courtyard includes
    a bas-relief of an elk’s head with the words
    "DEDICATVM" and "JVSTITIAM" inscribed next to
    this symbol of "Elk"hart; a Revolutionary War
    Monument surrounded by a flower bed and bearing
    a plaque explaining that the Daughters of the
    American Revolution donated the monument in honor
    of the Revolutionary War soldiers buried in
    Elkhart County; and the Freedom Monument, which
    consists of a light standing on top of a brick
    pillar which reads "BEHOLD FRIEND, YOU ARE NOW ON
    HALLOWED GROUND FOR HERE BURNS FREEDOM’S HOLY
    LIGHT."/3
    These other displays place the Ten Commandments
    monument in an historical context, and under
    Lynch and Allegheny context is everything. Thus,
    in Lynch, the Court held that a solely religious
    symbol--a creche--was constitutionally
    permissible because "[w]hen viewed in the proper
    context," the creche "depicts the historical
    origins of the traditional event long recognized
    as a National Holiday." Lynch, 
    465 U.S. at 680
    .
    Similarly, when viewed in the context of the
    other monuments displayed outside Elkhart’s
    municipal building, the Ten Commandments monument
    "depicts the historical origins" of the United
    States’ justice system. Moreover, while the
    creche is solely a religious symbol, the text of
    the Ten Commandments itself provides context to
    the monument, as the monument includes not just
    religious commands, but six rules of conduct that
    have meaning in the secular world. The presence
    of both secular and religious messages in the Ten
    Commandments monument makes this a stronger case
    than the creche at issue in Lynch.
    True, there were many more holiday displays
    present in Lynch than are located in the 25-foot-
    wide courtyard at issue here, but Elkhart’s
    display still includes more than the total of
    three involved in Allegheny. In Allegheny, in
    addition to the menorah, there stood only a
    Christmas tree and a sign stating "Salute to
    Liberty." Compared to Allegheny’s constitutional
    "salute to liberty" display, Elkhart’s cultural
    and historical display more fully neutralizes the
    religious dimension of the Ten Commandments. In
    short, if the menorah was constitutional in
    Allegheny, the Ten Commandments display must be
    in this case. See, e.g., Freedom From Religion
    Foundation, 
    898 P.2d 1013
     (holding that Ten
    Commandments monument on Colorado State Capitol
    Complex was constitutional); Anderson, 
    475 F.2d at 33
     (upholding Ten Commandments monument
    displayed on the lawn of a courthouse because it
    had "substantial secular attributes");/4 Suhre,
    
    55 F.Supp.2d 384
     (holding display of Ten
    Commandments in county courtroom did not violate
    the Establishment Clause).
    In its discussion of Lynch and Allegheny, the
    court does not distinguish these Supreme Court
    opinions when it concludes that the Ten
    Commandments monument constitutes an
    establishment of religion. Rather, the court
    focuses on the question of whether "an objective
    observer familiar with the history and placement
    of the Ten Commandments monument would perceive
    it as a state endorsement of religion." Opinion
    at 26. This is the appropriate question, but for
    the answer we must consider comparable facts
    underlying the Supreme Court’s cases involving
    the Establishment Clause. That precedent leads to
    the conclusion that a monument of the Ten
    Commandments is constitutional when part of a
    larger historical and cultural display. That is
    what we have in this case./5
    This circuit’s decisions in American Jewish
    Congress, 
    827 F.2d 120
    , and Harris v. City of
    Zion, 
    927 F.2d 1401
     (7th Cir. 1991), do not alter
    the analysis. Harris applied Lemon to a challenge
    to a religious symbol contained in two different
    city seals. It is not helpful because it involved
    two consolidated cases challenging the official
    seals of two cities in Illinois. Here the
    government’s display of a monument which served
    as only one aspect of a larger historical display
    has minimal similarity to an official seal
    emblazoned on stationery, signs, and numerous
    other official standards. American Jewish
    Congress is more closely related as it involved
    the constitutionality of a government-displayed
    creche. But even the facts in American Jewish
    Congress differ significantly from those involved
    in this case. In American Jewish Congress, the
    creche display, which this court held violated
    the Establishment Clause, stood in isolation in
    the center of the City-County building in
    Chicago. It was the creche’s visual isolation
    from the other holiday displays and its place of
    honor that caused this court to hold that a
    reasonable observer of the creche would believe
    that Chicago was endorsing Christianity. See
    American Jewish Congress, 
    827 F.2d 128
    .
    Conversely, in this case, the Ten Commandments
    monument sits with other monuments on the lawn of
    the Municipal Building, as opposed to being
    prominently displayed alone in the center of day-
    to-day county business. The Ten Commandments
    monument is also not visually isolated, but rests
    on one side of the walkway, while two other
    monuments--the Freedom Monument and the
    Revolutionary War monument--decorate the opposite
    side. These monuments are equally distant from
    both the entrance to the Municipal Building and
    the sidewalk. Opinion at 5 n.3. And a fourth
    monument of sorts--the Elk bas-relief-- adorns
    the visual center of the walkway, hanging over
    the building’s entranceway. Thus, compared to the
    creche at issue in American Jewish Congress, the
    Ten Commandments monument is not given special
    placement by the City. Rather, the Ten
    Commandments monument is one of multiple
    monuments closely placed in the available, yet
    small, walkway leading into the municipal
    building./6
    The court also opines that "The format of the
    monument itself hardly dilutes its religious
    message. Indeed, this monument impermissibly
    suggests that, in this community, there are ’ins’
    and ’outs.’" Opinion at 27. This reasoning is
    misplaced for two reasons. First, the inclusion
    of Jewish, Catholic, and Protestant symbols
    actually makes the monument more likely to pass
    constitutional muster. See Freedom From Religion
    Foundation, 898 P.2d at 1024 ("The juxtaposition
    of the Christian Chi and Rho with the Jewish Star
    of David reflect an acknowledgment of
    reconciliation and diversity more than any
    sentiment of intolerance . . . [and] the ’eternal
    eye’ contains the pyramid, which is a symbol from
    Egypt itself, indicating that ’it has a different
    genesis than the three religions that use the Ten
    Commandments.’"). See also, Allegheny, 
    492 U.S. at 620
     (Blackman, J., concurring) ("The Christmas
    tree alone in the Pittsburgh location does not
    endorse Christian belief; and on the facts before
    us, the addition of the menorah ’cannot fairly be
    understood to’ result in the simultaneous
    endorsement of Christian and Jewish faiths.");
    
    id.
     
    492 U.S. at 635
     (O’Connor, J., concurring)
    (the display of a menorah and a secular symbol of
    the Christmas holiday "did not endorse Judaism or
    religion in general, but rather conveyed a
    message of pluralism and freedom of belief. . .
    ."). Second, implicit in the court’s reasoning is
    the belief that a display must include everyone’s
    religious symbol to avoid constitutional
    infirmity. We know from Allegheny and Lynch that
    such is not the case; in Lynch, there was only
    one religious symbol--that of Christians, a
    creche--and in Allegheny there was only one
    religious symbol--that of Jews, a menorah. Yet,
    the Supreme Court upheld those religious displays
    because any perceived endorsement of religion was
    diluted by the secular symbols also displayed--
    not because a religious symbol representing every
    citizen’s beliefs was incorporated in the
    display. Clearly if any display had to include
    all potential "ins," all displays would be "out."
    The court also believes that the placement of
    an American Eagle gripping the flag at the top of
    the monument furthers the impression that Elkhart
    is endorsing religion. Opinion at 27. On the
    contrary, like the "Salute to Liberty" sign
    placed by the menorah and Christmas tree in
    Allegheny, here the presence of the American
    Eagle, our flag and the All-Seeing Eye help place
    the monument in context for the viewers by
    reminding passers-by that the Ten Commandments
    served an important role in our country’s legal
    foundation. See, e.g., Allegheny, 
    492 U.S. at 619
    ("The [Salute to Liberty] sign further diminishes
    the possibility that the tree and the menorah
    will be interpreted as a dual endorsement of
    Christianity and Judaism. The sign states that
    during the holiday season the city salutes
    liberty."). Coupled with the six clearly secular
    commands, the flag, eagle and all-seeing eye
    broadcast a secular message of justice and
    patriotism, as does the inscription that the
    monument was presented to the City by the
    Fraternal Order of Eagles--a secular organization
    dedicated to promoting "Liberty, Truth, Justice,
    and Equality." But in any event, even to the
    extent that the placement of American symbols on
    the Ten Commandments monument does not dilute the
    religious message contained in the first six
    commands,/7 it is important to note that the
    religious aspect of the Ten Commandments need not
    be minimized; rather it is a message of possible
    endorsement that must be sufficiently minimized
    by its setting and context. See Lynch, 
    465 U.S. at 692
     (O’Connor, J., concurring) ("[A] typical
    museum setting, though not neutralizing the
    religious content of a religious painting,
    negates any message of endorsement of that
    content."). Thus, the overall context of a
    display must overcome any message of endorsement,
    and in this case when the Ten Commandments
    monument is viewed in its park-like setting with
    the other three artists’ secular renderings, any
    possible view of religious endorsement is
    sufficiently diluted to withstand constitutional
    scrutiny.
    One final point: It is important to note that
    while the two plaintiffs involved in this case
    took offense to the Ten Commandments monument,
    that is not dispositive because the question is
    whether an "objective" observer would believe
    that the display constituted an endorsement of
    religion. Santa Fe Indep. Sch. Dist. v. Doe, 
    120 S.Ct. 2260
    , 2278 (2000). The fact that the
    plaintiffs--and for that matter many citizens--
    wrongly believe that the Constitution requires a
    separation of Church and State, or ardently wish
    that were the case, does not alter the test.
    Lynch, 
    465 U.S. at 673
     ("Nor does the
    Constitution require complete separation of
    church and state; it affirmatively mandates
    accommodation, not merely tolerance, of all
    religions, and forbids hostility toward any.").
    Rather, the appropriate question is whether a
    citizen knowing the totality of the facts and the
    circumstances would believe that Elkhart seeks to
    endorse religion. See Capitol Square Review and
    Advisory Bd. v. Pinette, 
    515 U.S. 753
    , 780 (1995)
    (O’Connor, J., concurring) ("[T]he reasonable
    observer in the endorsement inquiry must be
    deemed aware of the history and context of the
    community and forum in which the religious
    display appears."). See also, Gaylor v. United
    States, 
    74 F.3d 214
    , 217 (10th Cir. 1996) (same).
    An informed citizen would know that the Ten
    Commandments monument was donated in the 1950’s--
    and also know the historical context of those
    times: that the Eagles who donated the monument
    were not a religious group; that the original
    purpose was to recognize general codes of conduct
    and that the Ten Commandments is an historical
    example of such a code; and that today Elkhart
    leaves standing the monument out of recognition
    for that history and in commemoration of the
    legal roots of our country./8
    As the plaintiffs’ own testimony demonstrates,
    they are not reasonably informed citizens, but
    are demonstrating an outright hostility to
    religion, even in private, non-governmental
    settings. See, Books Deposition (stating that he
    is offended by any reference by a private
    organization to God); Suetkamp Deposition
    (stating that he is offended when the Pledge of
    Allegiance is said in a private setting). See,
    e.g., Suhre, 55 F.Supp.2d at 398 ("In fact, the
    Plaintiff’s angst results more from his own
    intolerance of the rights of others than a desire
    to protect his own atheistic convictions.");
    Gaylor, 
    74 F.3d at 217
     (the reasonable observer
    inquiry is "not about the perceptions of
    particular individuals or saving isolated non-
    adherents from the discomfort of viewing symbols
    of faith to which they do not subscribe")
    (internal quotation omitted). Based on these
    facts, a reasonable person would not believe that
    Elkhart is endorsing religion (which perhaps
    explains why, other than these two plaintiffs, no
    one complained to Elkhart about the Ten
    Commandments monument during the forty years it
    stood outside the Municipal Building). For these
    reasons, I conclude that the City’s decision to
    leave standing the monument satisfies Lemon’s
    second prong.
    B. Stone v. Graham
    The court also relies on Stone v. Graham, 
    449 U.S. 39
     (1980) (per curiam), to support its
    conclusion that Elkhart’s decision to leave
    standing the Ten Commandments monument
    constitutes an unconstitutional establishment of
    religion. In Stone, the Supreme Court (without
    argument and in a 5-4 per curiam decision) held
    that a Kentucky statute which required the
    posting of the Ten Commandments on schoolroom
    walls was unconstitutional. In concluding that
    Elkhart had an impermissible religious purpose
    when it decided to leave in place the Ten
    Commandments monument, the court relies on the
    Supreme Court’s statement in Stone that the Ten
    Commandments transcends "arguably secular
    matters, such as honoring one’s parents, killing
    or murder, adultery, stealing, false witness, and
    covetousness. 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. Without doubt that is true. But, as the court
    also recognizes, the display of a religious
    symbol may still have a secular purpose. Opinion
    at 19. This point is extremely important when one
    remembers that Stone was decided prior to Lynch
    and Allegheny--cases in which displays of purely
    religious symbols (as opposed to the Ten
    Commandments which contains both religious and
    secular rules) were upheld because of other
    secular justifications. This is significant
    because in Stone the Ten Commandments were posted
    alone on school walls, while in this case the Ten
    Commandments monument is part of a larger
    historic display with a secular message. In fact,
    the Supreme Court in rejecting the posting of the
    Ten Commandments noted that they were to be
    displayed in isolation, as opposed to
    incorporated into "the study of history,
    civilization, ethics, comparative religion, or
    the like." Stone, 449 U.S. at 42. That factor
    distinguishes Stone from the Ten Commandments
    monument involved in this case, and makes this
    case more analogous to Lynch and Allegheny.
    Stone is distinguishable for another and more
    fundamental reason--it involved the mandated
    posting of Ten Commandments in schools. Where
    impressionable youths are involved the Supreme
    Court has taken a harsher view of religion. See,
    e.g., Lee v. Weisman, 
    505 U.S. 577
    , 592 (1992)
    ("[T]here are heightened concerns with protecting
    freedom of conscience from subtle coercive
    pressure in schools."); Edwards v. Aguillard, 
    482 U.S. 578
    , 583-84 (1987) ("The Court has been
    particularly vigilant in monitoring compliance
    with the Establishment Clause in elementary and
    secondary schools."); Abington v. Schempp, 
    374 U.S. 203
    , 307 (1963) (Goldberg, J., concurring)
    ("The pervasive religiosity and direct
    governmental involvement inhering in the
    prescription of prayer and Bible reading in the
    public schools, during and as part of the
    curricular day, involving young impressionable
    children whose school attendance is statutorily
    compelled, and utilizing the prestige, power, and
    influence of school administration, staff, and
    authority, cannot realistically be termed simply
    accommodation, and must fall within the
    interdiction of the First Amendment."); Board of
    Ed. of Westside Community Schools v. Mergens, 
    496 U.S. 226
    , 261-62 (Kennedy, J., concurring) ("The
    inquiry with respect to coercion must be whether
    the government imposes pressure upon a student to
    participate in a religious activity. This
    inquiry, of course, must be undertaken with
    sensitivity to the special circumstances that
    exist in a secondary school where the line
    between voluntary and coerced participation may
    be difficult to draw."). Thus, while the Supreme
    Court has upheld the opening of legislative
    sessions with prayer, Marsh v. Chambers, 
    463 U.S. 783
    , 786 (1983), it has declared unconstitutional
    the opening of school sessions with prayer. Engel
    v. Vitale, 
    370 U.S. 421
     (1962). Likewise, whereas
    the Supreme Court upheld the constitutionality of
    the creche and menorah displays in Lynch and
    Allegheny, the Court also noted that it would
    have a different case if the displays arose in
    the school setting. See, e.g., Allegheny, 
    492 U.S. at
    620 n.69 ("This is not to say that the
    combined display of a Christmas tree and a
    menorah is constitutional wherever it may be
    located on government property. For example, when
    located in a public school, such a display might
    raise additional constitutional considerations.
    Cf. Edwards v. Aguillard, 
    482 U.S. at 583-584
    ,
    
    107 S.Ct., at 2577
     (Establishment Clause must be
    applied with special sensitivity in the
    public-school context)."). Again, context is
    critical, and the school context in Stone
    dictated the result, as demonstrated by the
    Court’s reliance on school prayer cases. See
    Stone, 449 U.S. at 42, citing Abington School
    District, 
    374 U.S. 203
    , and Engel, 
    370 U.S. 421
    .
    Therefore, while Stone speaks for the school
    setting--where student attendance is compulsory,
    and pupils are particularly susceptible to
    influence--it does not answer the question in the
    context of an open courtyard where citizens may
    divert their eyes, if confronted by a
    discomforting reference to God, to one of the
    other secular monuments forming the larger
    historical display. See, e.g., Freedom From
    Religion Foundation, 898 P.2d at 1022-23
    (distinguishing Stone based on the school
    setting, and upholding the constitutionality of
    a Ten Commandments monument on state capital
    grounds).
    C. Historical Practices
    Given the factual similarities to the displays
    constitutionally permitted in Lynch and
    Allegheny, Elkhart’s decision to leave the Ten
    Commandments monument standing should not violate
    the Lemon test. But even if the Lemon test was
    not met, where a religious symbol has meaning in
    history and ubiquity, the Supreme Court has side-
    stepped the strictures of Lemon because the
    results would be contrary to the clear intent of
    the Framers of the Constitution. For instance, in
    Marsh v. Chambers, 
    463 U.S. 783
     (1983), the Court
    upheld the practice of Congress opening the
    legislative session with prayer stating:
    In light of the unambiguous and unbroken history
    of more than 200 years, there can be no doubt
    that the practice of opening legislative sessions
    with prayer has become part of the fabric of our
    society. To invoke Divine guidance on a public
    body entrusted with making the laws is not, in
    these circumstances, an "establishment" of
    religion or a step toward establishment; it is
    simply a tolerable acknowledgment of beliefs
    widely held among the people of this country.
    
    Id. at 792
    .
    Significantly, Marsh did not apply Lemon, but
    in its holding recognized the fact that "[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."
    Lynch, 
    465 U.S. at 674
    . In fact, that history
    predates our three branches of government,
    beginning with the proclamation in our
    Declaration of Independence that all men "are
    endowed by their Creator with certain unalienable
    Rights," and continues even as recently as the
    President’s call to Americans to "thank God today
    for the lives, the character, and courage of the
    crew of the USS Cole."
    The Supreme Court has long recognized the
    constitutionality of such religious references.
    For instance, the Court has acknowledged that its
    own court proceedings open with an announcement
    which concludes "God save the United States and
    this Honorable Court." Marsh, 463 U.S. at 786.
    The Court has also noted that the Establishment
    Clause does not prohibit "[p]rayers in our
    legislative halls; the appeals to the Almighty in
    the messages of the Chief Executive; the
    proclamations making Thanksgiving Day a national
    holiday; ’so help me God’ in our courtroom oaths-
    -these and all other references to the Almighty
    that run through our laws, [and] our public
    rituals . . . [including] the supplication with
    which the Court opens each session: ’God save the
    United States and this Honorable Court.’" Zorach
    v. Clauson, 
    343 U.S. 306
    , 312-13 (1952). Likewise
    in Lynch v. Donnelly, 
    465 U.S. at 674-75
    , Justice
    O’Connor noted that "[o]ur history is replete
    with official references to the value and
    invocation of Divine guidance," and includes
    "government practices embracing religion,
    including Thanksgiving and Christmas holidays,
    congressional and military chaplains and the
    congressional prayer room, the motto, the Pledge
    of Allegiance, and presidential proclamations for
    a National Day of Prayer," thus implicitly
    acknowledging the constitutionality of such
    practices. As Justice O’Connor explained,
    "Because of their history and ubiquity, those
    practices are not understood as conveying
    government approval of particular religious
    beliefs." 
    Id. at 693
    .
    Also informative are comments the Supreme Court
    has made concerning the constitutionality of the
    1932 artistic rendition of Moses and the Ten
    Commandments contained in the frieze surrounding
    the walls of the highest court. For instance in
    Lynch, 
    465 U.S. at 676
    , in considering an
    Establishment Clause challenge the Court noted
    that "[t]he very chamber in which oral arguments
    on this case were heard is decorated with a
    notable and permanent--not seasonal--symbol of
    religion: Moses with the Ten Commandments." See
    also Allegheny, 
    492 U.S. at 652-53
     (Stevens, J.,
    concurring in part, dissenting in part) (noting
    that it "would be absurd to exclude" the
    inclusion of Moses, Confucius and Mohammed from
    the Supreme Court’s frieze because they are
    religious lawgivers). More recently, Chief
    Justice Rehnquist justified the presence of
    Muhammad in the north wall frieze in the
    Courtroom, stating "’[t]he depiction of Muhammad
    was intended only to recognize him, among many
    other lawgivers, as an important figure in the
    history of law; . . . It is part of an
    architectural and aesthetic unit that has been in
    place more than sixty years.’"). Suhre, 55
    F.Supp.2d at 394 (quoting from a 1997 statement
    of Chief Justice Rehnquist).
    The circuit courts have also accepted historical
    references to the Deity, upholding our national
    motto of "In God We Trust," and the same
    inscription on our currency, O’Hair v. Murray,
    
    588 F.2d 1144
     (5th Cir. 1979) (upholding national
    motto "In God We Trust"); Aronow v. United
    States, 
    432 F.2d 242
     (9th Cir. 1970) (accord), as
    well as the constitutionality of the Pledge of
    Allegiance’s reference to God. Sherman v.
    Community Consol. Sch. Dist. 21 of Wheeling
    Township, 
    980 F.2d 437
     (7th Cir. 1992).
    The reference to God on the Ten Commandments
    monument is much like these other references--an
    acknowledgment of our religious roots. While the
    display does not date back to our nation’s
    founding, neither does the Pledge of Alliance’s
    reference to God, or other such constitutionally
    approved religious references, such as the "In
    God We Trust" motto and inscription. Rather, many
    of the Deity references find their roots in our
    more recent history--the 1950’s--just as the Ten
    Commandments monument in this case does.
    Therefore, in looking at the monument that still
    stands before Elkhart’s Municipal Building, it is
    helpful to view it in light of the time it was
    placed there.
    In the 50’s the Cold War was daunting, and our
    country--as it often does in times of crisis--
    acknowledged the importance of God. See 100 Cong.
    Rec. 1700 (1954) ("[T]he fundamental issue which
    is the unbridgeable gap between America and
    Communist Russia is a belief in Almighty God.")
    (statement of Rep. Rabaut). In 1952, Congress
    established the "National Day of Prayer," H.R.J.
    Res. 382, 82d Cong., 2d Sess. (1952), recognizing
    that "the national interest would be much better
    served if we turn aside for a full day to pray
    for spiritual help and guidance from the Almighty
    during these turbulent times." 98 Cong. Rec. 771
    (1952) (statement of Rep. Brooks). That same
    year, Justice Douglas, writing for the Supreme
    Court in Zorach v. Clauson, 
    343 U.S. 306
    , 313
    (1952), penned the now-famous line: "[w]e are a
    religious people whose institutions presuppose a
    Supreme Being." The following year, in 1953, the
    House of Representatives voted to establish a
    prayer room in the Capitol. H.R. Cong. Res. 60,
    83d Cong., 99 Cong., 99 Cong. Rec. 9073 (1953).
    The Bill’s sponsor explained that the
    legislation’s purpose was to "provide a place of
    retreat as an encouragement to prayer. . . ." 99
    Cong. Rec. 9073 (1953) (statement of Rep. Hays).
    Congressman Scrivner went further, explaining
    that "[a]t this time in the world’s history, when
    the materialistic ideology of the Communists is
    . . . right in our own land, it is comforting to
    know that the Congress of the United States goes
    on record as believing in the spiritual values
    taught by all religions, and also showing to the
    world their belief in prayer and meditation as
    opposed to the barbarous teachings that so many
    nations have fallen prey to." 99 Cong. Rec. 9075
    (1953) (statement of Rep. Scrivner).
    In 1954, Congress added the phrase "one Nation
    under God" to the Pledge of Allegiance. This
    amendment came in response to a sermon delivered
    by the Reverend George M. Docherty at the New
    York Avenue Presbyterian Church in Washington
    D.C. at a service which President Eisenhower and
    several Senators and Representatives had
    attended. In his sermon, Reverend Docherty noted
    that our Pledge of Allegiance was missing
    something--something that would distinguish it
    from the pledge "little Muscovites might repeat"
    in a "pledge to their hammer-and-sickle flag in
    Moscow." Steven B. Epstein, Rethinking the
    Constitutionality of Ceremonial Deism, 
    96 Colum. L. Rev. 2083
    , 2118-19 (1996). That something was
    a recognition of God. After the President signed
    this legislation, the new Pledge of Allegiance
    was recited and a bugler played a rendition of
    "Onward, Christian Soldiers." 100 Cong. Rec. 6348
    (1954) (statement of Sen. Ferguson).
    The trend continued: In 1955 Congress mandated
    the inscription of "In God We Trust" on all coins
    and paper currency. The bill’s sponsor,
    Representative Bennett, spoke on the bill’s
    passage: "In these days when imperialistic and
    materialistic communism seeks to attack and to
    destroy freedom, it is proper for us to seek
    continuously for ways to strengthen the
    foundation of our freedom. At the base of our
    freedom is our faith in God and the desire of
    Americans to live by His will and His guidance.
    As long as this country trusts in God, it will
    prevail. To remind all of us of this self-evident
    truth, it is proper that our currency should
    carry these inspiring words, coming down to us
    through our history: ’In God We Trust.’" 101
    Cong. Rec. 4384 (1955) (statement of Rep.
    Bennett). The following year, Congress codified
    "In God We Trust" as our national motto. See Act
    of July 31, 1956, Pub. L. No. 84-851 (codified at
    36 U.S.C. sec. 186 (1994)). Two years later, in
    1958, as part of its national project, the
    Elkhart Eagles chapter donated the Ten
    Commandments monument to the City of Elkhart.
    As a nation, we are thankful the Communist wall
    of separation has fallen. And it is true that
    following the Supreme Court’s Establishment
    Clause jurisprudence beginning in the 60’s, our
    governments are increasingly restricted in
    invoking the name of God. We have numbed such
    invocations with terms such as "rote repetition,"
    moments of silence, and "ceremonial deism." Yet
    that does not change the historical fact that the
    Ten Commandments served as the foundation for our
    country’s legal system. A monument displaying the
    Decalogue acknowledges that fact without
    endorsing it. The Ten Commandments monument also
    serves as an historical headstone, not only for
    our nation’s original foundation, but also for
    the 1950’s, a religious time in America when as
    a nation we turned to God. A time when divorce,
    illegitimacy, drug abuse, murder, abortion, youth
    violence, and the other crises of today were
    still relatively rare.
    In sum, I believe the retention of the 40-year-
    old Ten Commandments monument displayed outside
    Elkhart’s Municipal Building is justified based
    on our country’s early and more recent history as
    a "tolerable acknowledgment of beliefs widely
    held among the people of this country." Marsh,
    463 U.S. at 783. Because of the Ten Commandments’
    history and ubiquity, it should be treated just
    as other accepted practices, such as the Supreme
    Court’s frieze, the national Thanksgiving and
    Christmas holidays, congressional and military
    chaplains and the congressional prayer room, the
    national motto, the Pledge of Allegiance,
    presidential proclamations for a National Day of
    Prayer, and our own court’s opening "God save the
    United States and this Honorable Court."
    Therefore, even if the Ten Commandments monument
    would fail the strictures of the Lemon test
    (which, in my view, it does not), I believe
    Elkhart may constitutionally leave it standing.
    D. Remedy
    Because I believe that Elkhart’s decision to
    leave the Ten Commandments monument standing does
    not constitute an "establishment of religion," I
    would conclude that the monument’s placement and
    design is fine as is. However, the court
    concludes otherwise, and thus is correctly
    concerned about the appropriate remedy. While I
    have no doubt that the City can locate an obscure
    hiding place for the monument, that should not be
    necessary. Cemeteries are full of monuments
    honoring times past. But this monument should not
    be exiled to the equivalent of a graveyard.
    Perhaps it could remain in place if it could be
    sufficiently diluted with additional plaques and
    memorials. I don’t think anyone would accept some
    sort of redaction whereby the preliminary
    references to God would be chiseled away or
    otherwise defaced. There must be some other way
    to minimize any perception of endorsement, and
    many communities and the State of Indiana seek
    guidance on where and how the Decalogue can be
    prominently displayed without offending the
    Constitution. Yet, if the court’s decision in
    this case stands, there may be no remedy other
    than removal because the court concludes that the
    City lacked a secular purpose justifying its
    decision to leave undisturbed the Ten
    Commandments monument. Thus, it appears that
    under the court’s reasoning, no matter what
    Elkhart does to dilute the religious aspects of
    the Ten Commandments, the monument will still be
    unconstitutional because its fails Lemon’s first
    prong by not having a secular purpose. And if
    Elkhart cannot prove that it has a legitimate
    secular purpose by passing a resolution forty
    years after the monument was donated, there
    doesn’t seem to be much else it could do to prove
    that it has sanitized any religious motive that
    has since become unconstitutional.
    II.
    To this point, I have examined most of the
    tests and distinctions set in place by the
    Supreme Court. While I am confident this analysis
    under Lemon is correct, I also recognize that
    reasonable people can disagree. See Lemon, 
    403 U.S. at 612
     ("Candor compels acknowledgment . .
    . that we can only dimly perceive the lines of
    demarcation in this extraordinarily sensitive
    area of constitutional law."). This variance of
    opinion is inevitable when one considers what
    Lemon requires: We look to the number of
    displays, their placement, their height, width,
    and distance from other displays ("scrutiny more
    commonly associated with interior decorators than
    with the judiciary"). American Jewish Congress,
    
    827 F.2d at 129
     (Easterbrook, J., dissenting). We
    question whether the symbol is religious, was
    religious, could be religious, or is both
    religious and secular. We try to look behind the
    words of legislators and Common Council members
    to measure their intent--history? God? Some of
    each? Some frustrated Justices have been led to
    discuss the absurdity of the Lemon test. See Lee
    v. Weisman, 
    505 U.S. 577
    , 644 (1992) (Scalia, J.,
    dissenting) (stating that Lemon "has received
    well-earned criticism from many Members of this
    Court," and collecting opinions criticizing
    Lemon). See also, Lamb’s Chapel v. Center
    Moriches Union Free School Dist., 
    508 U.S. 384
    ,
    398-99 (1993) (Scalia, J., concurring in
    judgment) (collecting opinions criticizing
    Lemon). But in the end there has to be a Lemon
    test, or some other test now that the Court has
    departed from the text and original understanding
    of the Establishment Clause.
    The Establishment Clause reads that "Congress
    shall make no law respecting an establishment of
    religion." "The Framers intended the
    Establishment Clause to prohibit the designation
    of any church as a ’national’ one. The Clause was
    also designed to stop the Federal Government from
    asserting a preference for one religious
    denomination or sect over others." Wallace v.
    Jaffree, 
    472 U.S. 38
    , 113 (1985) (Rehnquist, J.,
    dissenting). The Establishment Clause further
    sought "to protect state establishments of
    religion from federal interference." Lee, 
    505 U.S. at 641
     (Scalia, J., dissenting) (emphasis
    added). See also, American Jewish Congress, 
    827 F.2d at 129
     (Easterbrook, J., dissenting) ("The
    Establishment Clause was supposed to prevent the
    federal government from taxing for the support of
    a church or requiring religious observance.").
    What the Establishment Clause did not intend to
    do was to build a wall of separation, or to
    mandate that the government treat religion and
    irreligion equally. See, e.g., Wallace, 
    472 U.S. 38
    , 98 (Rehnquist, J., dissenting) (Madison "did
    not see it as requiring neutrality on the part of
    government between religion and irreligion.").
    See generally, Wallace, 
    472 U.S. at 91-114
    (Rehnquist, J., dissenting); Lee, 
    505 U.S. at 631-46
     (Scalia, J., dissenting); American Jewish
    Congress, 
    827 F.2d at 128-40
     (Easterbrook, J.,
    dissenting); Leonard W. Levy, The Establishment
    Clause: Religion and the First Amendment (1986).
    History proves that, and "[t]he true meaning of
    the Establishment Clause can only be seen in its
    history." Wallace, 
    472 U.S. at 113
     (Rehnquist,
    J., dissenting). See also, Lee v. Weisman, 
    505 U.S. at 632
     (Scalia, J., dissenting) ("Justice
    Holmes’ aphorism that ’a page of history is worth
    a volume of logic’ applies with particular force
    to our Establishment Clause jurisprudence.")
    (internal citation omitted). History shows that
    "[f]rom our Nation’s origin, prayer has been a
    prominent part of governmental ceremonies and
    proclamations. The Declaration of Independence,
    the document marking our birth as a separate
    people, ’appeal[ed] to the Supreme Judge of the
    world for the rectitude of our intentions’ and
    avowed ’a firm reliance on the protection of
    divine Providence.’" 
    Id. at 633
    . In fact, George
    Washington, in his first inaugural address,
    "after swearing his oath of office on a Bible, .
    . . deliberately made a prayer a part of his
    first official act as President." 
    Id.
     And when
    Congress passed the first ten amendments to the
    Constitution, "George Washington himself, at the
    request of the very Congress which passed the
    Bill of Rights, proclaimed a day of ’public
    thanksgiving and prayer, to be observed by
    acknowledging with grateful hearts the many and
    signal favors of Almighty God.’" 
    Id. at 635
    . As
    Justice Rehnquist succinctly summarized: "History
    must judge whether it was the Father of his
    Country in 1789, or a majority of the Court which
    has strayed from the meaning of the Establishment
    Clause." Wallace, 
    472 U.S. at 113
     (Rehnquist, J.,
    dissenting).
    The Lemon "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
    . Lemon’s view of the
    Establishment Clause "is demonstrably incorrect
    as a matter of history. And its repetition in
    varying forms in succeeding opinions of the Court
    can give it no more authority than it possesses
    as a matter of fact; stare decisis may bind
    courts as to matters of law, but it cannot bind
    them as to matters of history." 
    Id.
    For now, however, the history as viewed by
    these dissenting jurists has been displaced by
    the Lemon test. Until the Court returns to the
    original understanding of the Establishment
    Clause we are bound by Lemon, and we therefore
    are left to measure the dilution of the religious
    message and question the sincerity of the
    government’s secular motive--neither task well
    suited to the judiciary. Nonetheless, even under
    these complicated standards, the Ten Commandments
    monument does not constitute an establishment of
    religion.
    III.
    The Ten Commandments monument serves several
    secular purposes, including a recognition of our
    country’s legal, historical, and yes, religious
    roots. Any perceived endorsement of religion is
    diluted by Elkhart’s incorporation of secular
    symbols on the monument--placing the Ten
    Commandments in context of this country’s
    history--and by the existence of other secular
    monuments in Elkhart’s municipal building
    parkway. Moreover, even if we were to conclude
    that the monument fails the strictures of the
    Lemon test, I believe that history and ubiquity
    justify Elkhart’s decision to leave undisturbed
    a monument which has rested unobtrusively and
    undisturbed in front of its municipal building
    for more than forty years in recognition of our
    country’s religious and legal roots. I therefore
    DISSENT from the court’s holding that Elkhart’s
    decision to leave in place the Ten Commandments
    monument constitutes an establishment of
    religion, and its implicit mandate that it must
    be removed.
    /1 WHEREAS, the issue of the Ten Commandments
    Monument outside Elkhart City Hall has been
    raised by a person who is represented by the
    Indiana Civil Liberties Union. The Indiana Civil
    Liberties Union has contacted the Mayor of the
    City of Elkhart and has stated that a lawsuit
    will be filed if the Ten Commandments Monument is
    not removed.
    WHEREAS, in recognition of the historical
    significance of the Ten Commandments, the
    Fraternal Order of Eagles presented the Ten
    Commandments monument to the City of Elkhart in
    May, 1958. In addition to the Ten Commandments,
    the Monument contains symbols that reflect the
    cross cultural and historical significance of the
    Ten Commandments.
    WHEREAS, the Ten Commandments Monument has stood
    outside in an unobtrusive location to the north
    of the entrance of City Hall since 1958. There
    are numerous other historical and cultural
    plaques, memorials, and monuments located south
    of the entrance of city hall, in the foyer just
    inside the city hall entrance, at the first floor
    open area of city hall, and at the second and
    third floor open areas of city hall; and
    WHEREAS, the Ten Commandments have had a
    significant impact on the development of the
    fundamental legal principles of Western
    Civilization.
    NOW, THEREFORE, BE IT RESOLVED BY THE COMMON
    COUNCIL OF THE CITY OF ELKHART, INDIANA, THAT:
    The Ten Commandments Monument is a historical and
    cultural monument that reflects one of the
    earliest codes of human conduct. It is proper for
    the Ten Commandments Monument to remain and the
    defense of this position is strongly endorsed.
    /2 The frieze contained on the south wall of the
    courtroom of the United States Supreme Court
    includes a procession of great lawgivers of
    history, including Hammurabi, the Babylonian king
    who developed the Code of Hammurabi, and Napoleon
    Bonaparte, Suhre v. Haywood County, N.C., 
    55 F.Supp.2d 384
    , 393, 395 (W.D.N.C. 1999), figures
    possibly recognizable to the learned lawyers
    arguing before the Supreme Court, but unlikely
    familiar to many laypersons.
    /3 The court is concerned that this monument could
    have a religious meaning to someone approaching
    the building because it uses the words "hallowed"
    and "holy." Opinion at 26-27. Considering the
    words in the context of the display and its
    location, however, demonstrates that there is
    nothing religious about the display. Rather, the
    ground is "hallowed" because freedom’s "holy
    light" burns "here," and "here" is the municipal
    building where justice is served through the
    county government. The choice of the words
    "hallowed" and "holy" merely serve as a literary
    device to honor freedom; the words in context do
    not have a religious meaning. See Webster’s
    Seventh New Collegiate Dictionary (G. & C.
    Merriam Co. 1972), offering alternative
    definitions for "hallow"--one religious, "to make
    holy," and one secular, "to respect greatly."
    /4 While Anderson was decided before Stone v.
    Graham, 
    449 U.S. 39
     (1980) (per curiam), Stone is
    distinguishable because it involved the posting
    of the Ten Commandments in the school setting.
    See infra at 54-56. In fact, the five-Justice
    majority in Stone did not even cite to Anderson--
    the only circuit decision considering and
    approving the constitutionality of a Ten
    Commandments monument.
    /5 Although the court insists "the monument
    certainly cannot be fairly characterized as a
    component of a comprehensive display of the
    cultural heritage of the people of Elkhart," the
    facts point to the opposite conclusion. Within
    the very small 25-foot-wide courtyard rest four
    historical displays, including a monument to
    freedom, the Revolutionary War monument, the Ten
    Commandments monument, and the Elk bas-relief.
    These displays represent various aspects of our
    country and Elkhart’s history, and encompass
    themes relevant to the offices located inside the
    Municipal Building, including not just the city
    court, but also the mayor’s office, the human
    relations department, and the offices of the
    Common Council. Given the limited space
    available, it is impossible to get much more
    "comprehensive" than the current display. A more
    compact layout could lose what Elkhart strived to
    create--an aesthetically pleasing visual display,
    centered by the Elk bas-relief and balanced by
    the other monuments that flank the walkway. Nor
    does a display have to be "comprehensive" to
    dilute the religious aspect of one exhibit, as is
    clear from the Supreme Court’s decisions in Lynch
    and Allegheny--displays which were far from
    comprehensive.
    /6 In fact, the differences between the monument at
    issue in this case and the display challenged in
    American Jewish Congress are very similar to the
    differences the Supreme Court faced in Allegheny:
    the creche, which was unconstitutionally favored
    by its prominent and solitary placement inside
    the county courthouse, and the menorah, which was
    constitutionally located outside the courthouse
    near a Christmas tree and a sign saluting
    liberty. As noted, the location proved
    dispositive in Allegheny.
    /7 The text of the Ten Commandments monument listed
    twelve commands so as to serve as an amalgamation
    of the Jewish, Protestant and Catholic versions
    of the Ten Commandments. The first six commands
    refer to God or the Sabbath, while the last six
    do not. Opinion at 6.
    /8 In this last regard, the Common Council’s
    resolution not only explains its secular purpose,
    but also serves to inform the citizenry that
    Elkhart has no desire to endorse religion--it is
    merely acknowledging religion’s role in our
    country’s history. Or in the court’s language,
    Elkhart in passing the resolution has "taken
    steps to ’obviate its religious purpose.’"
    Opinion at 20 n.8.
    

Document Info

Docket Number: 00-1114

Judges: Per Curiam

Filed Date: 12/13/2000

Precedential Status: Precedential

Modified Date: 9/24/2015

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