ACLU v. Grayson County, Kentucky ( 2010 )

RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit Rule 206
File Name: 10a0006p.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
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AMERICAN CIVIL LIBERTIES UNION OF
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KENTUCKY, RAYMOND HARPER, and ED
MEREDITH, -
Plaintiffs-Appellees, -
No. 08-5548
,
>
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v.
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GRAYSON COUNTY, KENTUCKY,
Defendant-Appellant. N
Appeal from the United States District Court
for the Western District of Kentucky at Owensboro.
No. 01-00202—Joseph H. McKinley, Jr., District Judge.
Argued: April 23, 2009
Decided and Filed: January 14, 2010
*
Before: MOORE and McKEAGUE, Circuit Judges; FORESTER, Senior District Judge.
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COUNSEL
ARGUED: Mathew D. Staver, LIBERTY COUNSEL, Orlando, Florida, for Appellant.
William E. Sharp, GENERAL COUNSEL, AMERICAN CIVIL LIBERTIES UNION
OF KENTUCKY, Louisville, Kentucky, for Appellees. ON BRIEF: Mathew D.
Staver, LIBERTY COUNSEL, Orlando, Florida, Stephen M. Crampton, Mary E.
McAlister, LIBERTY COUNSEL, Lynchburg, Virginia, for Appellant. William E.
Sharp, David A. Friedman, GENERAL COUNSEL, AMERICAN CIVIL LIBERTIES
UNION OF KENTUCKY, Louisville, Kentucky, for Appellees. Steven W. Fitschen,
THE NATIONAL LEGAL FOUNDATION, Virginia Beach, Virginia, for Amicus
Curiae.
McKEAGUE, J., delivered the opinion of the court, in which FORESTER, D. J.,
joined. MOORE, J. (pp. 26-35), delivered a separate dissenting opinion.
*
Honorable Karl S. Forester, Senior United States District Judge for the Eastern District of
Kentucky, sitting by designation.
1
No. 08-5548 ACLU, et al. v. Grayson County, Kentucky Page 2
_________________
OPINION
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McKEAGUE, Circuit Judge. In 2001, the Grayson County Fiscal Court
approved a proposal to hang a “Foundations of American Law and Government Display”
in the county courthouse. The display consisted of nine historical documents, including
a copy of the Ten Commandments, along with an “Explanation Document” purporting
to describe the significance of these items as foundations of law and government in the
United States. The district court found that the hanging of the display was shown to
have been motivated by a predominantly religious purpose, and so held that the inclusion
of the Ten Commandments in the display violated the Establishment Clause. We hold
that the district court erred in its assessment of the record, and conclude that plaintiffs
have failed to present sufficient evidence to prove that the Fiscal Court had an
impermissible purpose or that the Foundations Display endorses religion.
I
Reverend Chester Shartzer, a private citizen living in Grayson County, Kentucky,
appeared at a Grayson County Fiscal Court meeting on September 18, 2001 in order to
request that the Ten Commandments be placed in the Grayson County Courthouse as
part of a “Foundations of American Law and Government Display” (“Foundations
Display”). The display includes the Mayflower Compact, the Declaration of
Independence, the Ten Commandments, the Magna Carta, The Star Spangled Banner,
the National Motto, the Preamble to the Kentucky Constitution, the Bill of Rights, and
a picture of Lady Justice. The display also includes an “Explanation Document”
purporting to describe the historical significance of each item.1
1
This display appears to match exactly the displays at issue in McCreary County v. ACLU, 545
U.S. 844, 860 (2005), and Mercer County v. ACLU, 432 F.3d 624, 626 (6th Cir. 2005).
No. 08-5548 ACLU, et al. v. Grayson County, Kentucky Page 3
The minutes recount what occurred at that September 18, 2001 meeting:
Reverend Chester Shartzer addressed the Court concerning his desire for
the County to place the Ten Commandments in the County buildings. He
said there were several Counties in the State who has [sic] them in their
Courthouses. He explained that some Counties has [sic] them hanging
in a group of other historical documents. He said he thought the Civil
Liberties would look more favorable toward it if they were hanging in a
grouping with the other historical documents. County Attorney, Tom
Goff said there had been some hearings concerning this in some of the
Eastern Counties of the State. Judge Logsdon and the Court members
expressed the desire to place them in the County buildings and asked the
County attorney if he thought they could do so in a way that would not
cause problems for the County. He explained that there could be law
suits filed against the County, and that he wanted to study the results of
the hearings from the other Counties, before advising them.
Damon Hornback made a motion to place the Ten Commandments in the
buildings. Motion died for lack of a second.
On motion by Sandy Farris, seconded by Damon Hornback, vote 7 for 0
against, be and it is ordered that:
The County place the Ten Commandments in the Court House along with
the Historical documents of the Declaration of Independence, Bill of
Rights, Mayflower Compact, Star Spangled Banner, National Anthem,
Magna Charta [sic], Explanation Document, and a County Resolution,
after County attorney Tom Goff has looked at the results of the hearings
in other Counties, and if he thinks this can be done without legal action
against the County.
On September 28, 2001, the Fiscal Court revisited the display. While there is no
transcript of this second meeting, Shartzer recalled in deposition what he had said in
support of his motion:
I simply said, “I was on my way up here, and I seen a stop sign. Some
of [sic] guys went ahead of me and put that up. I seen a sign that said
turn right. If I’d have went straight, I’d have went over a bank.” I said,
“There’s not everybody [sic] going to read and understand half of these
displays that we’re talking about. Some people will not be more
interested in the Declaration of Independence than a fly. Neither are they
the Ten Commandments, but they’re signs, they’re signs about our
heritage, they’re signs about turning right. I’d like for my kid to hear
somebody say, ‘You oughtn’t to kill somebody.’ I’d like to hear
somebody say to my children and I’d like to say to other kids, ‘Don’t try
No. 08-5548 ACLU, et al. v. Grayson County, Kentucky Page 4
to want everything the other guy’s got. Get it yourself or not have it.’”
I said, “That sign was put up for me. It’s a road sign. I’m just wanting
to put a road sign in the courthouse as a directive for young people to see
where the heritage of America is” – “how it’s embedded in my heart, and
I want it in other hearts.
(Shartzer Dep. at 29-30.) After a 6-0 vote, the Fiscal Court ordered that “The following
resolution along with the Historical Documents and the Ten Commandments be placed
in a grouping in the Courthouse.” No resolution was ever composed or posted with the
Foundations Display. Once the Fiscal Court had approved, Shartzer obtained the display
for installation; to that point, the members of the Fiscal Court had never seen the
“Explanation Document” or any of the other display items.
With the help of two or three other private citizens, Shartzer posted the
Foundations Display, which he had procured at private expense, on the second floor of
the Grayson County Courthouse, where there was relatively little foot traffic. There was
no public ceremony accompanying the unveiling of the display. Included as part of the
authorized display from the beginning, along with the Ten Commandments and the other
historical documents, was an “Explanation Document,” consisting of an introduction
describing the purpose of the Foundations Display and a paragraph-long explanation of
each document’s relation to the purpose. The introduction includes a listing of the nine
historical documents and provides: “The Foundations of American Law and
Government display contains documents that played a significant role in the foundation
of our system of law and government.” Each of the following nine paragraphs of the
Explanation Document contains a statement about the respective historical document’s
historical and legal significance. The significance of the Ten Commandments is
described as follows:
The Ten Commandments have profoundly influenced the formation of
Western legal thought and the formation of our country. That influence
is clearly seen in the Declaration of Independence, which declared that
“We hold these truths to be self-evident, that all men are created equal,
that they are endowed by their Creator with certain unalienable rights,
that among these are Life, Liberty, and the Pursuit of Happiness.” The
Ten Commandments provide the moral background of the Declaration of
Independence and the foundation of our legal tradition.
No. 08-5548 ACLU, et al. v. Grayson County, Kentucky Page 5
Several weeks after the display was posted, two private citizens, Ed Meredith and
Raymond Harper, discussed the Fiscal Court’s decision, after which the two went
together to the courthouse and viewed the Foundations Display. Meredith and Harper
wrote a letter to the ACLU, and on November 27, 2001, the ACLU, Harper, and
Meredith filed a complaint in the United States District Court for the Western District
of Kentucky challenging the Foundations Display’s presence in the county courthouse.
On May 15, 2002, the district court entered a preliminary injunction ordering the Fiscal
Court to remove the Ten Commandments. The Fiscal Court complied with the
injunction and removed the Ten Commandments from the display, leaving the other
eight items undisturbed.
The district court issued a stay of further proceedings pending resolution of
similar litigation then pending before the Sixth Circuit in ACLU v. McCreary County,
6th Cir. No. 01-5935. The stay remained in place until September 5, 2006. Once the stay
was lifted, all parties filed motions for summary judgment. On March 28, 2008, the
district court granted summary judgment for the plaintiffs, permanently enjoining the
display of the Ten Commandments as part of the Foundations Display. Grayson County
now appeals.
II
This court reviews a grant of summary judgment de novo. ACLU v. Mercer
County, 432 F.3d 624, 628 (6th Cir. 2005). Summary judgment “should be rendered if
the pleadings, the discovery and disclosure materials on file, and any affidavits show that
there is no genuine issue as to any material fact and that the movant is entitled to
judgment as a matter of law.” FED. R. CIV. P. 56(c). The district court must construe the
evidence and draw all reasonable inferences in favor of the nonmoving party.
Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986); Jones v.
Potter, 488 F.3d 397, 403 (6th Cir. 2007).
No. 08-5548 ACLU, et al. v. Grayson County, Kentucky Page 6
III
The burden is on the party invoking federal jurisdiction to demonstrate Article
III standing. Stalley v. Methodist Healthcare, 517 F.3d 911, 916 (6th Cir. 2008). The
presence of one party with standing is sufficient. Rumsfeld v. Forum for Academic and
Institutional Rights, Inc., 547 U.S. 47, 52 n.2 (2006); Bowsher v. Synar, 478 U.S. 714,
721 (1986). In order to demonstrate Article III standing, a plaintiff “must show that
(1) he or she has suffered an ‘injury in fact’; (2) there is a causal connection between the
injury and the conduct complained of; and (3) the injury will likely be redressed by a
favorable decision.” Am. Fed’n of Gov’t Employees v. Clinton, 180 F.3d 727, 729 (6th
Cir. 1999). Each element of standing must be supported with the “manner and degree
of evidence required at the successive stages of litigation.” Lujan v. Defenders of
Wildlife, 504 U.S. 555, 561 (1992).
Under the Establishment Clause, a plaintiff may demonstrate an injury by
showing direct and unwelcome contact with a government-sponsored religious object.
ACLU v. Ashbrook, 375 F.3d 484, 489 (6th Cir. 2004); Adland v. Russ, 307 F.3d 471,
478 (6th Cir. 2002). Direct and unwelcome contact requires more than a general
grievance; the harm cannot be remote, vicarious or generalized. Washegesic v.
Bloomingdale Pub. Schs., 33 F.3d 679, 681-82 (6th Cir. 1994). The harm is sufficient
when a plaintiff comes into direct, unwelcome contact with a government-sponsored
religious object during business or recreational activities. See Ashbrook, 375 F.3d at
489; Adland, 307 F.3d at 478; Washegesic, 33 F.3d at 682.
The district court found that Meredith, Harper, and the ACLU had standing.
Because we find no error in the finding that Meredith has standing, there is no need to
address the standing of the other plaintiffs. See Rumsfeld, 547 U.S. at 52 n.2. Meredith
alleged in his verified complaint that he used the “courthouse to transact civic business”
and that, during the course of that business, he had “occasion to view the Ten
Commandments display.” The complaint further indicates that the exposure was
unwelcome. These statements are sufficient to establish direct and unwelcome contact
with the Ten Commandments. As this injury is caused by the inclusion of the Ten
No. 08-5548 ACLU, et al. v. Grayson County, Kentucky Page 7
Commandments in the Foundations Display and can be redressed by the removal of the
Ten Commandments, Meredith has standing to challenge the inclusion of the Ten
Commandments.2
IV
The First Amendment provides that “Congress shall make no law respecting an
establishment of religion.” U.S. CONST. amend. I. The defining principle of
Establishment Clause jurisprudence is that the “First Amendment mandates government
neutrality between religion and religion, and between religion and nonreligion.”
McCreary County v. ACLU, 545 U.S. 844, 860 (2005) (quoting Epperson v. Arkansas,
393 U.S. 97, 104 (1968)). Neutrality, however, “is not so narrow a channel that the
slightest deviation from an absolutely straight course leads to condemnation.”
McCreary, 545 U.S. at 876 (quoting Sherbert v. Verner, 374 U.S. 398, 422 (1963)
(Harlan, J. dissenting)). The fact that “government must remain neutral in matters of
religion does not foreclose it from ever taking religion into account.” Lee v. Weisman,
505 U.S. 577, 627 (1992) (Souter, J., concurring).
The long-standing (but not always applied) test for determining whether
government action violates the Establishment Clause was first articulated in Lemon v.
Kurtzman, 403 U.S. 602 (1971). Under the Lemon test, government action is upheld
unless it is shown not to satisfy any of three elements: “First, the statute must have a
secular legislative purpose; second, its principal or primary effect must be one that
neither advances nor inhibits religion; finally, the statute must not foster an excessive
government entanglement with religion.” Id. at 612-13 (citations and quotation marks
omitted). Since Lemon, the Supreme Court has revised the first two prongs of this test.
In McCreary County, the court explained that, although a government’s stated secular
2
Grayson County contends that Meredith did not meet his burden at the summary judgment stage
because he may not rest on allegations in the pleadings. However, Meredith signed a verified complaint
that sets out allegations sufficient to establish standing. A verified complaint “carries the same weight as
would an affidavit for the purposes of summary judgment.” El Bey v. Roop, 530 F.3d 407, 414 (6th Cir.
2008); Smith v. Campbell, 250 F.3d 1032, 1036 (6th Cir. 2001); Williams v. Browman, 981 F.2d 901, 905
(6th Cir. 1992). Grayson County has not met Meredith’s allegations with anything more than speculation.
Therefore, Grayson County did not raise a genuine issue of material fact with regard to Meredith’s
standing. See Arendale v. City of Memphis, 519 F.3d 587, 605 (6th Cir. 2008).
No. 08-5548 ACLU, et al. v. Grayson County, Kentucky Page 8
reason for erecting a display is usually given deference by the courts, the secular purpose
must be “genuine, not a sham, and not merely secondary to a religious objective.”
McCreary County, 545 U.S. at 865. Where the government acts with the “ostensible and
predominant purpose of advancing religion” it violates the constitutional touchstone of
religious neutrality. Id. at 860. In addition, Justice O’Connor’s concurring opinion in
Lynch v. Donnelly, 465 U.S. 668 (1984), was incorporated into Lemon’s “effect” prong
by the Court in County of Allegheny v. ACLU, 492 U.S. 573, 595 (1989) (“[The Lynch]
concurrence articulates a method for determining whether the government’s use of an
object with religious meaning has the effect of endorsing.”). The Court held that a
challenged governmental action has a religious effect where it “is sufficiently likely to
be perceived by adherents of the controlling denominations as an endorsement, and by
the nonadherents as a disapproval, of their religious choices.” Id. at 597.3
In 2005, the Supreme Court decided two Establishment Clause cases that provide
substantial guidance regarding the governing legal framework: McCreary County v.
ACLU, 545 U.S. 844 (2005), which applied the Lemon test in evaluating a county
courthouse display that included the Ten Commandments; and Van Perry v. Orden, 545
U.S. 677 (2005), which held the display of a Ten Commandments monument on state
grounds constitutional without applying the Lemon test. Because these cases provide the
most recent Supreme Court guidance in the convoluted jurisprudence arising out of the
Establishment Clause, we turn first to them.
A
In McCreary County, the Court reaffirmed the utility of the Lemon test. Two
counties in Kentucky, McCreary County and Pulaski County, had placed the Ten
Commandments, standing alone, in their respective courthouses. McCreary County, 545
U.S. at 851. McCreary County placed the Ten Commandments in its courthouse in
response to a county order requiring the Ten Commandments to be displayed in a high-
3
The district court held that Grayson County’s Foundations Display violated the first two prongs
of the Lemon test. It did not address the third prong, the excessive entanglement inquiry. As there is no
argument from the parties regarding the third prong, we too consider only whether the Foundations Display
is shown to have been marked by an impermissible purpose and effect.
No. 08-5548 ACLU, et al. v. Grayson County, Kentucky Page 9
traffic area of the courthouse. Id. The Pulaski County display was accompanied by a
ceremony at which the county Judge-Executive and a local pastor spoke. Id.
After a district court preliminarily enjoined both counties’ displays, the counties
authorized expanded displays featuring large copies of the Ten Commandments
surrounded by smaller copies of eight other documents with religious elements. Id. at
853. Each display was accompanied by a resolution reciting, among other things, that
the Ten Commandments are “the precedent legal code upon which the civil and criminal
codes of . . . Kentucky are founded” and that the “Founding Father[s] [had an] explicit
understanding of the duty of elected officials to publicly acknowledge God as the source
of America’s strength and direction.” Id. at 853.
After another preliminary injunction, the counties installed new displays. These
displays included equally sized copies of the Ten Commandments, the Magna Carta, the
Declaration of Independence, the Bill of Rights, The Star Spangled Banner, the
Mayflower Compact, the National Motto, the Preamble to the Kentucky Constitution,
and a picture of Lady Justice. Id. at 855-56. Neither county issued a new resolution
explaining the new displays. The district court supplemented the injunction so as to
encompass the new displays as well, and the Sixth Circuit affirmed. Id. at 857.
The Supreme Court granted certiorari and held that the displays violated the
purpose prong of the Lemon test. It noted that, since Lemon, the Court had found that
a government action had an improper purpose only four times.4 Id. at 859. In
rearticulating the test for assessing purpose, the Court made clear that the test requires
“an understanding of official objective [that] emerges from readily discoverable fact,
without any judicial psychoanalysis of a drafter’s heart of hearts.” Id. at 862.
The McCreary County Court noted that, while Stone v. Graham found a stand-
alone display of the Ten Commandments unconstitutional, “Stone did not purport to
decide the constitutionality of every possible way the Commandments might be set out
4
Stone v. Graham, 449 US. 39, 42 (1980) (Ten Commandments display); Wallace v. Jaffree, 472
U.S. 38 (1985) (school prayer); Edwards v. Aguillard, 482 U.S. 578, 593 (1987) (act prohibiting the
teaching of evolution); Santa Fe Indep. Sch. Dist. v. Doe, 530 U.S. 290, 308-09 (2000) (school prayer).
No. 08-5548 ACLU, et al. v. Grayson County, Kentucky Page 10
by the government.”5 Id. at 867. The Court found that the counties’ first displays, like
the display in Stone, had an unmistakable religious purpose because the displays
consisted solely of the Ten Commandments standing alone. Id. at 869. The second
display had a similarly unmistakable religious purpose because, though other documents
were included in the display, highlighted references to God indicated that “[t]he
display’s unstinting focus was on religious passages” and the accompanying resolution
mentioned “Jesus Christ, the Prince of Ethics.” Id. at 870.
The third display presented a closer question for the Court. Rather than focusing
solely on the physical context of the display, the Court relied primarily on the history of
the counties’ displays. See id. at 871-72. The Court did not credit the counties’ newly
proffered secular reasons as they “were presented only as a litigation position there being
no further authorizing action” by the counties. Id. at 871. Instead, the Court noted that
the counties had not repealed or repudiated the earlier religious resolutions. Id. at 872.
The Court also found that the collection of documents in the third display did not
“suggest a clear theme that might prevail over evidence of the continuing religious
object.” Id. The Court, however, made clear that it was not holding “that a sacred text
can never be integrated constitutionally into a governmental display on the subject of
law, or American history.” Id.
B
In Van Orden, the Supreme Court dealt with a different Ten Commandments
display. Rather than a recently erected display with a history evidencing a religious
purpose, Van Orden involved a large monument on the grounds of the state capitol
donated by the Fraternal Order of Eagles in 1961 “to highlight the Commandments’ role
in shaping civic morality.” 545 U.S. at 701 (Breyer, J., concurring). The Eagles paid
the cost of erecting the monument. Id. at 682. Forty years passed before the monument
was challenged. Id.
5
In Van Orden, five justices stated that Stone “stands as an example of the fact that we have been
particularly vigilant in monitoring compliance with the Establishment Clause in elementary and secondary
schools.” 545 U.S. at 690-91 (plurality opinion) (internal quotation marks omitted); 545 U.S. at 703
(Breyer, J., concurring).
No. 08-5548 ACLU, et al. v. Grayson County, Kentucky Page 11
The Court did not apply the Lemon test. A plurality found that test was “not
useful in dealing with the sort of passive monument that Texas has erected on its Capitol
grounds.” Id. at 686. Observing that the Ten Commandments have religious
significance, the plurality noted that the Ten Commandments also have “undeniable
historical meaning” and that such displays are common throughout America. Id. at 688,
690. “Simply having religious content or promoting a message consistent with a
religious doctrine does not run afoul of the Establishment Clause.” Id. The plurality
concluded, based on the context, that the Ten Commandments monument did not violate
the Establishment Clause. Id. at 691-92.
Justice Breyer provided the fifth vote. Id. at 698. He noted that “the
Establishment Clause does not compel the government to purge from the public sphere
all that in any way partakes of the religious.” Id. at 699. Like the plurality, Justice
Breyer did not apply the Lemon test. Id. at 700. Instead, he looked to the context of the
display and found that “the circumstances surrounding the display’s placement . . .
suggest that the State itself intended the . . . nonreligious aspects of the tablets’ message
to predominate.” Id. at 701. Justice Breyer emphasized that the monument was donated
by a civic organization and that the monument itself noted that it was donated by the
Eagles. Id. at 701-02. Justice Breyer also found the setting of the monument indicated
a secular purpose. Specifically, he noted that it was placed with many other monuments
that indicated a historical and moral context and that the setting did “not readily lend
itself to meditation or any other religious activity.” Id. at 702. Finally, he emphasized
that forty years had passed, during which time the monument had not been challenged.
Id. at 702.
C
Shortly after McCreary County and Van Orden were decided, this Circuit in
Mercer County v. ACLU, 432 F.3d 624 (6th Cir. 2005), applied their teachings to a
courthouse display identical to this one. As the salient facts in Mercer County are nearly
identical to those presented in this case, Mercer County is highly instructive, if not
controlling. In Mercer County, as here, a private citizen requested permission to hang
No. 08-5548 ACLU, et al. v. Grayson County, Kentucky Page 12
a Foundations Display in the county courthouse. Id. at 626. The county Fiscal Court
approved the display and, again as in this case, a private citizen paid for and hung the
display in the courthouse. Id. The ACLU sought a preliminary injunction, which the
district court denied. Id. at 627. The County moved for summary judgment and
included an affidavit from the Judge Executive that indicated the Fiscal Court had a
secular purpose in posting the display, i.e., recognizing the historical role the documents
played in the formation of our system of law and government. Id.
On appeal, the Sixth Circuit held the Foundations Display did not violate the
Establishment Clause under the analysis set forth in McCreary County. Id. at 631-35.
While the Mercer County display itself, like the instant display, was ostensibly “identical
in all material respects” to the third display in McCreary County, id. at 631, the Sixth
Circuit held that the absence of a history of religious purpose like that which preceded
and tainted the third display in McCreary County was a material difference. Id. at 632.
The Sixth Circuit noted that a private citizen had hung the display; that there was no
public ceremony accompanying the display; that the Judge Executive’s affidavit
explained the facially legitimate secular purpose—a purpose that was explicitly
confirmed by the “context, including the explanatory document and the eight other
objectively historical and secular documents;” and that the challengers of the display had
produced no evidence that the stated purpose was a sham. Id.
The Sixth Circuit then turned to the “effect” prong of the Lemon test and held
that the Foundations Display did not have the effect of endorsing religion because the
Ten Commandments were placed in the context of the other secular documents and there
was no history of past attempts to promote a religious message. Id. at 637-38.
Considering the Ten Commandments in conjunction with “unquestioned civil, legal, and
political influence” of the other documents was deemed to accentuate the historical
rather than the religious significance of the Commandments. Id. Taken as a whole, the
display was held to send the “‘unmistakable message’ of the County’s acknowledgment
of legal history.” Id. at 638.
No. 08-5548 ACLU, et al. v. Grayson County, Kentucky Page 13
With the guidance provided by these three decisions, we turn to the Foundations
Display at issue here.
V
We first examine the purpose of the Foundations Display. Purpose is determined
from the perspective of an objective observer. McCreary County, 545 U.S. at 862. The
“objective observer” is credited with knowledge of “readily discoverable fact,” including
“the traditional external signs that show up in the ‘text, legislative history, and
implementation of the statute’ or comparable official act.” Id. (quoting Santa Fe, 530
U.S. at 308). The evidence of purpose must be external; it cannot involve “any judicial
psychoanalysis of a drafter’s heart of hearts.” Id.
“Even if the text and official history of a statute express no secular purpose, the
statute should be held to have an improper purpose only if it is beyond purview that
endorsement of religion or a religious belief ‘was and is the law’s reason for existence.’”
Wallace, 472 U.S. at 75 (O’Connor, J., concurring in the judgment). “Thus, a plaintiff
must show that the predominate purpose for a challenged display is religious, although
a totally secular purpose is not required.” ACLU v. Ashbrook, 375 F.3d 484, 491 (6th
Cir. 2004). Indeed, if there is no manifest religious purpose for a display, an
Establishment Clause complaint should fail, even if “savvy officials had disguised their
religious intent so cleverly that the objective observer just missed it.” McCreary County,
545 U.S. at 863.
A
The Grayson County Foundations Display is identical to the third display in
McCreary County and the display in Mercer County. Accordingly, much of the analysis
of the purpose in those two decisions applies with equal force to our evaluation of this
display. That said, we must be alert to distinguishing facts, as an objective assessment
of the purpose behind identical displays may differ based on the different histories of the
displays. McCreary County, 545 U.S. at 866 n.14.
No. 08-5548 ACLU, et al. v. Grayson County, Kentucky Page 14
One of the central concerns in McCreary County and Mercer County was the
history behind the various displays. The Supreme Court examined the history of the
third display in McCreary County and found that the clear history of a religious
purpose—and the absence of any meaningful change in the intention evidenced by that
history—demonstrated that the county had a predominantly religious purpose in
approving the display. Id. at 872; see also Mercer County, 432 F.3d at 632-33. In
Mercer County, there was no such evidence of a religious purpose heritage. Mercer
County, 432 F.3d at 631. Rather, this court found that “the only history the objective
observer would incorporate into this display is the statement of Judge McGinnis that the
purpose of the display is to recognize American legal traditions.” Id. As in Mercer
County, the approval of the display in Grayson County was not attended by a history
evidencing a predominantly religious purpose. There were no earlier displays nor were
there any earlier resolutions indicating an avowedly religious purpose.
The other factors considered in Mercer County also highlight the absence of
evidence of a religious purpose for the Grayson County display. Like the display in
Mercer County, there was little official involvement in the display. It was proposed,
funded, and hung by a private individual. The legitimacy of the County’s claimed
educational purpose is borne out by the very same explanatory document and other
historical documents that supported the asserted secular purpose for the Mercer County
display. The contents and context of the Grayson County Foundations Display are
identical to the contents and context of the display in Mercer County, which were held
to refute the challengers’ assertion of a predominantly religious purpose.
The Plaintiffs in this case, who have the burden of demonstrating that the
Foundations Display violates their rights under the Establishment Clause, have failed to
present evidence sufficient to demonstrate that an objective observer could have
concluded that the County’s asserted secular purpose was a sham. In Mercer County,
in the absence of proof of religious purpose, we deferred to the local government’s stated
secular purpose, concluding that an objective observer would view the Foundations
No. 08-5548 ACLU, et al. v. Grayson County, Kentucky Page 15
Display not as an attempt to establish religion but as an acknowledgment of history.6
For the same reasons, we here defer to Grayson County’s stated secular purpose and hold
that the Fiscal Court in Grayson County has not been shown to have had a predominantly
religious purpose in approving the Foundations Display.
B
Despite the congruity of this display with the display in Mercer County, the
district court concluded that the Grayson County Fiscal Court had a predominantly
religious purpose. The district court attempted to distinguish Mercer County on four
grounds: indications of Shartzer’s purpose in proposing the display, references in the
record to the Ten Commandments, the first unsuccessful motion to approve the display,
and the Fiscal Court’s silence as to purpose in approving the display. We hold that these
additional considerations do not meaningfully distinguish the Grayson County display
from that permitted by the Sixth Circuit in Mercer County.
1. Shartzer’s Purpose
The district court placed a great deal of emphasis on Shartzer’s public comments
in support of the display. The district court relied on the meeting minutes which noted
that Shartzer wanted “the County to place the Ten Commandments in the County
buildings” and that Shartzer suggested that “the Civil Liberties would look more
favorable toward it if they were hanging in a grouping with the other historical
documents.”
6
That the Foundations Display “acknowledg[es]” history does not mean that it is necessarily
historically accurate. The “Explanation Document” in both Mercer County and this case contains a claim
that The Star Spangled Banner “became a rallying cry for the American Patriots during the Revolutionary
War” – a war that had been over for decades before the anthem was written during the War of 1812. More
to the point of this case, we acknowledge that there is ongoing academic debate as to the claim that the
“Ten Commandments provide the moral backbone of the Declaration of Independence and the foundation
of our legal tradition.” See, e.g., Steven K. Green, “Bad History”: The Lure of History in Establishment
Clause Adjudication, 81 NOTRE DAME L. REV. 1717, 1746 (2006) (“[R]egardless of the popularity of this
belief of a unique status, it lacks historical support. There is no evidence that early political and legal
figures saw the Decalogue as singularly (or even significantly) important or influential to American law.”);
Paul Finkelman, The Ten Commandments on the Courthouse Lawn and Elsewhere, 73 FORDHAM L. REV.
1477, 1500-16 (2005) (“[T]he claim that the Ten Commandments . . . are the moral foundation of
American law, does not stand up to careful scrutiny.”).
No. 08-5548 ACLU, et al. v. Grayson County, Kentucky Page 16
As an initial matter, these comments do not on their face evidence what the
district court called “purely religious reasons.” The minutes do not clearly indicate the
reasons why Shartzer wanted to post the Ten Commandments; instead, they simply
demonstrate that he wanted them posted. Given that the Supreme Court, this Court, and
other circuit courts have held that the Ten Commandments have both religious and
secular significance, see, e.g., Van Orden, 545 U.S. at 690, 701; Mercer County, 432
F.3d at 639; Green v. Haskell County Bd. of Comm’rs, 568 F.3d 784, 798-99 (10th Cir.
2009), the simple desire to post the Ten Commandments cannot, in isolation,
demonstrate religious purpose on the part of those desiring the posting. Where Shartzer
at the Fiscal Court meetings said more than that he desired to post the Ten
Commandments as part of a display of historical documents, moreover, his comments
(i.e. regarding road signs for the right ordering of society) spoke to a secular purpose of
enhancing civic morality rather than an explicitly religious purpose.
Even more importantly, Shartzer was not the decision-maker who approved the
Foundations Display. While courts inquiring into purpose may look to the “public
comments of an enactment’s sponsor,” see, e.g., McCreary County, 545 U.S. at 862;
American Civil Liberties Union of Kentucky v. Garrard County, Kentucky, 517 F. Supp.
2d 925, 342 (E.D. Ky. 2007), ultimately it is the purpose of the government decision-
makers that is most important. See, e.g., Modrovich v. Allegheny County, Pa., 385 F.3d
397, 411 (3d Cir. 2004) (“[O]ur focus is on the motivations of the current County
officials who have power over the decision.”); Green, 568 F.3d at 800 n.10 (“focus is on
the government actor’s conduct rather than the private citizen’s.”). As the Supreme
Court has observed, “the thoughts or sentiments expressed by a government entity that
accepts and displays [a privately donated monument] may be quite different from those
of either its creator or its donor.” Pleasant Grove City, Utah v. Summum, 129 S. Ct.
1125, 1136 (2009). Indeed, even when there is evidence of a private individual’s
religious motivation in promoting a display, the installation of the display will not be
deemed to run afoul of the Establishment Clause unless there are “factual findings that
would enable this Court to conclude that [government] has endorsed [that individual]’s
No. 08-5548 ACLU, et al. v. Grayson County, Kentucky Page 17
particular proselytizing message.” County of Allegheny, 492 U.S. at 621 n.70
(O’Connor, J., concurring).
This is not to say that the purpose of a private donor is never relevant. In Van
Orden, Justice Breyer noted that the Fraternal Order of Eagles had donated the
monument. Justice Breyer explained that “[t]he tablets, as displayed on the monument,
prominently acknowledge that the Eagles donated the display, a factor which, though not
sufficient, thereby further distances the State itself from the religious aspect of the
Commandments’ message.” 545 U.S. at 701-02 (Breyer, J., concurring). Similarly, in
County of Allegheny, the Supreme Court held that a county had a religious purpose in
displaying a creche in part because it had “a sign disclosing its ownership by a Roman
Catholic organization.” 492 U.S. at 600. The Court held that “the sign simply
demonstrates that the government is endorsing the religious message of that
organization, rather than communicating a message of its own.” Id. Private purpose
thus becomes relevant where there is evidence that the government has adopted the
message of the organization donating the display. A sign on the display provides
evidence to that effect.
Here, even assuming that Shartzer had a religious purpose, there is no evidence
in the record that the Fiscal Court as a body adopted Shartzer’s purpose. There was no
sign linking the Foundations Display to Shartzer, and there is no record of the Fiscal
Court either ascribing a religious purpose to Shartzer’s motion or approving of any
religious purpose that Fiscal Court members may have believed Shartzer possessed. The
minutes simply indicate that members of the Fiscal Court expressed interest in and
eventually approved the posting of the Foundations Display. We therefore find the
district court erred in relying on Shartzer’s purpose to conclude that the Fiscal Court had
a predominately religious purpose in accepting the Foundations Display.
No. 08-5548 ACLU, et al. v. Grayson County, Kentucky Page 18
2. References to the Ten Commandments
The district court also erroneously inferred a religious purpose simply from
references to the Ten Commandments as “the Ten Commandments” in the meeting
minutes. Religious words and religious descriptions are not forbidden by the
Establishment Clause. Indeed, the Fifth Circuit has found that references to avowedly
religious acts such as “prayer” do not, by themselves, indicate a religious purpose. Croft
v. Governor of Texas, 562 F.3d 735, 740-41 (5th Cir. 2009). While some Fiscal Court
members at times distinguished the Ten Commandments from the eight other items in
the display, which they termed “the Historical Documents” (as in the September 28,
2001 order that the display be posted), simple reference to the Ten Commandments as
“the Ten Commandments” cannot, in isolation, prove that a particular speaker, much less
the Fiscal Court as a body, had a religious purpose.7 At most, the comments in the
record suggest a desire to post the Ten Commandments among eight other equally-sized
historical documents, not the reason why the Fiscal Court members wanted the Ten
Commandments included. As such, the references to the Ten Commandments, viewed
in the light most favorable to the County, do not provide evidence of a predominantly
religious purpose.8
7
The dissent suggests that references to the Ten Commandments as distinct from the other
historical documents indicate that the Ten Commandments were not considered to have historical value,
thus warranting an inference that the purpose of the display was not secular, but religious. This
unsupported inference is directly refuted by the record. The Explanation Document explicitly identifies
the reason for including the Ten Commandments. The Ten Commandments were considered to have
“played a significant role in the foundation of our system of law and government” by providing “the moral
background of the Declaration of Independence and the foundation of our legal tradition.” In the eyes of
the objective observer, presumed to have knowledge of the external signs of purpose, including the
contents of the display, the Explanation Document represents the best evidence, in this case, of the purpose
of the display. Thus, viewing Fiscal Court members’ various references to the Ten Commandments in light
of the display’s explicit statement of purpose, as we must in the shoes of the objective observer, exposes
the unreasonableness of the inference urged by the dissent.
8
The dissent chides us for ignoring “the way in which the Ten Commandments are viewed,
particularly by religious leaders such as Reverend Shartzer.” Yet, the record is devoid of evidence of how
the Ten Commandments are viewed. Moreover, determining how the Ten Commandments, viewed in a
vacuum, are perceived – by religious leaders or anyone else – plays no legitimate role in our analysis. Our
task, instead, is to determine whether the purpose of the display, viewed from the perspective of the
objective observer with knowledge of readily discoverable external facts (e.g., contents, context and
approval history), is shown to be predominantly religious. In our opinion, the contents of the display
(including the Explanation Document) and the context of the display (displaying the Ten Commandments
among eight other equally-sized historical documents in a county courthouse) clearly evidence legitimate
secular purposes (i.e., historical and educational), and the approval history is simply ambiguous.
No. 08-5548 ACLU, et al. v. Grayson County, Kentucky Page 19
3. The First Motion
The district court also relied on the first motion to approve the Foundations
Display to support its finding of a predominantly religious purpose. The minutes
indicate that Magistrate Hornback made a “motion to place the Ten Commandments in
the buildings” and that the motion “died for lack of a second.” The district court found
that Magistrate Hornback’s motion “demonstrates the understanding and true intent of
the Fiscal Court members.” The motion does nothing of the sort. As discussed above,
references to the Ten Commandments are not themselves impermissible. Further, even
if the motion to post the Ten Commandments without mention of the other documents
were deemed to evidence a religious purpose, it is plainly nonsensical to view a motion
by one person—a motion that failed for lack of even a second—as demonstrating that
it was the will of the Fiscal Court to approve the motion that failed. Quite to the
contrary, the fact that Hornback’s motion failed and the later motion to post the entire
Foundations Display was approved actually negates the suggestion of a religious purpose
and corroborates the Fiscal Court’s asserted secular purpose. The failure of this motion
is analogous to the evidence of “repeal or repudiation” sought but not found in
McCreary Country, as the Court disallowed the counties’ third display. Indeed, the
Fiscal Court’s focus on the second motion highlights the care taken by the Fiscal Court
to promote its asserted secular purpose without impermissibly endorsing religion.
Accordingly, we conclude that the district court erred in inferring a religious purpose
from Hornback’s motion.
4. The Fiscal Court’s Silence
Many of the opinions involving the purpose prong of the Lemon test involve
explicit statements of purpose. Relatively rare is the case in which the record is
substantially silent as to the purpose of the government action. The district court
considered this to be one of those rare cases. Indeed, apart from the display itself—the
contents and context of which we have already concluded, based on the analysis in
Mercer County, demonstrate a predominantly secular purpose—there is little evidence
indicating why the Fiscal Court approved the hanging, in the county courthouse, of a
No. 08-5548 ACLU, et al. v. Grayson County, Kentucky Page 20
display entitled “Foundations of American Law and Government Display.” Ostensibly
ignoring the manifest contents and context of the display itself, the district court
interpreted this silence to mean that the Fiscal Court never considered a secular purpose.
It therefore inferred that the Fiscal Court’s original silence on purpose was indicative
that its later articulation of a secular purpose was a sham.
The district court’s inference of an illicit motive misconceives the nature of the
purpose inquiry and the judicial role. The Supreme Court has made clear that courts
must proceed with caution in attributing an unconstitutional purpose to a government
entity. It has noted its “reluctance 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.” Mueller v. Allen, 463 U.S. 388, 394-95 (1983). Indeed, “a
finding of impermissible purpose should be rare.” Mercer County, 432 F.3d at 630.
One form this reluctance takes is deference to the government’s stated reasons.
McCreary County, 545 U.S. at 864; Santa Fe Independent Sch. Dist. v. Doe, 530 U.S.
290, 308 (“When a governmental entity professes a secular purpose for an arguably
religious policy, the government’s characterization is, of course, entitled to some
deference.”). In order for this particular form of deference to apply, the reasons should
be clear before litigation begins. The government receives deference if it “expresses a
plausible secular purpose . . . in either the text or the legislative history.” Wallace v.
Jaffree, 472 U.S. 38, 74 (1985). In McCreary County, the Court dismissed a county’s
statement of secular purpose after litigation began, noting that “[t]hese new statements
of purpose were presented only as a litigating position” and that they were inconsistent
with “the extraordinary resolutions . . . passed just months earlier” that indicated a clear
religious purpose. 545 U.S. at 871. This does not, of course, preclude a government
body from offering reasons after litigation begins. See, e.g., King v. Richmond County,
Ga., 331 F.3d 1271, 1277 (11th Cir. 2003). It simply limits the deference those reasons
receive.
Indeed, though the County would be entitled to less deference for reasons
asserted only during litigation that are inconsistent with its pre-litigation position, the
No. 08-5548 ACLU, et al. v. Grayson County, Kentucky Page 21
County’s presently asserted educational purpose is consistent with its pre-litigation
position. The historical and educational purpose of the Foundations Display was made
manifestly apparent to any objective observer through the contents and context of the
display from the date of its initial installation, immediately after the display was
approved and weeks before litigation commenced. The County’s asserted educational
purpose is not inconsistent with the purpose made explicit by the display itself and does
not contradict any prior resolutions passed by the Fiscal Court.9 Compare McCreary
County, 545 U.S. at 871. Indeed, we have previously found an identical display sends
the “‘unmistakable message’ of the County’s acknowledgment of legal history.” Mercer
County, 432 F.3d at 638. We further found that it “do[es] not have a religious purpose.”
432 F.3d at 634 n.7; see also Books v. Elkhart County, 401 F.3d 857, 866 (7th Cir. 2005)
(finding an essentially identical display did not have a religious purpose). Accordingly,
we find the district court erred in finding that the Fiscal Court’s articulated purpose was
a sham based on inferences drawn from a lack of evidence.
In sum, we find that all four of the district court’s attempts to distinguish this
case from Mercer County were spurious.
VI
Our inquiry into purpose does not end the matter. We must also analyze the
effect prong of the Lemon test. This prong requires us to determine whether 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.” County of Allegheny, 492 U.S. at 597
(citing Lynch, 465 U.S. at 688). Unlike purpose, which “looks to the intended effect of
the display, our inquiry into whether the display endorses religion examines its actual
effect.” Adland, 307 F.3d at 484 (emphasis added). This inquiry, too, uses an objective
9
The dissent insists that the County’s asserted secular purpose is not entitled to deference because
it is inconsistent with statements made by individual Fiscal Court members before the display was
approved. In our opinion, the dissent exaggerates the significance of these rather ambiguous statements
and too casually dismisses as “inconsequential” both the contents and context of the display, which are not
ambiguous and which represent two of the three external signs of purpose that are to guide our analysis.
No. 08-5548 ACLU, et al. v. Grayson County, Kentucky Page 22
standard. Mercer County, 432 F.3d at 636. We look to “whether an objective observer,
acquainted with the text, legislative history, and implementation of the [display], would
perceive it as a state endorsement” of religion. Santa Fe Indep. Sch. Dist., 530 U.S. at
308 (quoting Wallace, 472 U.S. at 73 (O’Connor, J., concurring in the judgment)). “If
context, history, and the act itself send the ‘unmistakable message’ of endorsing religion,
then the act is unconstitutional.” Mercer County, 432 F.3d at 637.
Context is critical. Lynch, 465 U.S. at 692 (O’Connor, J., concurring in ruling
that display of Christian nativity crèche did not communicate message of endorsement
of Christian beliefs). “[A] typical museum setting, though not neutralizing the religious
content of a religious painting, negates any message of endorsement of that content.”
County of Allegheny, 492 U.S. at 595. In County of Allegheny, the Court therefore
considered where the contested display was placed and what surrounded it. Id. at 598-
600. It also considered the size of the challenged component of a display, an explanatory
document placed next to the display, and whether the message of the display was
religious when viewed as a whole. Id. at 614-16, 619.
The Grayson County Foundations Display was placed in a low-traffic area on the
second floor of the courthouse. Though it is in a courthouse, it is not in the “main” and
“most beautiful part” of the building. Across from the display is a display honoring
veterans that includes two quilts and a photograph. The display itself contains nine
documents having historical meaning and a tenth document that explains the historical
relevance of each document. There is nothing about the setting of the display that would
be viewed as encouraging or lending itself to prayer, meditation or other religious
activity. See Van Orden, 545 U.S. at 702 (Breyer, J., concurring).
In our analysis of the effect of this Foundations Display, we are again guided by
the analysis in Mercer County. In finding that an identical display did not endorse
religion, we quoted with approval language from an opinion by the Seventh Circuit
where a functionally identical display was addressed:
[T]he documents are displayed in a way that does not direct an observer
to focus on any one document. . . . [T]he display includes a framed
No. 08-5548 ACLU, et al. v. Grayson County, Kentucky Page 23
explanation of the historic significance of the documents. The content
and context of the “Foundations” display, considered as a whole, suggest
that the Ten Commandments are included not for their singular religious
import (that is, as a statement of religious imperatives) but, rather, for
their historical contribution to the development of American legal and
political traditions.
By virtue of the texts that are included and the content of the
accompanying explanation, this display tells viewers that the American
founders were inspired by a religious tradition that includes the Ten
Commandments and that those values influenced the development of our
law and government. A public acknowledgment by the government that
the founders were religious people whose faith influenced the creation of
this nation, its laws, and its institutions of government is far different
from saying that the government itself endorses their religion. Only the
latter message is prohibited by the Establishment Clause.
Books, 401 F.3d at 868. We found this analysis persuasive in Mercer County, 432 F.3d
at 637, and we find no reason in the record to depart from it in this case.
The district court acknowledged that Mercer County was directly on point with
regard to the effect prong, but held that the distinguishing circumstances discussed
above—Shartzer’s purpose in proposing the Foundations Display, the references to the
Ten Commandments in the minutes, and the initial motion to post the Ten
Commandments–also demonstrated that the Foundations Display had the effect, in the
eyes of the objective observer, of endorsing religion. For the reasons fully discussed
above, we conclude the district court clearly erred in its assessment of those
circumstances.10
While there is no doubt that the Fiscal Court members could have been more
explicit about their educational goals, we nonetheless find that, taken as a whole, the
Foundations Display endorses an educational message rather than a religious one. See
Mercer County, 432 F.3d at 638.
10
We acknowledge that the purpose of a private sponsor can be more relevant to the inquiry under
the effect prong of the Lemon test than under the purpose prong. Green, 568 F.3d at 800 n.10. This was
so in Green because the private speaker had expressed his “unalloyed religious motivation” in promoting
a Ten Commandments monument and the county board “in short order agreed to allow him to erect it.”
Id. Here, in contrast, even if Shartzer had such an unalloyed religious motive, the record available to us
does not indicate that Shartzer expressed or that the Fiscal Court approved such a purpose.
No. 08-5548 ACLU, et al. v. Grayson County, Kentucky Page 24
VII
The Establishment Clause is not intended to prevent any mention of religion by
government entities. “Simply having religious content or promoting a message
consistent with a religious doctrine does not run afoul of the Establishment Clause.”
Van Orden, 545 U.S. at 690 (plurality opinion). “[T]he Establishment Clause does not
compel the government to purge from the public sphere all that in any way partakes of
the religious.” Id. at 699 (Breyer, J., concurring). The Establishment Clause thus
permits government displays to include religious influences as they honor other elements
of our country’s legal and political history. The courts are obliged to ensure that, in
approving and adopting such displays, government actors do not abandon the neutrality
principle enshrined in the Establishment Clause. In doing so, we look for evidence that
the government acted with a predominantly religious purpose, that the display itself has
the effect of impermissibly endorsing religion, or that the government’s actions lead to
an excessive entanglement of government and religion. Here, the evidence in the record
does not demonstrate that Grayson County acted with an impermissible purpose or that
the inclusion of the Ten Commandments in the Foundations Display has the
impermissible effect of endorsing religion. Plaintiffs have not carried their burden of
overcoming the deference to which the legislative judgment of a subdivision of state
government is ordinarily entitled.
Our dissenting colleague would reach a different conclusion. We respectfully
submit the dissent’s analysis is based not on the finding of persuasive external evidence
that the Fiscal Court acted with a predominantly religious purpose. Rather, it is based
on an inference, drawn from both the perceived dearth of external evidence of a clearly
identified secular purpose and a suspicion that the secular purpose articulated by
Grayson County during litigation is a sham. The inference is that the inclusion of the
Ten Commandments, a document bearing undeniable (albeit ill-defined) religious
significance, in an otherwise acceptable historical display, necessarily signifies a tacit,
predominantly religious purpose.
No. 08-5548 ACLU, et al. v. Grayson County, Kentucky Page 25
In our view, this inference is not only unwarranted by the cognizable record, but
is improperly drawn in derogation of the traditional deference accorded to a state
governmental entity. With reference to “the way in which the Ten Commandments are
viewed,” the dissent appears to treat the inherent religious nature of the Ten
Commandments as necessarily “trumping” their recognized secular and historical
significance. As a consequence, the dissent, in effect, improperly transfers the burden
of proof from challenger to the governmental entity, too casually dismisses manifest
evidence of secular purpose as a sham, and indulges in speculation about Fiscal Court
members’ “heart of hearts,” contrary to McCreary County, 545 U.S. at 862.
The dissent’s conclusion that the Fiscal Court members’s true purpose was
predominantly religious may or may not be erroneous; it is simply not supported by the
record evidence on which the judicial assessment – of what the objective observer would
have understood the purpose behind to display to be – must be made. Indeed, there may
be good reason to believe that religious purpose underlies many of the attempts in recent
years to place copies of the Ten Commandments in public buildings. Nonetheless, while
“the secular purpose required has to be genuine, not a sham, and not merely secondary
to a religious objective,” McCreary County, 545 U.S. at 871, it is those objecting to a
display of the Ten Commandments who bear the burden of producing evidence sufficient
to prove that the governmental entity’s secular purpose is a sham, and that an objective
observer would understand the display to be motivated predominately by religion.
Plaintiffs have not carried their burden in this case.
VIII
Following the precedent set out by the Supreme Court’s decisions in McCreary
County and Van Orden, as well as by our own previous decision in Mercer County, we
hold that the Grayson County Foundations of American Law and Government Display
(with Ten Commandments) does not infringe plaintiffs’ rights under the Establishment
Clause. We REVERSE the judgment of the district court, VACATE its permanent
injunction, and REMAND the case for entry of JUDGMENT in favor of Grayson
County.
No. 08-5548 ACLU, et al. v. Grayson County, Kentucky Page 26
________________
DISSENT
________________
KAREN NELSON MOORE, Circuit Judge, dissenting. Government action
violates the Establishment Clause if (1) “the government acts with the ostensible and
predominant purpose of advancing religion,” McCreary County v. ACLU, 545 U.S. 844,
860 (2005); (2) the action “has the purpose or effect of endorsing religion”; or (3) the
action “foster[s] an excessive governmental entanglement with religion,”1 ACLU v.
Mercer County, 432 F.3d 624, 635 (6th Cir. 2005). Although the majority purports to
apply this test, its application is misguided at best. Because I conclude that the record
evidence in this case, viewed in the light most favorable to the defendant, establishes that
the County had a predominantly religious purpose in hanging the Foundations Display
(“Display”) and that the Display had the purpose or effect of endorsing religion, I
dissent.
I. ANALYSIS
A. The Display’s Predominant Purpose is to Advance Religion
“[P]urpose matters.” McCreary County, 545 U.S. at 866 n.14. “The eyes that
look to purpose” behind government action, “belong to an ‘objective observer,’” id. at
862, a person who is “presumed to be aware of the text, legislative history, and
implementation of the state action.” Mercer County, 432 F.3d at 630 (quotation
omitted). Further, “although a legislature’s stated reasons will generally get deference,
the secular purpose required has to be genuine, not a sham, and not merely secondary
to a religious objective.” McCreary County, 545 U.S. at 864. If a defendant espouses
a purpose in response to litigation, and such purpose contradicts the record evidence, the
newly stated purpose may be rejected. See id. at 871 (rejecting the defendants’ “new
statements of purpose[, which] were presented only as a litigating position,” because
1
Although recently reformulated, see Mercer County, 432 F.3d at 635, this test was originally
enunciated in Lemon v. Kurtzman, 403 U.S. 602, 612-13 (1971), and I will thus refer to this standard as
the Lemon test.
No. 08-5548 ACLU, et al. v. Grayson County, Kentucky Page 27
these statements contradicted the defendants’ pre-litigation religious purpose); cf.
Mercer County, 432 F.3d at 631-32 (noting that this court will not “defer to the
government’s stated purpose . . . ‘where the claim was an apparent sham’” (quoting
McCreary County, 545 U.S. at 865)).
The County’s asserted purpose here—that the Display was posted for educational
or historical reasons—is a sham and should be rejected. The minutes from the
September 18, 2001 Grayson County Fiscal Court (“Fiscal Court”) meeting, which
constitute the type of “legislative history” of which an objective observer would be
aware, reveal the following: (1) Reverend Shartzer, a religious leader, approached the
Fiscal Court and asked “the County to place the Ten Commandments in the County
buildings”; (2) Reverend Shartzer stated that “the Civil Liberties [sic] would look more
favorable [sic] toward [hanging the Ten Commandments] if they were hanging in a
grouping with the other historical documents”; (3) “Judge Logsdon and the Court
members expressed the desire to place them[, the Ten Commandments,] in the County
buildings and asked the County Attorney if he thought they could do so in a way that
would not cause problems for the County”; (4) Magistrate “Damon Hornback made a
motion to place the Ten Commandments in the buildings,” which “died for lack of a
second”; and (5) immediately thereafter Magistrate Sandy Farris made another motion,
which Damon Hornback seconded and which passed by a unanimous vote, that ordered
“[t]he County place the Ten Commandments in the Court House along with the
Historical documents.” Record on Appeal (“ROA”) at 417 (09/18/01 Meeting Minutes)
(emphasis added). On September 28, 2001, the Fiscal Court reaffirmed the September
18 vote that had already approved the Display, ordering that “[t]he following resolution
along with the Historical Documents and the Ten Commandments be placed in a
grouping in the Court House.” ROA at 419 (09/28/01 Meeting Minutes) (emphasis
added). The vote at this second meeting followed an extensive commentary by
Reverend Shartzer about the need for the Display, but the Fiscal Court failed to record
the content of the exchange and there is little record evidence concerning what Reverend
Shartzer said other than his recollection.
No. 08-5548 ACLU, et al. v. Grayson County, Kentucky Page 28
Although the Supreme Court has noted that the Ten Commandments have some
historical value, see Mercer County, 432 F.3d at 634, an objective observer reviewing
these minutes and their context in the light most favorable to the County would rightly
conclude that the Fiscal Court’s predominant purpose in erecting the Display was not
secular. The evidence from these meetings clearly indicates that the predominant
purpose was to post the Ten Commandments as a religious text and that the additional,
“Historical Documents” were added merely to avoid violating the Constitution. Most
notably, throughout the Fiscal Court’s discussion of whether to erect a display, the Ten
Commandments were always treated as separate from and more important than any of
the “Historical Documents” mentioned. Reverend Shartzer, a religious leader,
specifically asked the Fiscal Court to display the Ten Commandments. Magistrates
Hornback and Farris, both government officials, singled out the Ten Commandments as
their primary focus when making their respective motions to place the Display in the
courthouse and clearly considered the “Historical Documents” as distinct from the Ten
Commandments. Indeed, the actual orders that the Fiscal Court passed on September
18 and September 28 both focused on hanging the Ten Commandments and explicitly
distinguished them from the “Historical Documents,” which were mentioned in passing
and only as a way to attempt to avoid constitutional problems.
In addition to treating the Ten Commandments and the “Historical Documents”
as conceptually distinct, the Fiscal Court never mentioned at the first meeting when it
voted to approve the Display that the Display would be educational or showcase
America’s legal history. To the contrary, in fact, the Fiscal Court continually treated the
Ten Commandments as separate from the “Historical Documents,” indicating that the
Fiscal Court did not attribute to the Ten Commandments whatever historical value those
other documents held. Moreover, at no point after the Fiscal Court’s first meeting’s vote
did the Fiscal Court pass a resolution stating or clarifying that the purpose of the Display
No. 08-5548 ACLU, et al. v. Grayson County, Kentucky Page 29
was educational, historical, or otherwise secular. Instead, the Fiscal Court members
began mentioning the secular aspects of the Display only after litigation commenced.2
The majority insists that this evidence is insufficient for the plaintiffs to show
that the County had a predominantly religious purpose in erecting the Display because
“the simple desire to post the Ten Commandments cannot, in isolation, demonstrate
religious purpose.” Maj. Op. at 18. This observation ignores the way in which the Ten
Commandments are viewed, particularly by religious leaders such as Reverend Shartzer,
and the explicit and vocal manner in which the Fiscal Court treated them. Regardless
of any historical value attributable to the Ten Commandments, it is undeniable that the
Ten Commandments comprise a religious document. See, e.g., Van Orden v. Perry, 545
U.S. 677, 690 (2005) (plurality) (“Of course, the Ten Commandments are
religious—they were so viewed at their inception and so remain.”). Given this reality,
even though a government entity can post the Ten Commandments for educational or
historical purposes and not run afoul of the Constitution, that does not mean that a desire
to post the Ten Commandments in a constitutionally permissible manner cannot also
evidence a predominantly religious purpose for the display in the eyes of an objective
observer. When a government entity speaks only and continually about posting a
religious document, treats the religious document as separate and distinct from the
history-related documents, and focuses principally on ensuring that the religious
document is posted in a way that does not upset “the Civil Liberties,” an objective
observer would rightly conclude that the predominant purpose behind hanging the
religious document was to support and spread the religious message. Under such
circumstances, the desire to post the religious document establishes the predominant
purpose, even if the government entity never bluntly states that purpose as its rationale.3
2
The majority inexplicably ignores the Fiscal Court’s statements in concluding that “even
assuming that Shartzer had a religious purpose, there is no evidence in the record that the Fiscal Court as
a body adopted Shartzer’s purpose,” Maj. Op. at 17, and imagines silence where there was none.
3
By acknowledging the religious underpinnings of the Ten Commandments and the religious
manner in which the document is perceived, I do not, as the majority claims, treat the “inherent religious
nature of the Ten Commandments as necessarily ‘trumping’ their recognized secular and historical
significance.” Maj. Op. at 25. Rather, I analyze the Fiscal Court’s actions in context, and refuse to ignore
the fact that the Ten Commandments comprise a religious text and that the document’s religious
significance becomes even more pronounced when it is a religious leader who proposes that they be hung.
No. 08-5548 ACLU, et al. v. Grayson County, Kentucky Page 30
As a result, I believe that the plaintiffs have met their burden to show an Establishment
Clause violation: The predominant purpose at the time the Fiscal Court voted to approve
the Display was a religious one.4
This conclusion would not forbid government entities from specifically
discussing the Ten Commandments or any other religious document or item, as the
majority implies. If a government entity proposed posting the Ten Commandments for
historical or educational purposes and, in the course of that discussion, referred
specifically to the Ten Commandments, that reference would not necessarily evidence
a religious purpose. In such a case, the record may well establish that, although the
government expressly referenced the Ten Commandments, it did so only as a way to
explain the type of display it envisioned and that, in light of the references to the
historical and educational import of the display and the Ten Commandments’ role
therein, the predominant purpose was secular. No such record evidence exists in the
instant case, however. The Fiscal Court here espoused no purpose other than a desire
to post a religious document, and it is the Fiscal Court’s singular focus on posting the
Ten Commandments for a sectarian reason that establishes a religious purpose.
To further support its conclusion that the Fiscal Court had a secular purpose in
hanging the Display, the majority relies on Reverend Shartzer’s deposition testimony
analogizing the display to “road signs.” Maj. Op. at 16. This reliance is misplaced.
Even assuming that Reverend Shartzer’s testimony correctly summarizes his statements
Again, as the Supreme Court has noted, “Of course, the Ten Commandments are religious—they were so
viewed at their inception and so remain.” Van Orden, 545 U.S. at 690. To fail to recognize this fact would
be as egregious as failing to acknowledge that the Ten Commandments can be viewed secularly, which
I do not purport to do.
4
The majority’s treatment of Magistrate Hornback’s first failed motion to place the Ten
Commandments in the courthouse as analogous to “evidence of ‘repeal or repudiation’” that “negates the
suggestion of a religious purpose” and “highlights the care taken by the Fiscal Court to promote its asserted
secular purpose,” Maj. Op. at 19, is unconvincing. Instead, in light of the Fiscal Court’s conversation
concerning the legal challenges mounted against Ten Commandments displays that immediately preceded
the failed motion, the failed motion reflects nothing more than an awareness of the potential legal
ramifications of posting the Ten Commandments in isolation. Furthermore, in order to “negate the
suggestion of a religious purpose,” the actions the Fiscal Court took after that motion must be in
accordance with a secular purpose. They were not. As highlighted above, the second vote still evidenced
that the Fiscal Court’s purpose was to hang the Ten Commandments for its religious value because the
Fiscal Court continued to treat the religious text as separate from the historical texts, which it desired to
hang only as an attempt to insulate the Ten Commandments from legal challenge.
No. 08-5548 ACLU, et al. v. Grayson County, Kentucky Page 31
during the second Fiscal Court meeting, as we must, this testimony cannot support a
finding of secular purpose. As Reverend Shartzer admitted in his deposition, he did not
make his statements regarding “road signs” until the second meeting, which occurred
after the Fiscal Court originally approved the Display. There is no evidence that the
Fiscal Court voted to reapprove the Display because it had developed a new purpose
sometime between September 18 and September 28; to the contrary, the vote during the
second meeting was a response to the county attorney’s recommendation regarding the
constitutionality of the Display. See ROA at 417 (09/18/01 Meeting Minutes) (noting
that the Fiscal Court ordered that “[t]he County place the Ten Commandments in the
Court House along with the Historical documents of the Declaration of Independence,
Bill of Rights, Mayflower Compact, Star Spangled Banner, National Anthem, Magna
Carta, Explanation Document, and a County Resolution, after County Attorney Tom Goff
has looked at the results of the hearings in other Counties, and if he thinks this can be
done without legal action against the County.” (emphasis added)). The Fiscal Court’s
purpose in erecting the Display was already established at the time Reverend Shartzer
made his statements, and the majority cannot now use these statements to reinterpret the
Fiscal Court’s initial purpose.
I also do not believe that the Explanation Document posted with the Display
“represents the best evidence” of the Display’s purpose simply because the Explanation
Document allegedly identifies the Display’s purpose. Maj. Op. at 18 n.7. And to reach
this conclusion, I do not ignore the presence of the Explanation Document as the
majority contends. See id. Rather, while it is true that the Explanation Document states
that the Ten Commandments have “influenced the formation of Western legal thought”
and “provide the . . . foundation of our legal tradition,” ROA at 420 (Explanation Doc.),
the mere inclusion of the Explanation Document does not, in this case, establish the
Fiscal Court’s primary purpose or automatically insulate its actions. Importantly, the
Fiscal Court neither drafted nor approved the content of the Explanation Document. In
fact, several Fiscal Court members testified that they had not seen, let alone read, the
document prior to its posting. Reverend Shartzer also testified that even he had not seen
the Explanation Document prior to the Fiscal Court meeting where the Display was
No. 08-5548 ACLU, et al. v. Grayson County, Kentucky Page 32
approved because the Document was provided to him later by another pastor in response
to Reverend Shartzer’s inquiry about “what needed to be in the display” to avoid
constitutional problems. ROA at 379-81 (Shartzer Dep.).
Moreover, as outlined previously, at no time during the Fiscal Court’s discussion
of the Display did any member indicate that he or she was authorizing the Display for
reasons even remotely related to those contained within the Explanation Document.
Given this reality, the Explanation Document’s inclusion in the Display is as
inconsequential as the presence of the various “Historical Documents” in establishing
the Fiscal Court’s primary purpose. It simply cannot overcome the Fiscal Court’s
explicit statements. Even viewing the Explanation Document in the light most favorable
to the County, it is nothing more than an post-hoc attempt to obfuscate the true, religious
purpose. In short, at the time the Fiscal Court voted to approve the Display, the
ostensible purpose contained within the yet-to-be-seen Explanation Document was not
the Fiscal Court’s own purpose. Based on the Fiscal Court’s actual statements at the
time it approved the Display, an objective observer would still conclude that the Fiscal
Court’s purpose was predominantly religious, even “in light of the display’s explicit
statement.” Maj. Op. at 18 n.7. Certainly the contents and context of the Display
evidence some secular principles, but in light of the Display’s legislative history, which
expresses religious preference, they do not evidence secular purpose.
Contrary to the majority’s claim, then, Mercer County is vastly different from the
instant appeal. And even though a panel of this court “deferred to the local
government’s stated secular purpose” in Mercer County, Maj. Op. at 15, I believe that
we cannot do so here. It made sense for the Mercer County panel to defer to the
County’s stated secular purpose there because there was no evidence to the contrary.
Mercer County, 432 F.3d at 632 (“Mercer County’s stated purpose was more than a mere
‘litigating position’” because “there is no evidence in this case that the County’s stated
purpose is a sham.”). That is not so with Grayson County. Here, there is evidence in the
form of meeting minutes that the predominant purpose of this Display was not the
educational or historical purpose now espoused or reflected in the Explanation
No. 08-5548 ACLU, et al. v. Grayson County, Kentucky Page 33
Document. Instead, the secular rationale upon which the majority focuses embodies the
type of “litigating position” that the Supreme Court condemned in McCreary County.
See McCreary County, 545 U.S. at 871. And the secular purpose directly contradicts the
clear religious purpose evidenced by the Fiscal Court’s explicit statements in the meeting
minutes and the tenor of the meetings. All of the record evidence supports a finding that
the government entity had a predominantly religious purpose in erecting the Display and
that any other purpose is a sham. Such a conclusion does not require reliance on
erroneous inferences or suspicions gleaned from silence. The record evidence speaks
loudly and requires neither.
It is true that, in terms of content and position within the courthouse, the Display
at issue in the instant appeal is identical to the display that the Mercer County panel
found constitutional. But, contrary to the majority’s assertions, that is where the
similarities end. The majority is wrong to assert that Mercer County is dispositive—the
display in Mercer County had a materially different legislative history than the Display
at issue in this case. Unlike Mercer County, all of the evidence of legislative history in
this case supports a finding that the Fiscal Court acted with a predominantly religious
purpose and went to great lengths to hide that purpose by figuring out what it needed to
hang in addition to the Ten Commandments in order to avoid a constitutional challenge.
To defer to the Fiscal Court’s newly stated secular purpose ignores the statements the
Fiscal Court made when it voted to approve the Display and adopts as legitimate what
the Fiscal Court now feels it needs to say in order to avoid running afoul of the law.
Because the Display here “has a history [of] manifesting sectarian purpose that
the [Mercer County display] lack[ed], it is appropriate that they be treated differently.”
Mercer County, 432 F.3d at 632 (quoting McCreary County, 545 U.S. at 866 n.14) (first
alteration in original). Given the legislative-history evidence of religious purpose, I
believe that this case is more analogous to McCreary County. Accordingly, under the
Supreme Court’s rule in McCreary County, I would hold that the Display violates the
first prong of the Lemon test and, therefore, violates the Establishment Clause.
No. 08-5548 ACLU, et al. v. Grayson County, Kentucky Page 34
B. The Display Endorses Religion
The Display also fails the second prong of the Lemon test. Government action
violates this prong when the action would cause a reasonable person to view the act as
endorsing religion. Mercer County, 432 F.3d at 636. This is an objective standard that,
similar to the objective-observer standard outlined above, requires a court to consider
the perspective of a “reasonable person [who] is deemed aware of the circumstances
under which governmental actions arise, including the legislative history and
implementation.” Id. Moreover, “[c]ontext is crucial to this analysis.” Id. “If context,
history, and the act itself send the ‘unmistakable message’ of endorsing religion, then
the act is unconstitutional.” Id. at 637 (quoting County of Allegheny v. ACLU, 492 U.S.
573, 600 (1989) (plurality opinion)).
In upholding a display identical to the Display at issue here, the Mercer County
panel noted that this court “will not presume endorsement from the mere display of the
Ten Commandments.” Id. at 639. The panel further noted that the display was
constitutional because, on its face, it “sen[t] the ‘unmistakable message’ of the County’s
acknowledgment of legal history,” and that “nothing in the legislative history tend[ed]
to show otherwise.” Id. at 638 (emphasis added). In this case, unlike Mercer County,
there is evidence tending to show that the defendants were, in fact, endorsing religion.
As outlined at length above, the Fiscal Court meeting minutes reflect the desire to post
the Ten Commandments for its religious value, as opposed to erecting an educational or
historical display. Although a reviewing court cannot presume endorsement from the
simple fact that the Ten Commandments were included in the ultimate Display, id. at
639, such a presumption is unnecessary here given that the meeting minutes demonstrate
the Fiscal Court’s primary focus was to post a religious text for its religious value.
Unlike the historical message sent in Mercer County, the posting of an unquestionably
religious document under the circumstances in the instant case sent an “unmistakable
message” of endorsing religion that would lead the reasonable person to conclude that
the Display and the government behind it endorse religion. See id. at 638. Thus, I would
No. 08-5548 ACLU, et al. v. Grayson County, Kentucky Page 35
hold that the Display violates the second prong of the Lemon test as well as the first.
Each violation constitutes a violation of the Establishment Clause.
II. CONCLUSION
The record clearly demonstrates that the County erected the Display with a
predominantly religious purpose and that the Display has the purpose or effect of
endorsing religion. Accordingly, I would AFFIRM the district court’s grant of
summary judgment in favor of the plaintiffs. However, because the majority has seen
fit to imagine that a clear intent to post a religious document only for its religious value
does not evidence a predominantly religious purpose, I must dissent.