Opinions of the United 2004 Decisions States Court of Appeals for the Third Circuit

10-6-2004

Modrovich v. Allegheny Precedential or Non-Precedential: Precedential

Docket No. 03-3571

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Recommended Citation "Modrovich v. Allegheny" (2004). 2004 Decisions. Paper 176. http://digitalcommons.law.villanova.edu/thirdcircuit_2004/176

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

Argued March 24, 2004 Counsel for Appellee

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

2 Plaque be removed because its continued concerning the display of a plaque of the presence violated the Establishment Ten Commandm ents affixed to a Clause of the First Amendment. County courthouse in Chester County. See officials disagreed with that assertion and Freethought Soc’y v. Chester County, 191 refused to remove the Plaque. In addition, F. Supp. 2d 589 (E.D. Pa. 2002). On the County Council passed a motion on March 6, 2002, that court, applying the January 16, 2001, expressing its support three-prong test set forth in Lemon v. for the efforts of Roddey and DeFazio to Kurtzman,

(1971), prevent its removal. found that the plaque was only incidentally secular, and that Chester County officials Modrovich and Moore filed suit in intended the plaque to advance the the Western District of Pennsylvania on Christian religion. The court, therefore, March 27, 2001, pursuant to the Civil held Chester County’s display of the Rights Act of 1871,

plaque to be unconstitutional under the (“Section 1983”). They claimed that their Establishment Clause. Freethought, 191 F. First Amendment rights were being Supp. 2d at 599. Chester County appealed violated under color of state law by a local the district court’s decision to this Court. municipality. They sought a declaratory While Freethought was on appeal, the judgment that the continued presence of District Court judge in the instant case the Plaque violated the First and advised the parties that she would hold Fourteenth Amendments. They also their motions for summary judgment in sought a permanent injunction prohibiting abeyance pending our decision. the County from displaying the Plaque at the courthouse. Modrovich and Moore On June 26, 2003, this Court, filed a motion for summary judgment and analyzing the constitutionality of the a motion for a permanent injunction on Chester County plaque under both the January 31, 2002, arguing that the Plaque “Lemon” test and the “endorsement” test, had the effect of endorsing religion. The reversed the decision of the district court County filed a cross-motion for summary in Freethought. The endorsement test, a judgment on the same day, asserting that modification of the Lemon test, was first because the Plaque is one of over twenty articulated by Justice O’Connor in Lynch historical, political, and cultural relics v. Donnelly,

(1984) displayed at the courthouse, it has secular (O’Connor, J., concurring). Under both of significance and its continued display does these approaches, this Court held that the not amount to an unconstitutional Chester County plaque did not violate the endorsement of religion. Establishment Clause. Freethought, 334 F.3d at 251. We then vacated the While these motions were pending, permanent injunction issued by the district the Eastern District of Pennsylvania court prohibiting Chester County from decided Freethought, a case involving displaying the plaque. almost identical facts and issues

3 Following this precedent, the Finally, the “endorsement” test District Court in this case granted modifies Lemon in cases involving summary judgment to Allegheny County religious displays on government property. and denied summary judgm ent to The endorsement test dispenses with Modrovich and Moore. Lemon’s “entanglement” prong and, combining an objective version of II. THE LEGAL FRAMEWORK Lemon’s “purpose” prong 1 with its A. The Establishment Clause “effect” prong, asks whether a reasonable observer familiar with the history and Under the Establishment Clause of context of the display would perceive the the First Amendment, “Congress shall display as a government endorsement of make no law respecting an establishment religion. Lynch,

of religion.” U.S. Const. amend. I. The (O’Connor, J., concurring); see also Fourteenth Amendment imposes this County of Allegheny v. ACLU Greater limitation on the states as well as their Pittsburgh Chapter,

, 592 political subdivisions. Wallace v. Jaffree, (1989) (adopting the endorsement test by

(1985). The Supreme a majority of the Court); Tenafly Eruv Court has articulated three separate tests Ass’n, Inc. v. Borough of Tenafly, 309 for determining whether governmental F.3d 144, 174 (3d Cir. 2002) (applying the action violates the Establishment Clause. endorsement test to a government display The first of these, the “coercion” test, is of privately owned and maintained not applicable to this case. It focuses religious objects). The endorsement test primarily on government action in public asks whether the government action has education and examines whether school- “the effect of communicating a message of sponsored religious activity has a coercive effect on students. See Freiler v. Tangipahoa Parish Bd. of Educ.,

(5th Cir. 1999), cert. denied, 530 Instead of looking to the legitimacy of U.S. 1251 (2000). The second and third the County’s articulated purposes, see tests, however, are both relevant to this Edwards v. Aguillard,

, 585 case. The second, the “Lemon” test, is a (1987) (stating that “[t]he purpose prong three-prong approach to be used when of the Lemon test asks whether analyzing government action challenged government's actual purpose is to endorse under the Establishment Clause. Lemon, or disapprove of religion” (quotation

. Under Lemon, the omitted)), the purpose inquiry in the challenged action is unconstitutional if (1) endorsement test looks to “what viewers it lacks a secular purpose, (2) its primary may fairly understand to be the purpose of effect either advances or inhibits religion, the display,” County of Allegheny v. or (3) it fosters an excessive entanglement ACLU,

(1989) of government with religion.

(quotation omitted).

4 government endorsement or disapproval of In applying the endorsement test, religion.” Lynch,

we identified two factors as particularly (O’Connor, J., concurring). The critical: first, the message that the endorsement test cen ters on the “reasonable observer” receives from the perceptions of the “reasonable observer” display, i.e., whether the display sends a when viewing a religious display. Capitol message of government endorsement of Square Review & Advisory Bd. v. Pinette, religion; and second, the context in which

(1995). Thus, in the religious display appears. applying the endorsement test, we do not [T]he reasonable observer in the examine the County’s motivations in endorsement inquiry must be deemed displaying the Plaque, but consider the aware of Plaque’s effect on the reasonable observer, determining whether the reasonable the history and context of the community observer would perceive it as an and forum in which the religious display endorsement of religion. appears. . . . Nor can the knowledge B. Freethought and the Endorsement attributed to the reasonable observer be Test limited to the information gleaned simply In Freethought, we began our from viewing the challenged display. . . . analysis of the constitutionality of the [O]ur hypothetical observer also should Chester County plaque by first considering know the general history of the place in which test should be applied to determine whether the pla que v iolated the which the [object] is displayed. . . . An Establishment Clause. We decided that informed member of the community will the correct test was not Lemon (which the know how the public space in question has district court had applied), but the been used in the past. endorsement test. In arriving at this conclusion, we noted that the Supreme Court had begun to rely increasingly on the Capitol Square,

endorsement test in recent years and had (O’Connor, J., concurring in part and criticized Lemon as being vague and, concurring in the judgment) (internal consequently, unpredictable in its citations omitted). Thus, the reasonable application.

at 256-57 (citing County observer is presumed to know the general of Allegheny,

(O’Connor, history of both the religious display and J., concurring)); Lamb’s Chapel v. Ctr. the community in which it is erected. The Moriches Union Free Sch. Dist., 508 U.S. reasonable observer is also “more 384, 398-99 (1993) (Scalia, J., concurring) knowledgeable than the uninformed (criticizing Lemon); Wallace, 472 U.S. at passerby.” Freethought, 334 F.3d at 259. 108 (Rehnquist, J., dissenting); see also Tenafly, 309 F.3d at 144. In addition, every Establishment

5 Clause challenge requires a fact-specific, superior court’s official seal depicting two case-by-case analysis. See Lynch, 465 t a b l e t s r e p r e se n ti n g t h e T e n U.S. at 678; County of Allegheny, 492 Commandments did not send a message of U.S. at 629-30 (O’Connor, J., concurring). endorsement because of various contextual This is mainly due to the fact that the factors surrounding the seal’s appearance particular context in which a basically and use). religious display appears can alter the Acco rdingly, the C ourt in message of this display such that it is no Freethought considered various facts longer endorsing religion, but merely concerning the context of the plaque, acknowledging it. See Lynch, 465 U.S. at including its history and age, its status as a 6 9 2 ( O ’ C onn o r , J ., concurring). long-standing fixture on an historic Adm ittedly, the text of the Ten monument, and the fact that it was Commandments contains an “inherently displayed by itself. The Court held that religious message.” Freethought, 334 F.3d “the reasonable observer must certainly be at 262 (citing Stone v. Graham, 449 U.S. presumed to know that the plaque has been 39, 41 (1980)). However, posting the affixed to the Courthouse for a long time,” Commandments can still, under certain and would therefore view the plaque itself circumstances, be considered a secular (rather than the text of the Ten display. In Edwards v. Aguillard, 482 U.S. Commandments “in the abstract”) as a 578 (1987), the Supreme Court stated that reminder of historical events in Chester a prior “decision forbidding the posting of County rather than as an endorsement of the Ten Commandments did not mean that religion by county officials. Freethought, no use could ever be made of the Ten 334 F.3d at 265. The Court also created a Comm andments, or that the Ten model of the reasonable observer. It found Commandments played an exclusively that the reasonable observer in that case religious role in the history of Western would know the approximate age of the Civilization.” Edwards,

- plaque, and the fact that Chester County 94. Thus, it is well-established that the had not moved, maintained or highlighted context in which an otherwise religious the plaque since it was erected in 1920. display appears can change the reasonable The reasonable observer would also be observer’s perception of it. See Lynch, “aware of the general history of Chester

(O’Connor, J., County.” Id. at 260. concurring); County of Allegheny,

(O’Connor, J., concurring) (stating that the “history and ubiquity” of The Court found that, based on this a government action contributes to the knowledge, the reasonable observer would context that affects the reasonable conclude that the decision to leave the observer’s perception of endorsement); see plaque in place was significantly also King v. Richmond County, 331 F.3d motivated by a desire to preserve the 1271 (11th Cir. 2003) (holding that a plaque as an historical artifact. Id. at 265.

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

7 (i.e., a desire to retain an historical element A. Description of the of an historical building). As the Court Allegheny Plaque noted, the proffered reason for the decision The Allegheny County Courthouse need not be “exclusively secular,” and the occupies a full city block in downtown purpose prong only requires the reviewing Pittsburgh. It borders on four main roads court to find that the articulated secular (Grant Street, Fifth Avenue, Ross Street, purpose is not a “sham.” Id. at 267 (citing and Forbes Avenue), and is built around an Edwards,

). Thus, the interior courtyard. The Courthouse Court accepted Chester County’s reason, complex was designed by world-renowned citing testimony from Chester County architect Henry Hobson Richardson and commissioners expressing their views of was completed in 1888. In 1968, the the plaque as having historical and secular, Pittsburgh History and Landmark as well as religious, significance.

Foundation designated the Courthouse an Chester County also supported these views historical landmark. On March 7, 1973, it with case law and legal treatises was placed on the National Register of suggesting that the Ten Commandments Historic Places, and on M ay 11, 1976, it “have an independent secular meaning in was named a N ational Historical our society because they are regarded as a Landmark. significant basis of American law and the American polity.”

While the Court did The Plaque, a bronze tablet entitled not specifically consider the Lemon “THE COMMANDM ENTS,” is four feet question of whether the primary effect of high by three feet wide. It displays the text retaining the plaque was to advance or of the Ten Commandments, largely from inhibit religion, it held that question to be the King James version of Exodus and encompassed in its endorsement test Deuteronomy. It reads: analysis and, therefore, concluded that THOU SHALT HAVE NO Chester County’s refusal to remove the OTHER GODS BEFORE ME. plaque was constitutional under both the purpose and effect prongs of Lemon. THOU SHALT NOT MAKE UNTO Additionally, the Court noted that Lemon’s THEE ANY GRAVEN IMAGE, OR ANY entanglement prong was an aspect of the LIKENESS OF ANY THING THAT IS effect inquiry and, as such, was also IN HEAVEN ABOVE, OR THAT IS IN encompassed by its endorsement test THE EARTH BENEATH, OR THAT IS analysis.

at 258 (citing Agostini v. IN THE WATER UNDER THE EARTH: Felton,

(1997)). THOUGH SHALT NOT BOW DOWN THYSELF TO THEM, NOR SERVE III. DISCUSSION THEM: F OR I THE L ORD THY G OD AM A JEALOUS G OD , VISITING THE

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

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

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

monuments to World War II and Civil War (O’Connor, J., concurring) (internal veterans, an historic Chester County citations omitted) (emphasis and marker, and a plaque with an historical alterations in original). Rather, the description of the original courthouse that endorsement analysis requires a specific, stood on the site. Freethought, 334 F.3d at fact-based inquiry to determine if a 251-54. reasonable observer, aware of various

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

12 “[s]everal hundred people walk by the including the Plaque’s age, its history, and Allegheny Plaque, and dozens go into the the fact that it is one of several historical Courthouse archway entrance near it, plaques displayed at the courthouse. during a typical ninety-minute period on a regular business morning.” Appellant Br. Modrovich and Moore cite the at 47. It is true that the Chester County Supreme Court’s decision in County of plaque is in an unobtrusive location, next Allegheny,

, and this to an entrance that has been permanently Court’s decision in ACLU of N.J. v. closed, and that it is not legible from the Schundler,

(3d Cir. sidewalk. However, we do not agree that 1997), to argue that the prominence of a the Allegheny Plaque is displayed any religious display is a factor weighing more prominently than the Chester County against allowing the display. While, as plaque. It does not hang in any pre- discussed above, prominence is indeed a eminent place, but is affixed to a side factor in the endorsement analysis, the entrance on Fifth Avenue (as opposed to facts of these cases support our view that the main courthouse entrance on Grant the Allegheny Plaque was not in an Street). The Plaque is not protected from especially prominent location. In the weather and hangs at street level, Schundler, the display at issue was a 12 by unprotected from potential vandalism. See 18 foot nativity scene located on the front Dist. Ct. Op. at 35. The Allegheny Plaque lawn of City Hall in Jersey City, New is no larger than the Chester Plaque, and in Jersey. As the Court noted, the “[c]ity neither case can the text be viewed from placed the display such that all visitors to across the street. In both cases, the text City Hall were confronted with prominent can be read when walking immediately religious symbols.”

. past the plaque, with the only difference Similarly, in County of Allegheny, a being that pedestrians are less likely to nativity scene was placed on the Grand pass the Chester Plaque because it hangs at Staircase of the county courthouse. The the top of a staircase near a closed Grand Staircase was described as the entrance. We do not find this minor “main,” “most beautiful,” and “most difference in the placement of the plaques public” part of the courthouse, and the to distinguish the cases. Even if one were nativity “occupied a substantial amount of to concede that the Allegheny Plaque is in space” on the staircase.

. a slightly more prominent location, the In comparison, the location of the Allegheny Plaque’s location is certainly Allegheny Plaque could not be considered not prominent enough to send a message to prominent. It does not hang in a main part the reasonable observer that the County is of the courthouse and, as it is at a side endorsing religion. This is particularly entrance, would never be viewed by all true considering the other contextual visitors to the courthouse as the displays in factors that must be examined in addition Schundler and County of Allegheny were. to location under the endorsement test,

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

14 time through displays on its walls. As the 652-53). Further, the Freethought Court County points out, “the reasonable held that, even though the Chester County observer would no more believe that [it] courthouse did not contain several other has endorsed the Old Testament by displays, the plaque’s age and history displaying the Plaque than he or she would alone provided sufficient context to believe that the County has endorsed the prevent the reasonable observer from pantheistic religions of ancient Greece and viewing an otherwise religious plaque as Rome by displaying the mural of Lady an endorsement of religion. Id. at 264. Justice in the Grand Staircase.” County Thus, Freethought found that, despite the Br. at 38. absence of additional secular displays, the Chester County plaque had a non-religious The fact that the Chester County context because of its age and history. courthouse lacks similar displays is a weak Under this reasoning, the perception that ground on which to attempt to distinguish the Allegheny Plaque does not endorse this case from Freethought. This is religion is only strengthened by the particularly true since the context of a existence of other displays on the religious display can alter the display’s courthouse, in addition to the Plaque’s age message such that a reasonable observer and history. would not perceive it as endorsing religion. See Lynch

Modrovich and Moore also contend (O’Connor, J., concurring) (stating that “a that the inscription on the Plaque showing typical museum setting, though not the name of the group that donated it neutralizing the religious content of a distinguishes it from the Chester County religious painting, negates any message of plaque because this group was a “radical endorsement of that content”). Following religious organization” and, although the this reasoning, we held that a religious Chester County plaque was also donated display is more likely to be perceived as an by a religious organization, the Chester endorsement of religion “where there is County plaque did not contain an nothing else in the context of the display inscription naming its donor. Appellant that would change the views of the Br. at 53. Modrovich and Moore assert reasonable observer.” Freethought, 334 that a reasonable observer, knowing the F.3d at 265. As an example of such a Plaque was donated by this Christian context, we cited “the frieze in the group, would have more reason to view courtroom of the U.S. Supreme Court, the continued display of the Plaque as a which portrays Moses carrying the Ten government endorsement of religion. We Commandments alongside depictions of disagree with this assertion. First, the other figures who have impacted modern primary focus under both the endorsement law, such as John Marshall, William and Lemon tests is the events of the time at Blackstone, and Caesar Augustus.”

which the County refused to remove the (citing County of Allegheny, 492 U.S. at Plaque rather than the events of 1918 when

15 the display was erected. Freethought, 334 an endorsement of religion” or “some F.3d at 267. Arguing that the inscription people may be offended” by it. Capitol establishes the County’s endorsement Square,

(O’Connor, J., improperly places the focus on the events concurring) (internal citations omitted) of 1918, rather than on present events and (emphasis and alterations in original). Our the County’s secular motivations for country’s history is steeped in religious retaining the Plaque. Furthermore, the traditions. The fact that government reasonable observer, aware of the Plaque’s buildings continue to preserve artifacts of history, would be presumed to know the that history does not mean that they identity of the Plaque’s donor (or at least necessarily support or endorse the that the donor was a religious particular messages contained in those organization) with or without an artifacts. inscription specifically naming it. This is p articular ly true here since th e circumstances surrounding the Plaque’s donation are a matter of public record. 2. The Lemon Test Thus, this case cannot be distinguished from Freethought on the basis of an The purpose prong of the Lemon inscription on the Allegheny Plaque. test is discussed below. As explained, this prong simply requires that the County Our country’s interests in historical articulate some legitimate secular purpose preservation and recognizing the roots of for refusing to remove the Plaque. See modern law present secular goals that Freethought, 334 F.3d at 267. Examining strongly weigh against compelling the the motivations behind the decision, we removal of the Plaque even though its are only required to find that the legitimate content is religious. Considering, from a secular purpose articulated by the County practical standpoint, the remedy sought by for retaining the Plaque is not a “sham.” Modrovich and Moore (removal of the Edwards,

. As Plaque), we should not be swayed by Freethought noted, this is a “low parties’ subjective feelings of affront or threshold,” and courts are generally insult at the sight of a religious display deferential to the government’s proffered when, as here, the facts surrounding the secular purpose as long as it is legitimate. display do not support a finding of 334 F.3d at 267 (citing Edwards, 482 U.S. unconstitutional endorsement by the at 585-87). government. Given our national interest in historical preservation, we believe we In making their argument under the would set a dangerous precedent if we endorsement test, Modrovich and Moore were to hold that any relic containing a point out various statements made by religious message should be removed Allegheny County officials that they claim merely because “any person . . . could find to show endorsement of religion.

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

17 motivations are based in historical Here, Roddey’s statements express preservation and in a recognition of the sufficient secular motivations for his role of the Commandments in both decision. These include the fact that the Allegheny County history and American Plaque is part of the heritage of an law. Even if one did not accept his historical building, as well as Roddey’s explanation of the statement in his press belief that the County has an obligation to release, the purpose of the display need not respect the com munity’s historical be exclusively secular. See Edwards, 482 decision during World War I to U.S. at 585-87. Even if the Plaque is commemorate the value of the rule of law assumed to incorporate religious meaning over war. See Roddey Depo. at 20-21 or values, the County is not prohibited (stating that the County has an “obligation from displaying such symbols or required to respect the wishes of the people that to convey only secular messages. The [have] gone before us, and the people of Supreme Court has simply required that the community before us” to “keep the the display not be “motivated wholly by [P]laque as they expected it to be”). Thus, religious considerations.” Lynch, 465 U.S. considering that a display need not be at 680 (emphasis added). 3 motivated by exclusively secular purposes under the Lemon analysis, we find that Roddey’s articulations contain sufficient 3 Notwithstanding all of this evidence, legitimate secular purposes to pass muster. the dissent contends that a genuine dispute See Lynch,

. of fact exists as to whether Roddey’s Additionally, we are not convinced stated secular motivations are sincere or that statements made by other County simply a “fig leaf” to cover his religious officials (such as the Court of Common purposes. See Dissent, p. 5, line 108. Pleas judge) or by other County residents However, as noted, the purpose prong of through letters are relevant to the Lemon Lemon has a “low threshold,” simply purpose analysis. None of these requiring a legitimate secular purpose that individuals was the decision-maker for the is not a sham. Freethought, 334 F.3d at County with respect to the Plaque. 267. We believe that no reasonable jury Therefore, their motivations are not could find that the historical purpose articulated by Roddey was merely a sham. Anderson v. Liberty Lobby, Inc.,

(1986). While the dissent may be correct in suggesting that Roddey’s motivations are not entirely clear from the F.3d at 262 (concluding that “the record, it is undisputed that he asserted articulation of a legitimate secular purpose certain secular purposes, and his asserted for declining to remove the plaque in 2001 historical purpose clearly is not a sham, as would satisfy the first prong of Lemon” understood in light of Freethought. 334 (emphasis added)).

18 relevant to the inquiry. 4 In our view, the contained many monuments and displays record in this case contains sufficient pertaining to the history of Texas. These evidence that Allegheny County retained displays included, for example, an Aztec the Plaque for the secular reasons of religious symbol, a Confederate plaque, a historic preservation and commemoration plaque commemorating the war with of the rule of law, rather than solely for the Mexico, and a tribute to African American religious reasons voiced by some members legislators. The Court held that the Ten of the community. Commandments monument did not have a primary effect of advancing or inhibiting The effect and entanglement prongs religion, as seen from the eyes of a of Lemon are encompassed by the reasonable observer, because the grounds endorsement test, and, accordingly, we were designated as a National Historical incorporate our earlier discussion of the Landmark and contained seventeen endorsement test. See Freethought, 334 monuments depicting symbols of Texan F.3d at 269. Thus, we hold that the identity. Id. at 175-76. In addition, the County’s refusal to remove the Plaque monument’s location between the Texas does not violate either the endorsement Supreme Court building and the capitol test, as discussed in Part III.B.1, or the building was chosen to reflect the Lemon test. Commandments’ role in the making of IV. OTHER CIRCUIT COURT law. Id. at 181. CASES Similarly, in King v. Richmond Several other Courts of Appeal County, the Eleventh Circuit held that a have recently considered the issue of superior court’s official seal depicting two w h e t h e r d i s p l a ys o f t h e T e n t a b l e t s r e p r e se n t i n g th e T e n Commandments on government property Commandments did not send a message of violate the Establishment Clause. At least endorsement because of various contextual two of these decisions, from the Fifth and factors surrounding the seal’s appearance Eleventh Circuits, support our holding and use. 331 F.3d at 1286. These here. In Van Orden v. Perry,

included the fact that the seal had been (5th Cir. 2003), the Fifth Circuit held that used by the court for over 130 years for a Ten Commandments monument on secular, legal documentation purposes. Texas state capitol grounds did not Other relevant contextual factors included endorse religion where the capitol grounds the seal’s relatively small size, the absence of text on the tablets (although they did contain Roman numerals I through X, 4 In addition, the record shows that most clearly representing the Commandments), of the correspondence from County and the fact that the seal depicted a sword residents was actually received after (a symbol of secular law) intertwined with Roddey’s decision was made. Roddey the tablets. Id. at 1283-84. Thus, this Depo. at 71.

19 decision supports our standpoint that the however, this was a new display, not an overall context of a basically religious historical monument and, therefore, this depiction can affect whether a reasonable decision has no persuasive effect on our observer perceives the display as holding here. endorsing religion. In Adland v. Russ,

Other Circuits have held that (6th Cir. 2002), cert. denied,

postings of the Ten Commandments (2003), the Sixth Circuit held that a violate the Establishment Clause. monument displaying a “nonsectarian” However, each of these decisions is version of the Ten Commandments, distinguishable from the instant case and donated in 1971 but moved to storage in is, therefore, neither persuasive nor 1980, could not be placed on the state apposite. In ACLU of Ohio Foundation, capitol grounds. Once again, this case Inc. v. Ashbrook,

(6th Cir. involved a new placement, not a refusal to 2004), the Sixth Circuit held that an Ohio r e m o v e a l o n g s ta n d i n g p l aq u e . Common Pleas Court judge violated the Additionally, the proposed display in Establishment Clause by displaying a Adland would have been in a prominent framed poster of the Ten Commandments, location on state capitol grounds, unlike which he created himself on his computer, the Allegheny Plaque, which hangs in his courtroom across from a similarly discretely on the side of the courthouse. styled framed poster of the Bill of Rights, Books v. City of Elkhart,

which he also created. This case is (7th Cir. 2000), cert. denied, 532 U.S. distinguishable from the instant case as it 1058 (2001), involved a monument similar involves a new display rather than an to that in Adland in that it also displayed a historical artifact. nonsec tarian versio n of the Commandments and was placed on the In another distinguishable case, lawn in front of a local municipal building. ACLU of Kentucky v. McCreary County, The Seventh Circuit found this display to

(6th Cir. 2003), the Sixth violate the Establishment Clause, but this Circuit held that a courthouse’s posting of decision does not influence our holding the Ten Commandments, hung in a here for the same reasons that Adland is museum-like setting with other postings unpersuasive. See also Ind. Civil Liberties designed to display the foundations of Union v. O’Bannon,

(7th American law, violated the Establishment Cir. 2001), cert. denied,

Clause. The Court held that, despite the (2002) (following Elkhart and holding that secular context, the text of the Ten the state’s intention to erect a monument Commandments sent the message of depicting the Ten Commandments on the endorsing religion because the county did park-like grounds of the statehouse would not make clear in the display that it was violate the Establishment Clause). attempting to create an exhibit concerning the origins of law. Id. at 448-49. Again, Finally, in ACLU Nebraska

20 Foundation v. City of Plattsmouth, 358 King] that given the context in which the F.3d 1020 (8th Cir. 2004), the Eighth pictograph of the Ten Commandments Circuit held that the city’s display of a Ten appeared on the Seal, a reasonable Commandments monument in a public observer would not believe that the Seal p a r k s i n c e 1 9 6 5 a m o u n te d t o was an endorsement of religion.” Id. at unconstitutional government endorsement. 1298-99 (internal citations omitted). This case also addresses a relatively new V. CONCLUSION monument, not an historical relic. Further, the Plattsmouth monument stands alone in For the foregoing reasons, we a city park. It therefore lacks the kind of believe that the Ten Commandments historical context that we believe makes Plaque affixed to the Allegheny County the reasonable observer unlikely to Courthouse does not constitute an perceive the Allegheny Plaque as an endorsement of religion in violation of the endorsement of religion.5 Establishment Clause, nor does it violate the test first articulated in Lemon. Thus, The Eleventh Circuit also reiterated the District Court’s grant of summary the importance of context in judgment to Allegheny County and denial Glassroth v. Moore,

(11th of summary judgment to Modrovich and Cir. 2003), in which it held that a two-and- Moore will be affirmed. one-half ton monument of the Ten Commandments, placed in the rotunda of an Alabama State Courthouse by the Chief Modrovich v. Allegheny County Justice of the Alabama Supreme Court, No. 03-3571 violated the Establishment Clause. As with the cases above, this case involved a new and far more prominent display than GIBSON, Circuit Judge, dissenting. the Allegheny Plaque. Further, the Eleventh Circuit distinguished Glassroth from its holding in King, a case much I respectfully dissent. more factually similar to the instant case, stating that “he constitutionality of a government’s use of a predominantly In my view the decision of the religious symbol depends on the context in district court is based upon factual findings which it appears, and we concluded [in where there is conflicting evidence, particularly with respect to the present intent of County officials. The court 5 Additionally, we note that Plattsmouth followed the teaching of this court's earlier is no longer binding precedent, as the decision in Freethought Society of Greater city’s petition for rehearing en banc was Philadelphia v. Chester County, 334 F.2d granted on April 6, 2004.

21 247 (3d Cir. 2003), but overlooks the

(citations omitted). Relying differing procedural posture of that case. upon Anderson v. Liberty Lobby, Inc., 477 This court in Freethought reviewed a U.S. 242, 249-251 (1986), we stated that permanent injunction ordering the removal the summary judgment standard has been of the Ten Commandments Plaque based likened to the "'reasonable jury' directed on testimony the district court found verdict standard," and "at the summary believable and the legal conclusions based judgment stage the judge's function is not upon these findings. Id. at 255. In . . . to weigh the evidence to determine the contrast, the case before us is an appeal truth of the matter, but to determine from a grant of summary judgment. whether there is a genuine issue for trial." Big Apple BMW, 974 F.2d at 1362-63. Consistently with the teaching of We concluded: the Supreme Court, decisions of other circuits, and Federal Rule of Civil In practical terms, if the Procedure 56, we have stated, "Summary opponent has exceeded the judgment should be granted where no "mere scintilla" threshold genuine issue of material fact exists for and is offered a genuine resolution at trial and the moving party is issue of material fact, then entitled to judgment as a matter of law." the court cannot credit the Big Apple BMW , Inc. v. BMW of North movant's version of events America, Inc.,

(3d against the opponent's, even Cir. 1992). We explained: if the quantity of the m ovant's evidence far When deciding a motion for outweighs that of its summary judgment . . . a opponent. It thus remains c o u r t ' s r o l e re m a i n s the province of the fact circumscribed in that it is finder to ascertain the inappropriate for a court to believablity and weight of resolve factual disputes and the evidence. to make credibility d eterm in ations. . . . Inferences should be drawn

. in the light most favorable to the non-moving party, The district court, in following and where the non-moving Freethought, engaged in weighing of the party's evidence contradicts evidence and fact finding contrary to the the movant's, then the non- teaching of Big Apple BMW and movant's must be taken as Anderson. The district court based its true. decision on the conclusion that officials were "sincere" when they articulated secular reasons for keeping the Plaque in

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

23 press release Roddey stated, "Perhaps the motion, Vince Gastgeb,6 stated, "There's citizens of Allegheny County place a value values and traditions here in this County on the family, on the church and on that people have fought for, and as elected religion that is vastly different than those representatives, we should fight to who dwell in Washington, D.C. But my continue that moving forward." Gastgeb heart and my instinct tell me to keep 'The concluded his speech by stating, "We have Commandments' and I intend to follow to have faith." He later stated to the press, them." Presumably, the reasonable "I'd rather see ten religious expressions in observer reads local newspapers as well as the courthouse than none." Another local history books, so this statement has Council member, Richard Olasz, stated to be entered into the mix in deciding what during Council debate, "Maybe some of that observer would think. Furthermore, in these people that object to [the Plaque] his deposition Roddey stated that "the ought to go back and remember that there plaque, itself, represents an ethic and a are no atheists in foxholes, and to standard for society that I believe the remember the old sign on the tombstone: people of this community would generally All Dressed Up and Nowhere to Go." agree to." This statement could be There was also in evidence a understood to amount to an adoption of statement by the president judge of the official religious precepts by majority rule, Allegheny County Common Pleas Court t h e r e b y sending a "mess a g e to that in giving an ethics seminar for the nonadherents that they are outsiders, not County bar association, "I told them to go full members of the political community, over to the courthouse and read the Ten and an accompanying message to Commandments and follow them." adherents that they are insiders, favored members of the political community." The district court made no reference Freethought, 334 F.3d at 260 (quoting to an expert's affidavit stating that the text Capitol Square Review & Advisory Bd. v. of the Commandments Plaque is a Pinette,

(1995)). particu lar Christian Protestant one differing in many ways from that accepted And had the reasonable observer under the Jewish, Roman Catholic, and attended the Allegheny County Council Lutheran traditions. meeting of January 16, 2001, he or she would have heard the debate when the There is thus significant record Council passed a "sense of Council" motion stating, "'The Commandments' 6 reflect values that are important to this Gasteb said that the sense of Council community today as they were in the early motion was desirable because the Council part of the century." The sponsor of the has "control over the courthouse," which suggests an unresolved issue as to whether the Council had some authority over the decision to retain the Plaque.

24 evidence that the decision to keep the A finder of fact could well come to the Plaque stemmed predominantly from same conclusion that the district court religious impulses and would have been so arrived at. However, the district court was perceived by a reasonable observer. Even not sitting as finder of fact, but was though under the Lemon test, the purpose considering a summary judgment motion. of the display does not have to be These disputed fact issues should not have exclusively secular, in this case the been decided as a question of law.8 evidence would support a finding that the In my view, we should remand for secular purpose was a fig leaf. See further consideration of the issues in this Edwards v. Aguillard,

, 586- case. 87 (1987) (purpose prong of Lemon requires that assertion of secular purpose be "sincere and not a sham"). Moreover, the statements of religious purpose were made in public in circumstances that may well have given rise to an appearance of endorsement of religion by responsible county officials. Perhaps the district court simply considered this case to be governed by Freethought.7 Any such reliance makes even more significant the distinction in the procedural postures between Freethought and this case, for in Freethought we dealt with factual findings made after a hearing in support of an order granting preliminary injunction and here we deal with the far different standard for summary judgment.

7 King v. Richmond County,

(11th Cir. 2003), was recognized by I am aware that this court in Bender v. Freethought, but distinguished. 334 F.3d Williamsport Area Sch. Dist., 741 F.2d at 263. The county seal of Richmond 538 (3d Cir. 1984), vacated on other County depicted a tablet with Roman grounds,

(1986), reversed a numerals I-X, but without the text of the summary judgment in a school prayer case, Ten Commandments. Because the text but carefully noted there were no material was not reproduced, the reasonable disputes of fact that would preclude observer was therefore not "induced to consideration of the merits of the case on read or venerate sacred text."

summary judgment.

at 542 n.3.

25