establishment well why should we focus on tell to greece which is a legislative prayer case instead of the supreme court's decisions in van orden v perry and mccurry county s in government buildings and paid chaplains recognition of religious holidays but the court hasn't always high court hasn't nor this court hasn't always treated these expressions of religiosity the same context cases the county should prevail but we would urge the court to apply the time in greece because there are four reasons why town and three specifically should apply here first there the court announced that it was reinstating the historic test in all establishment clause cases of the establishment clause must be understood in light of historic practices in understanding he went on to say this is not an exception for legislative prayer that any task and this was adopted must acknowledge there is no explicit overturning of the case but the lemon test as we understand it was developed in the context of lynch and allegheny that test that gloss on the lemon test has been done away with by justice kennedy's  what happened in this case which is really just a historical recognition not an incursion into religion like even the so called ceremonial stick practices but unless the court said we're going to uphold the christmas display because  and a whole list of things that included paid chaplains chapels and buildings recognition of religious holidays like christmas and thanksgiving in vocations by presidents to prayer you know god save this honorable court in god we trust which which line again applies the supreme court in this court is extreme associates the case for example that you look to the cases that are most directly applicable well even if even if you apply lynch and justice brier distinguished because of a short and stormy history involved and a monument plaque that was set up by itself without any surrounding context and in the under the auspices of a ceremony  are five reasons why there's no improper purpose here the solicitor the commissioners first started from a blank slate they said that few of them had any understanding of what a seal was they asked their county solicitor to do a thorough search he found the h article in the historical society publication where it sat has a statement that the cross was honoring the christians who are the foundation back in our country which at worst is ambiguous from the county's perspective because once you you know never found the least so there's two reasons so put in that i mean there's a series you can read that where you can also read as the county commissioners did that this was referring to the settlers the foundation and the backbone but it's setting that aside in context second factor the you know in context of the article with twelve other symbols being recognised that all reflected important aspects of the county's history and culture that's a very compelling indication that the purpose of everything on the seal was to recall the history and culture of the state and he also found in the morning call article the page eighty seven of the appendix which said oh the county seal is a blend of nash in all state and local history hardly anybody in the county even knows we have this but it it is to honor the early settlers the questions that we don't know what years of history we don't know the year the article what we do know as it was incorporated in this is the fourth point incorporated into cricket in the several school districts adopted as part of a local history exam with a study that says here are you know damaged include the cost of quizzes of a bunch of these elements and what they mean to the history and significance of the county so there's no evidence here and then and then the commissioner said they had a discussion with the solicitor a wide ranging discussion and that the conclusion they draw from that was that all of the entire steel was designed to reflect the history and culture of the telling so there's there's no evidence in this case that the commissioner's after the with  that reflects any anything about the current understanding i mean there for example there there was an expert testimony about the the meaning and understanding dot com websites and other things that were may or may not be able to take you to from those that generally but they weren't even before the district court and and therefore didn't have in terms of their reliability or second amendment history the courts if you look at legal and other sources that go back and help us understand what was how this was understood by the public at the time and so the additional evidence that we've put in goes to those points that's constitutional evidence which agree or not to judge krauss's because i don't see a record here where the issue was joined us whether new or means new ark of the covenant door some town in in scotland that you know we don't know right so i mean i know that i know the argument making doesn't apply to all of your facts certainly there are a lot of facts that aren't in the record but to just cross this point there's a lot that's been thrown at this appellate court that was never opportunity to address and that's all that's required if you look at for example the newdow decision and even in wenge the court didn't take evidence about what other historical pattern of them are they now want and accept the fact that as a separate issue i wanted to ask you about because my recollection of the n word was that that didn't come to the supreme court with this extensive record about you know what percentage of people in austin were offended by it or how long they noticed it or it's never said or the only real facts as i recall maybe i'm wrong and you and mr schneider can correct me my recollection of in ordon is that you had some basic facts about the size of the monument where it was located there was a map of tended t opinion i think justice briar's opinion by things like that there was was there anything else about you know public records or opinion polls or how many people lied did or didn't like it or anything like that no these are for the purpose of showing that there is a historical process in understanding in the town of greece where the court said once you have a historical process for understand it goes back to the founding that pretty much solved the case except in extreme cases the evidence we've put in for under the purpose primer carries evidence that was introduced in the district court is the evidence of what you know what i did of the fact that i mentioned what the solicitor found when the county asked him to go on look and this court has said in three but so this not  it's a religious text it's been around for a long time and in the surrounding context nobody is going to think that this is an effort to impose christianity and that the exact same thing that van orden that so religion for example and he says in a c s citation he gives a nod to things like a cross on top of the capitol building and goes on to say these have to be extremely unusually rare cases where there's an extreme use of religious speech that were such an establishment is actually threatened so if you think about what an extreme inherently means that it's rare that the cross examples across all alone there's not a pattern or history of crosses on top of our government buildings and there's no surrounding again no surrounding context no history that would suggest that this is anything other than what he was justice kennedy referred to as an effort to proselytize and that's a stark contrast with what we have here with the undisputed evidence is that there is you know a seal that immediately surround it with a cross on it immediately surrounded by twelve or thirteen other images and all reflect the history and culture of the county that's that's even a stronger case than then orton where you had a taxed which the court said is religious is not just a religious invocation with a command to do religious things and the context the court looked at with seventeen acres and said over seventeen acres there are other monuments that would allow the reasonable observer even though you can't see it from this monument and then building because he said in context people would have understood and promised this court for example in the schumer two case that we're not going to get caught up in the measuring the different sizes of the elements of the christmas display that's not  positive what's more important is does this actually have the effect of leading to an establishment and and again justice kennedy saying it trivializes constitutional adjudication of these issues to suggest that you know judge took a lot of tape measure and decide which is the biggest in the context of the seal it's sort of immediately surrounded by much reminders of the history and culture of the county which overwhelmingly suggested that's the purpose of the and  apologies first i guess on the question of mcqueary and then orton i think it's it's not necessarily the case that those those cases are are at odds with one another i think i would say this cases is more like mccreary on the purpose  really consider purpose and it's more like lynch and the prior lemon cases than it is van orden because it's what justice prior described his control and concurrence as a borderline case so i guess i'll pick the van orden case in two parts first to factually distinguish it and second it would be to know that even if van orden has some influence on what the court does in this case this court's application of lemon and prior cases sufficiently addresses the concerns in the factors that justice  government adopted seal and the presence of that seal ubiquitously throughout the community so it was important to justice prior that the the the display issue in van orden w physically noted that the ten commandments has a dual history of sorts and in our country as a secular symbol as well as a religious symbol there is no such history of the latin cross having any sort of dual history  in addition to the specific characteristics of the ten commandments monument just prior found that the contacts and setting of the monument in van orden was again so a borderline case it was a tough the pennsylvania dutch i mean that seems to play right into the hands of mr baxter's or human that this is not some sort of a uniquely powerful representation case involves a latin cross which consistently by appellate courts has been treated as a singularly christian symbol as a representation of the crucifixion and resurrection of jesus christ recently the fourth circuit  plains for cross case american humans association versus maryland our submission confronted the issue of the cross and collecting cases from around the country to various public courts that was a free standing cross was not surrounded by any of the trappings we see on this bill just to get back to your honest question so i want to make sure i touch upon the reference to the place this testimony because i think it's quite an accurate with came to understand that the county had asserted a position as to what seal the cost on the seal meant in this case and he went on to say yes i came to understand that something to do with the history which i think is kind of bogus because he said i understand the moravians were a religion of religious tolerance and i don't think this is in any way something that the briefings with support so i think it's a when she's she's a more recent resident of the county and she speculated about the conclusions she drew as to as to what the display meant but in addition to the fact that it involves a latin cross we have a history in context here and  back to sort of the lemon application and again we believe the lemon endorsement this court's long endorsement framework applies the history in context here involves a widely displayed seal  seal the cost on the seal is the most prominent feature and significantly we have the designer of the seal making public comments about the purpose for including the cross on the seal we're not divine and we're not attempting to motor vis tolls pretty strongly if to the extent there's the law that we're supposed to be looking mostly what the purpose is today and that was back then can inform that but that's i think that's what just cross question was well with respect to the modern purpose i mean i'd say two things one the district court consistent with what the seventh circuit had sad in cases the dual seal cases that handled in the city of zion case that even the counties stated modern contemporary present day purpose of on a ring the christian settlers even for a moment we accept that as a non sham reason for maintaining the seal that still violates  problem is what is used to reference allegedly reference to the settlers of the community is a blatantly sectarian symbol that has no real connection to the settlers and there's nothing to suggest the commandments plaque is is ser more blatantly religious i mean the cross is a religious symbol and i don't understand the hells going away from it but we got a text there that appears to be religious instruction from on high that's it has a dual purpose but one of them is very openly religious and i would agree with your honor however the supreme court has come down that differently noting specifically that the ten commandments has is all history the fourth circuit in the i live on any of the virgin islands i'm going to be pretty upset every time i post a letter right because i've got to write things like christians did saying cruelly i mean that's going to really a stanley invited me if i think that looking at in considering things like whether there has been an any objection over the course of the past many decades that we're looking at an evolution of the meaning we're significant from whatever its original meaningfully different taste because this seal has not remained on the wall of the courthouse for eighty two years this deal has been displayed more widely over the years so one of the key the key elements seal is being displayed widely throughout the community now it's on the it alls that obviously did not exist when the seal was adopted on the web site and so getting back to the judge crosses reference to justice kennedy's concurrence in allegheny and the rockridge to the extreme case of the latin cross on on city hall that really is exactly what we have here and in fact the shadow cast by this evil is much larger than the shadow cast by a single cross on city say as a matter of law based on this record that there is any secular purpose here is storable purpose settlers in light of the whole seal of all the other things there that everything else is just a shame well it's precisely because of the testimony given by the county in this case i mean it's a pretty unique record in in depth is issuing with the county representative the question was asked what documents as the county relied upon in formulating the opinion different from what stated in mr hert g article that this the purpose of this latin cross is to represent the christian settlers of the community testimony was the only document was mr herzog's comments that was the t this topic is covered with the corporate representative for the county and repeatedly affirms that the only again this is testimony counsel has made arguments introducing these other documents as factors in the case that w those documents were not pointed to in the summary judgment briefings before the district court so it's it's the unique testimony of the county here citing an historic document that says something different than on was the historical was conveyed in the letter that was ultimately sent as far as documents written documents  so the proceeding reference to those other documents was specifically to confirm the county's position that the only document relied on was mr hauck statement and so that's what led us to present a sham argument understandably there there's some degree of deference given to the government and their stated purpose you know present day purpose but where the document referred to support that argument says something entirely different we think that that presents a sham case of history and that historical new standing can be i'm referring only to consideration of the present day purpose and the problem with the present a purpose counter arguing the present purpose is exclusively religious were yes first we're arguing even if accepted as a non sham reason that present their purposes religious is religious because of that it uses a blatantly sectarian s very there is nothing to suggest in the record well that gets back to whether the feel is strictly christian or partly christian and partly historical right important in considering that meaning it's as the seventh intense circuits have held and the cases that they address the the government seal has a unique way of linking the government with any message conveyed by the seal it's a year round display and this was sort of what was the undergirding of justice kennedy's concurrence in allegheny where he talked about the latin cross on city hall was the year long presence of the symbol and so that it cuts against any argument that this cross has has somehow lost meaning over the years because of its prominence and the connection between the government and the meaning when we passed that  symbol why not a broader history these things are all part of history of her right and that's and that's get us back to the problem of there being a lack of anything in the record to support that meaning it is across stands alone as a religious symbol and that is what commissioner hurts are says he intended it to be it doesn't fit with the theme as described by hand and the reasonable observer looking at the seal doesn't see it as part of the theme because it's a purely sectarian symbol there santa claus well here we got bison and they're not objects of worship we have cement factories because the liberty bell that's a historical thing that happened during the revolutionary war so i don't see how you can say it's exclusively one thing with the other it's surrounded by all these here the seventh circuit said that with such explicit religious design behind the seals original adoption in one thousand no to something more than a perfunctory appeal to history is required to legitimize the underlying purpose of the particular seal the argument history city may not honor its history by retaining a blatantly sectarian seal these symbols transcend mere commemoration affectively indorser promote the christian faith and so i go back to the cross not having any connection to the settlers of of lehigh county conestoga wagon might better represent settlers the settlers were probably a lot of things maybe among them christian but if the county's goal is to commemorate and consistently courts confronting latin cross cases have used lemon that includes cases after out of greece the fourth circuit plays for across cases the second circuit american a case involving the nine  so with that in mind i think i think that is why there's an absence of that i think the appropriate task is lemon endorsement and because we feature in this case a latin cross on a government seal with a compelling original purpose to suggest a desire to promote christianity this case doesn't implicate whatever uncertainty reasonable minds might find to exist on the fringes of this  cut and dry case this is the extreme cases highlighted by justice kennedy and these thousand because protects this sort against this sort of sectarian endorsement it protects the rights of all members of a community to be equal members of that community we have counties affectively held itself out as a christian community for seventy four years now and each year that that continues actually enhances the message of christian endorsement like i mean one bomb in the sense of the course that exactly the opposite the fact that the seal would be news to mark all government property reinforced the idea that there was no purpose except to identify government property and so you had in record i'd like to hit the point on sham where first off the very high bar this court has never held on fast like this that there is an improper purpose and if you look at every time a judge the facts are much more egregious there where you had the cla explicitly provided to the county or purposes introduction of religious principles one by missionary society one by the religious education council and you had in droves for example a judge who told the defendant go out and read the ten commandments and follow them a commissioner who had said these are principles that we all agree on in either of those cases of the court disregard the later in the purpose of the county to preserve the history and that's another way of saying  the proper question isn't whether at the time the display was put out it was constitutional but rather whether the decision not to take it  that the historical society statement itself lists all of these thirteen items clearly in the context of thing these are all things that are important in our history and culture and so it is perfectly reasonable for the newspaper the school district and for the county commissioners to draw the same conclusion and as far as you know this being an overtly sectarian symbol that's inconsistent with every thought which recognises the ten commandments or explicitly religious with there is the government has some freedom to decide how it's going to speak about it since this is not even a case where the government is saying you know inviting people like celebrate christmas or to engage in a day of prayer they're just saying here's a religion because religion is part of history and culture and so it's ok to have symbols that are religious to recognize people who are religious to honor the contributions they made to society without violating the establishment clause and probably just that there's no unique history in this case there is a history set forth of the county relied on the side of those who came to pennsylvania as religious communities seeking religious freedom and so for those reasons and because of the seal has existed for seventy years without controversy and it's clearly an historical context we would ask this court to reverse the district court all right thank you mr baxter's thank you mr schneider toward appreciate the argument