UNITED STATES DISTRICT COURT EASTERN DISTRICT OF KENTUCKY
SOUTHERN DIVISION LONDON

CIVIL ACTION NO. 99-507-JBC

AMERICAN CIVIL LIBERTIES UNION OF KENTUCKY, ET AL.,

PLAINTIFFS,

V.

MEMORANDUM OPINION AND ORDER

MCCREARY COUNTY, KENTUCKY, ET AL.,

DEFENDANTS.

****************

This matter is before the court on the defendants’ motion for summary

judgment (DE 116) and the plaintiffs’ motions for summary judgment (DE 132) and

partial summary judgment (DE 134). The court, having reviewed the record and

being otherwise advised, will deny the motions.

I. Factual Background and Procedural History

Because the facts in this case have been discussed numerous times, see

McCreary County v. ACLU, 545 U.S. 844, 851-58 (2005); ACLU v. Mercer

County, 432 F.3d 624, 628-31 (6th Cir. 2005); ACLU v. McCreary County, 354

F.3d 438, 440-44 (6th Cir. 2003); ACLU v. McCreary County, 145 F. Supp. 2d

845, 846-47 (E.D. Ky. 2001), the court will only briefly summarize the factual and

procedural history.

In 1999, McCreary County and Pulaski County, Kentucky, each posted a

copy of the Ten Commandments in their respective courthouses. Various county

orders and ceremonies surrounded the mounting of these initial displays. The

American Civil Liberties Union of Kentucky, et al. (“ACLU”) brought this action and
sought a preliminary injunction requiring removal of the displays based on alleged
violations of the Establishment Clause of the U.S. Constitution. Prior to the
resolution of the request for an injunction, the Counties altered their displays and
passed resolutions authorizing those new displays. The new displays included
documents other than the Ten Commandments, but the additional documents were largely religious in nature.1 The resolutions authorizing the second displays included
language emphasizing the importance of religion. Following the posting of the
second displays, this court granted the plaintiffs’ motion for a preliminary injunction
and ordered that the displays be removed.
The Counties complied with the injunction by removing the displays, but then
posted new displays. Prior to posting these third displays, the Counties hired new
lawyers and voluntarily dismissed an appeal from the initial preliminary injunction.
The third displays consisted of nine documents of equal size, including a copy of
the Ten Commandments, and explanatory phrases to accompany each of the
1 “Specifically, the Courthouse displays were modified to consist of: (1) [the ‘endowed by the Creator’ passage] from the Declaration of Independence; (2) the Preamble to the Constitution of Kentucky; (3) the national motto of ‘In God We Trust’; (4) a page from the Congressional Record . . . declaring it the Year of the Bible and including a copy of the Ten Commandments; (5) a proclamation by President Abraham Lincoln designating April 30, 1863 a National Day of Prayer and Humiliation; (6) an excerpt from President Lincoln’s ‘Reply to Loyal Colored People of Baltimore upon Presentation of a Bible’ reading, ‘The Bible is the best gift God has ever given to man.’; (7) a proclamation by President Ronald Reagan marking 1983 the Year of the Bible; (8) the Mayflower Compact.” McCreary County, 354 F.3d at 442.
2

documents.2 The collection of documents in the third displays is referred to as
“The Foundations of American Law and Government Display” (hereinafter
“Foundations Displays”).3 At the time the third displays were erected, the Counties
did not repeal the resolutions that authorized the second displays or pass new
resolutions authorizing the third displays. This court, acting upon a motion by the
ACLU, expanded the preliminary injunction to include the third displays, and then
the defendants appealed.
The Sixth Circuit Court of Appeals upheld the preliminary injuction, McCreary
County, 354 F.3d at 438, whereupon the United States Supreme Court granted the
defendants’ petition for certiorari. After oral argument, but before the Supreme
Court opinion was released, the Counties repealed and repudiated the resolutions
2 In addition to the Ten Commandments, the third displays included: the Magna Carta, the Declaration of Independence, the Bill of Rights, the lyrics of the Star Spangled Banner, the Mayflower Compact, the National Motto, the Preamble to the Kentucky Constitution, and a picture of Lady Justice.
3 The purpose of the Foundations Displays was stated in the explanatory phrases accompanying its documents. The explanatory statement for the Ten Commandments reads:
“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.” McCreary County, 545 U.S. at 856.
3

authorizing the second displays.4 McCreary County, 545 U.S. at 881. The Supreme Court saw the Counties’ repeals of the 1999 resolutions as “acts of obviously minimal significance in the evolution of the evidence,“ McCreary County, 545 U.S. at 872 n.19, and affirmed the Sixth Circuit and this court’s preliminary injunction. The defendants have taken no action since the Supreme Court issued its opinion. II. Standard of Review
A. Summary Judgment Standard Summary judgment is appropriate only when there are no genuine issues of material fact in dispute and the moving party is entitled to judgment as a matter of law. Celotex Corp. v. Catrett, 477 U.S. 317 (1986). The moving party’s burden can be satisfied by demonstrating that there is an absence of evidence to support the non-moving party’s case. Id. at 324-25. To survive summary judgment, the non-moving party must come forward with evidence on which the jury could reasonably find in its favor. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252 (1986). The non-moving party must present more than a mere scintilla of evidence to defeat a motion for summary judgment. Street v. J.C. Bradford & Co., 886 F.2d 1472, 1479 (6th Cir. 1989); Fed. R. Civ. P. 56 (e). The court must view all of the evidence in the light most favorable to the party opposing summary judgment. See
4 Oral arguments were held on March 2, 2005 before the United States Supreme Court. On March 8, 2005, and March 10, 2005, McCreary and Pulaski Counties, respectively, each adopted a resolution that repealed and rescinded the December 1999 resolution relating to the second displays.
4

Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986). B. Permanent Injunction Standard In general, “[t]he standard for a preliminary injunction is essentially the same
as for a permanent injunction with the exception that the plaintiff must show a likelihood of success on the merits rather than actual success.” Amoco Prod. Co. v. Village of Gambell , 480 U.S. 531, 546 n.12 (1987) (citing Univ. of Texas v. Camenisch, 451 U.S. 390, 392 (1981)). In the context of the present case, a permanent injunction is appropriate only if a party can establish that it suffered a constitutional violation from which it will suffer continuing and irreparable injury for which no adequate remedy at law exists. E.g., Women’s Med. Prof’l Corp. v. Baird, 438 F.3d 595, 602 (6th Cir. 2006); see also Kallstrom v. City of Columbus, 136 F.3d 1055, 1067 (6th Cir. 1998) (holding that “[w]here the plaintiff establishes a constitutional violation after a trial on the merits, the plaintiff will be entitled to permanent injunctive relief” after showing “1) a continuing irreparable injury if the court fails to issue the injunction, and 2) the lack of an adequate remedy at law”). III. Legal Analysis
The plaintiffs request that the court make permanent the preliminary injunctions issued against McCreary and Pulaski Counties.5 The plaintiffs’ motion
5 Initially this case involved the Harlan County Schools as well. Because the claims against the Harlan County Schools have become moot, the court will dismiss those claims.
5

for partial summary judgment seeks to make permanent the court’s first preliminary injunction which enjoined the second displays, and their motion for summary judgment seeks to make the court’s supplemental preliminary injunction permanent. The defendants, in turn, argue that the plaintiffs’ challenges to the second displays are moot, and that a permanent injunction would be inappropriate.6 As discussed below, the court will deny all of the motions because none of the parties are entitled to judgment as a matter of law at this time and further because the second displays are no longer involved in the case.
A. The Establishment Clause and the “Purpose” Analysis Government action violates the Establishment Clause if the action does not have “a secular legislative purpose.” Lemon v. Kurtzman, 403 U.S. 602, 612 (1971). The government must maintain religious neutrality and is clearly not doing so when it “acts with the ostensible and predominant purpose of advancing religion . . . .” McCreary County, 545 U.S. at 860. In determining whether there is a violation of the Establishment Clause, courts may look to the acting party’s purpose, and that “purpose” analysis “may be dispositive of the constitutional enquiry . . . .” McCreary County, 545 U.S. at 850-51. The secular purpose advanced by the government actors must be more than a “trivial rationalization.” Id. at 859. “[A]lthough a legislature’s stated reasons will
6 The defendants also raise the argument that the plaintiffs lack standing. This court, the Sixth Circuit, and the Supreme Court have previously reached the merits of the case, however, so the court will not now consider the issue of standing.
6

generally get deference, the secular purpose required has to be genuine, not a sham, and not merely secondary to a religious objective.” Id. at 864 (citing Santa Fe Indep. Sch. Dist. v. Doe, 530 U.S. 290, 308 (2000)); see also id. at 865 n.11 (“a secular purpose must be serious to be sufficient”).
When “scrutinizing purpose,” the court looks to official actions and “openly available data” to determine whether the government’s objectives are religious. Id. at 862-63 (“official objective emerges from readily discoverable fact, without any judicial psychoanalysis of a drafter’s heart of hearts”). The “purpose” analysis should take into account the evolution and development of the displays at issue. Id. The court cannot ignore the history of the religious government action, including the progression of the contested displays. Id. at 859.
1. The Context of the Government Action Whether the government’s purpose is to advance religion is measured by an “objective observer” standard. The objective observer is presumed to take into account the “text, legislative history, and implementation” of the government action. McCreary County, 545 U.S. at 862 (quoting Santa Fe, 530 U.S. at 308). The objective observer has knowledge of not only the most recent events surrounding a government action, but also any previous events, history, and background. As the standard by which purpose is determined, the objective observer is “presumed to be familiar with the history of the government’s actions and competent to learn what history has to show.” Id. at 866. In response to the
7

defendants’ argument that purpose should be determined based on the most recent events rather than the entire series of events, the Supreme Court specifically noted that “the world is not made brand new every morning.” Id. (noting that “reasonable observers have reasonable memories”).
Since context matters when a court determines whether government action constitutes a violation of the Constitution, the court’s decision may be altered by factors other than the action itself. Thus, government action, such as posting the Foundations Displays, may be found constitutional in one situation and yet unconstitutional if done under different circumstances in a separate instance. The Supreme Court acknowledged that “it will be the rare case in which one of two identical displays violates the purpose prong” but also states, “where one display has a history manifesting sectarian purpose that the other lacks, it is appropriate that they be treated differently . . . .” Id. at 866 n.14. The intent of the government action has a bearing on its constitutionality, and the court may consider the context surrounding the action when determining the underlying purpose. See id. (“[I]t will matter to objective observers whether posting the Commandments follows on the heels of displays motivated by sectarianism, or whether it lacks a history demonstrating that purpose.”).
When a display identical to the Foundations Displays at issue here was posted in Mercer County, Kentucky, the trial court found no constitutional violation. Upholding that decision, the Sixth Circuit found that Mercer County’s stated
8

purpose, which was to recognize American legal traditions, was supported by the context and was predominantly secular.7 Mercer County, 432 F.3d at 627, 632. In Mercer County, only one display had been created and one county action had been taken, both of which occurred after a county resident’s request to erect the Foundations Displays. That same resident actually paid for and hung the displays himself. There were no prior unconstitutional displays in the county to taint the context and history as viewed by an objective observer. The Sixth Circuit found that “[a] reasonable observer would not view this display as an attempt by Mercer County to establish religion. . . .” Id. at 632.
Mercer County and the instant case involve identical government action which is constitutional in one instance but unconstitutional in the other. As the defendants acknowledge in their motion, “[t]he Supreme Court in this case held that the first two displays evidenced a predominantly religious purpose.” DE 117 at 10 (citing McCreary County, 545 U.S. at 844). The Supreme Court additionally found that the Counties’ purpose did not change with the posting of the third displays. McCreary County, 545 U.S. at 873. In McCreary and Pulaski Counties, the objective observer would be aware of the history of the displays and thus would have knowledge of the impermissible purpose. In Mercer County, the
7 “[T]he purpose for erecting the ‘Foundations’ display was that ‘all of the documents, including the Ten Commandments, have played a role in the formation of our system of law and government . . . . [The] display is not intended [to], nor does it, endorse or promote religion. It simply acknowledges our history.’” Mercer County, 432 F.3d at 627, 632 (quoting Affidavit of Mercer County Judge Executive Charles H. McGinnis).
9

objective observer sees no such taint. The content of the displays, without consideration of its context, is thus not dispositive.
2. Purging the Taint of the Impermissible Purpose Although the Supreme Court found that the Counties in this matter had an impermissible purpose that made their actions unconstitutional and that this purpose continued even with the third displays, and even after the second-display resolutions were repudiated, the Court also found “that the Counties’ past actions [do not] forever taint any effort on their part to deal with the subject matter.” McCreary County, 545 U.S. at 873-74. Since it is possible to purge the taint of the impermissible religious purpose, it necessarily follows that the injury from the constitutional violation is not “continuing” as required by the standard for a permanent injunction. See Mercer County, 432 F.3d at 633 (“The [McCreary County] majority narrowly tailored its opinion to the facts as they existed at the time of appeal, even to the point of leaving open the possibility on remand of the district court’s lifting the preliminary injunction and denying permanent relief.” (citing McCreary County, 545 U.S. at 873-74)); see also ACLU v. Rutherford County, No. 3:02-CV-0396, 2006 WL 2645198, at *10 (M.D. Tenn. Sept. 14, 2006) (“Combined, McCreary County and Mercer County teach that (1) a public body may post the Ten Commandments in a public building if the display’s purpose is secular and the display does not have the primary purpose of advancing or endorsing religion, and, (2) most pertinent to the issues at hand, even if the same
10

public body previously attempted to post the Ten Commandments in an
unconstitutional manner, it may be able to post the Ten Commandments in the
future in a constitutionally permissible manner.”). If the Counties take sufficient
actions that purge the taint of their impermissible religious purpose, then the injury
claimed by the plaintiffs will no longer exist and the injunction could be removed.8
Therefore, the court will deny the plaintiffs’ motion for summary judgment, which
seeks to permanently enjoin the third displays, because they are not entitled to a
permanent injunction as a matter of law.9
Turning from the plaintiffs’ motion to the defendants’ motion, this court
must reject the claim that the Counties’ actions taken to date have purged the taint
of an impermissible religious purpose. The defendants have taken no action since
repealing and repudiating the resolutions which accompanied the second displays –
8 A district court in Tennessee denied a permanent injunction in a similar case, stating, “Plaintiffs’ request is too broad because it forbids the posting of the Ten Commandments in public buildings in Rutherford County from now until eternity. Plaintiffs have not demonstrated that they will suffer irreparable harm if the Court does not permanently enjoin the display because Plaintiffs have not proven that the constitutional violation found by this Court will be ongoing in the future.” ACLU v. Rutherford County, No. 3:02-CV-0396, 2006 WL 2645198, at *11 (M.D. Tenn. Sept. 14, 2006).
9 The plaintiffs’ motion for partial summary judgment is moot because it seeks to permanently enjoin the second set of displays, which no longer constitutes an ongoing controversy between the parties. The court may adjudicate only ongoing controversies, and an issue becomes moot when the claims presented have been satisfied or are no longer active, or when the parties lack an interest in the outcome of the case. See Chirco v. Gateway Oaks, LLC, 384 F.3d 307, 309 (6th Cir. 2004) (citing Powell v. McCormack, 395 U.S. 486, 496 (1969)). The defendants have disavowed any intent to reinstate the second displays. See DE 136 at 1; DE 117 at 15.
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renunciations which the Supreme Court rejected as “acts of obviously minimal significance in the evolution of the evidence,” McCreary County, 545 U.S. at 872 n.19, and a “litigating position.” Id. at 848.
If defendants’ past actions are insufficient to purge the taint, what will suffice? To constitutionally post the Foundations Displays, the Counties in the present action “must show that they have purged themselves of their original sectarian purpose relating to the posting of the Ten Commandments.” Rutherford County, 2006 WL 2645198, at *10. The Counties will have purged the taint only after there are “‘genuine changes in constitutionally significant conditions,’” which could include a demonstration of “a predominantly secular purpose.” Id. (citing McCreary County, 545 U.S. at 874, and Mercer County, 432 F.3d at 632-33).
When presented with such a genuine change, “district courts are fully capable of adjusting preliminary relief to take account of genuine changes in constitutionally significant conditions.” McCreary County, 545 U.S. at 874 (citing Ashcroft v. ACLU, 542 U.S. 656 (2004)). Moreover, ”the district court should be willing to modify its judgment should the counties later demonstrate a predominantly secular purpose.” Mercer County, 432 F.3d 624, 632 n.6 (citing McCreary County, 545 US at 873-74).
This court will modify its judgment when the “counties later demonstrate a predominantly secular purpose,” id., but they have not yet done so. The Supreme Court reviewed the history of the displays – including repeal and repudiation of the
12

resolutions accompanying the second displays – and found that “[n]o reasonable observer could swallow the claim that the Counties had cast off the objective so unmistakable in the earlier displays.” McCreary County, 545 U.S. at 872. The Counties claim to “have done everything they can to distance themselves from the second display, including changing counsel, changing the display, and eventually repealing the December, 1999, Resolution.” DE 117 at 3. Yet, all of those actions were taken by the Counties prior to the decision of the Supreme Court and they were not enough to purge the religious taint. If the Supreme Court found the taint inadequately purged, so must this court.
Therefore, the court will deny the defendants’ motion for summary judgment because they are not entitled to judgment as a matter of law.
B. Resolution of This Case Although it is possible to constitutionally post the Ten Commandments, the defendants’ actions were unconstitutional and remain so until they have purged the taint of their impermissible religious purpose. A trial in this matter would be unavailing. No triable issues of fact exist for resolution by a jury. The only remaining issue is whether the defendants have taken actions since the Supreme Court decision that demonstrate a predominantly secular purpose for posting the Foundations Displays and that are sufficient to purge the taint of their impermissible religious purpose. Thus, as a matter of law, neither the defendants nor the plaintiffs are entitled to summary judgment.
13

Accordingly, IT IS ORDERED that the parties’ motions for summary judgment or partial summary judgment (DE 116, 132, 134) are DENIED. IT IS FURTHER ORDERED that the plaintiffs’ claims against the defendants Harlan County School District and Don Musselman are DISMISSED WITH PREJUDICE. IT IS FURTHER ORDERED that this matter is referred to U.S. Magistrate Judge James B. Todd for the purpose of conducting a settlement conference, which is scheduled for October 22, 2007, at 9:00 a.m. in Lexington.
Signed on September 28, 2007
14

 
 Case: 6:99-cv-00507-JBC-REW Doc #: 173 Filed: 08/04/08 Page: 1 of 13 - Page ID#: 23

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF KENTUCKY
LONDON DIVISION
CIVIL ACTION NO. 99-507

Eastern District of Kentucky
FILED
AUG 4 - 2008
AT LONDON _ LESLIE G WHITMER CLERK U S O/STF:ICT COURT

AMERICAN CIVIL LIBERTIES UNION
 OF KENTUCKY, et aI.,

PLAINTIFFS,


V.

MEMORANDUM OPINION AND ORDER

MCCREARY COUNTY, KENTUCKY, et aI.,

DEFENDANTS.

****************

This matter is before the court on the plaintiffs' motion (DE 155) to alter or

amend the court's memorandum opinion and order of September 28, 2007; the

defendants' renewed motion for summary judgment (DE 159); and the plaintiffs'

motion to strike the defendants' renewed motion for summary judgment (DE 164).

The court, having reviewed the record and being otherwise sufficiently advised, will

grant the plaintiffs' motion to alter or amend judgment, deny the plaintiffs' motion

to strike, and direct that the plaintiffs respond to the defendants' motion, which the

court will construe as a motion for relief from a final judgment.

I.

Factual Background and Procedural History

In 1999, McCreary County and Pulaski County, Kentucky, each posted a

copy of the Ten Commandments in their respective courthouses.' Various County

orders and ceremonies surrounded the mounting of these initial displays. The

, The Ten Commandments were also posted in the Harlan County Schools. 1
/13


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American Civil Liberties Union of Kentucky, et al. ("ACLU") brought this action and sought a preliminary injunction requiring removal of the displays based on alleged violations of the Establishment Clause of the First Amendment to the United States Constitution. Prior to the resolution of the request for an injunction, the Counties altered their displays and passed resolutions authorizing those new displays. The new displays included documents other than the Ten Commandments, but the additional documents were largely religious in nature. 2 The resolutions authorizing the second displays included language emphasizing the importance of religion. Following the posting of the second displays, this court granted the plaintiffs' motion for a preliminary injunction against the second displays and ordered removal of the displays.
The Counties complied with the injunction by removing the second displays, but then posted new displays. Prior to posting these third displays, the Counties hired new lawyers and voluntarily dismissed an appeal from the initial preliminary injunction. The third displays consisted of nine documents of equal size, including
2 "Specifically, the Courthouse displays were modified to consist of: (1) [the 'endowed by the Creator' passage] from the Declaration of Independence; (2) the Preamble to the Constitution of Kentucky; (3) the national motto of 'In God We Trust'; (4) a page from the Congressional Record ... declaring it the Year of the Bible and including a copy of the Ten Commandments; (5) a proclamation by President Abraham Lincoln designating April 30, 1863 a National Day of Prayer and Humiliation; (6) an excerpt from President Lincoln's 'Reply to Loyal Colored People of Baltimore upon Presentation of a Bible' reading, 'The Bible is the best gift God has ever given to man.'; (7) a proclamation by President Ronald Reagan marking 1983 the Year of the Bible; (8) the Mayflower Compact." McCreary County, 354 F.3d at 442.
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a copy of the Ten Commandments, and explanatory phrases to accompany each of the documents. 3 The collection of documents in the third displays is referred to as
"The Foundations of American Law and Government Display" (hereinafter
"Foundations Display,,).4 At the time the third displays were erected, the Counties
did not repeal the resolutions that authorized the second displays or pass new
resolutions authorizing the third displays. This court, acting upon a motion by the
ACLU, expanded the preliminary injunction to include the third displays, and then
the defendants appealed.
The Sixth Circuit Court of Appeals upheld the preliminary injunction,
McCreary County, 354 F.3d at 438, whereupon the United States Supreme Court
granted the defendants' petition for certiorari. After oral argument, but before the
3 In addition to the Ten Commandments, the third displays included: the Magna Carta, the Declaration of Independence, the Bill of Rights, the lyrics of the Star Spangled Banner, the Mayflower Compact, the National Motto, the Preamble to the Kentucky Constitution, and a picture of Lady Justice.
4 The purpose of the Foundations Display was stated in the explanatory phrases accompanying its documents. The explanatory statement for the Ten Commandments reads:
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.
McCreary County, 545 U.S. at 856.
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Supreme Court opinion was released, the Counties repealed and repudiated the resolutions authorizing the second displays.5 McCreary County, 545 U.S. at 881. The Supreme Court, finding an unconstitutional religious motive in the posting of the third (Foundations) displays, saw the Counties' repeals of the 1999 resolutions as "acts of obviously minimal significance in the evolution of the evidence," McCreary County, 545 U.S. at 872 n.19, and affirmed the Sixth Circuit and this court's preliminary injunction. The defendants took no action between the issuance of the Supreme Court opinion and the court's memorandum opinion and order of September 28, 2007, which is under reconsideration here.
On September 28, 2007, this court denied the parties' motions for summary judgment and partial summary judgment and dismissed the plaintiffs' claims against the defendants Harlan County School District and Don Musselman in his official capacity as Superintendent of the Harlan County Schools with prejudice. 6 The McCreary County and Pulaski County fiscal courts passed new resolutions on October 9, 2007, and October 10, 2007, respectively. The defendants, in their response to the motion to alter or amend judgment and their renewed motion for summary judgment, contend that these October 2007 resolutions "purge the taint"
5 The United States Supreme Court held oral argument on March 2, 2005. On March 8, 2005, and March 10, 2005, McCreary and Pulaski Counties each adopted a resolution that repealed and rescinded the December 1999 resolution relating to the second displays.
6 The court dismissed the claims against the Harlan County Schools and Musselman on the grounds that they had become moot.
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of unconstitutional motive found by the Supreme Court. II. Motion to Amend or Alter Judgment
A. Legal Standard
 Rule 59(e} governs a motion to alter or amend judgment. Tritent Int'l Corp.
 v. Kentucky, 395 F. Supp. 2d 521, 523 (E.D. Ky. 2005). The court will reconsider a ruling under Rule 59(e} if it has committed legal error; if there has been an intervening change in controlling law; if there is newly discovered evidence; or if necessary to prevent manifest injustice. GenCorp, Inc. v. Am. Int'l Underwriters, 178 F.3d 804, 834 (6th Cir. 1999). Rule 60(a} provides for corrections based on Ita clerical mistake or a mistake arising from oversight or omission whenever one is found in a judgment, order, or other part of the record." Rule 60(b} provides for relief from a final judgment, order, or proceeding due to (1) "mistake, inadvertence, surprise, or exusable neglect"; (2) "newly discovered evidence that, with reasonable diligence, could not have been discovered in time to move for a new trial under Rule 59(b}; (3) "fraud (whether previously called intrinsic or extrinsic), misrepresentation, or misconduct by the opposing party"; (4) the judgment being void; and (5) the judgment having been "satisfied, released or discharged" or if "it is based on an earlier judgment that has been reversed or vacated" or if "applying it prospectively is no longer equitable"; or (6) "any other reason that justifies relief." "[Rlelief under Rule 60(b} is 'circumscribed by public policy favoring finality of judgments and termination of
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litigation. fI' Blue Diamond Coal Co. v. Trustees of UMWA Combined Ben. Fund, 249 F.3d 519, 524 (6th Cir. 2001) (quoting Waifersong Ltd. v. Classic Music Vending, 976 F.2d 290, 292 (6th Cir. 1992)).
B. Dismissal of the Harlan County Action Though in agreement that the Harlan County action should be dismissed, the parties dispute whether that dismissal should be with prejudice. "A dismissal for lack of jurisdiction is plainly not a determination of the merits of a claim. Ordinarily such a dismissal is 'without prejudice. fI' Korvettes, Inc. v. GaloriesAnspach, Inc., 617 F.2d 1021, 1024 (3d Cir. 1980). Seealso Landers v. Curran & Connors, Inc., 2006 U.S. Dist. LEXIS 15770, at * 5 (N.D. Cal. 2006). Moreover, '''[slome cases - mainly involving private plaintiffs as well as private defendants - find that discontinuance has mooted the action; even then it may be noted that a new action can be filed if the conduct should be resumed.'" Wright & Miller, Federal Practice and Procedure, § 3533.5 (2d Supp. 2005). See also id. (2d Supp. 2007) ("[ClIaims of mootness may be rejected more readily in an action to protect broad public interests rather than specific private interests."). In Washegesic v. Bloomingdale Public Schools, 33 F.3d 679 (6th Cir. 1994), an Establishment Clause challenge to the hanging of a portrait of Jesus Christ in a public school was not dismissed as moot even though the plaintiff had graduated "because the portrait does not affect students only - it potentially affects any member of the public who attends an event at the school." Id. at 683; see also id.
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at 682 ("The relevant inquiry in this case is similar to that in any 'public facility' case: whether the individual plaintiff uses the facility and suffers actual injury."). Consequently, the court will alter its previous judgment and dismiss the Harlan County action without prejudice because Jan Doe's case is not moot, in that it affects any member of the public, not just the plaintiff, and because there is no certainty that the prohibited conduct would not be resumed.
C. The Second Displays The plaintiffs contend that it was not appropriate for the court to decline to invalidate the second displays on the grounds that they "are no longer involved in the case" and that instead the court should have made its first preliminary injunction, which enjoined the second displays, permanent. Specifically, the plaintiffs contend that the court implicitly and improperly concluded that the displays were moot in dismissing the plaintiffs' challenge, while the defendants contend the judgment should not be altered as to these displays because the issue is moot. A II plaintiff's voluntary cessation of allegedly unlawful conduct does not suffice to moot a case," Friends of the Earth, Inc. v. Laidlaw Environmental Services (TOC), Inc., 528 U.S. 167, 174 (2000), and "[t]he heavy burden of persua[ding] the court that the challenged conduct cannot reasonably be expected to start up again lies with the party asserting mootness. II Akers v. McGinnis, 352 F.3d 1030, 1035 (6th Cir. 2003).
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Case: 6:99-cv-00507-JBC-REW Doc #: 173 Filed: 08/04/08 Page: 8 of 13 - Page ID#: 30
In a case regarding a display in Garrard County identical to the second displays at issue in this case, the court stated as folows:
Because there is nothing to stop Garrard County from erecting the 1999 Display again at any point in time, a live controversy still exists. Further, the county continues to maintain a display that includes the Ten Commandments, and it is this to which the plaintiffs object. Because the Ten Commandments continue to be part of the current display, the plaintiffs' objections and offense are presumed to continue. ACLU v. Garrard County, Kentucky, 517 F. Supp. 2d 925, 940 (E.D. Ky. 2007). Earlier in their case, the defendants in Garrard County had removed their version of the second displays and replaced it with a version of the Foundations Displays while a motion for a preliminary injunction was under consideration, and the second displays were never temporarily enjoined. Id. at 928-29. Moreover, courts regularly decline to declare a challenge to discretionary conduct moot despite significantly changed circumstances. See, e.g., Akers v. McGinnis, 352 F.3d 1030, 1035 (6th Cir. 2003) (finding challenge to Michigan Department of Corrections ("MDOC") rule not to be moot because "the promulgation of work rules appears to be solely within the discretion of the MDOC [and] there is no guarantee that MDOC will not change back to its older, stricter Rule as soon as this action terminates"); Amnex, Inc. v. Cox, 351 F.3d 697, 704 (6th Cir. 2003) (In dismissing an action against the Michigan Attorney General as moot after he withdrew his notice of intended action, "it was not proper for the district court to rely on the mootness doctrine, inasmuch as the Attorney General's withdrawal did
8


Case: 6:99-cv-00507-JBC-REW Doc #: 173 Filed: 08/04/08 Page: 9 of 13 - Page ID#: 31
not make it absolutely clear that the allegedly wrongful conduct could not be reasonably expected to recur."); Cam I, Inc. v. Louisville/Jefferson County Metro Gov't, 460 F.3d 717, 719-20 (6th Cir. 2006) ("[A] controversy does not cease to exist by mere virtue of a change in the applicable law. . .. In other words, where the changes in the law arguably do not remove the harm or threatened harm underlying the dispute, the case remains alive and suitable for judicial determination." (Internal quotation marks and citations omitted.)) In light of this judicial precedent, there is no guarantee that the second displays will not be posted again. Therefore, pursuant to Rule 59(e), the court will alter its judgment that the controversy over the second displays is moot, to correct a legal error and prevent manifest injustice.
Regarding the substance of the second displays, the defendants do not question the court's finding that the second displays are unconstitutional (DE 153, 9). Consequently, the court is compelled to alter its judgment under Rule 59(e), declare the second displays unconstitutional, and enter a permanent injunction against the second displays.
D. The First Displays For the sake of clarity and completeness, the court will also declare unconstitutional and permanently enjoin the first displays, even though they were removed and replaced by the second displays before the court issued its preliminary injunction against the second displays. All that is said above with regard to the
9


Case: 6:99-cv-00507-JBC-REW Doc #: 173 Filed: 08/04/08 Page: 10 of 13 - Page ID#: 32
second displays pertains with equal force to the first displays. E. The Third Displays The plaintiffs contend that the court should make permanent its preliminary
injunction enjoining the third displays because the court found that the conduct of the defendants "is unlawful on the undisputed facts" and, therefore, the plaintiffs "are entitled to prevail under Rule 56" (DE 155,4).
Regarding the Foundations Displays that McCreary County and Pulaski County propose to post, this court found that "[t]he only remaining issue is whether the defendants have taken actions since the Supreme Court decision that demonstrate a predominantly secular purpose for posting the Foundations Displays and that are sufficient to purge the taint of their impermissible religious purpose" (DE 153, 13). After finding the taint had not been purged, the court denied all of the motions for summary judgment because "[n]o triable issues of fact exist for resolution by a jury" (DE 153,13).
The court will not alter its findings that the displays evidenced an unconstitutional purpose and that this taint had not been purged as of the date of its memorandum opinion and order. The court concluded that it must find the taint had not been purged because "the Supreme Court found the taint inadequately purged" and all of the actions pointed to by the defendants "were taken by the Counties prior to the decision of the Supreme Court and they were not enough to purge the religious taint" (DE 153, 13).
10


Case: 6:99-cv-00507-JBC-REW Doc #: 173 Filed: 08/04/08 Page: 11 of 13 - Page ID#: 33
Importantly, the Supreme Court found that "new statements of purpose were presented only as a litigating position, there being no further authorizing action by the Counties' governing boards" and "the sectarian spirit of the common resolution found enhanced expression in the third display, which quotes more the purely religious language of the Commandments." McCreary County, 545 U.S. at 871­ 72. Moreover, the Supreme Court noted that "[f]ollowing argument in this case, in which the resolutions were discussed, the McCreary and Pulaski County Boards did repeal the resolutions, acts of obviously minimal significance in the evolution of the evidence." Id. at 872 n.19. Consequently, the court will alter its judgment under Rule 59(e), declare the Foundations Displays at issue in this case unconstitutional because the taint had not been purged as of the date of the court's memorandum opinion and order of September 28, 2007, and permanently enjoin these third displays. III. The Defendants' Renewed Motion for Summary Judgment and the Plaintiffs'
Motion to Strike As the Supreme Court noted, it is possible that the defendants might purge the taint of unconstitutional purpose and be able to post the third displays. In fact, the defendants contend that they have already done so with their resolutions of October 9-10, 2007. At issue here, however, is the court's memorandum opinion and order of September 28, 2007, which predates the new resolutions. Moreover, the defendants' renewed motion for summary judgment, which was filed on October 30, 2007, is also untimely because the deadline for dispositive motions in
11


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this case was November 3, 2006. Given that the deadline for dispositive motions has passed, but recognizing
this court's obligation to review the Counties' new resolutions to determine whether they have purged the taint, the court will construe the defendants' renewed motion for summary judgment as a motion for relief from a final judgment under Rule 60(b) and will deny the plaintiffs' motion to strike. The court will also direct that the plaintiffs respond to the defendants' motion, with the time for filing their response to run in accordance with the Local Rules from the date of the entry of this order. IV. Conclusion
Accordingly, IT IS ORDERED that the plaintiffs' motion to alter or amend judgment (DE 153) is GRANTED. IT IS FURTHER ORDERED that the dismissal of the Harlan County case is WITHOUT PREJUDICE. IT IS FURTHER ORDERED that the first displays are DECLARED UNCONSTITUTIONAL and are ENJOINED. IT IS FURTHER ORDERED that the second displays are DECLARED UNCONSTITUTIONAL and are ENJOINED. IT IS FURTHER ORDERED that the third displays are DECLARED UNCONSTITUTIONAL and are ENJOINED.
12


Case: 6:99-cv-00507-JBC-REW Doc #: 173 Filed: 08/04/08 Page: 13 of 13 - Page ID#: 35

IT IS FURTHER ORDERED that the plaintiffs' motion to strike (DE 164) is DENIED.
IT IS FURTHER ORDERED that the plaintiffs shall respond to the defendants' renewed motion for summary judgment (DE 159), which the court will construe as a motion for relief from a final judgment, with the time for the filing of the response to run in accordance with the Local Rules, beginning from the date of entry of this order. The time for the defendants to file a reply brief, if desired, shall also run in accordance with the Local Rules.
There being no just cause for delay, this order is FINAL and APPEALABLE. This matter shall be STRICKEN from the active docket because the only remaining issue in this matter is the defendants' motion for relief from a final judgment, which is a post-judgment motion.

Signed on August 4, 2008

~~fe~
JENNIFER B. COFFMAN, CHIEF JUDGE UNITED STATES DISTRICT COURT EASTERN DISTRICT OF KENTUCY

13


 
 Case: 6:99-cv-00507-JBC-REW Doc #: 174 Filed: 08/04/08 Page: 1 of 1 - Page ID#: 36

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF KENTUCKY
LONDON DIVISION
CIVIL ACTION NO. 99-507


Eaeter'l1 DistrIct of Kentucky
FILED
AUG 4 - 2008
AT I_ONDON
 L.ESlIE G WHITMER
 CLERK U S DISTRICT COURT


AMERICAN CIVIL LIBERTIES UNION
 OF KENTUCKY, et aI.,

PLAINTIFFS,


V.

JUDGMENT

MCCREARY COUNTY, KENTUCKY, et aI.,

DEFENDANTS.

****************

The court, having granted the plaintiffs' motion to alter or amend the

memorandum opinion and order of September 28, 2007, enters judgment in favor

of the plaintiffs in the form of permanent injunctions as to the first, second, and

third displays at issue in this case.

There being no reason for delay in its entry, this order is FINAL and

APPEALABLE.

Signed on August 4, 2008

~f2~ JENNIFER B. COFFMAN. CHIEF JUDGE UNITED STATES DISTRICT COURT EASTERN DISTRICT OF KENTUCY

1


 
 Case: 6:99-cv-00507-JBC-REW Doc #: 195 Filed: 03/13/09 Page: 1 of 14 - Page ID#: 183

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF KENTUCKY
SOUTHERN DIVISION LONDON

CIVIL ACTION NO. 99-507-JBC

AMERICAN CIVIL LIBERTIES UNION OF KENTUCKY, ET AL.,

PLAINTIFFS,

V.

MEMORANDUM OPINION AND ORDER

MCCREARY COUNTY, KENTUCKY, ET AL.,

DEFENDANTS.

* * * * * * * * * * * This matter is before the court upon the plaintiffs’ motion for an award of

statutory attorney fees and costs (R. 179). The court, having reviewed the record

and being otherwise sufficiently advised, will grant the motion.

I. Factual Background and Procedural History

In November1999, the American Civil Liberties Union of Kentucky, along

with individuals from multiple Kentucky counties, brought a lawsuit against

McCreary and Pulaski Counties alleging that the counties violated the Establishment

Clause of the First Amendment by erecting certain displays in their respective courthouses.1 The plaintiffs sought a declaration that the displays were

unconstitutional, as well as preliminary and permanent injunctive relief enjoining the

counties from continuing their display of the Ten Commandments.

Prior to the court’s decision on the request for an injunction, the Counties

1 A lawsuit was also brought against the Harlan County School District for erecting the same display.

Case: 6:99-cv-00507-JBC-REW Doc #: 195 Filed: 03/13/09 Page: 2 of 14 - Page ID#: 184
altered their displays to include other documents in addition to the Ten Commandments. Following the posting of the second displays, this court granted the plaintiffs’ motion for a preliminary injunction against the second displays and ordered removal of the displays. The Counties complied with the injunction by removing the second displays, but then posted new displays. The plaintiffs moved to hold the Counties in contempt for violating the preliminary injunction or, in the alternative, to enter a supplemental preliminary injunction order. This court expanded the preliminary injunction to include the third displays. The defendants appealed the decision to the Sixth Circuit Court of Appeals and then to the United States Supreme Court. Both courts held oral arguments and then affirmed the preliminary injunction.
The parties then filed cross-motions for summary judgment, and this court denied the motions and dismissed the plaintiffs’ claims against the Harlan County School District. The plaintiffs filed a motion to alter or amend the court’s order denying summary judgment, which was granted. On August 4, 2008, this court declared all three Decalogue displays unconstitutional and permanently enjoined the Counties from erecting the displays. II. Legal Analysis
The plaintiffs move for attorney fees under the Civil Rights Attorney’s Fees Awards Act of 1976, 42 U.S.C. § 1988, which authorizes courts to award reasonable attorney fees to prevailing parties in civil rights litigation. Hensley v.
2

Case: 6:99-cv-00507-JBC-REW Doc #: 195 Filed: 03/13/09 Page: 3 of 14 - Page ID#: 185
Eckerhart, 461 U.S. 424, 429 (1983); Wayne v. Village of Sebring, 36 F.3d 517, 531 (6th Cir. 1994). “The purpose of § 1988 is to ensure ‘effective access to the judicial process’ for persons with civil rights grievances.” Hensley, 461 U.S. at 429 (citation omitted). The parties seeking the fees must show that they are entitled to an award and must document the appropriate hours expended and their hourly rates. Hensley, 461 U.S. at 437. The statutory fee awards are meant to attract competent counsel to civil rights cases but are not intended to produce windfalls to attorneys. City of Riverside v. Rivera, 477 U.S. 561, 580 (1986). The court determines whether the parties requesting fees were prevailing parties and then determines what fee is reasonable. Wayne, 36 F.3d at 531. To award a fee amount, a court multiplies the number of hours reasonably expended on the litigation by reasonable hourly rates to arrive at a “lodestar” figure. Id.
A. Prevailing parties Parties are “prevailing parties,” for the purpose of awarding attorney fees, if they are “able to point to a resolution of the dispute which changes the legal relationship between [themselves] and the defendant[s].” Tex. State Teachers Ass’n v. Garland Indep. Sch. Dist., 489 U.S. 782, 792 (1989). The defendants state that the plaintiffs’ status as prevailing parties “is not finally settled” because there is an appeal pending. R. 190, at 4 n.2. However, the plaintiffs were required to file this motion within the time allowed in the local rules, and the defendants’ pending appeal does not have a bearing on the issue of whether the plaintiffs are
3

Case: 6:99-cv-00507-JBC-REW Doc #: 195 Filed: 03/13/09 Page: 4 of 14 - Page ID#: 186
prevailing parties. The plaintiffs prevailed at many stages of the litigation, including
in the court’s final judgment which enjoined all three challenged displays and thus
materially altered the parties’ legal relationship. The plaintiffs, having obtained their
requested relief, are prevailing parties in a civil rights litigation and are entitled to an
award of attorney fees.
B. Attorney fees
The number of hours which the attorneys reasonably expended on the
litigation is multiplied by a reasonable hourly rate to arrive at an appropriate fee award.2 The plaintiffs seek recovery for time and expenses incurred with respect to
each of the counties’ three Decalogue displays, stating that they filed the suit
challenging the first displays, obtained preliminary injunctions against the second
and third displays, successfully defended the latter preliminary injunction at the
Sixth Circuit and the Supreme Court, and ultimately obtained a final judgment enjoining all three displays.3
2 The plaintiffs’ motion seeks $390,588.00 in fees and $8,133.34 in costs for all work performed through September 3, 2008. A declaration showing 10.7 additional hours of work and seeking $3,210.00 for that work through November 21, 2008, is attached to the plaintiffs’ reply brief. The court must award attorney fees for time spent pursuing the recovery of attorney fees. Weisenberger v. Huecker, 593 F.2d 49, 53-54 (6th Cir. 1979). Thus, the full amount the plaintiffs seek totals $401,931.34.
3 The plaintiffs state that they elected to seek fees for only one lawyer, David A. Friedman, except in the case’s final stages when they also request fees for William E. Sharp. The plaintiffs chose to voluntarily delete all the hours for cocounsel, all hours for the participants in moot courts, all hours for those who advised and assisted lead counsel, and all hours for paralegals and other professional assistants. R. 191, at 8 n.3.
4

Case: 6:99-cv-00507-JBC-REW Doc #: 195 Filed: 03/13/09 Page: 5 of 14 - Page ID#: 187
The defendants argue that the plaintiffs’ requested fees are unreasonable because they spent too much time on certain tasks, used vague descriptions for work performed, and requested compensation for tasks which are not compensable.
1. Number of hours The defendants state that the plaintiffs spent excessive time in the following areas: (1) preparing the appellate brief; (2) keeping their clients informed; (3) preparing for the preliminary injunction hearings; (4) researching certain areas of the law; (5) writing the Supreme Court brief; and (6) preparing for the Supreme Court oral argument. “The question is not whether a party prevailed on a particular motion or whether in hindsight the time expenditure was strictly necessary to obtain the relief achieved. Rather, the standard is whether a reasonable attorney would have believed the work to be reasonably expended in pursuit of success at the point in time when the work was performed.” Wooldridge v. Marlene Indus. Corp., 898 F.2d 1169, 1177 (6th Cir. 1990), abrogated on other grounds by Buckhannon Bd. & Care Home, Inc. v. W. Va. Dep’t of Health & Human Resources, 532 U.S. 598 (2001). Based on the content and the length of the appellate brief, the 68 hours expended in preparing it was reasonable. The brief was 52 pages long and it cited more than 50 federal appellate cases and more than 20 scholarly books and articles. Part of the time spent researching and writing was necessary to respond
5

Case: 6:99-cv-00507-JBC-REW Doc #: 195 Filed: 03/13/09 Page: 6 of 14 - Page ID#: 188
to specific arguments made by the defendants, including the assertion that American law derived from the Ten Commandments.
Regarding the amount of time Mr. Friedman spent advising his clients about occurrences in the case, the attorney was ethically obligated to keep his clients fully informed of the case’s progress. Additionally, it was necessary for certain substantive communications, including those regarding case strategy and analysis, to be prepared by an attorney.
As for the amount of time the plaintiffs’ attorney spent preparing for the second preliminary injunction hearing, nearly one-third of that time was spent as a result of the defendants’ filing of affidavits mere days before the hearing and after the completion of briefing. The second preliminary injunction involved legal issues that were not previously addressed – specifically whether the third display was sufficient to survive Establishment Clause scrutiny, and the plaintiffs rightfully considered it necessary to fully prepare to argue those points.
The defendants dispute the time spent “researching religious history and moral codes and different versions of the Ten Commandments.” R. 190, at 8. It was necessary to spend the time researching those issues to fully respond to the defendants’ arguments. The results of the research were incorporated into the plaintiffs’ legal arguments, including the argument that the Decalogue was first and foremost a religious document and that the overlap between the Decalogue and American law did not prove causation.
6

Case: 6:99-cv-00507-JBC-REW Doc #: 195 Filed: 03/13/09 Page: 7 of 14 - Page ID#: 189
The defendants object to the amount of time spent writing the brief submitted to the Supreme Court. The 200 hours spent on this task was substantial, but it was a reasonable amount of time considering that the Court was expected to be closely divided. Additionally, the brief before the Supreme Court was different from prior briefs because it had to additionally argue what the law should be. Given the closely divided Court in McCreary County v. ACLU, 545 U.S. 844 (2005), and the outcome in the companion case Van Orden v. Perry, 545 U.S. 677 (2005), it was reasonable to spend that amount of time in preparation. The defendants similarly object to the 200 hours the plaintiffs’ attorney spent preparing for Supreme Court oral argument. However, the case itself and the requirement for zealous representation demanded that the attorney devote that amount of time to such preparation.
Much of the time expended on this case was devoted to issues that ultimately persuaded this court, the Sixth Circuit, and the Supreme Court to agree with the plaintiffs’ arguments, sometimes by a narrow margin. The court finds that the hours charged were actually and reasonably expended in the prosecution of the litigation.
2. Specificity of time entries The defendants argue that the itemized descriptions of the time spent on the case are not sufficiently specific and thus are not compensable. “The key requirement for an award of attorney fees is that ‘[t]he documentation offered in
7

Case: 6:99-cv-00507-JBC-REW Doc #: 195 Filed: 03/13/09 Page: 8 of 14 - Page ID#: 190
support of the hours charged must be of sufficient detail and probative value to enable the court to determine with a high degree of certainty that such hours were actually and reasonably expended in the prosecution of the litigation.’” Imwalle v. Reliance Medical Products, Inc., 515 F.3d 531, 553 (6th Cir. 2008) (quoting United Slate, Local 307 v. G&M Roofing & Sheet Metal Co., 732 F.2d 495, 502 n.2 (6th Cir. 1984)). The attorneys are not required to “record in great detail how each minute . . . was expended,” but are instead expected to “identify the general subject matter of [their] time expenditures.” McCombs v. Meijer, Inc., 395 F.3d 346, 360 (6th Cir. 2005) (quoting Hensley v. Eckerhart, 461 U.S. 424, 437 n.12 (1983)).
The billing entries, when taken in the context of the time period and what was occurring in the litigation, are fully descriptive of the tasks performed by the attorneys. A billing entry which states that the time billed was spent on research regarding a reply or response is sufficient information to ascertain what occurred. The products of that expended effort – the briefs filed with the courts – speak for themselves as to the specific tasks which were performed – such as writing, proofreading, cite-checking, and editing – and the specific subjects covered – including the introduction, statement of facts, and legal argument.
The entries in the billing records were maintained contemporaneously with the work. See Webb v. Bd. of Educ., 471 U.S. 234, 238 n.6 (1985) (“Contemporaneously recorded time sheets are the preferred practice.”). The
8

Case: 6:99-cv-00507-JBC-REW Doc #: 195 Filed: 03/13/09 Page: 9 of 14 - Page ID#: 191
entries are adequate in that they contain sufficient detail to explain what the attorneys’ tasks were on that date. Additionally, the entries list tasks separately rather than cumulatively, and the entries are separated by attorney. All of these factors contribute to the court’s finding that the time entries provide sufficient detail.
3. Travel time and time spent conferring with other attorneys The defendants dispute whether the time spent traveling to moot courts and to observe a Supreme Court argument is compensable. They additionally argue that the plaintiffs should not receive attorney fees for the time spent conferring with an attorney from another case. The moot courts were a vital component of preparing for the Supreme Court argument, and the plaintiffs argue plausibly that the two out-of-town moot courts were especially helpful. One of those sessions was at Harvard Law School before a six-member panel that included five former Supreme Court law clerks. Erwin Chemerinsky, the attorney who argued Van Orden, also argued at the moot court. The other out-of-town moot court was at Georgetown Law School before a panel made up of faculty and practitioners familiar with Supreme Court practice. Additionally, the travel time was spent preparing for the moot courts and for the Supreme Court oral argument. Further, the moot courts took place within two weeks of the Supreme Court argument, when they would be most beneficial. The trip to observe a Supreme Court oral argument in a different case was
9

Case: 6:99-cv-00507-JBC-REW Doc #: 195 Filed: 03/13/09 Page: 10 of 14 - Page ID#: 192
necessary because it was important to observe the dynamic among the Justices and to become familiar with the setting. Additionally, it was reasonable for counsel to meet with Erwin Chemerinsky, who was present at the same oral argument, to discuss the briefs and strategy.
The defendants finally object to counsel’s time spent consulting with counsel in a different case. Such consultation was conducted to gauge the potential effect of the other case’s outcome on this case, in which an appeal was pending at the time. It was reasonable for the plaintiffs to explore the potential effect of a different Decalogue case decided in this circuit.
The reasonableness of the plaintiffs’ fee request is underscored by the fact that they understated the number of hours expended by deleting the time spent by co-counsel and other professionals who participated in this case. See infra n.3. The court finds that all of the claimed time was reasonably spent litigating this action. Thus, the plaintiffs will be awarded attorney fees for the 1294.6 hours spent by Mr. Friedman and the 30.1 hours spent by Mr. Sharp.
4. Hourly rate The plaintiffs’ motion requests fees at an hourly rate of $300 for Mr. Friedman’s time and $180 for Mr. Sharp’s time. The defendants object and propose a $200 hourly rate for Friedman and a $125 hourly rate for Sharp. In deciding the appropriate fee, the court should, as nearly as possible, award the attorneys market-rate fees. Hensley v. Eckerhart, 461 U.S. 424, 447 (1983).
10

Case: 6:99-cv-00507-JBC-REW Doc #: 195 Filed: 03/13/09 Page: 11 of 14 - Page ID#: 193
“To arrive at a reasonable hourly rate, courts use as a guideline the prevailing market rate, defined as the rate that lawyers of comparable skill and experience can reasonably expect to command within the venue of the court of record.” Geier v. Sundquist, 372 F.3d 784, 791 (6th Cir. 2004) (citing Adcock-Ladd v. Sec’y of Treasury, 227 F.3d 343, 349 (6th Cir. 2000)). The hourly rate awarded should be adequate to attract competent counsel but not so high as to produce a windfall for the attorneys. Reed v. Rhodes, 179 F.3d 453, 471-72 (6th Cir. 1999) (quoting Blum v. Stenson, 465 U.S. 886, 893 (1984)).
The fee award in this case is based on the prevailing market rate for attorneys handling federal constitutional litigation in the Eastern District of Kentucky. The plaintiffs cite various instances in which Mr. Friedman and comparable attorneys in similar cases were awarded fees at an hourly rate of $300 or more. Mr. Friedman was awarded a $300 hourly rate in two First Amendment cases; the court determined one of the awards and the other was agreed upon by the parties. See Barber v. Louisville-Jefferson County Metropolitan Sewer District, No. 3:05CV142-R (W.D. Ky. 2007) (fee award at $300 hourly rate); McQueary v. Conway, No. 3:06CV24-KKC (E.D. Ky. 2008) (setting agreed $300 hourly rate). Mr. Friedman also states that $300 is below the rate he often charges to fee-paying private practice clients. Moreover, this case involves a specialty area of the law – federal constitutional law, specifically Establishment Clause law – that very few lawyers practice. The requested hourly rates reflect counsels’ respective training,
11

Case: 6:99-cv-00507-JBC-REW Doc #: 195 Filed: 03/13/09 Page: 12 of 14 - Page ID#: 194

background, experience and skills. Mr. Friedman has nearly thirty years of experience, concentrated in constitutional litigation, civil rights, civil liberties and federal practice. Mr. Sharp has been admitted to practice law in Kentucky since 1999 and is currently a staff attorney for the ACLU of Kentucky, where he participates in federal civil rights litigation. The plaintiffs have shown that their requested rates are reasonable in the relevant market. Thus, the court will award fees based on a $300 hourly rate for Mr. Friedman’s expended time and a $180 hourly rate for Mr. Sharp’s time.
5. Lodestar and special circumstances The court calculates the fee applicants’ “lodestar” by taking “the proven number of hours reasonably expended on the case by an attorney” and multiplying that number “by his court-ascertained reasonable hourly rate.” Adcock-Ladd v. Sec’y of Treasury, 227 F.3d 343, 349 (6th Cir. 2000) (citing Hensley, 461 U.S. at 433). Thus, the court makes the following calculations:

Attorney David A. Friedman William E. Sharp

Hours Expended 1294.6 30.1

Hourly Rate

Lodestar

$300

$388,380.00

$180

$5,418.00

Total: $393,798.00

The defendants argue that the fee award should be reduced by 20% to account for the work performed in the companion Harlan County case. The plaintiffs have not billed for any work attributable to the specific defendants from the Harlan County case. All communications with Harlan County clients, all time

12

Case: 6:99-cv-00507-JBC-REW Doc #: 195 Filed: 03/13/09 Page: 13 of 14 - Page ID#: 195
devoted to drafting the complaint and separate pleadings, and all time devoted to the separate certiorari petition was deleted from the time records. All of the time entries submitted in this motion apply specifically to McCreary and Pulaski Counties.
The defendants also argue that attorney fees in this case are unjust because of special circumstances. Prevailing parties in civil rights litigation are awarded attorney fees “unless special circumstances would render such an award unjust.” Hensley v. Eckerhart, 461 U.S. 424, 429 (1983). The defendants assert that their limited finances are a special circumstance warranting a fee reduction, and, alternatively, that other cases demonstrate they were acting in good faith.
The defendants cannot now escape the consequences of their litigation choices, including refusing to remove the displays or settle the case. They began the case with a stand-alone display of the Ten Commandments, indisputably unconstitutional under then-settled law. They proceeded to reaffirm that their decisions were grounded upon religious purposes, yet involving public places. Continuing to defend such displays and such motives, they appealed court decisions to the Sixth Circuit and the Supreme Court. The defendants “cannot litigate tenaciously and then be heard to complain about the time necessarily spent by the plaintiff[s] in response.” City of Riverside v. Rivera, 477 U.S. 561, 580, n.11 (1986) (citation omitted). Additionally, a defendant’s good faith is not a special circumstance rendering a fee award unjust. Phelan v. Bell, 8 F.3d 369, 374
13

Case: 6:99-cv-00507-JBC-REW Doc #: 195 Filed: 03/13/09 Page: 14 of 14 - Page ID#: 196
n.5 (6th Cir. 1993) (citing Morscott, Inc. v. Cleveland, 936 F.2d 271, 273 (6th Cir. 1991)). Thus, the court finds no special circumstances that would render the award in this case unjust.
The court, after considering the reasonableness of the requested attorney fees and the defendants’ objections to the amounts, will not reduce the lodestar amount. Therefore, the plaintiffs are entitled to an award of attorney fees in the amount of $393,798.00.
C. Costs The plaintiffs also seek to recover their litigation expenses in the amount of $8,133.34.4 The defendants do not object to the reasonableness of the costs. Therefore, the plaintiffs are entitled to an award of costs in the amount of $8,133.34. III. Conclusion Accordingly, IT IS ORDERED that the plaintiffs’ motion for attorney fees and costs (R. 179) is GRANTED, and the plaintiffs are entitled to an award of attorney fees in the amount of $393,798.00, and an award of costs in the amount of $8,133.34.
Signed on March 13, 2009
4 The itemized list of litigation expenses is attached to a separate filing. See Litigation Expenses, attached as an exhibit to R. 184.
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 Case: 6:99-cv-00507-JBC-REW Doc #: 207-1 Filed: 06/09/10 Page: 1 of 20 - Page ID#: 223
RECOMMENDED FOR FULL-TEXT PUBLICATION Pursuant to Sixth Circuit Rule 206 File Name: 10a0167p.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT _________________

AMERICAN CIVIL LIBERTIES UNION OF

X

KENTUCKY; LOUANNE WALKER; DAVID HOWE; SARAH DOE and THOMAS DOE, on

-

behalf of themselves and their minor child, JANE DOE; LAWRENCE DURHAM; PAUL LEE,

-,>

Plaintiffs-Appellees, -

-

v.

-

-

MCCREARY COUNTY, KENTUCKY; PULASKI

-

COUNTY, KENTUCKY,

-

Defendants-Appellants.

-

-

N

No. 08-6069

Appeal from the United States District Court for the Eastern District of Kentucky at London. No. 99-00507—Jennifer B. Coffman, Chief District Judge.

Argued: October 20, 2009

Decided and Filed: June 9, 2010

Before: RYAN, CLAY, and GIBBONS, Circuit Judges.

_________________

COUNSEL
ARGUED: Mathew D. Staver, LIBERTY COUNSE L, Orlando, Florida, for Appellants. David A. Friedman, AMERICAN CIVIL LIBERTIES UNION OF KENTUCKY, Louisville, Kentucky, for Appellees. ON BRIEF: Mathew D. Staver, LIBERTY COUNSEL, Orlando, Florida, Stephen M. Cram pton, Mary E. McAlister, LIBERTY COUNSEL, Lynchburg, Virginia, for Appellants. David A. Friedm an, William E. Sharp, AMERICAN CIVIL LIBERTIES UNION OF KENT UCKY, Louisville, Kentucky, for Appellees. John A. Eidsmoe, FOUNDATION FORMORAL LAW, Montgomery, Alabama, for Amicus Curiae.
CLAY, J., delivered the opinion of the court. GIBBONS, J. (p. 18), delivered a separate concurring opinion. RYAN, J. (pp. 19-20), delivereda separate dissenting opinion.

1

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_________________
OPINION _________________
CLAY, Circuit Judge. Defendants, McCreary County, Kentucky, Pulaski County, Kentucky, and officials from these counties, appeal f rom the district court order granting Plaintiffs’ motion to alter or amend judgment, granting a permanent injunction prohibiting Defendants from displaying th e three contested Ten Com mandments displays, and construing Defendants’ renewed motion for summary judgment as one for relief from final judgment. For the reasons set forth below, we AFFIRM the district court’s order.
BACKGROUND
In 1999, McC reary County and Pulaski County, Kentucky erected displays consisting of framed copies of the Ten Commandments in their county courthouses. 1 In response, Plaintiffs filed lawsuits, seeking preliminary injunctions that would require the removal of the displays based on violations of the Establishm ent Clause of the Fi rst Amendment.2
Shortly after the complaint was filed and prior to a ruling in the district court on Plaintiffs’ request for a preliminary injunction, Defendants altered their displays “in an attempt to bring the display[ s] within the parameters of the First Amendment and to insulate themselves from suit.” ACLU of Ky. v. McCreary County, Ky., 96 F. Supp. 2d 679, 684 (E.D. Ky. 2000) (“ McCreary I”). The second set of displ ays posted in the courthouses included large copies of the Ten Commandments along with smaller copies of eight other documents, which were religious in nature.

1In addition, Harlan County, Kentucky erected d isplays of the Ten Com mandments in the classrooms of its schools. However, the classroom displays are no longer at issue in this case. For afull recitation of the facts and history ofthis litigation, see ACLU of Ky. v. McCreary County, Ky,.145 F. Supp. 2d 845 (E.D. Ky. 2001) (“McCreary II”), aff’d, 354 F.3d 438 (6thCir. 2003) (“McCreary III”), aff’d, 545 U.S. 844 (2005) (“McCreary IV”).
2Plaintiffs initially filed three lawsuits, but they we re consolidated and treated as one by the district court and this Court on the initial appeal. We continue to treat them as one lawsuit for purposes of this appeal.

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Specifically, the Courthouse displays were modified to consist of: (1) an excerpt from the Declaration of Independence; (2) the Pream ble to the Constitution of Kentucky; (3) the national motto of “In God We Trust”; (4) a page from the Congressional Record of W ednesday, February 2, 1983, Vol. 129, No. 8, declaring it the Year of the Bible and including a copy of the Ten Com mandments; (5) a proclam ation by Pres ident Abraham Lincoln designating April 30, 1863 a National Day of Prayer and Humiliation; (6) an excerpt f rom President Lincoln’s “Reply to Loyal Colored Pe ople of Baltim ore upon Presentation of a Bible” reading, “The Bible is the best gift God has ever given t o man.”; (7) a proclamation by President Ronald Reagan marking 1983 the Year of the Bible; and (8) the Mayflower Compact.
McCreary III, 354 F.3d at 442. Defendants also psased new resolutions authorizing the
second set of displays (“the 1999 resolutions”), which em phasized the importance of
religion in historical documents of the United States and encouraged the County-Judge
Executive to “post the Ten Commandments as the precedent legal code upon which the
civil and criminal codes of the Com monwealth of Kentucky are founded.” (Dist. Ct.
R.E. 119 Ex. B) . On May 5, 2000, the district court granted Plaintiffs’ m otion for a
preliminary injunction, ordering that Defendants rem ove the second di splays
“immediately” and not erect “similar displays” in the future. McCreary I, 96 F. Supp.
2d at 691.
In response to the district court’s ruling, the counties removed the second set of
displays, voluntarily dismissed an appeal from the initial preliminary injunction, and
posted a third set of displays entitled theFoundations of Law and Government Displays
(“Foundations Displays”). The third displays contained nine documents of equal size,
including the Ten Com mandments, along with one page of explanatory phrases to
accompany each of the nine other documents. Specifically,
[t]he new courthouse displays consisted of the entire Star Spangled Banner, the Declaration of Independence, the Mayflower Compact, the Bill of Rights, the Magna Carta, the National Motto, the Preamble to the Kentucky Constitution, the Ten C ommandments, Lady Justice and a one-page prefatory document entitled “The Foundations of Am erican Law and Government Display.” . . . The prefatory description states that the “display contains docum ents that played a significant role in the

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foundation of our systemof law and government.” . . . With regard to the Ten Commandments, the prefatory description states:
The Ten Commandments have profoundly influenced the formation of Western legal thought and the formation of our country. That i nfluence is clearly seen in the Declaration of Independence, which declared that, “W e hold these truths to be self-evident, that all m en are created equal, that they are endowed by their Creator with certain unalienable Rights, that am ong these are Life, Liberty, and the pursuit of Happiness.” The Ten Commandments provide the m oral background of the Declaration of Independence and the foundation of our legal tradition.
There is no other discussion of the Ten Com mandments and how i t purportedly relates to any of the other documents in the display.
McCreary III, 354 F.3d at 443. At the time the Foundations Displays were erected, the
counties did not repeal the 1999 resolutions, which were passed just months earlier, or
pass new resolutions authorizing the third displays. On June 22, 2001, the district court
granted Plaintiffs’ motion for a supplemental preliminary injunction to include the third
displays. On December 18, 2003, this Court affirmed.
On October 12, 2004, the Suprem e Court granted Defe ndants’ petition for certiorari.3 On March 8 and March 10, 2005, after oalrargument but before the Supreme
3Defendants sought certiorari on the following issues:
1. Whether the Establishment Clause is violated by a privately donated display on government property that includes eleven equal size frames containing an explanation of the display along with nine historical documents and symbols that played a role in the development of American law and government where only oneof the framed documents is the Ten Com mandments and the rem aining documents and symbols are secular.
2. Whether a prior display by the governm ent in a court house containing the Ten Com mandments that wa s enjoined by a court permanently taints and thereby precludes any fu ture display by the same government when the subsequent display articulates a secular purpose and where the Ten Com mandments is a m inority among numerous other secular historical documents and symbols.
3. Whether the Lem on test should be overruled since the test is unworkable and has fostered excessi ve confusion in Establishment Clause jurisprudence.
4. Whether a new test for Establishment Clause purposes should be

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Court issued a decision, the counties passed new resolutions (“the 2005 resolutions”), which repealed and repudiated the 1999 resolutions authorizing the second displays. On June 27, 2005, the Supreme Court upheld the preliminary injunction on the basis that Defendants exhibited an unconstitutional religious purpose in posting the Foundations Displays. The Supreme Court viewed the repeal of the 1999 resolutions as “acts of obviously minimal significance in the evolution of the evidence.” McCreary IV, 545 U.S. at 872 n.19.
After the Supreme Court issued its opinion,the case returned to the district court for further proceedings. The district coutrentered a scheduling order containing, among other things, discovery and dispositive motion deadlines. After discovery closed, both sides submitted motions for summary judgment. Between the Supreme Court decision in June of 2005 and the filing of the m otions for summary judgment in January and February of 2007, the parties merely conducted discovery as to the factual details and motivation for the sequence of the displays. Defendants m ade no changes to the Foundation Displays, nor did they pass any new resolutions concerning the purpose of the displays.
On September 28, 2007, the district courtdenied both Plaintiffs’ and Defendants’ motions for sum mary judgment. In denying Pl aintiffs’ motion for a perm anent injunction against the Foundation Displays, thedistrict court held that the constitutional violation is not “continuing” as required by the sta ndard for a perm anent injunction because “it is possible to purge the taint ofthe impermissible religious purpose.” (Dist. Ct. R.E. 153 at 10). However, the district court also denied Defendants’ m otion for summary judgment, holding that the counties had not taken any actions since the Supreme Court decision that showed a changein their predominantly religious purpose; thus, Defendants’ actions in posting the Foundations Displays continued to violate the Establishment Clause. Despite the district court’s holding that neither Plaintiffs nor

set forth by this Court when the government displays or recognizes historical expressions of religion.
Petition for Writ of Certiorari, McCreary IV, 2004 WL 1427470, at *i (June 21, 2004).

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Defendants were entitled to judgment as a matter of law, the court also found that no triable issues of fact remained and ref erred the case to the m agistrate judge f or a settlement conference.
On October 9, 2007, in response to the district court’s finding that Defendants continued to violate the Establishm ent Clause, Defendants ena cted new resolutions regarding the Founda tions Displays (“the 2007 resolutions”). The 2007 resolutions stated the educational and historical purpose of the Foundations Displays and expressly disclaimed any attempt to endorse religion. On October 15, 2007, Plaintiffs filed a timely motion under Federal Rules of Civil Procedure 59 and 60 to alter or amend the court’s September 28, 2007 judgment denying Plaintiffs’ motion for summary judgment. On October 30, 2007, Defendants filed a renwe ed motion for summary judgment in light of the 2007 resolutions. Plaintiffs m oved to strike Defendants’ renewed motion on November 19, 2007, because Defendants had filed the motion more than one year after the dispositive motion deadline and had attempted to admit new evidence more than one year after the close of discovery.
On August 4, 2008, the district court: (1) granted Plaintiffs’ motion to alter or amend judgment, (2) denied Plaintiffs’ motion to strike Defendants’ motion for summary judgment and directed Plaintiffs to file a response, and (3) construedeDfendants’ motion for summary judgment as one of relief fr om final judgment. In altering its judgm ent under Rule 59(e), the district court declared the Foundation Di splays unconstitutional and permanently enjoined Defendants from displaying all three displays in the county courthouses based on the court’s finding th at the Foundations Displays continued to violate the Establishment Clause as of its September 28, 2007 order. The district court also ruled that its order was final and appealable. On September 2, 2008, Defendants filed their timely notice of appeal from the district court’sfinal judgment. On September 30, 2008, the district court dismissed without prejudice what it deemed to be Defendants’ motion for relief from judgment on the ground that the court had lost jurisdiction over the motion when Defendants filed their appeal. Defendants filed no noti ce of appeal from the district court’s denial of their relief from judgment.

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DISCUSSION
I. Permanent Injunction Standard
This appeal differs from the last time we heard this case in that we are reviewing the district court’s grant of a permanent injunction rather than a preliminary injunction.
In evaluating a district court’s grant of a perm anent injunction, we review its factual findings under a clearly erroneous standard, its legal conclusions de novo, and the scope of injunctive relief under an abuse of discretion standard. Women’s Med. Prof’l Corp. v. Baird, 438 F.3d 595, 602 (6th Cir. 2006).
In general, “[t]he standard for a preliminary injunction is essentially the same as for a permanent injunction with the excepti on that [for a preliminary injunction] the plaintiff must show a likelihood of success on the m erits rather than actual success.” Amoco Prod. Co. v. Village of Gambel,l480 U.S. 531, 546 n.12 (1987)(internal citations omitted). In the context of this case, “a party is entitled to a permanent injunction if it can establish that it suf fered a constituti onal violation and will suf fer ‘continuing irreparable injury’ for which there is no adequate remedy at law.” Baird, 438 F.3d at 602 (citing Kallstrom v. City of Columbus, 136 F.3d 1055, 1067 (6th Cir. 1998)).
II. Disposition of Permanent Injunction
As was true the last tim e we heard this m atter, the governing standard for determining whether a particular government action violates the Establishment Clause remains Lemon v. Kurtzman, 403 U.S. 602 (1971). Despite Defendants’ attem pts to persuade the Supreme Court to abandon the inquiry into legisaltive purpose, the Supreme Court confirmed that the Lemon test remains the appropriate inquiry. See McCreary IV, 545 U.S. at 861-64. Under the Lemon test, as originally formulated, reviewing courts must consider whether (1) the governm ent activity in question has a secular purpose, (2) the activity’s primary effect advances or inhibits religion, and (3) the governmental activity fosters an excessive entanglement with religion. Lemon, 403 U.S. at 612-13.

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The touchstone of a reviewing court’s analysis under the Establishment Clause requires “government neutrality between religion and religion, and between religion and nonreligion.” McCreary IV, 545 U.S. at 860 (quoting Epperson v. Arkansas, 393 U.S. 97, 104 (1968)).
In analyzing purpose under the first prong of thLe emon test, “[t]he eyes that look to purpose belong to an ‘“objective observer”, ’ one who takes account of the traditional external signs that show up in the ‘“text, legislative history, and implementation of the statute,”’ or comparable official act.” Id. at 862 (quoting Sante Fe Indep. Sch. Dist. v. Doe, 530 U.S. 290, 308 (2000) (quoting Wallace v. Jaffree, 472 U.S. 38, 76 (1985))). See also Edwards v. Aguillard, 482 U.S. 578, 594-95 (1987). “[A]lthough a legislature’s stated reasons will generally get def erence, the secular purpose required has to be genuine, not a sham, and not merely secondary to a religious objective.” McCreary IV, 545 U.S. at 864. Thus, the government violates the Establishment Clause when it acts with the “predominant purpose of advancing religion.” Id. at 860.
Furthermore, the objective obs erver is considered to have “reasonable memories,” and Supreme Court precedents “sensibly forbid an observer ‘to turn a blind eye to the context in which [the] policy arose.’” Id. at 866 (quoting Santa Fe, 530 U.S. at 315). Thus, reviewing courts must look with the eye of an observer “familiar with the history of the government’s actions and competent to learn was history has to show.” Id. (citing Santa Fe, 530 U.S. at 308). As a consequence, “the saemgovernmental action may be constitutional if taken in the f irst instance and unconstitutional if it has a sectarian heritage.” Id. at 866 n.14 (“wher e one display has a history m anifesting sectarian purpose that the other lacks, it is appropriate that they be treated differently, for the one display will be properly understood a s demonstrating a preference for one group of religious believers as against another”).
As an initial matter, given that Defendants’ brief challenges only the permanent injunction against the Foundations Display, weaffirm the permanent injunction as to the first and second displays. W e further fi nd that the district court did not err in permanently enjoining the Foundations Displays based on its finding that Defendants’

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actions in posting these displays continued toviolate the Establishment Clause as of its September 28, 2007 order.
The district court properly found that nofacts affecting the purpose analysis had changed between the Supreme Court decision finding an improper religious purpose in June of 2005 and the filing ofthe motions for summary judgment on remand in January and February of 2007. In that tim e, Defendants made no changes to the content or context of the Foundation Displays, nor did they pass any new resolutions concerning the purpose of the displays. The Suprem e Court found the content of the Foundation Displays, in conjunction the evolution of evidence, to reveal Defendants’ religious purpose in posting the displays. According to the Court, the puzzling choices that the counties made concerning which docum ents to include in the displays and which documents to omit would probably lead an objective observer to “suspect that the Counties were simply reaching for any way to keep a religious document on the walls of courthouses constitutionally required to embody religious neutrality.” McCreary IV, 545 U.S. at 873.4 Likewise, on remand, the “objective observer” who has reasonable memories would have seen the sam e Foundations Displays posted in the courthouses with the sam e set of resolutions authoriz ing the displays, a nd would have instantly recognized the same religious purpose that Defendants articulated during the previous round of litigation. See also Santa Fe, 530 U.S. at 315 (holding that a school district’s

4According to the Supreme Court: the selection of posted material [does not] suggest a clear theme that might prevail over evidence of the continuing religious object. In a collection of docum ents said to be “foundational” t o American government, it is at least odd to include a patriotic anthem , but to omit the Fourteenth Am endment, the m ost significant structural provision adopted since the original Fram ing. And it is no less baffling to leave out the original Constitution of 1787 while quoting the 1215 Magna Carta even to the point of its d eclaration that “fish-weirs shall be removed from the Thames.” Id., at 205a, ¶ 33. If an observer found these choices and om issions perplexing in isolation, he would be puzzledfor a different reason when he read the Declaration of Independence seeking confirmation for the Counties’ posted explanation that the Ten Commandments’ “influence is clearly seen in the Declaration,” id., at 180a; in fact the observer would find that the Commandments are sanctioned as divine imperatives, while the Declaration of Independence holds that the authori ty of government to enforce the law deriv es “from the consent of the governed,” id., at 190a.
McCreary IV, 545 U.S. at 872-73.

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history of non-com pliance with the Establishm ent Clause m ust be consider ed in determining whether the school district’s latest iteration of the challenged policy was constitutional).
Defendants attempt to argue that because the 2005 resolutions, which adopted educational purposes for the Foundations Displays and repealed the 1999 resolutions containing explicit religious purpose statements, were passed after the Supreme Court heard oral arguments, the Supreme Court did not have a chance to adequately consider the context of the 2005 resolutions or their effect in eradicating the improper religious purpose. However, despite the fact that the counties passed these resolutions after briefing and oral argument, the Supreme Court still considered them in deciding that the counties had not eliminated the improper religious purpose. In the context of the overall evolution of the displays, the Suprem e Court found that the c ounties’ new unwritten statements of purpose “were presented only as a litigating position” and that the new 2005 written resolutions were “acts of obviously minimal significance in the evolution of the evidence.” McCreary IV, 545 U.S. at 871, 872 n.19.See also Adland v. Russ, 307 F.3d 471, 481 (6th Cir. 2002) (finding that Kentucky’s clarification of it s Ten Commandments display only after it was in the midst of litigation was probative of the Commonwealth’s religious purpose).
In support of their argument that the 2005 resolutions evince a secular purpose, Defendants argue that the Supreme Court merely mentioned the 2005 resolutions in a footnote and that a reviewing court should generally defer to a legislature’s stated intent unless it is determined to be a “sham .” But Defendants have failed to show why the district court should have attributed more significance to the 2005 resolutions than did the Supreme Court in det ermining the purpose of the displays. The Suprem e Court considered the 2005 resolutions when the Court made its decision, and the Suprem e Court’s assessment of the 2005 resolutions became the law of the case, which we are obligated to follow. See Niemi v. NHK Spring Co., Ltd. , 543 F.3d 294, 308 (6th Cir. 2008) (citing Scott v. Churchill , 377 F.3d 565, 569 (6th Cir. 2004); Rouse v. DaimlerChrysler Corp. UAW , 300 F.3d 711, 715 (6th Cir. 2002)) (“[u]nder the

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law-of-the-case doctrine, rulings made at one point in the litigation should continue to govern in subsequent stages of that litigation”).
The district court was in no position on rme and to assume that the Supreme Court did not do its job and did not afford the resolutions the properweight. The district court was correct to take its direction f rom the Supreme Court, not from Defendants’ bare assertion that the 2005 resolutions eradicated the im proper religious purpose. Lower courts are “obligated to follow Suprem e Court dicta, particularly where there is not substantial reason for disregarding it, such as age or subsequent statements undermining its rationale.” United States v. Marlow, 278 F.3d 581, 588 n.7 (6th Cir. 2002) (citing Gaylor v. United States, 74 F.3d 214, 217 (10th Cir. 1996) (“this court considers itself bound by Supreme Court dicta alm ost as firmly as by the Court’s outright holdings, particularly when the dicta is recent and not enfeebled by later statements”); McCoy v. Mass. Inst. of Tech., 950 F.2d 13, 19 (1st Cir. 1991) (“federal appellate courts are bound by the Supreme Court’s considered dicta alm ost as firmly as by the Court’s outright holdings . . .”)).
Although the Supreme Court made clear that the counties’ past actions do not “forever taint any effort on their part to deal with the subject matter,” McCreary IV at 874, Defendants offered no new facts on rem and that s how that their purpose had changed from the one that the Supreme Court found to violate the Establishment Clause. The four changes cited by Def endants are not “genuine changes in constitutionally significant conditions.” Id. First, Defendants’ distinction between the content of the second and third displays does not govern whether the legislators had an im proper purpose in hanging the displays and, in any event, those distinctions existed before the Supreme Court issued its decision. Second, the fact that more time has passed since the Supreme Court decision is meaningless in this case, because Defendants have spent the time since the Supreme Court decision continuously seeking to accomplish their initial purpose of posting the Ten Commandments as a religious document. Unlike a case in which the passage of tim e might have some significance, there has been no dorm ant period here; Defendants have continuously sought to defend their actions and accomplish

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what they initially set out to do. Third, the change in governemnt personnel is irrelevant, because the “objective observer” test does notencompass “judicial psychoanalysis of a drafter’s heart of hearts.” Id. at 862. Finally, the two sets of “new” governm ent resolutions are not new: the 2005 resolutionswere enacted before the Supreme Court’s decision and deemed of minimal significance by the Court, and the 2007 resolutions were passed more than a year after the close of discovery in response to the district court’s finding that t he posting of the Founda tions Displays continued to violate the Establishment Clause. Thus, the district court properly found that no facts changed on remand that would affect the Supreme Court’s analysis.

Furthermore, even if this Court were to consider the 2007 resolutions, which were adopted after and in direct response tothe district court’s finding that Defendants continued to advance a religious purpose and m ore than a year after the close of discovery, it is clear that these resolutions,like the previous statements of purpose, were adopted only as a litigating position. These resolutions represent Defendants’ latest effort in a long line of attem pts to conform their conduct to the require ments of the Constitution after adverse court rulings. See Santa Fe, 530 U.S. at 315 (noting that the case at issue was “the latest step in developing litigation” and “reufs[ing] to turn a blind eye to the context in which [the policy of paryer at football games] arose” in finding that “this policy was implemented with the purpose of endorsing [religion]”). Thus, like the 2005 resolutions, the 2007 resolutions provide little evidence that Defendant’s actua l purpose has changed and are of m inimal significance in light of the evolution of the evidence. See McCreary IV, 545 U.S. at 872 n.19.

The fact that this Court has found–since the Suprem

e Court decided

McCreary–that two counties did not have an impermissible religious purpose in posting

displays identical to the Foundations Displays at issue does not affect our finding that

the counties in this case have still not presented a valid secular purpose. See ACLU of

Ky. v. Grayson County, Ky. , 591 F.3d 837 (6th Cir. 2010); ACLU of Ky. v. Mercer

County, Ky., 432 F.3d 624 (6th Cir. 2005). The Supreme Court in McCreary noted that

“the same government action may be constitutional if taken in the first instance and

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unconstitutional if it has a sectarian heritage.” McCreary IV, 545 U.S. at 866 n.14. Unlike the extended history of sectarian purpose here, in Mercer “there was only one display, one authorizing measure, and one implementation, all of which demonstrate a secular purpose.” 432 F.3d at 631.Likewise, the majority in Grayson characterized the history of the display as evidencing a predominantly secular purpose. See Grayson, 591 F.3d at 849 (“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.”). While there is significant evidence in the Grayson record that Defendants’ predominant purpose, as observed by an objective observer, was to post the Ten Commandments as a religious text, we are bound to interpretGrayson in a manner that does not conflict with the Supreme Court’s decision inMcCreary.5 Thus, given the lack of the same type of extended sectarian history in Mercer and Grayson, these cases are distinguishable from the instant case. Further, unlike in Grayson and Mercer, the Supreme Court in McCreary has definitively found that the display at issue violates the Establishment Clause, and we are obligated to follow that precedent if no constitutionally significant facts have changed.
Because the Supreme Court found that Defendants acted with the predominant purpose of advanci ng religion in displaying each of their three Ten Com mandment displays in the county courthouses and Defnedants continued to exhibit the same purpose when the district court issued its Septem ber 28, 2007 order, Defendants’ action in posting these displays violated the Estab lishment Clause. Thus, Plaintiffs have established that they suffered a constitu tional violation and will suf fer continuing irreparable injury if the violation continues. The fact that Defendants seek to minimize

5However, we also note that the Mercer and Grayson opinions essentially ignore the Supreme Court’s reliance in McCreary on both the content of the display and the evolution of the evidence in determining that Defendants had a religiouspurpose in posting the Foundations Display. TheMercer and Grayson panels would have us believe thatthe Supreme Court approved of the contentof the Foundations Displays and relied exclusively on the existence of prior displays and past conduct of McCreary County officials in rejecting Defendants’ stated purpose as a sham. In fact, the Supreme Court in McCreary noted that the puzzling choices that the counties made concerning the content of the Foundations Displays would probably lead an objective observer to “suspect that the Counties were simply reaching for any way tokeep a religious document on thewalls of courthouses constitutionally required to embody religious neutrality.” McCreary IV, 545 U.S. at 873.

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the residue of religious purpose does not mean that Plaintiffs do not suffer continuing irreparable injury so long as the display remains on the walls of the county courthouses. Thus, there is no adequate remedy at law, and Plaintiffs have demonstrated that they are entitled to a permanent injunction.
Accordingly, the district court erred indeclining to enter a permanent injunction against Defendants in its September 28, 2007 order after finding that Defendants had violated the Establishment Clause. However, the district court rectif ied that error by properly enjoining Defendants from posting the displays in its August 4, 2008 order.
III. Disposition of Procedural Claims
A. Plaintiffs’ Motion to Amend or Alter Judgment
1. Standard of Review
Although we generally review a grant or denial of a motion to alter or amend a judgment under Rule 59(e) for abuse of discretion, when the Rule 59(e) motion seeks review of a grant of summary judgment, we apply ade novo standard of review. Cockrel v. Shelby County Sch. Dist., 270 F.3d 1036, 1047 (6th Cir. 2001). In granting Plaintiffs’ Rule 59(e) m otion, the district court essentially reconsidered and granted sum mary judgment in favor of Plaintiffs. Accordingly, we apply a de novo standard of review.
“A motion to alter or amend a judgment must be filed no later than 10 daysafter the entry of the judgment.” Fed. R. Civ. P. Rule 59(e) (emphasis added). A court may grant a motion to alter or amend judgment only if there was “(1) a clear error of law; (2) newly discovered evidence; (3) an intervening change in controlling law; or (4) a need to prevent manifest injustice.” Intera Corp. v. Henderson, 428 F.3d 605, 620 (6th Cir. 2005) (citing GenCorp, Inc. v. Am. Int’l Underwriters, 178 F.3d 804, 834 (6th Cir. 1999)).

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2. Analysis
Because the district court erroneously deni ed Plaintiffs’ sum mary judgment motions after finding that Defendants continued to violate the Establishment Clause and that no triable issues of fact rem ained, the district court had not yet entered judgm ent when it granted Plaintiffs’ motion to alter or amend judgment. Thus, Plaintiffs’ motion was effectively a motion for reconsideration of summary judgment and “[t]he district court was therefore free to reconsider orreverse its decision for any reason.” Cameron v. Ohio, 344 F. App’x 115, 118 (6th Cir. 2009) (citingRussell v. GTE Gov't Sys. Corp., 141 F. App’x 429, 436 (6th Cir. 2005)). However, this Court has also found that it may be “proper for the [d]istrict [c]ourt to entertain a motion to alter or amend a judgment under Rule 59(e) even though it was filed prior to the actual entry of judgment.” Smith v. Hudson, 600 F.2d 60, 62 (6th Cir. 1979). Under t he stricter Rule 59(e) standard, Plaintiffs were entitled to have the judgment altered in view of the district court’s clear error of law in declining to enter a permanent injunction in its September 28, 2007 order.
Thus, regardless of whether Plantiffs’ motion should have been classified under Rule 59(e) or Rule 54(b), the district courdt id not err in reconsidering its earlier decision and determining that Plaintiffs were entitled to a permanent injunction.
B. Defendant’s Renewed Motion for Summary Judgment
1. Standard of Review
We generally review a district court’s dneial of a motion for relief fromjudgment pursuant to Rule 60(b) only for an abuse of discretion. Massi v. Walgreen Co., 337 F. App’x 542, 545 (6th Cir. 2009) (citingDavis v. Jellico Cmty. Hosp., Inc., 912 F.2d 129, 133 (6th Cir. 1990)). When this Court reviews for abuse of discretion, it will reverse only when it “is firmly convinced that a mistake has been made.” Bush v. Rauch, 38 F.3d 842, 848 (6th Cir. 1994) (internal citations omitted).
To overcome this deferential standard of review over a m otion for relief from judgment, a party must demonstrate that the district court committed “a clear error of judgment, such as applying the incorrect legal standard, misapplying the correct legal

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standard, or relying upon clearly erroneous findings of fa ct.” In re Ferro Corp. Derivative Litig., 511 F.3d 611, 623 (6th Cir. 2008).
2. Analysis
Because the district court entered judgment in the same decision that it construed Defendants’ renewed motion for summary judgment as one for relief from judgment under Rule 60(b), it was rea sonable for the district court to construe the entry of judgment as coming before the conversion of Defendants’ motion.
Furthermore, a district court has broad discretion to manage its docket. Reed v. Rhodes, 179 F.3d 453, 471 (6th Cir. 1999). A district court’s decision whethe r a late filing results from“excusable neglect” is subject to review for abuse of discretion.Allen v. Murph, 194 F.3d 722, 723-24 (6th Cir. 1999). Dfeendants filed their renewed motion for summary judgment more than one year after the deadline for dispositive motions had passed without seeking leave to file. Dfeendants sought to introduce new facts–the 2007 resolutions that were passed after and in response to the district court’s sum mary judgment decision–more than one year after the close of discovery. Accordingly, based on the district court’s power to manage its own docket, the court had ample discretion to strike Defendants’ late renewed m otion for sum mary judgment. By converting Defendants’ renewed summary judgment motion to a Rule 60(b) motion for relief from judgment and considering Defendants’ new facts and arguments, the district court was giving Defendants the benefit of the doubt.
Finally, we decline to review the district court ’s subsequent denial of Defendants’ motion for relief from final judgment because we lack jurisdiction. Defendants filed their notice of appeal on September 2, 2008 from the district court’s order of August 4, 2008, in which it converted Defendants’ motion. The district court did not deny Defendants’ Rule 60(b) motion until September 30, 2008. Thus, this order denying relief from judgment was not and could not have been appealed pursuant to Defendants’ September 2, 2008 notice of appeal. After the district court’s September 30, 2008 denial of relief from judgment, Defendants had 30 days under Fed. R. App. P.

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4(a)(1)(A) to file a notice of appeal of that order. However, Defendants failed to do so. This failure deprives this Court of jurisdiction over Defendants’ attempt to appeal from the September 30, 2008 order.
CONCLUSION
For the reasons set forth above, we AFFIRM the district court’s order permanently enjoining Defendants fromerecting each of their three Ten Commandment displays in the McCreary County and Pulaski County courthouses.

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______________________
CONCURRENCE ______________________
JULIA SMITH GIBBONS, Circuit Judge, concurring. I concur with the majority opinion’s thoughtful resolution of the constitutional issues surrounding the 2005 Resolutions and its conclusions on the procedural issues in this case but wr ite to emphasize one point. Given that we lack jurisdiction to consider the countie s’ appeal from the district court’s denial of their motion for relief from judgment under Federal Rule of Civil Procedure 60(b), in which they first brought the 2007 Resolutions to the court’s attention, I would not reach the issue of whether the 2007 Resolutions evince a religious or secular purpose for the Foundations Displays. In light of the Suprem e Court’s cautioning that the counties’ past actions need not “forever taint any effort on their part to deal with the subject m atter,” McCreary County v. ACLU, 545 U.S. 844, 873–74 (2005), I would leave this issu e to the district court in the f irst instance. See Jordon v. Gilligan, 500 F.2d 701, 707 (6th Cir. 1974) (noting that appellate court dicta has persuasive precedential effect only).

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________________
DISSENT ________________
RYAN, Circuit Judge, dissenting. This appeal is essentially a rerun of what the parties argued and our panel majority decided in ACLU v. McCreary County, 354 F.3d 438 (6th Cir. 2003) ( McCreary III), and the Suprem e Court affirm ed in McCreary County v. ACLU, 545 U.S. 844 (2005) (McCreary IV). The only real difference is that this appeal presents the question whether the defendants have “purged” the “Foundations of Law and Government Displays” of the religious “taint” of the Ten Commandments. My colleagues think they have not. I thinkthey could not because there was no “taint” to be “purged,” and even if t here were, the defendants’ effort to do so has been disqualified as a mere “litigating position.”
The merits and demerits of the vitally important First Amendment Establishment Clause issues that are at the heart of this case were thoroughly discussed in Judge Clay’s opinion for the panel and my dissenting opinion inMcCreary III, and in Justice Souter’s opinion for the Supreme Court and Justice Scalia’s dissent in McCreary IV.
My colleagues have deftly foreclosed consideration of the issue whether the counties’ 2007 resolutions expressly disclaiming any intention to endorse religion may have “purged the taint” of religion from the third set of displays with the dism issive observation that the 2007 resolutions were “adopted only as a litigating position.” With that nearly Clausewitz-perfect blocking action, I am left with nothing to add to what I wrote in McCreary III, except the following:
1. I humbly associate myself with Justice Scalia’s powerful and logically compelling explanation in McCreary IV that the displays in question do not violate the First Amendment and never did.
2. I cannot be too critical of m y panel colleagues who feel stare decisisbound by the Supreme Court majority’s persistent hostility to religion and its refusal to acknowledge the historical evidence that religion, religious symbols, and the support of

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religious devotion were of the very essence ofthe values the Constitution’s authors and the ratifying legislators thought they were preserving in the langua ge of the First Amendment.
The result, I fear, is that federal courts will continue to close the Public Square to the display of religious symbols as fundamental as the Ten Commandments, at least until the Supreme Court rediscovers the history and meaning of the words ofthe religion clauses of the First Am endment and jettisons the f lawed reasoning of Lemon v. Kurtzman, 403 U.S. 602 (1971).
3. Perhaps the panel’s decision in this case, taken together with this court’s decisions in ACLU v. Mercer County , 432 F.3d 624 ( 6th Cir. 2005), and ACLU v. Grayson County, 591 F.3d 837 ( 6th Cir. 2010), will move our court to reconsider en banc what my colleagues have held today, from which I strongly dissent. See McCreary III and McCreary IV.

 
 145 F.Supp.2d 845 (2001)
AMERICAN CIVIL LIBERTIES UNION OF KENTUCKY; Louanne Walker and David Howe, Plaintiffs, v.
McCREARY COUNTY, KENTUCKY; and Jimmie Greene, in his official capacity as McCreary County Judge Executive, Defendants.
No. CIV.A. 99-507.
United States District Court, E.D. Kentucky, London Division.
June 22, 2001.
846 *846 Everett C. Hoffman, Segal, Stewart, Cutler, Lindsay, Jones & Berry, PLLC, David A. Friedman, American Civil Liberties Union of Kentucky, C. Laurie Griffith, Griffith Law Offices, PSC, ACLU Cooperating Attorney, Louisville, KY, Kathleen M. Flynn, Illinois State Appellate Defender, Chicago, IL, for plaintiffs.
Theodore H. Amshoff, Jr., Amshoff & Amshoff, PSC, Louisville, KY, Ronald D. Ray, Colonel, Crestwood, KY, Mathew D. Staver, Erik W. Stanley, Liberty Counsel, Longwood, FL, for defendants.
ORDER
COFFMAN, District Judge.
This matter is before the court upon the plaintiffs' motion (Record No. 40) for a supplemental preliminary injunction. The court, having reviewed the record and being otherwise sufficiently advised, will grant the motion and enjoin the continued exhibition of the current displays.
Facts
This consolidated case involves the efforts of McCreary and Pulaski Counties and the Harlan County schools to post the Ten Commandments. Having evolved throughout this litigation, the displays at issue originally consisted of only a framed copy of the Ten Commandments. After several other documents were added, this court found that the amended displays[1] failed the "purpose" and "effect" prongs of the three-part test set out in Lemon v. Kurtzman, 403 U.S. 602, 91 S.Ct. 2105, 29 L.Ed.2d 745 (1971),[2] in that they lacked a secular purpose[3] and had the effect of endorsing religion. ACLU of Ky. v. McCreary County, 96 F.Supp.2d 679, 689 (E.D.Ky.2000). Accordingly, this court ordered the immediate removal of the displays from the courthouses and school system.
The defendants then erected a third set of displays which also included the Ten Commandments. Those displays, entitled "The Foundations of American Law and Government Display," included the full text of the Magna Carta as enacted in 1215 A.D., the Declaration of Independence, the Bill of Rights of the Constitution of the United States, the Star Spangled Banner, the Ten Commandments with a Biblical citation, and the Mayflower Compact of 1620; a picture of Lady Justice and an explanation of its significance; the National Motto of the United States 847 ("In God We Trust") emblem and the Preamble to the Kentucky Constitution; and an explanation *847 of each of the documents' historical and legal significance.[4]
After the hearing on this motion and resulting settlement negotiations, the McCreary and Pulaski County displays were again modified; the Scripture reference of "Exodus 20:3-17" and the phrase "King James Version" were eliminated from the Ten Commandments document. The Harlan County School Board display remains as it existed at the time of the hearing, but the school board has adopted a "Historical Document Placement Procedure" which implements its resolution for posting historical documents.

The plaintiffs, having asked this court to expand the preliminary injunction to include the current display,[5] must establish: (1) a strong or substantial likelihood of success on the merits; (2) that they will suffer irreparable harm in the absence of an injunction; (3) that others will not suffer substantial harm if the injunction is granted; and (4) that an injunction will serve the public interest. Connection Distrib. Co. v. Reno, 154 F.3d 281, 288 (6th Cir.1998). Because the parties focus on the first of these elements and confine their arguments to the "purpose" and "effect" prongs of the Lemon test, the court will concentrate on these aspects of the issue. The court's analysis is governed by Stone v. Graham, 449 U.S. 39, 101 S.Ct. 192, 66 L.Ed.2d 199 (1980), and Books v. City of Elkhart, 235 F.3d 292 (7th Cir. 2000).[6]
Analysis
As Stone and Books direct, the test used to determine the constitutionality of the current display is that set out in Lemon v. Kurtzman, supra. Therefore, we look for the display to have a secular purpose, for its principal or primary effect (as seen by the reasonably well-informed observer) neither to advance nor inhibit religion, and for a lack of excessive entanglement.[7]
848 *848 Purpose
Although the Supreme Court typically gives deference, in religion cases, to the government's articulated purpose, where the Ten Commandments are at issue the Court has rejected the proffered purpose and found instead that the document is a sacred text which has a religious purpose. See Stone v. Graham, 449 U.S. 39, 101 S.Ct. 192, 66 L.Ed.2d 199 (1980).[8] The government must dilute this religious purpose if a truly secular purpose can be said to exist. See Books, 235 F.3d at 303. This rejection of stated purpose has occurred even when secular symbols were used in conjunction with the Ten Commandments,[9] just as this court must reject the stated purpose even when the defendants place the Ten Commandments in a display with secular documents.
With regard to the current displays, the defendants have articulated a number of purportedly secular purposes. Their stated intentions include: (1) "[T]o erect a display containing the Ten Commandments that is constitutional" [10]; (2) "to demonstrate that the Ten Commandments were part of the foundation of American Law and Government"[11]; (3) "[to include the Ten Commandments] as part of the display for their significance in providing `the moral background of the Declaration of Independence and the foundation of our legal tradition'"[12]; (4) "to educate the citizens of the county regarding some of the documents that played a significant role in the foundation of our system of law and government"[13]; and (5) [as stated by the Harlan County School Board] "to create a limited public forum on designated walls within the school district for the purpose of posting historical documents which played a significant role in the development, origins or foundations of American or Kentucky law...."[14] While these stated purposes are to be given some deference, "it is nonetheless the duty of the courts to `distinguis[h] a sham secular purpose from a sincere one.'" Santa Fe Ind. Sch. Dist. v. Doe, 530 U.S. 290, 308, 120 S.Ct. 2266, 147 L.Ed.2d 295 (2000) (quoting Wallace v. Jaffree, 472 U.S. 38, 75, 105 S.Ct. 2479, 86 L.Ed.2d 29 (1985) (O'Connor, J., concurring in judgment)). Our task is made easier by the fact that the first three of these 849 purposes are, on their face, religious in nature and therefore impermissible, *849 while the history of the display belies the secular intentions of the other two.
Viewed facially, the first three of the defendants' stated "secular" purposes run afoul of the Supreme Court's holding in Stone v. Graham, because that case established that a state's desire to proclaim the Ten Commandments' foundational value for American law and government is a religious, rather than secular, purpose. In Stone, the Commonwealth of Kentucky sought to post the Ten Commandments along with the following notation: "The secular application of the Ten Commandments is clearly seen in its adoption as the fundamental legal code of Western Civilization and the Common Law of the United States." Stone, 449 U.S. at 41, 101 S.Ct. 192. This putatively secular purpose, which is fundamentally the same as the defendants' first three articulated purposes, was rejected by the Court. The majority declared that "such an `avowed' secular purpose is

not sufficient to avoid conflict with the First Amendment.... The Ten Commandments are undeniably a sacred text in the Jewish and Christian faiths, and no legislative recitation of a supposed secular purpose can blind us to that fact." Id.[15]
The defendants' latter two articulated purposes, while facially secular in that they do not single out the Ten Commandments, crumble nonetheless upon an examination of the history of this litigation. "The Supreme Court has stressed the importance of the context of a clearly religious symbol in determining whether the purpose in displaying the symbol is religious or secular." Books, 235 F.3d at 303. To determine this context, the Seventh Circuit examined the history of the city's involvement in the monument's placement, from the initial dedication ceremony[16] to the city's adoption of a resolution in response to the then-pending litigation,[17] concluding that the city's purpose for displaying the monument was not secular. See id. at 304. In the present case, the history of these displays indicates that the defendants' overall purpose is religious in nature: to display the Ten Commandments. It is significant that the first displays, containing only the Ten Commandments, were erected in 850 violation of the *850 Supreme Court's clear ruling in Stone.[18] This defiance imprinted the defendants' purpose, from the beginning, with an unconstitutional taint observed not only by this court, but by anyone acquainted with this litigation.[19] The second set of displays (the subject of this court's previous ruling) accentuated the defendants' religious purpose, rather than diminishing it, by posting the Commandments along with "specific references to Christianity and texts that, while promulgated by the federal government, were chosen solely for their religious references." ACLU of Ky. v. Pulaski County, 96 F.Supp.2d 691, 699 (E.D.Ky. 2000).
In their third and fourth attempts, the defendants have posted the Ten Commandments alongside the full text of various historical documents, purporting to educate the citizens of McCreary and Pulaski Counties and the schoolchildren of Harlan County regarding the history of this nation's law and government. It is this court's function to determine "`whether the government's actual purpose is to endorse or disapprove of religion,'" Books, 235 F.3d at 302 (quoting Edwards v. Aguillard, 482 U.S. 578, 585, 107 S.Ct. 2573, 96 L.Ed.2d 510 (1987) (emphasis added)), a function we undertake by evaluating the totality of the circumstances. See id. In light of the history of the government's involvement in these displays, the defendants' purpose is clear. This purpose 0907 posting the Ten Commandments 0907 is improper and violative of the Establishment Clause "because it sends the ancillary message to ... nonadherents `that they are outsiders, not full members of the political community, and an accompanying message to adherents that they are insiders, favored members of the political community.'" Id. at 309-10 (quoting Lynch v. Donnelly, 465 U.S. 668, 688, 104 S.Ct. 1355, 79 L.Ed.2d 604 (1984) (O'Connor, J., concurring)). Thus, the defendants' fourth and fifth articulated purposes do not fundamentally differ from their first 851 three, *851 and do not suffice to show that the government is motivated by a secular purpose in posting the current displays. Accordingly, the current displays fail the first prong of the Lemon test, in that they lack a secular purpose.
Effect
While failure of any prong of Lemon results in an Establishment Clause violation, this court will complete its analysis by considering the effect of the current displays. The second prong of Lemon is met when a government action's "principal or primary effect ... neither advances nor inhibits religion." Lemon, 403 U.S. at 612, 91 S.Ct. 2105. The "effect" prong has more recently been articulated as the endorsement test, which "prohibits speech that a reasonable observer would think is an endorsement of religion by the government." Granzeier v. Middleton, 173 F.3d 568, 573 (6th Cir.1999); see also note 7, supra. To make this determination, the court must look at the "totality of the circumstances surrounding the display." Books, 235 F.3d at 304. Moreover, the "reasonable observer" is considered to be one who is "familiar with the history and placement" of the display, rather than one who sees it with no prior knowledge.[20] In the case at bar, the composition, setting, and history of the current displays would lead a reasonable observer to interpret them as the county governments' endorsement of religion.
The composition of the current set of displays accentuates the religious nature of the Ten Commandments by placing them alongside American[21] historical documents. Given the religious nature of this document,[22] placing it among these patriotic and political documents, with no other religious symbols or moral codes of any kind, imbues it with a national significance constituting endorsement. The Ten Commandments are completely

different from the remainder of the displays. The reasonable observer will see one religious code placed alongside eight political or patriotic documents, and will understand that the counties promote that one religious code as being on a par with our nation's most cherished secular symbols and documents. This is endorsement. The Seventh Circuit has adopted similar reasoning; when considering the effect of a Ten Commandments 852 monument, the Books court found that "the placement of the American Eagle gripping the national colors at the *852 top of the monument hardly detracts from the message of endorsement; rather, it specifically links religion ... and civil government." Books, 235 F.3d at 307. The counties have not, despite their avowed efforts, erected the type of "appropriate educational display" which might "try to include all the various moral, historical, and political influences on our legal system' such as the Code of Hammurabi, the Code of Justinian, and passages from early English cases." Harvey v. Cobb County, 811 F.Supp. 669, 678 (N.D.Ga.1993). Instead, the current set of displays conveys the counties' comment on the Ten Commandments' (and consequently, religion's) foundational value to our shared history as citizens; a reasonable person would perceive this message as endorsement.
Furthermore, the setting of these displays 0907 in the McCreary and Pulaski County courthouses and in the Harlan County public schools 0907 has the effect of advancing religion. The courthouse displays are posted at the seat of government, which "`is so plainly under government ownership and control' that every display on its property is marked implicitly with government approval." Books, 235 F.3d at 306 (quoting American Jewish Congress v. City of Chicago, 827 F.2d 120, 128 (7th Cir.1987)).[23]Stone confirms that this observation extends to the public school setting.[24] Like the monument in Books, the current set of displays conveys a message of endorsement, despite the inclusion of secular documents and symbols. The fact that this religious message is exhibited within public places of great importance, such as the seat of government and the public schools, heightens the effect of advancing religion and the consequent violation of the Establishment Clause.
Finally, the history of these displays bolsters the reasonable observer's perception of the state endorsement of religion. The reasonable observer viewing these displays would know of the defendants' previous attempts to post the Ten Commandments alone and surrounded by religious excerpts from historical documents. Even without this specific knowledge, a reasonable observer must be charged with knowing something of the controversy surrounding these displays, which has focused on only one of the nine framed documents: the Ten Commandments. The defendants' non-secular purpose would be known to such a viewer and would increase the displays' religious effect by conveying the message that the counties had succeeded not in posting a display of "The Foundations of American Law and Government," but in posting the Ten Commandments. Thus, these displays likewise fail the "effect" prong of the Lemon test.
Conclusion
853 The Supreme Court has recognized two constitutionally permissible uses of the *853 Ten Commandments within the public arena. The first is where "the Ten Commandments are integrated into the school curriculum, where the Bible may constitutionally be used in an appropriate study of history, civilization, ethics, comparative religion, or the like." Stone, 449 U.S. at 42, 101 S.Ct. 192 (citing Sch. Dist. of Abington v. Schempp, 374 U.S. 203, 225, 83 S.Ct. 1560, 10 L.Ed.2d 844 (1963)). The second is in a display incorporating both religious and secular figures, "signal[ing] respect not for great proselytizers but for great lawgivers,"[25] such as the frieze on the wall of the United States Supreme Court.[26] The first use of the Ten Commandments has a teaching function and was suggested in a case involving a school,[27] while the second use has a legal-historical function and appears in a courtroom rather than a schoolhouse. Thus, these defendants have been given clear guidance by the United States Supreme Court for use of the Ten Commandments in their own venues.
At any rate, the current displays are clearly outside the bounds of these permissible uses and are violative of the Establishment Clause. Thus, the defendants have shown a strong or substantial likelihood of success on the merits. As the facts and analysis of the remaining three elements required for a preliminary injunction remains the same here as in our previous opinions in this case,[28] those elements are met and the injunction will be extended. Accordingly,

IT IS ORDERED that the plaintiff's motion to extend the preliminary injunction to the current displays is GRANTED.
IT IS FURTHER ORDERED that the displays shall be removed from the McCreary and Pulaski County courthouses and from the Harlan County schools IMMEDIATELY.
IT IS FURTHER ORDERED that the parties shall submit joint written status reports no later than July 23, 2001, advising the court whether they wish this order to be the final judgment in this case.
[1] While they varied as to content, all three amended displays were held unconstitutional by this court, which found that "[w]hile some of the documents [were] displayed in their entirety, the defendants ha[d] excerpted a small portion of others to include only that document's reference to God or the Bible with little or no surrounding text." ACLU of Ky. v. McCreary County, 96 F.Supp.2d 679, 684 (E.D.Ky.2000).
[2] Under the Lemon test, (1) the government action must have a secular purpose; (2) its principal or primary effect must be one that neither advances nor inhibits religion; and (3) the action must not result in "excessive governmental entanglement with religion." Lemon, 403 U.S. at 612-13, 91 S.Ct. 2105.
[3] This court found that the display's history and composition evinced no secular purpose. Though the government's stated purpose is entitled to some deference, the court held that its task was to "examine the actual purpose of the use of the religious objects and ... not blindly accept an allegedly secular purpose which is contrary to the facts of the case." McCreary County, 96 F.Supp.2d at 687.
[4] The display in the Harlan County schools differed only in that it replaced the picture of Lady Justice with the text of Ky. Rev. St. § 158.195 (allowing posting of documents), the Ten Commandments document was a page from the Congressional Record declaring 1983 the year of the Bible (which contains a copy of the Ten Commandments), and that the explanation posted was in the form of a resolution of the Harlan County School Board.
[5] Although the plaintiffs' motion actually challenged the third set of displays, this ruling encompasses both the third and fourth sets of displays.
[6] Stone is the only U.S. Supreme Court case on point and Books is the only circuit-court case which directly confronts the instant issue and which has not been called into question. The court takes note of the Supreme Court's recent denial of certiorari in Books, which was marked by dissent. See City of Elkhart v. Books, ___ U.S. ___, 121 S.Ct. 2209, 149 L.Ed.2d 1036 (2001). Additionally, the court is aware that Anderson v. Salt Lake City Corporation, 475 F.2d 29 (10th Cir.1973) (cert. denied, 414 U.S. 879, 94 S.Ct. 50, 38 L.Ed.2d 124 (1973)), is a court-of-appeals case which reviewed the constitutionality of a Ten Commandments monument in light of the Establishment Clause; Anderson, however, predated Stone, and the Tenth Circuit has acknowledged that Stone undermines Anderson's continuing validity. See Summum v. Callaghan, 130 F.3d 906, 913 n. 8 (10th Cir.1997). While a number of other circuit-court cases involve challenges to Ten Commandments displays, they fail to address substantively the Establishment Clause issue. See, e.g., DiLoreto v. Downey Unified School Dist. Bd. of Educ., 196 F.3d 958 (9th Cir. 1999) (cert. denied, 529 U.S. 1067, 120 S.Ct. 1674, 146 L.Ed.2d 483 (2000)); Zichko v. Clegg, 162 F.3d 1171 (9th Cir.1998) (cert. denied, 526 U.S. 1162, 119 S.Ct. 2055, 144 L.Ed.2d 221 (1999)) (unpublished); Suhre v. Haywood County, 131 F.3d 1083 (4th Cir. 1997); Summum v. Callaghan, 130 F.3d 906 (10th Cir.1997); Freedom From Religion Foundation v. Zielke, 845 F.2d 1463 (7th Cir. 1988).
[7] In recent jurisprudence, the latter two elements of the Lemon test, see note 2, supra, have been collapsed into the question of whether the display is viewed as government endorsement of religion. The "endorsement" test is treated as a refinement of Lemon. See Lynch v. Donnelly, 465 U.S. 668, 690, 104 S.Ct. 1355, 79 L.Ed.2d 604 (1984) (O'Connor, J., concurring); Granzeier v. Middleton, 173 F.3d 568, 573 (6th Cir.1999); Adland v. Russ, 107 F.Supp.2d 782, 785 (E.D.Ky.2000).
[8] While not an explicit rejection of such an articulation, the Supreme Court declined to grant certiorari in Books, ___ U.S. ___, 121 S.Ct. 2209, 149 L.Ed.2d 1039 (2001), where the Seventh Circuit had similarly rejected the city's stated purpose. See Books, 235 F.3d at 303-04 ("we hold that the City of Elkhart's avowed secular purpose

of recognizing the historical and cultural significance of the Ten Commandments `is not sufficient to avoid conflict with the First Amendment'" (quoting Stone, 449 U.S. at 41, 101 S.Ct. 192)).
[9] See Books, 235 F.3d at 296 (monument included an "all-seeing eye" and an American eagle grasping the American flag).
[10] Record No. 44, pp. 3, 4.
[11] Record No. 44, p. 10.
[12] Record No. 44, p. 15 (quoting the explanation of the Ten Commandments placed near the display).
[13] Record No. 44, p. 13.
[14] Record No. 56, exh. B.
[15] It bears emphasis that this court is not commenting on the truth of the defendants' assertion of the Ten Commandments as a "foundational document." Like the Seventh Circuit, we recognize that "[t]he text of the Ten Commandments no doubt has played a role in the secular development of our society and can no doubt be presented by the government as playing such a role in our civic order." Books, 235 F.3d at 302 (noting the frieze on the wall of the U.S. Supreme Court, which depicts Moses holding the Ten Commandments, along with other religious and non-religious lawgivers).
[16] The court found that the remarks of the speakers at the monument's dedication 0907 a Catholic priest, a Jewish rabbi, and a Protestant minister 0907 showed that "the purpose for displaying the monument was not only to provide youths with a common code of conduct to guide their participation in the civil community but also to urge the people of Elkhart to embrace the specific religious code of conduct taught in the Ten Commandments." Books, 235 F.3d at 303. Thus, the circumstances accompanying the monument's display emphasized the "inherently religious nature of the Ten Commandments." Id.
[17] In a manner similar to that of the instant defendants, the Books resolution characterized the monument and its symbols as acknowledging the Ten Commandments' historical and cultural significance, specifically the Commandments' effect on "the development of the fundamental legal principles of Western Civilization." See Books, 235 F.3d at 297. The court, however, looking to precedent, concluded that the resolution "ought to be accorded no more weight than the avowed secular legislative purpose articulated by the Kentucky legislature in Stone." Id. at 304.
[18] The Stone court did not hinge its ruling upon the mandatory nature of the statute requiring schools to post the Ten Commandments; rather, it emphasized the message sent by the posting of a lone religious text, noting that "[t]his is not a case in which the Ten Commandments are integrated into the school curriculum ...." Stone, 449 U.S. at 42, 101 S.Ct. 192.
[19] This case is distinguishable from the situation in ACLU of New Jersey v. Schundler, 168 F.3d 92 (3rd Cir.1999), where the Third Circuit rejected the argument that the government's initial holiday display and subsequent modifications could be regarded as evidence of the official's bad faith because
the Supreme Court's decisions regarding holiday displays have been marked by fine line-drawing, and therefore it is not easy to determine whether particular displays satisfy the Court's standards. Under these circumstances, the mere fact that city officials miscalculate and approve a display that is found by the federal courts to cross over the line is hardly proof of the officials' bad faith. Although the original Jersey City display was ultimately struck down, no Supreme Court or Third Circuit precedent clearly established that it was unconstitutional until the prior panel handed down its decision, and therefore the city officials' decision to erect that display, which had been put up for decades, can hardly be viewed as evidence of an intent to flout the Establishment Clause.
Id. at 105 (footnotes omitted). In contrast, Supreme Court precedent regarding the posting of the Ten Commandments 0907 Stone v. Graham 0907 has not been marked by "fine line-drawing," nor was the counties' initial Ten Commandments display the product of "miscalculation." The initial display was in blatant disregard of a longstanding Supreme Court opinion clearly establishing its unconstitutionality. That fact, coupled with the even more

overtly religious second display, in which the defendants selected only religious portions from historical American documents, lends credence to this court's determination of the defendants' religious purpose in this case.
[20] Books, 235 F.3d at 306. See also Santa Fe Ind. Sch. Dist., 530 U.S. at 308, 120 S.Ct. 2266 ("In cases involving state participation in a religious activity, one of the relevant questions is `whether an objective observer, acquainted with the text, legislative history, and implementation of the statute, would perceive it as a state endorsement of prayer in public schools.'") (quoting Wallace v. Jaffree, 472 U.S. 38, 73, 76, 105 S.Ct. 2479, 86 L.Ed.2d 29 (O'Connor, concurring in judgment)).
[21] The Magna Carta and the picture of Lady Justice are the exceptions here, the only documents (besides the Ten Commandments) which are not unique to American history. Their inclusion, however, does not sufficiently broaden the display to encompass "world history" or to make it a survey of various civilizations' legal codes, so as to dilute the uniquely religious message of the Ten Commandments.
[22] Stone recognized that:
The Ten Commandments are undeniable a sacred text in the Jewish and Christian faiths .... [which] do not confine themselves to arguably secular matters, such as honoring one's parents, killing or murder, adultery, stealing, false witness, and covetousness. Rather, the first part of the Commandments concerns the religious duties of believers: worshipping the Lord God alone, avoiding idolatry, not using the Lord's name in vain, and observing the Sabbath Day.
Stone, 449 U.S. at 41-42, 101 S.Ct. 192 (citations omitted).
[23] The court also noted that:
In fulfilling our responsibility to apply faithfully the Establishment Clause jurisprudence of the Supreme Court of the United States, we have subjected to particularly careful scrutiny displays at the seat of government. We have taken this course because "[a]n important concern of the effects test is ... `whether the symbolic union of church and state effected by the challenged governmental action is sufficiently likely to be perceived by adherents of the controlling denominations as an endorsement, and by the nonadherents as a disapproval, or their individual religious choices.'"
Books, 235 F.3d at 305 (quoting American Jewish Congress, 827 F.2d at 127).
[24] "If the posted copies of the Ten Commandments are to have any effect at all, it will be to induce the schoolchildren to read, meditate upon, perhaps to venerate and obey, the Commandments. However desirable this might be as a matter of private devotion, it is not a permissible state objective under the Establishment Clause." Stone, 449 U.S. at 42, 101 S.Ct. 192.
[25] County of Allegheny v. ACLU, 492 U.S. 573, 652-53, 109 S.Ct. 3086, 106 L.Ed.2d 472 (1989) (Stevens, J., concurring in part and dissenting in part).
[26] The frieze on the south wall of the Court depicts Moses holding the Ten Commandments, along with Menes, Hammurabi, Solomon, Lycurgus, Solon, Draco, Confucius, Octavian, and the allegorical figures of Fame, Authority, Light of Wisdom, and History. The frieze on the north wall includes Justinian, Muhammad, Charlemagne, King John, Louis IX, Hugo Grotius, Sir William Blackstone, John Marshall, Napoleon, and the allegorical figures of Liberty and Peace, Right of Man, Equity, and Philosophy. There are also friezes on the east and west walls.
[27] See Stone, 449 U.S. at 42, 101 S.Ct. 192.
[28] See, e.g., McCreary County, 96 F.Supp.2d at 690-91.
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 KeyCite Yellow Flag - Negative Treatment Distinguished by American Civil Liberties Union of Kentucky v. Mercer County, KY, E.D.Ky., September 6, 2002
96 F.Supp.2d 679 United States District Court,
E.D. Kentucky, London Division.
AMERICAN CIVIL LIBERTIES UNION OF KENTUCKY; Louanne Walker and David Howe,
Plaintiffs, v.
McCREARY COUNTY, KENTUCKY; and Jimmie Greene, In his official capacity as McCreary County Judge Executive, Defendants.
No. CIV.A. 99–507. |
May 5, 2000.
Organization and individuals sued county judge executive and county, claiming that posting of Ten Commandments and documents from American history violated First Amendment. Plaintiffs moved for preliminary injunction requiring removal of display and defendants moved for summary judgment. The District Court, Coffman, J., held that: (1) injury in fact requirement for standing to sue was satisfied by individuals and organization; (2) summons was properly served by mail; (3) plaintiffs satisfied preliminary injunction requirement of showing likelihood of succeeding on merits of claim that display violated Establishment Clause; (4) showing of deprivation of First Amendment rights satisfied irreparable injury requirement for injunctive relief; and (5) balance of harms favored issuance of injunction.
Preliminary injunction issued.
West Headnotes (16)
[1] Constitutional Law Government property and symbols in general
Individuals claiming that posting of Ten Commandments in county courthouse violated First Amendment sustained injury in fact, as required for standing purposes, as they would

encounter Ten Commandments each time they entered courthouse to transact business. U.S.C.A. Const.Amend. 1.
1 Cases that cite this headnote
[2] Constitutional Law Government property and symbols in general
Organization claiming that posting of Ten Commandments in county courthouse violated First Amendment had standing to proceed with claim, as its members would sustain requisite injury needed for standing purposes each time they entered courthouse to transact business, and participation of individual members was not required in order for suit to go forward. U.S.C.A. Const.Amend. 1.
1 Cases that cite this headnote
[3] Process Mailing as constructive service
Complainants satisfied federal procedural rule allowing for service “in the manner provided for under state law”, by placing summons in mail themselves, despite state procedure rule requiring mailing by court clerks, as federal district court clerks did not mail summonses. Fed.Rules Civ.Proc.Rule 4(j)(2), 28 U.S.C.A.; Ky.Rules Civ.Proc., Rule 4.01(a).
Cases that cite this headnote
[4] Injunction Grounds in general;  multiple factors
To receive a preliminary injunction, a plaintiff must establish (1) a strong or substantial likelihood of success on the merits, (2) that he or she will suffer irreparable harm in the absence
1

of an injunction, (3) that others will not suffer substantial harm if the injunction is granted, and (4) that an injunction will serve the public interest.
Cases that cite this headnote
[5] Injunction Findings and conclusions
Injunction Operation and effect
Court deciding motion for preliminary injunction must make findings of fact and conclusions of law, which are not binding at a trial on the merits.
Cases that cite this headnote
[6] Civil Rights Nature and elements of civil actions
To establish a prima facie case under § 1983, a plaintiff must establish that the action complained of occurred under color of law, and that the action was a deprivation of a constitutional right or a federal statutory right. 42 U.S.C.A. § 1983.
Cases that cite this headnote
[7] Civil Rights Governmental Ordinance, Policy, Practice, or
Custom
In order for an entity to be liable for violation of a federal constitutional or statutory right under § 1983, entity’s policy or custom must have played part in violation. 42 U.S.C.A. § 1983.
Cases that cite this headnote

[8] Civil Rights Color of Law
Defendant acts “under color of state law,” for purposes of liability under § 1983, when he exercises power possessed by virtue of state law and made possible only because the wrongdoer is clothed with the authority of state law. 42 U.S.C.A. § 1983.
Cases that cite this headnote
[9] Civil Rights Officers and public employees, in general
County judge executive took action under color of state law, for purposes of establishing his official capacity liability and liability of county, under § 1983, when he ordered copy of Ten Commandments to be prominently posted in courthouse. 42 U.S.C.A. § 1983.
1 Cases that cite this headnote
[10] Constitutional Law Establishment of Religion
In order not to violate Establishment Clause, challenged government conduct must have both an actual secular purpose and also the effect of neither advancing nor hindering religion. U.S.C.A. Const.Amend. 1.
1 Cases that cite this headnote
[11] Civil Rights Public accommodations or facilities
Claimants seeking preliminary injunction barring posting of Ten Commandments in courthouse, on First Amendment grounds,
2

showed likelihood of prevailing on claim that posting did not have actual secular purpose, as required to satisfy Establishment Clause, even though other documents discussing religion were added after present suit was instituted, and county claimed that display was designed to acquaint visitors with American religious history and foundations of modern state. U.S.C.A. Const.Amend. 1.
10 Cases that cite this headnote
[12] Constitutional Law Advancement, endorsement, or sponsorship
of religion;  favoring or preferring religion
In determining whether government action constitutes endorsement of religion, in violation of Establishment Clause, court must ask whether objective observer acquainted with action would perceive it as endorsement. U.S.C.A. Const.Amend. 1.
Cases that cite this headnote
[13] Civil Rights Public accommodations or facilities
Civil Rights Preliminary Injunction
Claimants seeking preliminary injunction barring posting of Ten Commandments in county courthouse, were likely to prevail on merits of claim that Establishment Clause was violated, on grounds that posting of Ten Commandments and quotations from other documents of American history was endorsement of religion; all posted materials were edited to show religion in positive fashion, without reference to historical contexts. U.S.C.A. Const.Amend. 1.
4 Cases that cite this headnote

[14] Civil Rights Preliminary Injunction
Claimants challenging on First Amendment grounds posting of various documents from American history, on grounds that they constituted endorsement of religion, established likelihood of prevailing on claim that Establishment Clause was violated, even though some documents had been found by other courts to not violate First Amendment; in present case documents had all been edited to include only positive references to religious subjects, without regard to historical context. U.S.C.A. Const.Amend. 1.
3 Cases that cite this headnote
[15] Civil Rights Preliminary Injunction
Loss of First Amendment freedoms and the violation of an individual’s First Amendment rights, for even minimal periods of time, constitutes irreparable injury for purposes of satisfying preliminary injunction requirements. U.S.C.A. Const.Amend. 1.
Cases that cite this headnote
[16] Civil Rights Public accommodations or facilities
Harm that would occur through issuance of preliminary injunction barring display of Ten Commandments in courthouse did not preclude injunction; costs of removing display were minimal and it could be easily restored if injunction was later withdrawn, and as posting occurred through government action, no free speech rights of private citizens would be affected by removal. U.S.C.A. Const.Amend. 1.
5 Cases that cite this headnote
3

Attorneys and Law Firms
*681 Everett C. Hoffman, Segal Stewart Cutler Catlett, Linsay & Janes, Louisville, KY, David A. Friedman, American Civil Liberties Union of Kentucky, Louisville, KY, Kathleen M. Flynn, Sales, Tillman & Wallbaum, Louisville, KY, C. Laurie Griffith, Griffith Law Offices, PSC, ACLU Cooperating Attorney, Louisville, KY, for American Civil Liberties Union of Kentucky, Louanne Walker, Dave Howe, plaintiffs.
Theodore H. Amshoff, Jr., Amshoff & Amshoff, PSC, Louisville, KY, Ronald D. Ray, Colonel, Crestwood, KY, for Jimmie Greene, McCreary County, Ky, defendants.
*682 ORDER
COFFMAN, District Judge.
This matter, which presents a First Amendment challenge to a display of the Ten Commandments and other documents,1 is before the court upon the plaintiffs’ motion for a preliminary injunction and the defendants’ motion to dismiss. This court held a hearing on April 20, 2000 and, having reviewed the arguments of counsel and being otherwise sufficiently advised, will grant the plaintiffs’ motion for a preliminary injunction and will deny the defendants’ motion to dismiss.2
Motion to Dismiss
[1] For the reasons explained below, the plaintiffs have stated a claim for a First Amendment violation. The defendants also have raised two procedural grounds for their motion to dismiss, arguing that the plaintiffs lack standing to bring their claims and that they were ineffectually served.
The defendants contend that the plaintiffs lack standing to bring these actions because they have not alleged “injuries in fact.” The injury-in-fact component of standing requires a plaintiff to have a personal stake in the matter to be adjudicated. Lujan v. Defenders of Wildlife, 504

U.S. 555, 560, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992). The defendants correctly note that abstract or hypothetical injuries are insufficient. O’Shea v. Littleton, 414 U.S. 488, 494, 94 S.Ct. 669, 38 L.Ed.2d 674 (1974). The plaintiffs in this lawsuit, however, have suffered and are under the threat of suffering concrete injuries.
In Washegesic v. Bloomingdale Public Sch., 33 F.3d 679, 683 (6th Cir.1994), the court considered a challenge to a public school’s display of a portrait of Jesus. A former student was determined to have standing because he would come into unwelcome direct contact with the display while visiting the school to attend sporting events or meet former teachers. Id. The court held that even a member of the PTA or of the public would have standing if she attended events in the school and “took the portrait as a serious insuit to her religious sensibilities.” Id. Like the plaintiff in that case, the plaintiffs here have standing because they must come into contact with the display of the Ten Commandments whenever they enter the courthouse to conduct business.
The defendants cite several Seventh Circuit cases holding that in order to have standing in an Establishment Clause challenge, a plaintiff must undertake a special burden or alter his or her normal routine to avoid the offensive object. In Gonzales v. North Township of Lake County, Ind., 4 F.3d 1412 (7th Cir.1993), for example, the plaintiffs challenged the presence of a crucifix in their city’s park. The plaintiffs’ discontinued use of an area within the park conferred standing. Id. at 1417. Here, the plaintiffs have not specifically alleged that the display has forced them to alter their normal routines. The necessary alterations would be highly impractical, however, because they must enter the courthouse to conduct civic business, and therefore the individual plaintiffs have met *683 the standing requirement for their First Amendment claim.
[2] The defendants’ claim that the American Civil Liberties Union (“ACLU”) lacks organizational standing likewise must be rejected. In Hunt v. Washington State Apple Advertising Comm’n, 432 U.S. 333, 97 S.Ct. 2434, 53 L.Ed.2d 383 (1977), the Supreme Court held:
Even in the absence of injury to itself, an association may have standing solely as the representative of its members .... The association must allege that its members, or any one of them, are suffering immediate or threatened injury as a result of the challenged action of the sort that would make out a justiciable case had the
4

members themselves brought suit .... So long as this can be established, and so long as the nature of the claim and of the relief sought does not make the individual participation of each injured party indispensable to proper resolution of the cause, the association may be an appropriate representative of its members, entitled to invoke the court’s jurisdiction.
Id. at 342, 97 S.Ct. 2434, quoting Warth v. Seldin, 422 U.S. 490, 511, 95 S.Ct. 2197, 45 L.Ed.2d 343 (1975). Here, the ACLU has members in McCreary County who would have standing for the same reason that the named plaintiffs have standing. Furthermore, this lawsuit will not require the individual participation of ACLU members. Thus, the ACLU has organizational standing.
[3] The defendants next claim that they were not properly served under Fed. R. Civ.P. 4. Rule 4(j)(2) provides that a county may be served “by serving the summons and complaint in the manner prescribed by law of that state for the service of summons.” The Kentucky Rules of Civil Procedure allow a summons to be served by mail. Ky.R.Civ.P. 4.01(a). Under the Kentucky rule, the clerk of court actually mails the summons. Here, the plaintiffs placed the summons in the mail themselves, and the defendants argue that the service was ineffective because the clerk of court did not place the summons in the mail. The federal clerks of court do not, however, place summons in the mall for plaintiffs. The Federal Rules of Civil Procedure permit service “in the manner” allowed by their state counterparts—here, mailing. That the plaintiffs rather than a clerk of court mailed the summons does not render it ineffective. Accordingly, the defendants’ motion to dismiss will be denied.
Preliminary Injunction
[4] A preliminary injunction preserves the relative positions of the parties until a trial on the merits can be held. Univ. of Texas v. Camenisch, 451 U.S. 390, 101 S.Ct. 1830, 68 L.Ed.2d 175 (1981). To receive a preliminary injunction, a plaintiff must establish: (1) a strong or substantial likelihood of success on the merits; (2) that he or she will suffer irreparable harm in the absence of an injunction; (3) that others will not suffer substantial harm if the injunction is granted; and (4) that

an injunction will serve the public interest. Connection Distrib. Co. v. Reno, 154 F.3d 281, 288 (6th Cir.1998). These four factors guide the discretion of the court and are not unbending prerequisites. Id.
[5] A party need not prove his case in full at a preliminaryinjunction hearing. Camenisch, 451 U.S. at 395, 101 S.Ct. 1830. The court must, however, make findings of fact and conclusions of law, which are not binding at a trial on the merits, United States v. Owens, 54 F.3d 271, 277 (6th Cir.1995), when deciding a motion for a preliminary injunction. The court need not make specific findings of fact regarding each of the four factors if fewer are dispositive. G & V Lounge, Inc. v. Michigan Liquor Control Comm’n, 23 F.3d 1071, 1076 (6th Cir.1994). In a case brought under the First Amendment, the likelihood of success on the merits frequently may be the determinative factor. Connection Distrib., 154 F.3d at 288.
*684 Findings of Fact McCreary County officials recently erected in the McCreary County courthouse a Ten Commandments display, pursuant to an August 17, 1999 fiscal court order, signed by the defendant Jimmie Greene, that the display be posted in “a very high traffic area” of the courthouse. When this suit was filed, the display consisted of at least one framed copy of one version of the Ten Commandments and was not part of any larger educational, historical, or retrospective exhibit. After this lawsuit was filed, the defendants amended the display to include several other documents.3 At oral argument, the defendants conceded that they did so in an attempt to bring the display within the parameters of the First Amendment and to insulate themselves from suit. The display, both in its original form and as amended, is readily visible to the plaintiffs and the other county citizens who use the courthouse to conduct their civic business, to obtain or renew driver’s licenses and permits, to register cars, to pay local taxes, and to register to vote.
As it now exists,4 the display consists of (1) an excerpt from the Declaration of Independence; (2) the Preamble to the Constitution of Kentucky; (3) the national motto of “In God We Trust”; (4) a page from the Congressional Record of Wednesday, February 2, 1983, Vol. 129, No. 8, declaring it the Year of the Bible and including a copy of the Ten Commandments; (5) a proclamation by President Abraham Lincoln designating April 30, 1863 a National Day of Prayer and Humiliation; (6) an excerpt from President Lincoln’s “Reply to Loyal Colored People of Baltimore upon Presentation of a Bible” reading, “The
5

Bible is the best gift God has ever given to man.”; (7) a proclamation by President Ronald Reagan marking 1983 the Year of the Bible; and (8) the Mayflower Compact. While some of the documents are displayed in their entirety, the defendants have excerpted a small portion of others to include only that document’s reference to God or the Bible with little or no surrounding text.
Conclusions of Law
1. Likelihood Of Success On The Merits [6] [7] The plaintiffs seek injunctive and declaratory relief under 42 U.S.C. § 1983, arguing that the continued posting of the Ten Commandments in the McCreary County courthouse violates their First Amendment rights. Section 1983 creates a federal cause of action against any person who, acting under color of state law, deprives another of his federal rights. See Conn v. Gabbert, 526 U.S. 286, 290, 119 S.Ct. 1292, 143 L.Ed.2d 399 (1999). Section 1983 does not create separate substantive rights, but merely provides a method of vindicating independently conferred federal rights. Albright v. Oliver, 510 U.S. 266, 271, 114 S.Ct. 807, 127 L.Ed.2d 114 (1994). A plaintiff must allege two elements to establish a prima facie case under § 1983:(1) that the action occurred “under color of law”; and (2) that the action was a deprivation of a constitutional right or a federal statutory right. Parratt v. Taylor, 451 U.S. 527, 535, 101 S.Ct. 1908, 68 L.Ed.2d 420 (1981). In a § 1983 case brought against a defendant in his official capacity, the governmental entity is liable under § 1983 only when the entity itself is a “moving force” behind the deprivation; thus, in an official-capacity suit, the entity’s policy or custom must have played a part in the violation of federal law. Kentucky *685 v. Graham, 473 U.S. 159, 166, 105 S.Ct. 3099, 87 L.Ed.2d 114 (1985).
[8] [9] Here, the plaintiffs have shown a substantial likelihood of success on the merits for both elements required by a § 1983 claim. First, Jimmie Greene acted under color of state law5 and in his capacity as County Judge Executive when he promulgated the August 17, 1999 Fiscal Court order requiring that the Ten Commandments be displayed in the courthouse. Greene possessed policy-making authority, so that his order to post the Ten Commandments constituted official McCreary County policy. That policy serves as a driving force behind the constitutional violations alleged in this case. See Pembaur v. City of Cincinnati, 475 U.S. 469, 106 S.Ct. 1292, 89 L.Ed.2d 452 (1986).
Second, violations of the First Amendment such as those

alleged in this case are remediable through a § 1983 claim. The First Amendment declares, “Congress shall make no law respecting an establishment of religion....” U.S. Const. amend I. Pursuant to the Establishment Clause of the First Amendment, governmental bodies may not “take a position on questions of religious belief or [make] adherence to a religion relevant in any way to a person’s standing in the political community.” County of Allegheny v. ACLU, 492 U.S. 573, 594, 109 S.Ct. 3086, 106 L.Ed.2d 472 (1989) (quoting Lynch v. Donnelly, 465 U.S. 668, 687, 104 S.Ct. 1355, 79 L.Ed.2d 604 (1984) (O’Connor, J., concurring)). Government actions challenged under the Establishment Clause are reviewed under the three-part test set forth in Lemon v. Kurtzman, 403 U.S. 602, 91 S.Ct. 2105, 29 L.Ed.2d 745 (1971). Under Lemon, the governmental action first must have a secular purpose and “second, its principal or primary effect must be one that neither advances nor inhibits religion.” Finally, the governmental action must not result in “excessive governmental entanglement with religion.” Id. at 612–13, 91 S.Ct. 2105. In the past decade, the Supreme Court has reframed the Lemon analysis, focusing on whether either the purpose or the effect of the challenged governmental action results in the endorsement of religion. Edwards v. Aguillard, 482 U.S. 578, 585, 107 S.Ct. 2573, 96 L.Ed.2d 510 (1987). Courts in this circuit treat the endorsement test as a refinement or clarification of the Lemon analysis, Granzeier v. Middleton, 173 F.3d 568, 573 (6th Cir.1999), and this court will apply that test to decide whether the Ten Commandments display, both in its original form and as amended, passes constitutional muster.
[10] The endorsement test forecloses governmental action that “a reasonable observer would think is an endorsement of religion by the government.” Id. Justice O’Connor formulated the endorsement test, explaining:
The purpose prong of the Lemon test asks whether government’s actual purpose is to endorse or disapprove of religion. The effect prong asks whether, irrespective of government’s actual purpose, the practice under review in fact conveys a message of endorsement or disapproval. An affirmative answer to either question should render the challenged practice invalid.
Lynch, 465 U.S. at 690, 104 S.Ct. 1355 (O’Connor, J., concurring).6 In other words, the challenged conduct must have both an actual secular purpose and also the effect of
6

neither advancing nor hindering *686 religion. Because the government’s use of a religious reference or of an object with religious meaning may be appropriate under some circumstances but not in others, the court must assess the constitutionality of government conduct with careful attention to the manner and context of the action. Compare Allegheny, 492 U.S. 573, 109 S.Ct. 3086, 106 L.Ed.2d 472, with Lynch, 465 U.S. 668, 104 S.Ct. 1355, 79 L.Ed.2d 604 (display of creche held unconstitutional in former but constitutional in latter).
[11] The purpose prong of the endorsement analysis asks whether a secular purpose actually motivated the government’s action.
In considering the purpose prong ... the focus of the inquiry is on the intentions of the government. Namely, did the government intend to convey a message of endorsement or disapproval of religion when it implemented the challenged policy. Courts should generally be deferential to the government’s articulation of a secular purpose. The government’s secular purpose, however, must be sincere and not a mere sham. Although the government’s purpose need not be exclusively secular, a practice will violate the Establishment Clause if it is entirely motivated by a purpose to advance religion.
Coles v. Cleveland Bd. of Educ., 171 F.3d 369, 384 (6th Cir.1999), citing Edwards v. Aguillard, 482 U.S. 578, 585–86, 107 S.Ct. 2573, 96 L.Ed.2d 510 (1987); Lynch, 465 U.S. at 681 n. 6, 104 S.Ct. 1355; Wallace v. Jaffree, 472 U.S. 38, 56, 105 S.Ct. 2479, 86 L.Ed.2d 29 (1985). See Granzeier, 173 F.3d at 574. Here, the court will look to the County’s proffered purpose, the brief history of the Ten Commandments display, and the display itself to determine whether the display serves an actual, secular purpose.
In its original form, the Ten Commandments display, consisting only of the Commandments unaccompanied by any other documents, lacks any secular purpose. The Ten Commandments are a distinctly religious document, believed by many Christians and Jews to be the direct and revealed word of God, and their very nature precludes a finding of a prevailingly secular purpose here. Indeed, “the pre-eminent purpose for posting the Ten

Commandments ... is plainly religious in nature.” Stone v. Graham, 449 U.S. 39, 41, 101 S.Ct. 192, 66 L.Ed.2d 199 (1980).7
The Commandments do not confine themselves to arguably secular matters, such as honoring one’s parents, killing or murder, adultery, stealing, false witness, and covetousness. See Exodus 20:12–17; Deuteronomy 5:16–21. Rather, the first part of the Commandments concerns the religious duties of believers: worshiping the Lord God alone, avoiding idolatry, not using the Lord’s name in vain, and observing the Sabbath Day. See Exodus 20:1–11; Deuteronomy 5:6–15. Id. at 41–42, 101 S.Ct. 192. In their briefs and at oral argument, the defendants suggest that the Ten Commandments were posted in order to teach McCreary County residents about American religious history and the foundations of the modern state. The defendants also concede that the display purports to demonstrate America’s Christian heritage.8 The narrow scope of *687 the display—a single religious text unaccompanied by any interpretation explaining its role as a foundational document—can hardly be said to present meaningfully the story of this country’s religious traditions, and for this court to conclude that the original display had a secular purpose belies reason. The challenged display now includes other documents which the defendants argue illustrate the display’s secular purpose: the education of McCreary County residents concerning American religious history. As the Supreme Court has made abundantly clear in its articulation of the endorsement test, the court must examine the actual purpose of the use of the religious objects and should not blindly accept an allegedly secular purpose which is contrary to the facts of the case. Furthermore, the requirement of a secular purpose “is not satisfied ... by the mere existence of some secular purpose, however dominated by religious purposes.” Lynch, 465 U.S. at 691, 104 S.Ct. 1355 (O’Connor, J., concurring). While the government’s stated purpose may be entitled to some deference, the history of the display here and the choice of documents in the display contradict the County’s assertion. That the display originally consisted solely of the Ten Commandments and that it was altered—albeit without any legally significant change—only after this lawsuit was filed weigh heavily against the finding of a secular purpose.
Likewise, a review of the documents themselves forecloses a characterization of the purpose of the display as secular. The County narrowly tailored its selection of foundational documents to incorporate only those with
7

specific references to Christianity and texts that, while promulgated by the federal government, were chosen solely for their religious references. The display does not appear to have been intended to educate McCreary County residents, in a balanced or accurate manner, about the traditions and texts that were drawn upon by this nation’s founders or about the complex role religion has played in this country’s history. In short, as shown by the facts of the case and the display itself, the exhibit—both in its original form and as altered—serves no secular purpose, nor was it ever intended to do so. As the display clearly lacks a secular purpose, it violates the First Amendment and the court’s analysis need go no further. See Wallace, 472 U.S. at 56, 105 S.Ct. 2479. The court, however, will complete the Lemon analysis to determine whether the effect of the display also violates the Establishment Clause.
[12] In determining such an effect, the court must ask whether an objective observer acquainted with the display would perceive it as a governmental endorsement of religion. See ACLU v. Capitol Square Review and Advisory Bd., 210 F.3d 703 (6th Cir.2000). The objectiveobserver standard parallels the reasonable-person standard in torts law; the question is not whether one particular, uninformed, subjective observer would view the display as an endorsement of religion but whether an objective, reasonable, knowledgeable observer would do so. Here, the prevailing effect of the display is one of governmental endorsement of religion.
[13] The overriding theme of each individual document as presented in the display and of the display as a whole is one of religion and more specifically of Christianity. The first document is a copy of the Congressional Record from February 2, 1983, proclaiming that year the Year of the Bible and reflecting the remarks of Representative Phillip M. Crane about his personal beliefs concerning the importance of the Bible and the Ten Commandments, a version of which is included in the remarks. The next document consists of two brief excerpts: one from the Declaration of Independence, “All men ... are endowed by their Creator with certain unalienable *688 Rights, that among these are Life, Liberty and the pursuit of Happiness,” and one from the Constitution of Kentucky, “We, the people of the Commonwealth of Kentucky, grateful to Almighty God for the civil, political and religious liberties we enjoy, and invoking the continuance of these blessings, do ordain and establish this Constitution.” The next document is President Lincoln’s Proclamation of a Day of Prayer. Issued in 1863, it confesses to God and seeks forgiveness for national sins committed during the Civil War. Another presidential proclamation follows, from President Reagan, declaring

1983 the Year of the Bible in honor of its influence in shaping America. A copy of the Mayflower Compact follows, in which the colony’s founders invoke “the name of God” and explain that their journey was taken, among other reasons, “for the glory of God and advancement of the Christian faith.” Finally, bearing a picture of Abraham Lincoln, the next states, “The Bible is the best gift God has ever given to man.”
While a display of some of these documents may not have the effect of endorsing religion in another context, they collectively have the overwhelming effect of endorsing religion in the context of this display. No reasonable observer of the display could conclude otherwise. Each and every document refers to religion. Several have been edited to include only their religious references. Indeed, the only unifying element among the documents is their reference to God, the Bible, or religion. Furthermore, the display lacks an explanation of the documents’ historical significance or of the reasons for their references to religion. Removed from their historical context and placed with other documents with which the only common link is religion, the documents have the undeniable effect of endorsing religion.
[14] The defendants argue that the display cannot be held to violate the First Amendment because it includes excerpts from texts which have been held to be constitutional despite references to God or religion. They point specifically to this nation’s motto of “In God We Trust” and the phrase “one nation under God” found in the Pledge of Allegiance. The defendants’ argument, however, fails. First, as to several of the documents, the defendants did not include the entire text or even a meaningful section of each text. Rather, they narrowly extracted only the sections directly mentioning God. This effectively changed the meaning and significance of each of the documents from the original, particularly when read in conjunction with the rest of the Ten Commandments display. Second, and more generally, in upholding examples of ceremonial deism, such as the phrase “In God We Trust,” courts have pointed to the long-standing existence of such phrases as well as their non-sectarian nature, concluding that “a reasonable observer, aware of the purpose, context, and history of the phrase ..., would not consider its use ... to be an endorsement of religion.” ACLU v. Capitol Square Review and Advisory Bd., 210 F.3d at 721–22 (quoting Gaylor v. United States, 74 F.3d 214, 217 (10th Cir.1996)). See Allegheny, 492 U.S. at 602–04, 109 S.Ct. 3086. Here, there is neither a long-standing tradition of posting the Ten Commandments in county courthouses nor any secular purpose for doing so. As the court has explained, a reasonable observer would conclude that the
8

Ten Commandments display represents a governmental endorsement of religion, rather than merely a traditional manner of solemnizing a government meeting or giving a stamp of legitimacy to national currency. To the extent the defendants have invited this court to break with precedent and hold that the posting of the Ten Commandments should be viewed as only another example of ceremonial deism, the court declines to do so.
The defendants direct the court’s attention to three cases in which other courts held Ten Commandments displays to be constitutional. All three of the cases are distinguishable from this case. In Books v. City of Elkhart, Ind., 79 F.Supp.2d 979 (N.D.Ind.1999), the district court held that *689 a fifty-eight-year-old stone monument containing, among other things, a copy of the Ten Commandments, did not violate the Establishment Clause. The monument was merely one of several historical and cultural plaques and memorials, all donated by private parties, standing on the edges of a city-owned lot, removed from government buildings. Anderson v. Salt Lake City Corp., 475 F.2d 29 (10th Cir.1973), considered an identical memorial, which it held to be constitutional. That opinion, however, has been called into question by the Tenth Circuit, which noted that it was decided before Stone and which commented that “more recent cases [cast] doubt on the validity of our conclusion that the Ten Commandments monolith is primarily secular in nature.” Summum v. Callaghan, 130 F.3d 906, 910 n. 10 (10th Cir.1997)(decided on grounds of freedom of speech). Here, the Ten Commandments display is not in an area with other memorials and is not incorporated as part of a larger, secular sculpture or display. Furthermore, the court’s holding in Elkhart that the Ten Commandments should be considered to be secular is by no means definitive in light of the Supreme Court’s holding in Stone, and the holding in Elkhart was largely dependent upon the manner in which the Commandments were displayed, differing greatly from the Ten Commandments display here.
Similarly, in Suhre v. Haywood County, N.C., 55 F.Supp.2d 384 (W.D.N.C.1999), the court held that a granite frieze in a courthouse did not violate the Establishment Clause. That sculpture recounted the historical development of the law, with images of “the blind Goddess of Justice, now called Lady Justice[,] ... ancient gods and goddesses, and the laws of Rome and the Tribes of Israel.” Id. at 386. On either side of Lady Justice, who bears the Scales of Justice in one hand and holds the Sword of Justice in another, were two marble plaques bearing the Ten Commandments. The court noted that the courthouse had been entered into the National Register of Historic Places by the United States

Department of the Interior, with special note paid to the sculpture, which could not be removed without its destruction. The court held that the purpose in sculpting the frieze was to display artistically the history of ethics, civilization, and the law, and that when viewed as a whole the sculpture did not communicate a governmental endorsement of religion. Again, the Ten Commandments display challenged here is not part of some larger artistic rendering or academic display encompassing a wide range of cultural, religious, and legal traditions. Instead, it is a narrowly tailored display, intended to convey and having the effect of conveying a very specific governmental endorsement of religion.
The First Amendment will not permit such an endorsement, as “it sends a message to nonadherents that they are outsiders, not full members of the political community, and an accompanying message to adherents that they are insiders, favored members of the political community.” Allegheny, 492 U.S. at 595, 109 S.Ct. 3086, quoting Lynch, 465 U.S. at 688, 104 S.Ct. 1355. If the governmental display endorses religion then the constitutionally impermissible message must be removed, as it attacks this nation’s “history and tradition of religious diversity that dates from the settlement of the North American Continent” and “the religious diversity that is our national heritage.” Id. at 589, 109 S.Ct. 3086. Here, the display communicates a governmental endorsement not only of religion over non-religion, but of the particular religion, Christianity,9 whose *690 message is contained within the display. Both in the impetus for its creation and the manner in which it was assembled, the display evidences a governmental purpose and effect of endorsing Christianity, and therefore the display violates the Establishment Clause of the First Amendment. Thus, the court concludes that the plaintiffs have shown a strong likelihood of success on the merits.
2. Irreparable Harm [15] The loss of First Amendment freedoms and the violation of an individual’s First Amendment rights “for even minimal periods of time [ ] unquestionably constitute[ ] irreparable injury.” Connection Distrib., 154 F.3d at 288, citing Elrod v. Burns, 427 U.S. 347, 373, 96 S.Ct. 2673, 49 L.Ed.2d 547 (1976) (plurality). See also Dayton Area Visually Impaired Persons, Inc. v. Fisher, 70 F.3d 1474, 1490 (6th Cir.1995). Thus the plaintiffs here have shown that failure to grant the relief sought will result in their suffering irreparable harm.
9

3. Harm to Others [16] If the court grants the preliminary injunction sought by the plaintiffs, the defendants will be required to remove the religious display from the site upon which it is posted. This will require little expense. Should the defendants be successful at a trial on the merits, they may construct the display again at little expense.
The defendants argue that an order requiring the removal of the Ten Commandments and accompanying documents would infringe on their First Amendment right to free speech and would be tantamount to censorship. The defendants’ concerns, however, are misplaced. Greene’s official actions as McCreary County Judge Executive are distinguishable from those of private citizens. Greene’s actions are subject to First Amendment scrutiny because he acted in his official capacity as Judge Executive when he posted the Ten Commandments and later when he revised the display in the McCreary County Courthouse. The Establishment Clause of the First Amendment restricts the conduct of the government and its agents, not of private citizens. Allegheny, 492 U.S. at 590, 109 S.Ct. 3086. Thus, the action of a government official creating such an exhibit in a public area of a courthouse is analytically distinct from that of a private citizen who, for example, posts a copy of the Ten Commandments in his own home, in his front yard, or in his private business. The private citizen’s actions do not implicate the Establishment Clause of the First Amendment. The speech at issue here was not that of private citizens, but of the government itself.10 Thus, the removal of the display at issue here will not infringe upon the defendants’ First Amendment free speech rights. See Lamb’s Chapel v. Center Moriches Union Free Sch. Dist., 508 U.S. 384, 113 S.Ct. 2141, 124 L.Ed.2d 352 (1993).

with others. Second—and more central to the case at hand—the Establishment Clause guarantees that private citizens can think and speak freely on religious matters without fear of government coercion or penalty. Absent the Establishment Clause, a county government could pass an ordinance requiring all county residents to adhere to a certain religious sect or practice or to abstain from all religious acts. For example, the government could require all citizens to convert to islam on threat of imprisonment or could heavily fine anyone who entered a church. Clearly, such governmental conduct is at odds with the United States Constitution, which established this nation as a democracy, not as a theocracy. Subtler forms of government-sanctioned religious intolerance also serve to limit freedom of religious thought, speech, and practice and are therefore unconstitutional.
4. The Public Interest As explained above, the protection of First Amendment rights and vindication of constitutional violations is always in the public’s interest. Connection Distrib., 154 F.3d at 288; Dayton Area Visually Impaired, 70 F.3d at 1490; G & V. Lounge, Inc., 23 F.3d at 1079. Accordingly,
IT IS ORDERED that the plaintiffs’ motion for a preliminary injunction is GRANTED.
IT IS FURTHER ORDERED that the defendants’ motion to dismiss is DENIED.
IT IS FURTHER ORDERED that the Ten Commandments display shall be removed from the McCreary County Courthouse IMMEDIATELY.

Rather than limiting the religious speech of private citizens, the First Amendment ensures, in two separate ways, the freedom to engage in such speech and in doing so protects the public’s interest. First, “private religious speech, far from being a First Amendment orphan, is as fully protected under the Free Speech Clause as secular private expression.” Capitol Square Review and Advisory Bd. v. Pinette, 515 U.S. 753, 760, 115 S.Ct. 2440, 132 L.Ed.2d 650 (1995). Thus, the Free Speech Clause would, for *691 example, preclude a county government from fining a private citizen for carrying a copy of the Ten Commandments or discussing the Ten Commandments
Footnotes

IT IS FURTHER ORDERED that neither the defendant Jimmie Greene nor any other McCreary County official, acting in their official capacity, shall erect or cause to be erected similar displays within McCreary County, Kentucky.
All Citations
96 F.Supp.2d 679
interchangeably the terms “Ten Commandments display,” “religious documents,” and similar phrases to describe the exhibit here at issue.

1

The subject display originally included only the Ten Commandmen2ts. BecaTuhsies tisheonceouorft thherreeeccoonmclpuadneisonthcaatsleaste, rsimmoudltiafinceaotiuosnlyofiled, which atta

the exhibit was merely a futile attempt to render constitutional the oridginspalaTyesnpoCsosmesms annodlmegeanltsigdnisipfilcaayn,ctehafotratltheeraptuiornpowseasof the motions

analytically meaningless when measured by the Establishment ClaucsaeseorfectohredsFairlsto sAhmareendsimmeilnatr. coThmeplacionutsrt, mtheumsoruasnedsa, and motions

10

both sides, the court combined the three for oral argument and today enters virtually identical opinions—with necessary but slight factual variations—in all three.

3

The defendants argue that because they altered the display, the plaintiffs’ complaint is moot. Their argument fails because the

new display is effectively a continuation of the original display, and the plaintiffs raise the same objections to the amended

display.

4

At oral argument, it appeared that the original exhibit of the Ten Commandments was removed and replaced with the text of the

Congressional Record which includes a copy of those Commandments. The exhibits attached to the defendants’ brief, however,

include a photograph of the Pulaski County Courthouse display in which the large framed copy of the Ten Commandments

remains, with the other, smaller documents hanging to one side. For the purposes of this motion, either scenario produces the

same result.

5

A § 1983 defendant acts under color of state law when he exercises power “possessed by virtue of state law and made possible

only because the wrongdoer is clothed with the authority of state law.” West v. Atkins, 487 U.S. 42, 49, 108 S.Ct. 2250, 101

L.Ed.2d 40 (1988); United States v. Classic, 313 U.S. 299, 326, 61 S.Ct. 1031, 85 L.Ed. 1368 (1941). Indeed, Greene’s activities must

be subjected to First Amendment scrutiny because in hanging the Ten Commandments in the courthouse, he acted as a public,

government official, not as a private citizen. See County of Allegheny v. ACLU, 492 U.S. 573, 109 S.Ct. 3086, 106 L.Ed.2d 472

(1989).

6

The endorsement test was adopted by a majority of the Court in Allegheny, 492 U.S. at 595, 109 S.Ct. 3086.

7

While the defendants suggest that Stone is inapplicable here because it dealt with legislative action and declared the posting of

the Ten Commandments to be unconstitutional without the benefit of full briefing, it nevertheless is still good law and this court

is bound by its precedential value. The court cites the case today merely to establish that the Ten Commandments are a distinctly

religious text and that their posting has a religious purpose.

8

Such an overtly Christian purpose violates the Establishment Clause. While the court recognizes that the Christian tradition has

played an important role in American culture, the defendants’ reliance on Church of the Holy Trinity v. United States, 143 U.S.

457, 12 S.Ct. 511, 36 L.Ed. 226 (1892), is misplaced. In that case, the Supreme Court examined whether a service contract

between an incorporated church and a foreign minister fell within the purview of a statute regulating the import of foreign

laborers. The Court’s analysis focused upon and delineated rules of statutory construction and did not entail First Amendment

jurisprudence. Indeed, the language cited by the defendants is dicta and is neither that Court’s ruling nor vital to its ruling.

9

Notably, the defendants did not post a Hebrew version of the Ten Commandments and in selecting a version of the Ten

Commandments had to choose among several differing translations, some favored by particular Christian sects over others. The

other documents in the display reinforce its distinctly Christian theme. To the extent that the displayed version of the Ten

Commandments may be favored by one sect over another, the display runs further afoul of the Establishment Clause because it

infringes upon the “sectarian differences among various Christian denominations [that] were central to the origins of our

Republic.” Allegheny, 492 U.S. at 589, 109 S.Ct. 3086.

10 The court notes, however, that Greene and McCreary County cannot avoid the strictures of the Establishment Clause by allowing private citizens or religious organizations to post a Ten Commandments display in the courthouse. To do so would simply show “that the government is endorsing the religious message of that organization, rather than communicating a religious message of its own .... It also prohibits the government’s support and promotion of religious communications by religious organizations.” Allegheny, 492 U.S. at 600, 109 S.Ct. 3086.

11

 
 Case 6:99-cv-00507-JBC-REW As of: 06/15/2012 01:36 PM EDT Page 1 of 27
CLOSED,LEADTR,REFERD,REFERS
U.S. District Court Eastern District of Kentucky (London) CIVIL DOCKET FOR CASE #: 6:99−cv−00507−JBC−REW

ACLU of KY, et al v. McCreary County, KY, et al Assigned to: Judge Jennifer B Coffman Referred to: Magistrate Judge Robert E. Wier
Magistrate Judge James B Todd (Settlement) Demand: $0
Case in other court: Sixth Circuit Court of Appeals, 08−06069
Cause: 42:1983 Civil Rights Act
Plaintiff

Date Filed: 11/18/1999 Date Terminated: 08/04/2008 Jury Demand: None Nature of Suit: 440 Civil Rights: Other Jurisdiction: Federal Question

American Civil Liberties Union of Kentucky

represented by Caroline L. Laurie Griffith American Civil Liberties Union 3125 Randolph Avenue Suite #2 Louisville, KY 40207 LEAD ATTORNEY ATTORNEY TO BE NOTICED

David A. Friedman ACLU of Kentucky 315 Guthrie Street Suite 300 Louisville, KY 40202 502−581−9746 Fax: 502−581−9746 Email: dfriedman@ffgklaw.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Everett C. Hoffman Priddy, Cutler, Miller &Meade, PLLC 429 W. Muhammad Ali Boulevard 800 Republic Building Louisville, KY 40202−2346 502−632−5278 Fax: 502−632−5279 Email: hoffman@pcmmlaw.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Kathleen M. Flynn 203 N. LaSalle 24th Floor Chicago, IL 60601 312−814−5472 TERMINATED: 07/20/2009 LEAD ATTORNEY ATTORNEY TO BE NOTICED

William Ellis Sharp ACLU of Kentucky 315 Guthrie Street Suite 300 Louisville, KY 40202 502−581−9746 Fax: 502−589−9687 Email: sharp@aclu−ky.org LEAD ATTORNEY ATTORNEY TO BE NOTICED

Case 6:99-cv-00507-JBC-REW As of: 06/15/2012 01:36 PM EDT Page 2 of 27

Plaintiff Louanne Walker
Plaintiff Dave Howe
Plaintiff Jane Doe(s) Suing as Sarah Doe

represented by Caroline L. Laurie Griffith (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
David A. Friedman (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Everett C. Hoffman (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Kathleen M. Flynn (See above for address) TERMINATED: 07/20/2009 LEAD ATTORNEY ATTORNEY TO BE NOTICED
William Ellis Sharp (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Caroline L. Laurie Griffith (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
David A. Friedman (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Everett C. Hoffman (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Kathleen M. Flynn (See above for address) TERMINATED: 07/20/2009 LEAD ATTORNEY ATTORNEY TO BE NOTICED
William Ellis Sharp (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Caroline L. Laurie Griffith (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
David A. Friedman (See above for address)

Case 6:99-cv-00507-JBC-REW As of: 06/15/2012 01:36 PM EDT Page 3 of 27

LEAD ATTORNEY ATTORNEY TO BE NOTICED

Everett C. Hoffman (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Kathleen M. Flynn (See above for address) TERMINATED: 07/20/2009 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Plaintiff
John Doe(s) Suing as Thomas Doe, Individually

represented by Caroline L. Laurie Griffith (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

David A. Friedman (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Everett C. Hoffman (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Kathleen M. Flynn (See above for address) TERMINATED: 07/20/2009 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Plaintiff
John Doe(s) Suing as Sharah Doe and Thomas Doe, on behalf of their minor child Jan Doe Next Friend Jane Doe(s)

represented by Caroline L. Laurie Griffith (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
David A. Friedman (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Everett C. Hoffman (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Kathleen M. Flynn (See above for address) TERMINATED: 07/20/2009 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Plaintiff Lawrence Durham

represented by Caroline L. Laurie Griffith (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Case 6:99-cv-00507-JBC-REW As of: 06/15/2012 01:36 PM EDT Page 4 of 27

Plaintiff Paul Lee

David A. Friedman (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Everett C. Hoffman (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Kathleen M. Flynn (See above for address) TERMINATED: 07/20/2009 LEAD ATTORNEY ATTORNEY TO BE NOTICED
William Ellis Sharp (See above for address) ATTORNEY TO BE NOTICED
represented by Caroline L. Laurie Griffith (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
David A. Friedman (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Everett C. Hoffman (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Kathleen M. Flynn (See above for address) TERMINATED: 07/20/2009 LEAD ATTORNEY ATTORNEY TO BE NOTICED
William Ellis Sharp (See above for address) ATTORNEY TO BE NOTICED

V.
Defendant
Jimmie Greene in his official cpacity as McCreary County Judge Executive

represented by David M. Corry Liberty Counsel − Lynchburg P.O. Box 11108 Lynchburg, VA 24506−1108 434−592−7000 Fax: 434−592−7700 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Erik W. Stanley Liberty Counsel − Lynchburg P.O. Box 11108 Lynchburg, VA 24506−1108

Case 6:99-cv-00507-JBC-REW As of: 06/15/2012 01:36 PM EDT Page 5 of 27

434−592−7000 Fax: 434−592−7700 Email: court@lc.org TERMINATED: 10/30/2007 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Mathew D. Staver Liberty Counsel − Maitland 1055 Maitland Center Commons Second Floor Maitland, FL 32751−7214 800−671−1776 Fax: 407−875−0770 Email: court@LC.org LEAD ATTORNEY ATTORNEY TO BE NOTICED

Ronald D. Ray 3317 Halls Hill Road Crestwood, KY 40014 502−241−5552 Fax: FAX 502−241−1552 TERMINATED: 06/19/2000 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Stephen M. Crampton LEAD ATTORNEY ATTORNEY TO BE NOTICED

Theodore H. Amshoff , Jr. Amshoff &Amshoff, PSC 200 W. Broadway Ninth Floor Louisville, KY 40202 502−540−0060 TERMINATED: 06/19/2000 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Defendant
Harlan County School District TERMINATED: 09/28/2007

represented by David M. Corry (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Erik W. Stanley (See above for address) TERMINATED: 10/30/2007 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Johnnie L. Turner Johnnie L. Turner, PSC 114 S. First Street P.O. Box 351 Harlan, KY 40831 606−573−9000 Fax: 606−573−7023 Email: johnnieturner@harlanonline.net LEAD ATTORNEY ATTORNEY TO BE NOTICED

Case 6:99-cv-00507-JBC-REW As of: 06/15/2012 01:36 PM EDT Page 6 of 27

Mathew D. Staver (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Stephen M. Crampton (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Defendant Pulaski County, KY

represented by David M. Corry (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Erik W. Stanley (See above for address) TERMINATED: 10/30/2007 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Mathew D. Staver (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Stephen M. Crampton (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Official Defendant
Don Musselman in his official capacity as Superintendent of the Harlan County School District TERMINATED: 09/28/2007

represented by David M. Corry (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Erik W. Stanley (See above for address) TERMINATED: 10/30/2007 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Johnnie L. Turner (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Mathew D. Staver (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Stephen M. Crampton (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Official Defendant
Darrell Beshears in his official capacity as Pulaski County Judge Executive

represented by David M. Corry (See above for address) LEAD ATTORNEY

Case 6:99-cv-00507-JBC-REW As of: 06/15/2012 01:36 PM EDT Page 7 of 27

PRO HAC VICE ATTORNEY TO BE NOTICED

Erik W. Stanley (See above for address) TERMINATED: 10/30/2007 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Mathew D. Staver (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Stephen M. Crampton (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Defendant McCreary County, KY

represented by David M. Corry (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Erik W. Stanley (See above for address) TERMINATED: 10/30/2007 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Mathew D. Staver (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Ronald D. Ray (See above for address) TERMINATED: 06/19/2000 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Stephen M. Crampton (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Theodore H. Amshoff , Jr. (See above for address) TERMINATED: 06/19/2000 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Date Filed 11/18/1999 11/18/1999 11/18/1999

# Docket Text
1 COMPLAINT (one summons issued) with copy, given to attorney for service of process, Fee Paid $ 150, Receipt No. 082262 (RBB) (Entered: 11/19/1999)
2 MOTION by plaintiff ACLU of KY, plaintiff Louanne Walker, plaintiff Dave Howe for preliminary injunction (RBB) (Entered: 11/19/1999)
3 MEMORANDUM by plaintiff ACLU of KY, plaintiff Louanne Walker, plaintiff Dave Howe in support of motion for preliminary injunction [2−1] (RBB) (Entered:

Case 6:99-cv-00507-JBC-REW As of: 06/15/2012 01:36 PM EDT Page 8 of 27

12/21/1999 12/21/1999 01/05/2000 01/10/2000 01/12/2000 02/09/2000
02/09/2000
02/11/2000 03/02/2000
03/02/2000 03/02/2000 03/02/2000 03/20/2000 03/20/2000 03/20/2000 03/20/2000 03/22/2000 03/27/2000

11/19/1999)
4 MOTION by defendant Jimmie Greene, defendant McCreary County, KY to dismiss complaint (RBB) (Entered: 12/22/1999)
5 MEMORANDUM by defendant Jimmie Greene, defendant McCreary County, KY in support of motion to dismiss complaint [4−1] (RBB) (Entered: 12/22/1999)
6 ORDER by Judge Jennifer B. Coffman: ORDERED that plfs shall have until 1/23/00 to file a response to dfts' motion to dismiss (cc: all counsel) [EOD Date: 1/6/00] (RBB) (Entered: 01/06/2000)
7 MOTION by plaintiff, defendant for extension until and including 1/23/00 to respond to dfts' motion to dismiss (NHS) (Entered: 01/12/2000)
SUBMITTED re motion for extension until and including 1/23/00 to respond to dfts' motion to dismiss [7−1] is submitted (NHS) (Entered: 01/12/2000)
8 MOTION by plaintiff ACLU of KY, plaintiff Louanne Walker, plaintiff Dave Howe for leave to file consolidated reply memo in support of their motions for preliminary injunction and in response to dfts' mts to dismiss; stating dfts consented to additional extension of time (RBB) (Entered: 02/11/2000)
PROPOSED REPLY AND RESPONSE tendered by plaintiff ACLU of KY, plaintiff Louanne Walker, plaintiff Dave Howe; REPLY IN SUPPORT OF PLF'S MTS FOR PRELIMINARY INJUNCTION AND IN RESPONSE TO DFTS' MOTIONS TO DISMISS (RBB) (Entered: 02/11/2000)
SUBMITTED re motion for leave to file consolidated reply memo in support of their motions for preliminary injunction and in response to dfts' mts to dismiss [8−1] is submitted (RBB) (Entered: 02/11/2000)
9 ORDER by Judge Jennifer B. Coffman: granting plf's motion for leave to file consolidated reply memo in support of their motions for preliminary injunction and in response to dfts' mts to dismiss (cc: all counsel) [EOD Date: 3/2/00] (RBB) (Entered: 03/02/2000)
10 REPLY by plaintiff ACLU of KY, plaintiff Louanne Walker, plaintiff Dave Howe to dfts' response to plfs' motion for preliminary injunction [2−1] (RBB) (Entered: 03/02/2000)
10 RESPONSE by plaintiff ACLU of KY, plaintiff Louanne Walker, plaintiff Dave Howe to dfts' motion to dismiss complaint [4−1] (RBB) (Entered: 03/02/2000)
SUBMITTED re motion for preliminary injunction [2−1] is submitted (RBB) (Entered: 03/02/2000)
11 MOTION by defendant Jimmie Greene, defendant McCreary County, KY for oral argument (RBB) (Entered: 03/22/2000)
12 RESPONSE by defendant Jimmie Greene, defendant McCreary County, KY to plfs' CONSOLIDATED REPLY [10−1]; ATTACHMENTS FILED SEP. VOL. (RBB) (Entered: 03/22/2000)
12 (MEMORANDUM) REPLY by defendant Jimmie Greene, defendant McCreary County, KY to plfs' response to dfts' motion to dismiss complaint [4−1]; ATTACHMENTS FILED IN SEP. VOL. (RBB) (Entered: 03/22/2000)
12 MEMORANDUM by defendant Jimmie Greene, defendant McCreary County, KY in support of motion for oral argument [11−1]; ATTACHMENTS FILED IN SEP. VOL. (RBB) (Entered: 03/22/2000)
SUBMITTED re motion dfts' to dismiss complaint [4−1] is submitted (RBB) (Entered: 03/22/2000)
13 ORDER by Judge Jennifer B. Coffman: ORDERED that this matter is scheduled for hearing at London on April 20, 2000 at 1:00 p.m. (cc: all counsel) [EOD Date: 3/27/00] (RBB) (Entered: 03/27/2000)

Case 6:99-cv-00507-JBC-REW As of: 06/15/2012 01:36 PM EDT Page 9 of 27

04/20/2000
05/05/2000
05/10/2000 05/10/2000 05/10/2000 05/10/2000 05/11/2000 05/12/2000 05/15/2000 05/15/2000 05/22/2000 05/25/2000 05/25/2000 05/25/2000 05/30/2000

14 GENERAL MINUTES: before Judge Jennifer B. Coffman; Date(s) 4/20/00; Court Reporter Nathan Perkins; in−court hearing held 4/20/00 ; Laurie Griffith, David Friedman, Kathleen M. Flynn for plfs; Theodore Amshoff, Ronald Ray, Johnnie Turner for dfts; case called for oral argument; taking under advisement the motion to dismiss complaint [4−1], taking under advisement the motion for preliminary injunction [2−1] (cc: all counsel) [EOD Date: 4/21/00] (NHS) (Entered: 04/21/2000)
15 ORDER by Judge Jennifer B. Coffman: ORDERED that plf's motion to dismiss is DENIED; FURTHER ORDERED that theTen Commandments display shall be removed from the McCreary County Courthouse IMMEDIATELY; FURTHER ORDERED that neither the dft Jimmie Greene nor any other McCreary County Official, acting in their official capacity, shall erect or cause to be erected similar displays w/in McCreary County, KY (cc: all counsel) [EOD Date: 5/5/00] (RBB) (Entered: 05/05/2000)
16 NOTICE OF APPEAL by defendant Jimmie Greene, defendant McCreary County, KY from Dist. Court ORDER entered 5/5/00 [15−1] (cc: all counsel) (RBB) (Entered: 05/11/2000)
17 MOTION by defendant Jimmie Greene, defendant McCreary County, KY for order staying preliminary injunction during pendency of appeal (RBB) (Entered: 05/11/2000)
18 MEMORANDUM by dft Jimmie Greene, dft McCreary County, KY in support of motion for order staying preliminary injunction during pendency of appeal [17−1] (RBB) (Entered: 05/11/2000)
RECEIVED re NOTICE OF APPEAL [16−1] fee in amount of $ 105 (Receipt # 083386) (RBB) (Entered: 05/11/2000)
NOTIFICATION to 6CCA; Short Record Mailed, Appeal Package Mailed to Appellant, Copy of Docket Sheet to Parties; [16−1] (cc: all counsel) (RBB) (Entered: 05/11/2000)
19 ORDER by Judge Jennifer B. Coffman: ORDERED denying dft's motion for order staying preliminary injunction during pendency of appeal [17−1]; FURTHER ORDERED that plfs need not respond to dfts' mt for a stay (cc: all counsel) [EOD Date: 5/12/00] (RBB) Modified on 05/12/2000 (Entered: 05/12/2000)
20 MOTION by defendant Jimmie Greene, defendant McCreary County, KY for order to stay preliminary inj during pendency of mt to 6CCA for stay pending appeal (RBB) (Entered: 05/18/2000)
−−−−−−−−−−−−−−−−−−−−−−−−−−−−−−−−−−−−−−−−−−−−−−−−−−−−−− V O L U M E 2 −−−−−−−−−−−−−−−−−−−−−−−−−−−−−−−−−−−−−−−−−−−−−−−−−−−−−− (NHS) (Entered: 01/11/2001)
21 ORDER by Judge Jennifer B. Coffman: IT IS SO ORDERED; finding the defts' motion for order to stay preliminary inj during pendency of mt to 6CCA for stay pending appeal [20−1] moot (cc: all counsel) [EOD Date: 5/22/00] (EHM) (Entered: 05/22/2000)
22 CERTIFIED COPY of 6CCA Order: ORDERED that dfts' mts for stays pending appeal of the preliminary injunctions issued by the district court are DENIED (RBB) (Entered: 05/25/2000)
23 MOTION by defendant Jimmie Greene, defendant McCreary County, KY for additional 20 days to answer complaint (RBB) (Entered: 05/30/2000)
24 MOTION by defendant Jimmie Greene, defendant McCreary County, KY to withdraw counsel Colonel Ronald Ray and Theodore H. Amshoff, Jr. (RBB) (Entered: 05/30/2000)
25 NOTIFICATION by 6CCA of Appellate Docket Number 00−5632; Mary Patterson, Case Manager (SKV) (Entered: 05/30/2000)

Case 6:99-cv-00507-JBC-REW As of: 06/15/2012 01:36 PM EDT Page 10 of 27

06/06/2000 06/06/2000 06/07/2000 06/07/2000
06/08/2000 06/09/2000 06/13/2000 06/14/2000 06/19/2000 06/19/2000
06/19/2000
06/19/2000
08/01/2000 08/16/2000 08/18/2000 09/12/2000 09/15/2000 10/27/2000 12/07/2000

26 MOTION by defendant Jimmie Greene, defendant McCreary County, KY for attorney ERIK W. STANLEY to appear pro hac vice (RBB) (Entered: 06/07/2000)
27 MOTION by defendant Jimmie Greene, defendant McCreary County, KY for attorney MATHEW D. STAVER to appear pro hac vice (RBB) (Entered: 06/07/2000)
FEE PAID $ 130, Receipt No. 083469; PHV fee for attorney Staver and Stanley (RBB) (Entered: 06/07/2000)
SUBMITTED re motion for attorney MATHEW D. STAVER to appear pro hac vice [27−1], re motion for attorney ERIK W. to appear pro hac vice [26−1], re motion to withdraw counsel Colonel Ronald Ray and Theodore H. Amshoff, Jr. [24−1], re motion for additional 20 days to answer complaint [23−1] is submitted (RBB) (Entered: 06/07/2000)
28 UNOPPOSED MOTION by dft Jimmie Greene, dft McCreary County, KY to extend time to answer to June 14, 2000 (RBB) (Entered: 06/09/2000)
SUBMITTED re dfts' motion to extend time to answer to June 14, 2000 [28−1] (RBB) (Entered: 06/09/2000)
29 ORDER by Judge Jennifer B. Coffman: Defts time to answer complaint of plffs shall be extended to June 14, 2000 [28−1] (cc: all counsel) [EOD Date: 6/13/00] (EHM) (Entered: 06/13/2000)
30 ANSWER by dft Jimmie Greene, dft McCreary County, KY to COMPLAINT [1−1] (NHS) (Entered: 06/14/2000)
31 ORDER by Judge Jennifer B. Coffman granting dfts' motion for additional 20 days to answer complaint [23−1] (cc: all counsel) [EOD Date: 6/19/00] (RBB) (Entered: 06/19/2000)
32 ORDER by Judge Jennifer B. Coffman: ORDERED that Colonel Ronald Ray and Theodore H. Jr. attorney for McCreary County, KY, and Jimmie Greene, are granted lv to w/draw as counsel (cc: all counsel) [EOD Date: 6/19/00] (RBB) (Entered: 06/19/2000)
33 ORDER by Judge Jennifer B. Coffman granting motion for attorney MATHEW D. STAVER to appear pro hac vice [27−1] defendant Jimmie Greene, defendant McCreary County, KY all counsel) [EOD Date: 6/19/00] (RBB) (Entered: 06/19/2000)
34 ORDER by Judge Jennifer B. Coffman granting motion for attorney ERIK W. STANLEY to appear pro hac vice [26−1] for defendants Jimmie Greene and McCreary County, KY (cc: all counsel) [EOD Date: 6/19/00] (RBB) (Entered: 06/19/2000)
35 MOTION by dfts to clarify the preliminary injunction order dated 5/5/00 (RBB) Modified on 08/23/2000 (Entered: 08/02/2000)
36 TRANSCRIPT filed of HEARING before JENNIFER B. COFFMAN Date(s) of transcript 4/20/00 @ 1:19 p.m. (RBB) (Entered: 08/23/2000)
37 RESPONSE by plfs to dfts' motion to clarify the preliminary injunction order dated 5/5/00 [35−1] (RBB) (Entered: 08/23/2000)
SUBMITTED re motion to clarify the preliminary injunction order dated 5/5/00 [35−1] is submitted (RBB) (Entered: 09/12/2000)
38 ORDER by Judge Jennifer B. Coffman denying motion to clarify the preliminary injunction order dated 5/5/00 (cc: all counsel) [EOD Date: 9/18/00] (RBB) (Entered: 09/18/2000)
39 CERTIFIED COPY of 6CCA Order: dismissing the appeal [16−1]; upon consideration of appellants' mt to voluntarily dismiss the appeals herein (RBB) (Entered: 10/31/2000)
40 MOTION by plfs Dave Howe, Louanne Walker, ACLU of KY for order holding dfts in contempt , or in the alternative for supplemental preliminary injunction

Case 6:99-cv-00507-JBC-REW As of: 06/15/2012 01:36 PM EDT Page 11 of 27

12/07/2000 12/15/2000 12/15/2000 12/26/2000 12/26/2000 12/26/2000 01/11/2001 01/12/2001
03/23/2001 03/24/2001
03/27/2001 03/27/2001 03/27/2001 04/02/2001

(RBB) (Entered: 12/08/2000)
41 MEMORANDUM by plfs Dave Howe, Louanne Walker, ACLU of KY in support of motion for order holding dfts in contempt or in the alternative, for supplemental preliminary injunction [40−2] (RBB) (Entered: 12/08/2000)
42 NOTICE OF FILING by plfs/appellees, Dave Howe, Louanne Walker, ACLU of RELATED DECISION (RBB) (Entered: 12/15/2000)
43 NOTICE by plf/appellees, Dave Howe, Louanne Walker, ACLU of KY of UNAVAILABILITY DATES TO ATTEND HEARINGS (RBB) (Entered: 12/15/2000)
44 RESPONSE by dft Jimmie Greene, McCreary County, KY to mtn for order holding dfts in contempt [40−1], to mtn for supplemental preliminary injunction [40−2] (NHS) (Entered: 12/27/2000)
45 NOTICE OF FILING by dft Jimmie Greene, McCreary County, KY of affidavit of Judge Jimmie Greene in support of dfts' response to plfs' mtn for contempt, or alternatively, suppl prelim inj (NHS) (Entered: 12/27/2000)
46 AFFIDAVIT of JIMMIE GREEN re NOTICE OF FILING [45−1], re MEMORANDUM IN OPPOSITION TO PLFS' MTN FOR CONTEMPT or alternatively SUPPL PRELIM INJ [44−1] (NHS) (Entered: 12/27/2000)
SUBMITTED re motion for order holding dfts in contempt [40−1], re motion for supplemental preliminary injunction [40−2] is submitted (NHS) (Entered: 01/11/2001)
47 ORDER by Judge Jennifer B. Coffman: upon court's own mtn; court deems it in best interest of parties to have matter heard in open court; setting hearing on mtn for order holding dfts in contempt [40−1], mtn for suppl prelim inj [40−2] 3/30/01 at 2:00 p.m. in LONDON ; court will further conduct status conf on 3/30/01 at 2:00 p.m. to further establish course of litigation (cc: all counsel) [EOD Date: 1/16/01] (NHS) (Entered: 01/16/2001)
48 SUPPLEMENTAL AUTHORITY by dfts Jimmie Greene, McCreary County, KY re dft's response (Memorandum In Opposition) to plf's motion for contempt or supplemental preliminary inj [44−1] (RBB) (Entered: 03/23/2001)
−−−−−−−−−−−−−−−−−−−−−−−−−−−−−−−−−−−−−−−−−−−−−−−−−−−−−− V O L U M E T H R E E −−−−−−−−−−−−−−−−−−−−−−−−−−−−−−−−−−−−−−−−−−−−−−−−−−−−−− (RBB) (Entered: 03/28/2001)
49 NOTICE by dfts Jimmie Greene, McCreary County, KY of filing affidavits of DAVID BARTON AND WILLIAM J. FEDERER (RBB) (Entered: 03/28/2001)
50 AFFIDAVIT of DAVID BARTON (filed by dfts) in support of dfts' response (opposition) to plfs' mt for contempt or for suppl prelimjinary inj; re [40−1], [40−2], [44−1], [48−1] (RBB) (Entered: 03/28/2001)
51 AFFIDAVIT of WILLIAM J. FEDERER (filed by dfts) in support of dfts' response (Opposition) to plfs' mt for contempt or for supplemental preliminary inj; [40−1], [40−2], [44−1], [48−1] (RBB) (Entered: 03/28/2001)
52 ORDER by Judge Jennifer B. Coffman hearing held 3/30/01 before Judge Jennifer B. Coffman ; David A. Friedman and Laurie Griffith appeared for plfs; Mathew Staver and Johnnie Turner appeared for dfts; Court Reporter: Nathan Perkins; plfs' mtn for contempt DENIED; pts shall attempt to reach stlmt and notify court by 4/30/01; if pts unable to settle, court will issue ruling on plfs' mtn to supplement prelim inj by 5/15/01; if pts unable to settle, plfs shall file amd cmp no later than 30 days after court's ruling; dfts shall file answer to amd cmp no later than 20 days after cmp amd; discovery ddl 6/14/01; s/j mtns due 11/1/01 ; Case consolidated 6:99−cv−507 with member cases 6:99−cv−508, 6:99−cv−509 (cc: all counsel) [EOD Date: 4/2/01] (NHS) Modified on 04/02/2001 (Entered: 04/02/2001)

Case 6:99-cv-00507-JBC-REW As of: 06/15/2012 01:36 PM EDT Page 12 of 27

04/02/2001 04/20/2001 04/30/2001 05/02/2001 05/03/2001 05/16/2001 05/18/2001 05/30/2001 06/07/2001 06/22/2001 06/22/2001
06/27/2001 07/18/2001 07/18/2001 07/19/2001 07/20/2001

REMARK: pursuant to Order filed 4/2/01 [52−1], London Civil Nos. 99−507, 99−508 and 99−509 are consolidated and pursuant to instructions from Chambers, 99−507 is to be lead case and all filings shall be filed in 99−507 (RBB) (Entered: 04/20/2001)
53 MEMORANDUM by dfts Jimmie Greene, McCreary County, KY regarding acceptance of affidavits in opposition to plf's mt for supplemental preliminary injunction; [51−1], [50−1], [48−1], [46−1], [44−1], [40−1] (RBB) (Entered: 04/20/2001)
54 JOINT MOTION by plfs, dfts, Jimmie Greene, McCreary County, KY, Dave Howe, Louanne Walker, ACLU of KY for enlargement of time to report on settlement negotiations (RBB) (Entered: 05/02/2001)
SUBMITTED re joint motion for enlargement of time to report on settlement negotiations [54−1] is submitted (RBB) (Entered: 05/02/2001)
55 ORDER by Judge Jennifer B. Coffman granting joint motion for enlargement of time to report on settlement negotiations [54−1]; rpt on status settlement due 5/16/01 (cc: all counsel) [EOD Date: 5/3/01] (NHS) (Entered: 05/03/2001)
56 NOTICE by dfts Jimmie Greene, McCreary County, KY of Filing REGARDING HISTORICAL DISPLAYS (RBB) (Entered: 05/16/2001)
57 STATUS REPORT by plfs Dave Howe, Louanne Walker, ACLU of KY; stating parties are unable to settle (RBB) (Entered: 05/21/2001)
58 MOTION by plfs Dave Howe, Louanne Walker, ACLU of KY to strike affidavits of David Barton and William J. Federer , or in the alternative, for for the Court to defer consideration of these affidavits until it decides the merits of the case (RBB) (Entered: 05/30/2001)
59 RESPONSE by dfts, Jimmie Greene, McCreary County, KY to plfs' motion to strike affidavits of David Barton and William J. Federer [58−1], or in the alternative to defer consideration of hte affidavits [58−2] (RBB) (Entered: 06/07/2001)
60 REPLY by plfs, Dave Howe, Louanne Walker, ACLU of KY to dfts' response to plfs' motion to strike affidavits of David Barton and William J. Federer [58−1] (RBB) (Entered: 06/22/2001)
61 ORDER by Judge Jennifer B. Coffman: ORDERED plfs' motion to extend the prliminary injunction to the current displays is GRANTED; ORDERED that the displays shall be removed from the McCreary and Pulaski County courthouses and from the Harlan County schools IMMEDIATELY; ORDERED the parties shall submit joint written status reports no later than July 23, 2001, advising court whether they wish order to be the final judgment in this case (cc: all counsel) [EOD Date: 6/22/01] (RBB) (Entered: 06/22/2001)
SUBMITTED re motion to strike affidavits of David Barton and William J. Federer [58−1], re motion for for the Court to defer consideration of these affidavits until it decides the merits of the case [58−2] is submitted (RBB) (Entered: 06/27/2001)
62 CONSOLIDATED NOTICE OF APPEAL by dfts Jimmie Greene, McCreary County, KY from US District Court decision dated and filed June 22, 2001 (ORDER) [61−1] (cc: all counsel) (RBB) (Entered: 07/19/2001)
RECEIVED re NOTICE OF APPEAL [62−1] fee in amt of $ 105 (Receipt # 089971) (RBB) (Entered: 07/19/2001)
NOTIFICATION to 6CCA; Short Record Mailed, Appeal Package Mailed to Appellant, Copy of Docket Sheet to Parties; in 6:99−cv−00507; (consolidated w/ 6:99−cv−508; 6:99−cv−509) (cc: all counsel) (RBB) (Entered: 07/19/2001)
63 AMENDED COMPLAINT [1−1] by plfs Dave Howe, Louanne Walker, ACLU of KY, Jane Doe(s), John Doe(s), Jane/John Doe(s), Lawrence Durham, Paul Lee (RBB) (Entered: 07/24/2001)

Case 6:99-cv-00507-JBC-REW As of: 06/15/2012 01:36 PM EDT Page 13 of 27

07/27/2001 07/31/2001 07/31/2001 08/02/2001 08/06/2001 08/09/2001 08/09/2001 08/10/2001 08/13/2001 08/20/2001 09/06/2001 09/10/2001
09/10/2001

64 TRANSCRIPT DESIGNATION and Ordering Form for dates: 3/31/01 re: transcript [36−1]; and entire hearing on plf's motion for supplemental preliminary injunction (RBB) (Entered: 07/27/2001)
65 MOTION by dfts, plfs for leave to file late joint status report (RBB) (Entered: 08/06/2001)
PROPOSED JOINT STATUS REPORT tendered by dfts, plfs (RBB) (Entered: 08/06/2001)
66 NOTIFICATION by 6CCA of Appellate Docket Number 01−5935; Case Manager − Mary Patterson (RBB) (Entered: 08/06/2001)
SUBMITTED re joint motion for leave to file late joint status report [65−1] is submitted (RBB) (Entered: 08/06/2001)
67 ORDER by Judge Jennifer B. Coffman granting parties joint motion for leave to file late joint status report [65−1] (cc: all counsel) [EOD Date: 8/10/01] (RBB) (Entered: 08/10/2001)
68 JOINT STATUS REPORT by parties (Constured motion for discovery, construed motion for stay of action, pursuant to Order filed 9/10/01 DE#;72) (RBB) Modified on 09/11/2001 (Entered: 08/10/2001)
−−−−−−−−−−−−−−−−−−−−−−−−−−−−−−−−−−−−−−−−−−−−−−−−−−−−−−−−− V O U M E F O U R −−−−−−−−−−−−−−−−−−−−−−−−−−−−−−−−−−−−−−−−−−−−−−−−−−−−−− (RBB) Modified on 08/10/2001 (Entered: 08/10/2001)
69 ANSWER by dfts Jimmie Greene, McCreary County, KY, Harlan Cty Sch Dist, Don Musselman, Pulaski County, KY, Darrell Beshears to Consolidated Amended Complaint [63−1] (RBB) (Entered: 08/15/2001)
70 AMENDED ANSWER TO CONSOLIDATED AMENDED COMPLAINT [69−1] by defendants (RBB) (Entered: 08/21/2001)
71 TRANSCRIPT filed of HEARING before JUDGE JENNIFER B. COFFMAN Date(s) of transcript 3/30/01 Ct. Rptr. Nathan F. Perkins (RBB) (Entered: 09/06/2001)
72 ORDER by Judge Jennifer B. Coffman: matter before court on motion 58 by plfs to strike certain affidavits until after ruling on suppl preliminary injunction, and also upon the joint status report submitted by parties [68−1]; ORDERED motion of plfs regarding affidavits is GRANTED in PART, as it requests this court to defer consideration of the affidavits until after ruling on the suppl preliminary inj, as the court stated in order granting the suppl preliminary inj that it was not commenting on the truth of the dfts' assertion of the Ten Commandments as a foundational document [61 n. 15), court views this statement as an implicit ruling on the plfs' motion; therefore, this clarification does nothing to alter the status quo w/ regard to the suppl preliminary inj, which is currently being appealed to the Sixth Circuit; FURTHER ORDERED that as the court construes the plfs' statment of position in the joint status report as a motion for discovery, the plfs are hereby directed to file, w/in 15 days of the date of entry of this order, a memo in support of this mt, indicating the purpose of requested discovery and a proposed timeline for the resolution of this case on its merits; response and reply times shall be governed by the local rules; plfs' response to this motion shall also include a proposed timeline for the resolution of this case on its merits; FURTHER ORDERED that, as the court construes the defendants' statement of the position in the joint status report as a motion to stay this action pending resolution of their appeal of the supplemental preliminary inj, the dfts are hereby directed to file, w/in 15 days of the entry of this order, a memo in support of this motion, specifying the grounds therefo, response and reply times shall be governed by the local rules (cc: all counsel) [EOD Date: 9/11/01] (RBB) (Entered: 09/11/2001)
73 MOTION by plfs to modify the litigation schedule by extending the discovery ddl from 9/18/01 thru 10/31/01 (RBB) (Entered: 09/13/2001)

Case 6:99-cv-00507-JBC-REW As of: 06/15/2012 01:36 PM EDT Page 14 of 27

09/20/2001 09/25/2001 09/25/2001 10/14/2001 10/14/2001 12/04/2001
12/04/2001 01/08/2004 03/23/2004
03/29/2004 04/08/2004
04/08/2004 04/09/2004 04/23/2004 04/23/2004
04/23/2004 05/11/2004

SUBMITTED re motion to modify the litigation schedule by extending the discovery ddl from 9/18/01 thru 10/31/01 [73−1] is submitted (RBB) (Entered: 09/20/2001)
74 MEMORANDUM by plfs in support of Motion For Discovery [68−1]; (status report [68−1] construed as mt for discovery pursuant to Order [72−1]) (RBB) (Entered: 10/04/2001)
75 MEMORANDUM by dfts in support of dfts' motion to stay proceedings pending resolution of appeal to 6CCA [68−1] ; (status report [68−1] is constured as motion to stay pursuant to order [72−1]) (RBB) (Entered: 10/04/2001)
76 RESPONSE by plfs to dfts' motion to stay (STATUS REPORT) [68−1] (RBB) (Entered: 10/18/2001)
77 RESPONSE (MEMORANDUM IN OPPOSITION) by dfts to plf's motion for discovery [75−1], to [73−1] (RBB) (Entered: 10/18/2001)
78 ORDER by Judge Jennifer B. Coffman: ORDERED dfts' mt to say is GRANTED and case is STAYED pending resolution of their interlocutory appeal; FURTHER ORDERED plfs' mt for discovery is DENIED; ORDERED pfs' mt to modify litigation schedule is DENIED AS MOOT (cc: all counsel) [EOD Date: 12/5/01] (RBB) (Entered: 12/05/2001)
Case Stayed 12/4/2001 (SKV) (Entered: 03/16/2003)
79 LETTER from USCA with corrected page for publication version of decision sent on 12/18/2003. (JMB) (Entered: 01/08/2004)
80 ORDER: The Ct of Appeals having affirmed this ct's order granting preliminary injunction, it is ORDERED that parties shall file w/ this ct a status report w/i 30 days of entry of this order. . Signed by Judge Jennifer B Coffman. (JMB)cc: COR (Entered: 03/23/2004)
81 MOTION to Lift Stay by American Civil Liberties Union of Kentucky (JMB) (Entered: 03/29/2004)
82 DEFENDANT'S MEMORANDUM in Opposition re 81 MOTION to Lift Stay by American Civil Liberties Union of Kentucky filed by Darrell Beshears, Jimmie Greene, Harlan County School District, McCreary County, KY, Don Musselman, Pulaski County, KY. (JMB) (Entered: 04/08/2004)
83 DEFENDANT'S STATUS REPORT by Darrell Beshears, Jimmie Greene, Harlan County School District, McCreary County, KY, Don Musselman, Pulaski County, KY. (JMB) (Entered: 04/08/2004)
84 MANDATE of USCA as to 62 Notice of Appeal filed by McCreary County, KY, Jimmie Greene: Order of the District Court is AFFIRMED. (JMB) (Entered: 04/09/2004)
85 PLAINTIFFS' STATUS REPORT by American Civil Liberties Union of Kentucky, Lawrence Durham, Dave Howe, Paul Lee, Louanne Walker. (JMB) (Entered: 04/23/2004)
86 REPLY to Response to Motion re 81 MOTION to Lift Stay by American Civil Liberties Union of Kentucky filed by American Civil Liberties Union of Kentucky, Lawrence Durham, Dave Howe, Paul Lee, Louanne Walker. (JMB) (Entered: 04/23/2004)
***MOTION SUBMITTED TO CHAMBERS FOR REVIEW: 81 MOTION to Lift Stay by American Civil Liberties Union of Kentucky (JMB) (Entered: 04/23/2004)
87 ORDER: Defs' response 82 to plff's mt to lift stay is CONSTRUED as mt to extend stay; that mt is GRANTED. Action is stayed pending resolution of defs' petition for certiorari; FURTHER ORDERED that plffs' mt to lift stay 81 is DENIED. FURTHER ORDERED that parties shall file w/ ct a status report w/i 20 days of resolution of petition for certiorari. Motions terminated: 81 MOTION for Order by American Civil Liberties Union of Kentucky filed by American Civil Liberties

Case 6:99-cv-00507-JBC-REW As of: 06/15/2012 01:36 PM EDT Page 15 of 27

05/26/2004 10/18/2004 10/18/2004 10/21/2004
10/21/2004 10/25/2004 11/02/2004 11/15/2004 11/19/2004
12/02/2004 01/05/2005 01/07/2005 01/27/2005 07/12/2005 07/12/2005

Union of Kentucky.. Signed by Judge Jennifer B Coffman. (JMB)cc: COR Modified text on 5/21/2004 (Brock, Jacqueline). (Entered: 05/11/2004)
88 Mail Returned as Undeliverable. (Order of 5/11/2004) Mail sent to KATHLEEN M. FLYNN. (EHM) (Entered: 05/26/2004)
89 STATUS REPORT by Defendants Darrell Beshears, Jimmie Greene, Harlan County School District, McCreary County, KY, Don Musselman, Pulaski County, KY. (JMB) (Entered: 10/18/2004)
Clerk's Note: FILE SUBMITTED to Chambers for review re 89 Status Report. (JMB) (Entered: 10/18/2004)
90 ORDER re 89 Status Report filed by Harlan County School District, McCreary County, KY, Pulaski County, KY, Jimmie Greene, Don Musselman, Darrell Beshears: Dfts have filed status report 89 which this court construes as a motion to continue stay now imposed on these consolidaed cases, it is ORDERED that the status report be docketed as above construed. IT IS FURTHER ORDERED that response and reply ddls re the mt shall run according to Jt Local Rules for EDKY and WDKY. . Signed by Judge Jennifer B Coffman. (JMB)cc: COR (Entered: 10/22/2004)
89 MOTION to Continue Stay by Harlan County School District, McCreary County, KY, Don Musselman, Pulaski County, KY (JMB) (Entered: 10/22/2004)
91 LETTER from 6CCA with attached notice from Supreme Ct stating that Petition for Writ of Certiorari is granted. (JMB) (Entered: 10/25/2004)
92 Mail (order of 10/21/04) Returned as Undeliverable. Mail sent to Kathleen M. Flynn (SWA) (Entered: 11/02/2004)
***MOTION SUBMITTED TO CHAMBERS FOR REVIEW: 89 MOTION to Continue Stay by Harlan County School District, McCreary County, KY, Don Musselman, Pulaski County, KY (JMB) (Entered: 11/15/2004)
93 ORDER re 89 MOTION to Continue by Harlan County School District, McCreary County, KY, Don Musselman, Pulaski County, KY filed by Harlan County School District, McCreary County, KY, Pulaski County, KY, Don Musselman: ORDERED that dfts' mt for extension of stay is GRANTED. Action is stayed pending decision of US Supreme Ct. FURTHER ORDERED that parties shall file w/ ct status report w/i 20 days of US Supreme Ct's decision. Motions terminated: 89 MOTION to Continue by Harlan County School District, McCreary County, KY, Don Musselman, Pulaski County, KY filed by Harlan County School District, McCreary County, KY, Pulaski County, KY, Don Musselman.. Signed by Judge Jennifer B Coffman. (JMB)cc: COR (Entered: 11/19/2004)
94 Mail Returned as Undeliverable (Order of 11/19/04). Mail sent to Kathleen M. Flynn (JMB) (Entered: 12/02/2004)
95 Letter from Supreme Court of the United States requesting lower court record be sent to them. (Docket clerk spoke to Liz Brown at the Supreme Court and she requested the record be sent via Federal Express) **Certified record sent to Supreme Court on this date** (JMB) (Entered: 01/06/2005)
96 Entire Record transmitted to Supreme Court of the United States consisting of Pleadings: 4 volumes; Exhibits: 1 volume; and Transcripts: 1 volume. (JMB) (Entered: 01/07/2005)
97 ACKNOWLEDGMENT OF Entire Record Received by Supreme Court re 96 (JMB) (Entered: 01/27/2005)
98 Letter (copy of) from Supreme Court of the United States, Office of the Clerk, Washington, D.C. to US Court of Appeals for the Sixth Circuit stating that the petition for a writ of certiorari is denied. (RBB) (Entered: 07/13/2005)
99 Letter from 6CCA stating that US Supreme Court Opinion has been filed 6/27/2005 and that judgment or mandate of the US Supreme Court will not issue for 25 days. (RBB) (Entered: 07/13/2005)

Case 6:99-cv-00507-JBC-REW As of: 06/15/2012 01:36 PM EDT Page 16 of 27

08/12/2005 08/31/2005 08/31/2005 09/19/2005 09/19/2005 12/12/2005 01/17/2006
01/26/2006 02/07/2006 02/15/2006 03/14/2006 06/01/2006 06/16/2006 07/24/2006 07/24/2006

100 LETTER from 6CCA attaching copy of Supreme Court Judgment filed 7/29/2005 (RBB) (Entered: 08/15/2005)
101 NOTICE OF NEW ADDRESS by American Civil Liberties Union of Kentucky. New address and phone number, effective immediately, are: ACLU of Kentucky, 315 Gutherie Street, Suite 300, Louisville, KY 40202, 502−581−9746. (RBB) (Entered: 08/31/2005)
102 MOTION for Order Lifting Stay by American Civil Liberties Union of Kentucky (RBB) (Entered: 08/31/2005)
***MOTION SUBMITTED TO CHAMBERS of Jennifer B. Coffman for review: 102 MOTION for Order by American Civil Liberties Union of Kentucky (RBB) (Entered: 09/19/2005)
103 RESPONSE (NO OBJECTION) to Motion re 102 MOTION for Order to lift stay by American Civil Liberties Union of Kentucky filed by Harlan County School District, Pulaski County, KY, Jimmie Greene, McCreary County, KY. (EHM) (Entered: 09/20/2005)
***FILE SUBMITTED TO CHAMBERS of COFFMAN for review: 102 MOTION for Order by American Civil Liberties Union of Kentucky, 103 Response to Motion (MRS) (Entered: 12/12/2005)
104 ORDER: Plf's motion to lift stay 102 is GRANTED; ORDERED that court adopts following schedule for disposition of this case: 1) NLT 2/20/2006 counsel for parties shall simultaneously disclose id of expert witnesses who may be used @ trial and written reports by the expert witnesses; NLT 3/20/2006 parties shall make rebuttal expert disclosures; These disclosures need not be filed in Court record; 2) NLT 7/20/2006, counsel for parties shall complete all PT discovery, including discovery related to expert witnesses; 3) All discovery disputes are referred to Mag Judge J.B. Johnson, Jr. for resolution; 4) NLT 8/20/2006, counsel for parties shall all file dispositive motions. Motions terminated: 102 MOTION for Order by American Civil Liberties Union of Kentucky filed by American Civil Liberties Union of Kentucky. Signed by Judge Jennifer B Coffman. **Discovery due by 7/20/2006. **Dispositive Motions due by 8/20/2006.(RBB)cc: COR (Entered: 01/18/2006)
105 NOTICE of Change of Address by Erik W. Stanley, Mathew D. Staver, Johnnie L. Turner. (RBB) (Entered: 01/26/2006)
106 Mail Returned as Undeliverable. Mail sent to Kathleen M. Flynn re 104 Scheduling Order. (RBB) (Entered: 02/07/2006)
107 MOTION TO EXTEND EXPERT DISCLOSURE DEADLINE by sixty days up to and including 4/21/06 by American Civil Liberties Union of Kentucky (MRS) (Entered: 02/15/2006)
***MOTION SUBMITTED TO CHAMBERS of Jennifer B. Coffman for review: 107 MOTION for Extension of Time by American Civil Liberties Union of Kentucky (RBB) (Entered: 03/14/2006)
108 ORDER: Plffs' MOTION to extend the expert disclosure deadline by sixty (60) days up to and including April 21, 2006, is GRANTED. Signed by Judge Jennifer B. Coffman. (EHM)cc: COR (Entered: 06/02/2006)
109 Mail Returned as Undeliverable. Mail sent to attorney, KATHLEEN M. FLYNN re 108 Order, Set Deadlines/Hearings, Terminate Motions (RBB) (Entered: 06/16/2006)
110 UNOPPOSED MOTION for Extension of Time to file dispositive motions by Harlan County School District, Pulaski County, KY, Darrell Beshears, Jimmie Greene, McCreary County, KY; requestiong extension until October 20, 2006 (RBB) (Entered: 07/24/2006)
***MOTION SUBMITTED TO CHAMBERS of Jennifer B. Coffman for review: 110 MOTION for Extension of Time to file dispositive motions by Harlan County School District, Pulaski County, KY, Darrell Beshears, Jimmie Greene, McCreary County, KY (RBB) (Entered: 07/24/2006)

Case 6:99-cv-00507-JBC-REW As of: 06/15/2012 01:36 PM EDT Page 17 of 27

07/28/2006 08/07/2006 09/01/2006
09/05/2006 10/16/2006 10/16/2006 10/23/2006
11/03/2006 11/03/2006 11/03/2006 11/03/2006 11/03/2006

111 ORDER EXTENDING DISPOSITIVE MOTIONS DEADLINE: ddl for parties to file any dispositive mts in this case was previously set for 8/20/2006, and shall be and hereby is extended to 10/20/2006. Motions terminated: 110 MOTION for Extension of Time. Signed by Judge Jennifer B Coffman ***Dispositive Motions due by 10/20/2006.(RBB)cc: COR (Entered: 07/28/2006)
112 Mail Returned as Undeliverable. Mail sent to KATHLEEN M. FLYNN re 111 Scheduling Order. (RBB) (Entered: 08/07/2006)
113 ORDER: Case referred to Magistrate Judge; Judge J. B. Johnson having retired at the expiration of his term and Robert E. Wier having been appointed 9/1/06; Matters previously assigned to Judge Johnson are REASSIGNED TO MAGISTRATE JUDGE WIER; A copy of this order be filed in every appropriate case w/copy to all counsel.. Signed by Judge Joseph M. Hood. (MSH)cc: COR (Entered: 09/01/2006)
Clerk's Note: Entry of 9/1/06, Notice of Mandatory ECF directed to Caroline L. Laurie Griffith and Kathleen M. Flynn as non−registered attorneys has been deleted as this case is not an electronic file. Notice was entered in error by Clerk. A copy of this Clerk's Note was mailed this date to counsel receiving paper notice. (CMR) (Entered: 09/05/2006)
114 CONSENT MOTION for Extension of Time to File DISPOSITIVE MOTIONS by Harlan County School District, Don Musselman, Pulaski County, KY, Darrell Beshears, Jimmie Greene, McCreary County, KY (MRS) (Entered: 10/16/2006)
***MOTION SUBMITTED TO CHAMBERS of JENNIFER B. COFFMAN for review: 114 MOTION for Extension of Time to File by Harlan County School District, Don Musselman, Pulaski County, KY, Darrell Beshears, Jimmie Greene, McCreary County, KY (Submitted immediately due to the time contraints and as counsel represents that this is a consent motion) (MRS) (Entered: 10/16/2006)
115 ORDER EXTENDING DISPOSITIVE MOTIONS DEADLINE: Order and Adjudged that the ddl for parties to file any dispositive mts in this case which was previously set for 10/20/2006 shall be extended to 11/3/2006. Motions terminated: 114 MOTION for Extension of Time to File by Harlan County School District, Don Musselman, Pulaski County, KY, Darrell Beshears, Jimmie Greene, McCreary County, KY filed by Harlan County School District,, McCreary County, KY,, Pulaski County, KY,, Jimmie Greene,, Don Musselman,, Darrell Beshears,. *** Dispositive Motions due by 11/3/2006. Signed by Judge Jennifer B Coffman. (RBB)cc: COR (Entered: 10/26/2006)
116 MOTION for Summary Judgment by Harlan County School District, Don Musselman, Pulaski County, KY, Darrell Beshears, Jimmie Greene, McCreary County, KY (RBB) (Entered: 11/03/2006)
117 MEMORANDUM in Support of Motion re 116 MOTION for Summary Judgment by Harlan County School District, Don Musselman, Pulaski County, KY, Darrell Beshears, Jimmie Greene, McCreary County, KY, filed by Don Musselman, Pulaski County, KY, Darrell Beshears, Jimmie Greene, McCreary County, KY. (RBB) (Entered: 11/03/2006)
118 DECLARATION OF BLAINE PHILLIPS in Support re 116 MOTION for Summary Judgment by Harlan County School District, Don Musselman, Pulaski County, KY, Darrell Beshears, Jimmie Greene, McCreary County, KY filed by Harlan County School District, Don Musselman, Pulaski County, KY, Darrell Beshears, Jimmie Greene, McCreary County, KY. (RBB) (Entered: 11/03/2006)
119 DECLARATION OF DARRELL BESHEARS in Support re 116 MOTION for Summary Judgment by Harlan County School District, Don Musselman, Pulaski County, KY, Darrell Beshears, Jimmie Greene, McCreary County, KY filed by Harlan County School District, Don Musselman, Pulaski County, KY, Darrell Beshears, Jimmie Greene, McCreary County, KY. (RBB) (Entered: 11/03/2006)
120 DECLARATION OF JUDY REDDEN in Support re 116 MOTION for Summary Judgment by Harlan County School District, Don Musselman, Pulaski County, KY, Darrell Beshears, Jimmie Greene, McCreary County, KY, filed by Harlan County School District, Don Musselman, Pulaski County, KY, Darrell Beshears,

Case 6:99-cv-00507-JBC-REW As of: 06/15/2012 01:36 PM EDT Page 18 of 27

11/13/2006 12/11/2006 12/13/2006
12/13/2006 12/26/2006
01/08/2007 01/12/2007 01/12/2007 01/12/2007 01/12/2007 01/12/2007 01/12/2007
01/12/2007
01/16/2007 01/23/2007

Jimmie Greene, McCreary County, KY. (RBB) (Entered: 11/03/2006)
121 NOTICE of Change of Address of Virginia Office of Liberty Counsel by Erik W. Stanley (RBB) (Entered: 11/14/2006)
122 NOTICE OF UNAVAILABILITY by Harlan County School District, Jimmie Greene of dates couunsel will be unable to attend any hearings. (RBB) (Entered: 12/11/2006)
***MOTION SUBMITTED TO CHAMBERS of Jennifer B. Coffman for review: 116 MOTION for Summary Judgment by Harlan County School District, Don Musselman, Pulaski County, KY, Darrell Beshears, Jimmie Greene, McCreary County, KY (RBB) (Entered: 12/13/2006)
***FILE FORWARDED TO CHAMBERS of Jennifer B. Coffman/ (RBB) (Entered: 12/13/2006)
123 ORDER: Plff directed to RESPOND to the defts' 116 MOTION for Summary Judgment by Harlan County School District, Don Musselman, Pulaski County, KY, Darrell Beshears, Jimmie Greene, McCreary County, KY, w/n 15 days of entry of this order; failing such a response, the Court will consider the motion on its merits. Responses due by 1/12/2007. Signed by Judge Jennifer B. Coffman. (EHM)cc: COR (Entered: 12/26/2006)
124 Mail Returned as Undeliverable. Mail sent to CAROLINE L. LAURIE GRIFFITH re 123 Order. (RBB) (Entered: 01/09/2007)
125 Mail Returned as Undeliverable. Mail sent to KATHLEEN M FLYNN re 123 Order (RBB) (Entered: 01/12/2007)
126 STATUS REPORT by plaintiffs and American Civil Liberties Union of Kentucky. (RBB) (Entered: 01/16/2007)
127 MOTION for Leave to file partial summary judgment and summary judgment motions by American Civil Liberties Union of Kentucky (RBB) (Entered: 01/16/2007)
PROPOSED MOTION FOR PARTIAL SUMMARY AND MEMORANDUM IN SUPPORT tendered by plfs. (RBB) Modified file date on 1/16/2007 (Bundy, Renee). (Entered: 01/16/2007)
PROPOSED MOTION FOR SUMMARY JUDGMENT by plfs American Civil Liberties Union of KY. (RBB) (Entered: 01/16/2007)
128 RESPONSE in Opposition re 116 MOTION for Summary Judgment by Harlan County School District, Don Musselman, Pulaski County, KY, Darrell Beshears, Jimmie Greene, McCreary County, KY filed by American Civil Liberties Union of Kentucky. NOTE: This pleading is also a MEMORANDUM IN SUPPORT OF PLFS' MOTION FOR SUMARY JUDGMENT (tendered on 1/12/2007). (RBB) (Entered: 01/16/2007)
PROPOSED MEMORANDUM IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT. NOTE: The Motion for Summary Judgment is TENDERED also on this date. This Memorandum is combined with plfs' Response to Dfts' Motion for Summary Judgment 128 . (RBB) (Entered: 01/16/2007)
***FILE SUBMITTED TO CHAMBERS of Jennifer B. Coffman for review: 126 Status Report (RBB) (Entered: 01/16/2007)
129 RESPONSE in Support re 127 MOTION for Leave by American Civil Liberties Union of Kentucky filed by Harlan County School District, Don Musselman, Pulaski County, KY, Darrell Beshears, Jimmie Greene, McCreary County, KY. Note: Defendants have filed a response (consent) to plf's mt for lv to file s/j motions and a consent motion to extend time for response to plfs' mts for s/j as one document. Therefore, docket entries 129 and 130 are two separate pleadings filed as one document. (RBB) Modified text to correct typographical error on 1/23/2007 (Bundy, Renee). (Entered: 01/23/2007)

Case 6:99-cv-00507-JBC-REW As of: 06/15/2012 01:36 PM EDT Page 19 of 27

01/23/2007
01/23/2007 02/13/2007
02/13/2007 02/13/2007 02/13/2007 02/15/2007 04/11/2007 04/11/2007 04/11/2007 04/14/2007 05/02/2007

130 CONSENT MOTION for Extension of Time to File Response to plaintiff's mt for summary judgment by Harlan County School District, Don Musselman, Pulaski County, KY, Darrell Beshears, Jimmie Greene, McCreary County, KY.Note: Defendants have filed a response (consent) to plf's mt for lv to file s/j motions and a consent motion to extend time for response to plfs' mts for s/j as one document. Therefore, docket entries 129 and 130 are two separate pleadings filed as one document. (RBB) Modified text to on 1/23/2007 to correct typographical error. (Bundy, Renee). (Entered: 01/23/2007)
***MOTION SUBMITTED TO CHAMBERS of Jennifer B. Coffman for review: 127 MOTION for Leave by American Civil Liberties Union of Kentucky, 130 Consent MOTION for Extension of Time to File Response/Reply by Harlan County School District, Don Musselman, Pulaski County, KY, Darrell Beshears, Jimmie Greene, McCreary County, KY (RBB) (Entered: 01/23/2007)
131 ORDER : Plf's motion for leave to file motions for partial summary judgment and summary judgment 127 is GRANTED; Clerk DIRECTED to enter the plf's mts for partial summary judgment into the record; FURTHER ORDERED that dfts' consent motion for an ext of tim eto respond to plfs' mts for partial summary judgment and summary judgment 130 is GRANTED; dfts are granted an extension of time up to and including 4/13/2007, to file a responseto plfs' mts for partial summary judgment and for summary judgment; **Dft's Response DDL to motion for summary jgm and partial summary judgment is 4/13/2007. Signed by Judge Jennifer B Coffman. (RBB)cc: COR Modified text to correct typographical error on 2/15/2007 (Bundy, Renee). (Entered: 02/15/2007)
132 MOTION for Summary Judgment by American Civil Liberties Union of Kentucky (RBB) Resposne ddl is 4/13/2007 pursuant to Order 131 . . Modified to add response ddl information on 2/15/2007 (Bundy, Renee). (Entered: 02/15/2007)
133 MEMORANDUM IN SUPPORT of 132 Motion for Summary Judgment filed by American Civil Liberties Union of Kentucky. NOTE: This Memorandum is combined with plfs' Response to Dfts' Motion for Summary Judgment 128 . The memorandum is filed pursuant to Order 131 . (RBB) (Entered: 02/15/2007)
134 MOTION for Partial Summary Judgment and Memorandum In Support by American Civil Liberties Union of Kentucky NOTE: Responses due by 4/13/2007 pursuant to Order 131 . (RBB) (Entered: 02/15/2007)
Clerk's Note: DE # 131, 132 and 134 are forwarded this date to Lexington Clerk's office for updating record in Chambers.DE # 133 is not forwarded as it is currently located in the record as 128 . (RBB) (Entered: 02/15/2007)
135 RESPONSE to Motion re 132 MOTION for Summary Judgment by American Civil Liberties Union of Kentucky filed by Harlan County School District, Don Musselman, Pulaski County, KY, Darrell Beshears, Jimmie Greene, McCreary County, KY. (RBB) (Entered: 04/11/2007)
136 RESPONSE to Motion re 134 MOTION for Partial Summary Judgment by American Civil Liberties Union of Kentucky filed by Harlan County School District, Don Musselman, Pulaski County, KY, Darrell Beshears, Jimmie Greene, McCreary County, KY. (RBB) (Entered: 04/11/2007)
137 NOTICE OF UNAVAILABILITY by American Civil Liberties Union of Kentucky, listing counsel, Mathew D. Staver's, dates of unavailability for attending hearings. (RBB) (Entered: 04/11/2007)
**********************VOLUME FIVE**************************. (RBB) Modified date on 4/16/2007 (Bundy, Renee). (Entered: 04/16/2007)
***MOTION SUBMITTED TO CHAMBERS of Jennifer B. Coffman for review: 116 MOTION for Summary Judgment by Harlan County School District, Don Musselman, Pulaski County, KY, Darrell Beshears, Jimmie Greene, McCreary County, KY, 132 MOTION for Summary Judgment by American Civil Liberties Union of Kentucky, 134 MOTION for Partial Summary Judgment by American Civil Liberties Union of Kentucky (RBB) (Entered: 05/02/2007)

Case 6:99-cv-00507-JBC-REW As of: 06/15/2012 01:36 PM EDT Page 20 of 27

07/31/2007 07/31/2007 07/31/2007 07/31/2007 07/31/2007 07/31/2007 07/31/2007 07/31/2007 07/31/2007 07/31/2007 07/31/2007 09/12/2007
09/12/2007 09/18/2007
09/18/2007 09/18/2007 09/18/2007
09/18/2007
09/28/2007

138 NOTICE OF FILING deposition transcripts by American Civil Liberties Union of Kentucky (RBB) (Entered: 07/31/2007)
139 DEPOSITION TRANSCRIPT of DARRELL BESHEARS taken on July 12, 2006 by American Civil Liberties Union of Kentucky.(RBB) (Entered: 07/31/2007)
140 DEPOSITION TRANSCRIPT of JAMES COTHRAN taken on 7/12/2007 by American Civil Liberties Union of Kentucky.(RBB) (Entered: 07/31/2007)
141 DEPOSITION TRANSCRIPT of JIMMIE GREENE taken on 7/11/2006 by American Civil Liberties Union of Kentucky.(RBB) (Entered: 07/31/2007)
142 DEPOSITION TRANSCRIPT of HOWARD HANSFORD taken on JULY 12, 2006 by American Civil Liberties Union of Kentucky.(RBB) (Entered: 07/31/2007)
143 DEPOSITION TRANSCRIPT of KENNETH ISAACS taken on JULY 12, 2007 by American Civil Liberties Union of Kentucky.(RBB) (Entered: 07/31/2007)
144 DEPOSITION TRANSCRIPT of BLAINE PHILLIPS taken on JULY 11, 2006 by American Civil Liberties Union of Kentucky.(RBB) (Entered: 07/31/2007)
145 DEPOSITION TRANSCRIPT of JUDY REDDEN taken on JULY 11, 2007 by American Civil Liberties Union of Kentucky.(RBB) (Entered: 07/31/2007)
146 DEPOSITION TRANSCRIPT of COY TAYLOR taken on JULY 11, 2006 by American Civil Liberties Union of Kentucky.(RBB) (Entered: 07/31/2007)
147 DEPOSITION TRANSCRIPT of RALPH TROXTELL taken on JULY 12, 2006 by American Civil Liberties Union of Kentucky.(RBB) (Entered: 07/31/2007)
148 DEPOSITION TRANSCRIPT of DARRELL WILSON taken on JULY 12, 2007 by American Civil Liberties Union of Kentucky.(RBB) (Entered: 07/31/2007)
149 NOTICE OF RELATED DECISION by Lawrence Durham, Paul Lee, American Civil Liberties Union of Kentucky, Louanne Walker, Dave Howe, Jane Doe(s), John Doe(s)(Suing as Thomas Doe, Individually), John Doe(s)(Suing as Sharah Doe and Thomas Doe, on behalf of their minor child Jan Doe)/ w/ Attachment: Opinion &Order, USDC, EDKY, Centeral Div. @ Lexington, Civil Action No. 01−481−KSF. (RBB) (Entered: 09/12/2007)
***FILE SUBMITTED TO CHAMBERS of Jennifer B. Coffma for review: 149 Notice of Related Decision (RBB) (Entered: 09/12/2007)
150 MOTION for David M. Corry to Appear Pro Hac Vice by Harlan County School District, Don Musselman, Pulaski County, KY, Darrell Beshears, Jimmie Greene, McCreary County, KY (RBB) Modified to correct typographical error on 9/18/2007 (Bundy, Renee). (Entered: 09/18/2007)
151 MOTION for Stephen M. Crampton to Appear Pro Hac Vice by Harlan County School District, Pulaski County, KY, Darrell Beshears, Jimmie Greene, McCreary County, KY (RBB) (Entered: 09/18/2007)
152 PRO HAC VICE Filing fee received − David M. Corry and Stephen M. Crampton − $130, receipt number 6000119 (RBB) (Entered: 09/18/2007)
***MOTION SUBMITTED TO CHAMBERS of Jennifer B. Coffman for review: 150 MOTION for David M. Corry to Appear Pro Hac Vice by Harlan County School District, Don Musselman, Pulaski County, KY, Darrell Beshears, Jimmie Greene, McCreary County, KY (RBB) (Entered: 09/18/2007)
***MOTION SUBMITTED TO CHAMBERS of Jennifer B. Coffman for review: 151 MOTION for Dtephen M. Crampton to Appear Pro Hac Vice by Harlan County School District, Pulaski County, KY, Darrell Beshears, Jimmie Greene, McCreary County, KY (RBB) (Entered: 09/18/2007)
153 MEMORANDUM OPINION &ORDER: ORDERED that parties' motions for summary judgment or partial summary judgment 116 , 132 , 134 are DENIED; ORDERED that plfs' claims against dfts Harlan County School District and Don Musselman are DISMISSED WITH PREJUDICE; ORDERED that this matter is referred to U.S. Magistrate Judge James B. Todd for the purpose of

Case 6:99-cv-00507-JBC-REW As of: 06/15/2012 01:36 PM EDT Page 21 of 27

10/02/2007
10/15/2007 10/23/2007
10/26/2007 10/29/2007 10/30/2007 10/30/2007 10/30/2007 11/05/2007 11/13/2007 11/14/2007 11/15/2007

conducting a settlement conference, which is scheduled for October 22, 2007 at 9:00 a.m. in Lexington. Motions terminated: 116 MOTION for Summary Judgment by Harlan County School District, Don Musselman, Pulaski County, KY, Darrell Beshears, Jimmie Greene, McCreary County, KY filed by Harlan County School District,, McCreary County, KY,, Pulaski County, KY,, Jimmie Greene,, Don Musselman,, Darrell Beshears,, 132 MOTION for Summary Judgment by American Civil Liberties Union of Kentucky filed by American Civil Liberties Union of Kentucky,, 134 MOTION for Partial Summary Judgment by American Civil Liberties Union of Kentucky filed by American Civil Liberties Union of Kentucky. Harlan County School District and Don Musselman terminated. Signed by Judge Jennifer B Coffman. (RBB)cc: COR (Entered: 09/28/2007)
154 ORDER: 1) matter assigned for settlement conference on Monday, October 22, 2007 @ 9:00 a.m., US Courthouse, 4th Floor Magistrate Chambers, 101 Barr Street, Lexington, KY; 2) separate ex parte settlement conference statements shall be filed on or before close of business on 10/17/2007. ** Settlement Conference set for 10/22/2007 09:00 AM in Lexington before Magistrate Judge James B Todd. Signed by Judge James B Todd. (RBB)cc: COR (Entered: 10/02/2007)
155 MOTION to Alter or Amend Judgment with Memorandum in support by American Civil Liberties Union of Kentucky as to 153 Memorandum Opinion &Order. (SWA) (Entered: 10/17/2007)
156 MINUTE ENTRY FOR SETTLEMENT CONFERENCE held on 10/22/2007 before Judge James B Todd : parties negotiated in good faith but did not reach a settlement agreement. The matter will remain on the Court's docket for adjudication. (RBB)cc: COR Modified on 10/24/2007 to by changing date of settlement conference from 10/23/2007 to 10/22/2007.(Bundy, Renee). (Entered: 10/23/2007)
157 MOTION to Withdraw Erik W. Stanley as Associated Counsel by Pulaski County, KY, Darrell Beshears, Jimmie Greene, McCreary County, KY (RBB) (Entered: 10/29/2007)
***MOTION SUBMITTED TO CHAMBERS of Jennifer B. Coffman for review: 157 MOTION to Withdraw as Attorney by Pulaski County, KY, Darrell Beshears, Jimmie Greene, McCreary County, KY (RBB) (Entered: 10/29/2007)
158 RESPONSE in Opposition re 155 MOTION to Alter Judgment by American Civil Liberties Union of Kentucky as to 153 Memorandum Opinion &Order, filed by Pulaski County, KY, Darrell Beshears, Jimmie Greene, McCreary County, KY. (RBB) (Entered: 10/30/2007)
159 RENEWED MOTION for Summary Judgment by Pulaski County, KY, Darrell Beshears, Jimmie Greene, McCreary County, KY (RBB) (Entered: 10/30/2007)
160 ORDER: Having considered the Motion to withdraw as Associated Counsel and for good cause shown, the Court finds that the motion should be and is GRANTED. Attorney Erik W. Stanley terminated. Signed by Judge Jennifer B Coffman. (MRS)cc: COR (Entered: 10/31/2007)
161 Mail Returned as Undeliverable. Mail sent to Kathleen M. Flynn re 156 ORDER. (RBB) (Entered: 11/05/2007)
163 REPLY to Response to Motion re 155 MOTION to Alter Judgment by American Civil Liberties Union of Kentucky as to 153 Memorandum Opinion &Order, filed by Lawrence Durham, Paul Lee, American Civil Liberties Union of Kentucky, Louanne Walker, Dave Howe. (RBB) (Entered: 11/15/2007)
162 Mail Returned as Undeliverable. Mail sent to Kathleen M. Flynn re 160 Order on Motion to Withdraw as Attorney (RBB) (Entered: 11/14/2007)
***MOTION SUBMITTED TO CHAMBERS of Jennifer B. Coffman for review: 155 MOTION to Alter Judgment by American Civil Liberties Union of Kentucky as to 153 Memorandum Opinion &Order (RBB) (Entered: 11/15/2007)

Case 6:99-cv-00507-JBC-REW As of: 06/15/2012 01:36 PM EDT Page 22 of 27

11/19/2007 11/19/2007 12/05/2007 12/05/2007
12/18/2007
12/20/2007
03/07/2008 03/07/2008 03/31/2008 03/31/2008 04/02/2008 04/07/2008

164 MOTION to Strike 159 RENEWED MOTION for Summary Judgment by Pulaski County, KY, Darrell Beshears, Jimmie Greene, McCreary County, KY by Lawrence Durham, Paul Lee, American Civil Liberties Union of Kentucky, Louanne Walker, Dave Howe *Responses due by 12/7/2007. (RBB) (Entered: 11/21/2007)
165 RESPONSE to Motion re 159 RENEWED MOTION for Summary Judgment by Pulaski County, KY, Darrell Beshears, Jimmie Greene, McCreary County, KY filed by Lawrence Durham, Paul Lee, American Civil Liberties Union of Kentucky, Louanne Walker, Dave Howe. (RBB) (Entered: 11/21/2007)
***MOTION SUBMITTED TO CHAMBERS of Jennifer B. Coffman for review: 159 MOTION for Summary Judgment by Pulaski County, KY, Darrell Beshears, Jimmie Greene, McCreary County, KY (RBB) (Entered: 12/05/2007)
166 RESPONSE in Opposition re 164 MOTION to Strike 159 RENEWED MOTION for Summary Judgment by Pulaski County, KY, Darrell Beshears, Jimmie Greene, McCreary County, KY by Lawrence Durham, Paul Lee, American Civil Liberties Union of Kentucky, Louanne Walker, Dave Howe MOTION to Strike 159 MOTION for Summary Judgment by Pulaski County, KY, Darrell Beshears, Jimmie Greene, McCreary County, KY by Lawrence Durham, Paul Lee, American Civil Liberties Union of Kentucky, Louanne Walker, Dave Howe filed by Pulaski County, KY, Darrell Beshears, Jimmie Greene, McCreary County, KY. (RBB) (Entered: 12/05/2007)
167 REPLY to Response to Motion re 164 MOTION to Strike 159 MOTION for Summary Judgment by Pulaski County, KY, Darrell Beshears, Jimmie Greene, McCreary County, KY by Lawrence Durham, Paul Lee, American Civil Liberties Union of Kentucky, Louanne Walker, Dave Howe MOTION to Strike 159 MOTION for Summary Judgment by Pulaski County, KY, Darrell Beshears, Jimmie Greene, McCreary County, KY by Lawrence Durham, Paul Lee, American Civil Liberties Union of Kentucky, Louanne Walker, Dave Howe filed by Lawrence Durham, Paul Lee, American Civil Liberties Union of Kentucky, Louanne Walker, Dave Howe. (RBB) (Entered: 12/20/2007)
***MOTION SUBMITTED TO CHAMBERS of Jennifer B. Coffman for review: 164 MOTION to Strike 159 MOTION for Summary Judgment by Pulaski County, KY, Darrell Beshears, Jimmie Greene, McCreary County, KY by Lawrence Durham, Paul Lee, American Civil Liberties Union of Kentucky, Louanne Walker, Dave Howe MOTION to Strike 159 MOTION for Summary Judgment by Pulaski County, KY, Darrell Beshears, Jimmie Greene, McCreary County, KY by Lawrence Durham, Paul Lee, American Civil Liberties Union of Kentucky, Louanne Walker, Dave Howe (RBB) (Entered: 12/20/2007)
168 NOTICE of Appearance by William E. Sharp on behalf of American Civil Liberties Union of Kentucky, Louanne Walker, Dave Howe (RBB) (Entered: 03/07/2008)
181 NOTICE of Appearance as co−counsel by William E. Sharp, staff atty, ACLU of KY on behalf of plfs, Lawrence Durham, Paul Lee. (Through clerical error, this pleading was not docketed when received.) (RBB) (RBB). (Entered: 09/11/2008)
169 ORDER ADMITTING STEPHAN M. CRAMPTON PRO HAC VICE : Stephen M. Crampton is admitted phv in the action on hehalf of all dfts. Granting 151 Motion to Appear Pro Hac Vice. Signed by Judge Jennifer B Coffman on 3/31/2008. (RBB)cc: COR (Entered: 03/31/2008)
170 ORDER ADMITTING DAVID M. CORRY PRO HAC VICE: David M. Corry is admitted phv in action as atty on behalf of all dfts; Granting 150 Motion to Appear Pro Hac Vice. Signed by Judge Jennifer B Coffman on 3/31/2008. (RBB)cc: COR (Entered: 03/31/2008)
171 NOTICE OF SUPPLEMENTAL AUTHORITY by American Civil Liberties Union of Kentucky (RBB) (Entered: 04/02/2008)
172 Mail Returned as Undeliverable. Mail sent to Caroline L. Laurie Griffith re 169 Order on Motion to Appear Pro Hac Vice (MRS) (Entered: 04/07/2008)

Case 6:99-cv-00507-JBC-REW As of: 06/15/2012 01:36 PM EDT Page 23 of 27

08/04/2008
08/04/2008
08/12/2008 08/19/2008 09/02/2008 09/02/2008 09/03/2008 09/03/2008
09/03/2008 09/10/2008 09/15/2008 09/18/2008

173 MEMORANDUM OPINION &ORDER: plf's mt to alter or amend jgm 153 is GRANTED; dismissal of Harlan County case is WITHOUT PREJUDICE; the first displays are DECLARED UNCONSTITUTIONAL and are ENJOINED; the second displays are DECLARED UNCONSTITUTIONAL and are ENJOINED; the third displays are DECLARED UNCONSTITUTIONAL and are ENJOINED; plf's mt to strike 164 is DENIED; plf shall respond to dfts' renewed mt for s/j 159 , which the court will construe as a mt for relief from a final jgm w/ the time for the filing of the response to run in accordance with the Local Rules, beginning from the date of entry of this order; the time for dfts to file a reply brief, if desired, shall also run in accordance w/ the Local Rules; there being no just cause for delay, this order is FINAL and APPEALABLE; matter shall be STRICKEN from the active docket because the only remaining issue in this matter is the dfts' mt for relief from a final jgm, which is a post−jgm motion. Case Terminated. Motions terminated: 155 MOTION to Alter Judgment by American Civil Liberties Union of Kentucky as to 153 Memorandum Opinion &Order, 164 MOTION to Strike 159 MOTION for Summary Judgment. Signed by Judge Jennifer B Coffman on 8/4/2008.(RBB)cc: COR (RBB). (Entered: 08/04/2008)
174 JUDGMENT: the court having granted plfs' mt to alter or amend the memorandum opinion and order of September 28, 2007, enters jgm in favor of the plfs in the form of permanent injunctions as to the first, second, and third displays at issue in this case; there being no reason for delay in its entry, this order is FINAL and APPEALABLE. Signed by Judge Jennifer B Coffman on 8/4/2008.(RBB)cc: COR (RBB). (Entered: 08/04/2008)
175 Mail Returned as Undeliverable. Mail sent to atty Kathleen M Flynn re 174 Judgment, 173 Memorandum Opinion &Order (RBB) (Entered: 08/13/2008)
176 PLAINTIFFS' RESPONSE TO DEFENDANTS' MOTION FOR RELIEF FROM FINAL JUDGMENT re 159 MOTION for Summary Judgment (Construed as a motion for relief from a final judgment. See 173 ) by Pulaski County, KY, Darrell Beshears, Jimmie Greene, McCreary County, KY filed by American Civil Liberties Union of Kentucky. (MRS) (RBB). (Entered: 08/21/2008)
177 NOTICE OF APPEAL as to 174 Judgment, 173 Memorandum Opinion &Order, Terminated Case, Terminate Motions by Pulaski County, KY, McCreary County, KY. Filing fee $ 455, receipt number 6000691. TRANSMITTED to 6CCA via US Mail cc: COR, 6CCA (MRS) (RBB). (Entered: 09/02/2008)
178 Transmission of Notice of Appeal and Docket Sheet to US Court of Appeals re 177 Notice of Appeal, ; transmitted to 6CCA via US MAIL (MRS) (RBB). (Entered: 09/02/2008)
179 MOTION for Award of Statutory Attorney Fees and Costs by American Civil Liberties Union of Kentucky (RC) (Additional attachment(s) added on 12/10/2008: # 1 Declaration of Johnnie L. Turner) (RBB). (Entered: 09/05/2008)
180 MEMORANDUM IN SUPPORT of Plaintiff's Motion for Award of Statutory Attorneys' Fees and Costs 179 with Declaration of David A. Friedman and Declaration of William E. Sharp filed by American Civil Liberties Union of Kentucky. (RC) (Additional attachment(s) added on 12/11/2008: # 1 Declaration of David A. Friedman, # 2 Freidman Time Records, # 3 Declaration of William E. Sharp) (RBB). (Entered: 09/05/2008)
**********************VOLUME 6 **************************. (RBB) (Entered: 12/10/2008)
182 ACKNOWLEDGEMENT OF SHORT RECORD RECEIVED: USCA Case Number 08−6069 Case Manager Mary Patterson for 177 Notice of Appeal, filed by Pulaski County, KY, McCreary County, KY. (RBB) (RBB). (Entered: 09/11/2008)
183 Mail Returned as Undeliverable. Mail sent to CAROLINE L. LAURIE GRIFFITH, ATTY re 177 Notice of Appeal (RBB) (RBB). (Entered: 09/15/2008)
184 NOTICE OF FILING OF ITEMIZED LITIGATION EXPENSES by American Civil Liberties Union of Kentucky re 179 MOTION for an Award of Attorney Fees and Costs w/ attached Declaration of David A. Friedman, by American Civil Liberties Union of Kentucky (RBB) (Additional attachment(s) added on

Case 6:99-cv-00507-JBC-REW As of: 06/15/2012 01:36 PM EDT Page 24 of 27

09/18/2008 09/23/2008 09/23/2008 09/23/2008 09/25/2008
09/25/2008 09/30/2008 09/30/2008 10/07/2008 10/10/2008 11/07/2008
11/24/2008 11/25/2008
12/01/2008 12/04/2008

12/31/2008: # 1 Litigation Expenses) (RBB). (Entered: 09/18/2008)
Clerk's Note: re 184 Notice of Filing Iteminzed Litigation Expenses has been forwarded this date to the Lexington office to be placed in record. (RBB) (Entered: 09/18/2008)
185 UNOPPOSED MOTION for Extension of Time to File Response to Plf's motion for attys fees by dfts. (RBB) (RBB). (Entered: 09/23/2008)
***MOTION SUBMITTED TO CHAMBERS of Jennifer B. Coffman for review: 185 Unopposed MOTION for Extension of Time to File Response dfts to plf's motion for attys' fees and costs. (RBB) (Entered: 09/23/2008)
Clerk's Note: re 185 Unopposed MOTION for Extension of Time to File Response by dfts forwarded to Lexington Clerk's office to be placed in the record (JBC's Chambers). (RBB) (Entered: 09/23/2008)
186 ORDER : matter before Court on dfts' mt for an ext of time to respond to plfs' mt for atty fees and costs 185 ; ORDERED dfts' mt 185 is GRANTED and dfts shall have up to and including 11/6/2008 to respond to plfs' mt fo ratty fees and costs. Motions terminated: 185 MOTION for Extension of Time to File Response/Reply by Pulaski County, KY, Darrell Beshears, Jimmie Greene, McCreary County, KY filed by Darrell Beshears, ** (Responses due by 11/6/2008) Signed by Judge Jennifer B Coffman on 09/24/2008.(RBB)cc: COR (RBB). (Entered: 09/25/2008)
Clerk's Note: 6:99−cv−507 JBC ACLU of KY v. McCreary Co., KY; re 186 Order forwarded this date to Lexington Clerk's Office for updating in Court's record (JBC).(RBB) (Entered: 09/25/2008)
187 ORDER: that the dft's motion for relief from final judgment 159 is DENIED without prejudice to its reassertion after the resolution of thepending appeal. Signed by Judge Jennifer B Coffman on 9/29/2008.(RBB)cc: COR (RBB). (Entered: 09/30/2008)
Clerk's Note: re 187 Order forwarded to Lexington Clerk's office for filing in paper record (JBC Chambers). 6: 99−cv−507−JBC (RBB) (Entered: 09/30/2008)
188 Mail Returned as Undeliverable. Mail sent to KATHLEEN M. FLYNN re 177 Notice of Appeal, (MRS) (RBB). (Entered: 10/07/2008)
189 Mail Returned as Undeliverable. Mail sent to CAROLINE L. LAURIE GRIFFITH RE: 186 AND 187 . (RBB) (RBB). (Entered: 10/10/2008)
190 RESPONSE in Opposition re 179 MOTION for Attorney Fees by American Civil Liberties Union of Kentucky filed by dfts, Pulaski County, KY, Darrell Beshears, Jimmie Greene, McCreary County, KY. (RBB) (Additional attachment(s) added on 12/31/2008: # 1 Declaration of Johnnie L. Turner as to Atty Fees, # 2 Declaration of Michael J. Deprimo as to Atty Fees) (RBB). (Entered: 11/07/2008)
***MOTION SUBMITTED TO CHAMBERS of Jennifer B. Coffman for review: 179 MOTION for Attorney Fees by American Civil Liberties Union of Kentucky (RBB) (Entered: 11/24/2008)
191 REPLY to Response to Motion re 179 MOTION for Attorney Fees by American Civil Liberties Union of Kentucky filed by Lawrence Durham, Paul Lee, American Civil Liberties Union of Kentucky, Louanne Walker, Dave Howe. (RBB) (Additional attachment(s) added on 12/31/2008: # 1 Declaration of David Friedman dated11/21/2008, # 2 Declaration of David Friedman dated 8/29/2008) (RBB). (Entered: 11/25/2008)
192 Mail Returned as Undeliverable. Mail sent to Kathleen M. Flynn re 186 Order (RBB) (RBB). (Entered: 12/01/2008)
193 NOTICE OF RELATED AUTHORITY by Lawrence Durham, Paul Lee, Pulaski County, KY, American Civil Liberties Union of Kentucky, Dave Howe. (this pleading was forwarded this day to the Lexington Clerk's office w/ request to updat the record located in Chambers.) (RBB) (Additional attachment(s) added on 12/31/2008: # 1 Memorandum Opinion and Order WDKY Owensboro Division) (RBB). (Entered: 12/04/2008)

Case 6:99-cv-00507-JBC-REW As of: 06/15/2012 01:36 PM EDT Page 25 of 27

12/16/2008 03/13/2009
04/03/2009 04/06/2009
04/06/2009
04/08/2009
04/13/2009 04/17/2009 06/15/2009 06/16/2009 07/20/2009
07/20/2009 07/24/2009 07/28/2009 11/18/2009

194 Mail Returned as Undeliverable. Mail sent to Kathleen M. Flynn re 187 Order on Motion for Summary Judgment (RBB) (Entered: 12/17/2008)
195 MEMORANDUM OPINION &ORDER: Plf's motion for atty fees and costs 179 is GRANTED; plfs are entitled to an award of atty fees in the amount of $393,798.00, and an award of costs in the amount of $8,133.34. Motions terminated: 179 MOTION for Attorney Fees by American Civil Liberties Union of Kentucky filed by American Civil Liberties Union of Kentucky. Signed by Judge Jennifer B Coffman on 3/13/2009. (This Memorandum Opnion and Order has been filed electronically by the docket clerk, however, a paper copy of this order has been fowarded via US mail to all counsel of record.)(RBB)cc: COR (Entered: 03/16/2009)
196 Mail Returned as Undeliverable. Mail sent to Kathleen M. Flynn re 195 Memorandum Opinion &Order (RBB) (Entered: 04/03/2009)
197 JOINT MOTION for Order Staying Enforcement of Attorneys' Fees by Lawrence Durham, Paul Lee, Pulaski County, KY, Darrell Beshears, American Civil Liberties Union of Kentucky, Louanne Walker, Dave Howe, Jimmie Greene (RBB) (Additional attachment(s) added on 3/23/2010: # 1 Proposed Order) (RBB). (Entered: 04/06/2009)
***MOTION SUBMITTED TO CHAMBERS of Jennifer B. Coffman for review: 197 MOTION for Order Staying Enforcement of Attorneys' Fees by Lawrence Durham, Paul Lee, Pulaski County, KY, Darrell Beshears, American Civil Liberties Union of Kentucky, Louanne Walker, Dave Howe, Jimmie Greene (RBB) (Entered: 04/06/2009)
198 CONSENT ORDER STAYING ENFORCEMENT OF FEES: IT IS ORDERED that the judgment awarding statutory attorneys' fees and costs be stayed pending appeal of the underlying substantive judgment. Motions terminated: 197 MOTION for Order. Signed by Judge Jennifer B Coffman on 4/8/2009.(RBB)cc: COR (This Order has been filed electronically by the docket clerk, however, a paper copy of this order has been fowarded via US mail to all counsel of record.) (Entered: 04/08/2009)
199 Mail Returned as Undeliverable. Mail sent to David A. Friedman re 198 Consent Order Staying Enforcement of Fees (RBB) (Entered: 04/13/2009)
200 Mail Returned as Undeliverable. Mail sent to Caroline L. Laurie Griffith re 198 Order. (RBB) (Entered: 04/20/2009)
201 MOTION to Withdraw as Attorney for plaintiffs, Lawrence Durham, Paul Lee, Louanne Walker, Dave Howe, by Kathleen M. Flynn. (Attachments: # 1 Proposed Order)(RBB) (Entered: 06/15/2009)
***MOTION SUBMITTED TO CHAMBERS of Jennifer B. Coffman for review: re 201 MOTION to Withdraw as Attorney by Lawrence Durham, Paul Lee, Louanne Walker, Dave Howe (RBB) (Entered: 06/16/2009)
202 ORDER: GRANTING 201 MOTION of Kathleen M. Flynn to Withdraw as Attorney by Lawrence Durham, Paul Lee, Louanne Walker, Dave Howe filed by Lawrence Durham, Louanne Walker, Paul Lee, Dave Howe.. Signed by Judge Jennifer B Coffman on 7/20/09.(SWA)cc: COR (Order filed electronically by docket clerk, however, paper copy of order sent via US mail to all counsel of record). (Entered: 07/20/2009)
Attorney Update. Attorney Kathleen M. Flynn terminated. (SWA) (Entered: 07/20/2009)
203 Mail Returned as Undeliverable. Mail sent to Caroline L. Laurie Griffith re 202 Order. (SWA) (Entered: 07/24/2009)
204 Mail Returned as Undeliverable. Mail sent to Theodore H. Amshoff, Jr. re 202 Order. (SWA) (Entered: 07/28/2009)
205 NOTICE OF FILING of Attorneys' Lien by law firm of Fernandez Haynes &Kohn PLLC. (SWA) (RBB). (Entered: 11/18/2009)

Case 6:99-cv-00507-JBC-REW As of: 06/15/2012 01:36 PM EDT Page 26 of 27

04/13/2010 05/14/2010 06/09/2010 08/09/2010 08/25/2010 08/25/2010
09/15/2010 09/28/2010
09/28/2010 11/02/2010 02/23/2011 03/06/2011 03/07/2011

206 RELEASE OF ATTORNEYS' LIEN re 205 ATTORNEY LIEN. The undersigned, the law firm of Fernandez Haynes &Kohn PLLC, hereby gives notice the Attorneys' Lien filed on the 16th day of November, 2009, by the law firm of Fernandez Haynes &Kohn PLLC, is hereby discharged of record. (RBB) (Entered: 04/13/2010)
213 NOTICE OF FILING OF EQUITABLE LIEN/LIEN IN EQUITY/SPECIAL OR CHARGING LIEN by Robert A. Kohn (This document was originally filed in London 6:99−cv−509 on 5/15/2010 and is being filed in this case as it is the Lead Case.) (RBB) (Entered: 10/05/2010)
207 USCA JUDGMENT−−AFFIRMING District Court's Order−− as to 177 Notice of Appeal, filed by Pulaski County, KY, McCreary County, KY (Attachments: # 1 Opinion, # 2 Cover letter)(SYH) Modified on 6/9/2010 to add text (SYH). (Entered: 06/09/2010)
208 MANDATE of USCA as to 177 Notice of Appeal, filed by Pulaski County, KY, McCreary County, KY (Attachments: # 1 Cover Letter)(MRS) (Entered: 08/09/2010)
209 MOTION for Award of Statutory Attorney Fees Incurred on Appeal by American Civil Liberties Union of Kentucky, Lawrence Durham, Dave Howe, Paul Lee, Louanne Walker (RBB) Modified motion text on 9/15/2010 (RBB). (Entered: 08/25/2010)
210 MEMORANDUM in Support of Motion re 209 MOTION for Award of Statutory Attorney Fees Incurred on Appeal by American Civil Liberties Union of Kentucky, Lawrence Durham, Dave Howe, Paul Lee, Louanne Walker filed by American Civil Liberties Union of Kentucky, Lawrence Durham, Dave Howe, Paul Lee, Louanne Walker w/ Declaration of William E. Sharp and David A. Friedman. (RBB) (Entered: 08/25/2010)
211 RESPONSE to Motion re 209 MOTION for Award of Statutory Attorney Fees Incurred on Appeal by American Civil Liberties Union of Kentucky, Lawrence Durham, Dave Howe, Paul Lee, Louanne Walker filed by Darrell Beshears, Jimmie Greene, McCreary County, KY, Pulaski County, KY. (RBB) (Entered: 09/15/2010)
212 REPLY to Response to Motion re 209 MOTION for Award of Statutory Attorney Fees Incurred on Appeal by American Civil Liberties Union of Kentucky, Lawrence Durham, Dave Howe, Paul Lee, Louanne Walker filed by American Civil Liberties Union of Kentucky, Jane Doe(s), John Doe(s)(Suing as Sharah Doe and Thomas Doe, on behalf of their minor child Jan Doe), John Doe(s)(Suing as Thomas Doe, Individually), Lawrence Durham, Dave Howe, Paul Lee, Louanne Walker. (RBB) (Entered: 09/28/2010)
***MOTION SUBMITTED TO CHAMBERS of Jennifer B. Coffman for review: re 209 MOTION for Award of Statutory Attorney Fees Incurred on Appeal by American Civil Liberties Union of Kentucky, Lawrence Durham, Dave Howe, Paul Lee, Louanne Walker (RBB) (Entered: 09/28/2010)
214 COPY OF Letter from Supreme Court of the Untied States to 6CCA; U.S. Supreme Court notice filed regarding petition for writ of certiorari filed by Appellant McCreary County, Kentucky, et al.; Supreme Court Case No:10−566. (RBB) (Entered: 11/02/2010)
215 COPY OF Letter from Supreme Court of the United States to 6CCA: The petition for writ of certiorari is denied; Supreme Court Case No. 10−566. (SYH) (Entered: 02/23/2011)
**********************VOLUME 7 **************************. (RBB) Modified on 3/7/2011 to change filing date from 3/7/2011 to 3/6/2011 (RBB). (Entered: 03/07/2011)
216 THIRD MOTION for Award of Statutory Attorneys' Fees and Costs by American Civil Liberties Union of Kentucky, Lawrence Durham, Dave Howe, Paul Lee, Louanne Walker; w/ Memorandum, Declaration of William E. Sharp, Declaration of Junis L. Baldon and Declaration of Jon L. Fleishaker in support of Motion attached. (RBB) (Entered: 03/07/2011)

Case 6:99-cv-00507-JBC-REW As of: 06/15/2012 01:36 PM EDT Page 27 of 27

03/10/2011
03/28/2011 04/01/2011 04/11/2011 04/11/2011 04/11/2011 04/11/2011 05/13/2011 05/17/2011
05/24/2011 06/01/2011 10/05/2011 12/21/2011

217 MEMORANDUM OPINION &ORDER: Plffs.' 209 MOTION for Award of Statutory Attorney Fees Incurred on Appeal by American Civil Liberties Union of Kentucky, Lawrence Durham, Dave Howe, Paul Lee, Louanne Walker filed by Lawrence Durham, Louanne Walker, American Civil Liberties Union of Kentucky, Paul Lee, Dave Howe is GRANTED. Defts. are liable to the plffs for $31,584 in attorney's fees.. Signed by Judge Jennifer B Coffman on 3/1/0/11.(SWA)cc: COR(paper copy sent via USM mail to counsel) (Entered: 03/10/2011)
218 RESPONSE in Opposition re 216 MOTION for Attorney Fees by American Civil Liberties Union of Kentucky, Lawrence Durham, Dave Howe, Paul Lee, Louanne Walker filed by defendants. (SWA) (Entered: 03/28/2011)
219 Mail Returned as Undeliverable. Mail sent to Caroline L. Laurie Griffith re 217 Memorandum Opinion &Order. (RBB) (Entered: 04/01/2011)
220 REPLY to Response to Motion re 216 THIRD MOTION for Attorney Fees by American Civil Liberties Union of Kentucky, Lawrence Durham, Dave Howe, Paul Lee, Louanne Walker filed by American Civil Liberties Union of Kentucky. (RBB) (Entered: 04/11/2011)
***MOTION SUBMITTED TO CHAMBERS of Jennifer B. Coffman for review: re 216 THIRD MOTION for Attorney Fees by American Civil Liberties Union of Kentucky, Lawrence Durham, Dave Howe, Paul Lee, Louanne Walker (RBB) (Entered: 04/11/2011)
221 MOTION for Order of assessment and award of post−judgmnet interest by American Civil Liberties Union of Kentucky, Lawrence Durham, Dave Howe, Paul Lee, Louanne Walker (RBB) Modified motion text on 4/11/2011 (RBB). (Entered: 04/11/2011)
222 MEMORANDUM in Support of Motion re 221 MOTION for Order of assessment and award of post−judgmnet interest by American Civil Liberties Union of Kentucky, Lawrence Durham, Dave Howe, Paul Lee, Louanne Walker filed by American Civil Liberties Union of Kentucky, Lawrence Durham, Dave Howe, Paul Lee, Louanne Walker. (RBB) (Entered: 04/11/2011)
223 ORDER: Plfs in these consolidated cases having moved for an assessment and award of post−jgm interest, ORDERED that Plf's mt for an assessment and award of post−jgm interest is GRANTED; This is a final and appealable order. Signed by Judge Jennifer B Coffman on 5/13/2011.(RBB)cc: COR (Entered: 05/13/2011)
224 ORDER: Plfs' 3rd mt for an award of attorney's fees and costs R. 216 is GRANTED in part. Dfts are liable for $22,420 on this fee petition. The sum represents Sharp's expenditure of 46.3 hours on the opposition brief and 3.5 hours on the fee petition at $200 an hour and Baldon's expenditure of 71.2 hrs on the opposition brief at $175 an hour. FURTHER ORDERED that the defendant are liable for $946.53 in costs. Motions terminated: 216 MOTION for Attorney Fees by American Civil Liberties Union of Kentucky, Lawrence Durham, Dave Howe, Paul Lee, Louanne Walker filed by Lawrence Durham, Louanne Walker, American Civil Liberties Union of Kentucky, Paul Lee, Dave Howe. Signed by Judge Jennifer B Coffman on 6/17/2011.(RBB)cc: COR (Entered: 05/18/2011)
225 Mail Returned as Undeliverable. Mail sent to Caroline L. Laurie Griffith re 223 Order (JMB) (Entered: 05/25/2011)
226 Mail Returned as Undeliverable. Mail sent to Caroline L. Laurie Griffith re 223 Order (RC) (Entered: 06/01/2011)
227 RELEASE OF EQUITABLE LIEN/LIEN IN EQUITY/SPECIAL OR CHARGING LIEN: Robert A. Kohn gives notice that the Equitalbe Lien/Lien in Equity/Special or Charging Lien filed by him against David A. Friedman on the 15th of May 1010 is hereby discharged of record filed by Robert A. Kohn (RBB) (Entered: 10/05/2011)
228 JOINT NOTICE OF SATISFACTION OF JUDGMENT by American Civil Liberties Union of Kentucky, Darrell Beshears, Lawrence Durham, Jimmie Greene, Dave Howe, Paul Lee, McCreary County, KY, Don Musselman, Pulaski County, KY, Louanne Walker (JMB) (Entered: 12/21/2011)

 
 354 F.3d 438 (2003)
AMERICAN CIVIL LIBERTIES UNION OF KENTUCKY, et al., Plaintiffs-Appellees, v.
McCREARY COUNTY, KENTUCKY, et al., Defendants-Appellants.
No. 01-5935.
United States Court of Appeals, Sixth Circuit.
Argued: December 4, 2002. Decided and Filed: December 18, 2003.
439 *439 Mathew D. Staver, Erik W. Stanley, Liberty Counsel, Longwood, Florida, Johnnie L. Turner, Law Offices of Johnnie L. Turner, Harlan, KY, for Appellants.
David A. Friedman, American Civil Liberties Union of Kentucky, Louisville, KY, for Appellees.
440 *440 David R. Huggins, National Legal Foundation, Virginia Beach, VA, for Amicus Curiae.
Before: RYAN, CLAY, and GIBBONS, Circuit Judges.
CLAY, J., delivered the opinion of the court. GIBBONS, J. (pp. 462-63), delivered a separate concurring opinion. RYAN, J. (pp. 463-82), delivered a separate dissenting opinion.
OPINION
CLAY, Circuit Judge.
Defendants, two Kentucky counties and a county school district, as well as three officials of these governmental entities, appeal from the district court's order granting Plaintiffs' motion for a supplemental preliminary injunction prohibiting Defendants from displaying copies of the Ten Commandments in three separate displays on the basis that Plaintiffs showed a strong likelihood of succeeding on their claim that Defendants' displays violated the Establishment Clause of the First Amendment. For the reasons set forth below, we AFFIRM.
I.
BACKGROUND
A. Procedural History
On November 18, 1999, seven individuals in three Kentucky counties (McCreary County, Harlan County, and Pulaski County) along with the American Civil Liberties Union ("ACLU") filed three lawsuits in the United States District Court for the Eastern District of Kentucky, alleging that these counties had erected displays consisting of framed copies of the Ten Commandments in the county courthouses of McCreary and Pulaski Counties, as well as in the schools of the Harlan County School District, in violation of the Establishment Clause of the First Amendment.[1] Plaintiffs sought a declaration that the displays were unconstitutional, as well as preliminary and permanent injunctive relief enjoining the counties from continuing their display of the Ten Commandments.
441 Shortly after the complaint was filed, Defendants modified the displays to include *441 secular historical and legal documents, some of which were excerpted, and then filed respective motions to dismiss. Following a hearing held on April 20, 2000, the district court issued an order on May 5, 2000 in each of the three cases which denied Defendants' motions to dismiss and granted Plaintiffs' motions for preliminary injunctive relief; the court ordered

that the displays be removed and that no similar displays be erected. Defendants filed a notice of appeal to this Court, and a motion to stay the injunction pending appeal. The district court denied the motion to stay, as did this Court.
Defendants allegedly obtained new counsel and then filed a motion to clarify the district court's preliminary injunction as to all Defendants regarding the court's prohibition against erecting "similar displays." The district court denied the motion for clarification on September 15, 2000, stating that "the injunction speaks for itself." (J.A. at 119.)
Defendants, allegedly acting on the belief that a display containing the Ten Commandments could be erected within the parameters of the Constitution, voluntarily dismissed their appeal to this Court and erected new displays containing several additional secular historical and legal documents in their entirety, along with the Ten Commandments. The courthouse displays contained an explanation entitled the "Foundations of American Law and Government Display" which explained that the displays included various documents that played a significant role in the founding of the American system of law and government. The school district displays contained similar documents to the courthouse displays, except instead of the "Foundations of American Law and Government Display" explanation, the School Board displays contained a School Board Resolution. The Resolution addressed the historical context of the displays and opened a forum for the community to post an unlimited number of additional historical documents.
As a result of these new displays, Plaintiffs filed a motion to hold Defendants in contempt for violating the district court's preliminary injunction or, in the alternative, to enter a supplemental preliminary injunction order. Defendants responded to Plaintiffs' motion by arguing that the new displays were not similar to the previous displays, and contended that the "purpose for the display is to educate citizens of the county regarding some of the documents that played a significant role in the foundation of our system of law and government." (J.A. at 151.)
A hearing was held on March 30, 2001, at which time the district court denied Plaintiffs' motion for contempt, and on April 2, 2001, the court entered a corresponding order denying the motion for contempt, while urging the parties to settle the matter. The court noted in the order, however, that if the parties could not reach a settlement by April 30, 2001, the court would rule upon Plaintiffs' motion for a supplemental preliminary injunction. The parties failed to reach a settlement, and the district court then issued an order granting Plaintiffs' motion for a supplemental preliminary injunction on June 22, 2001. It is from the district court's order granting Plaintiffs' motion for a supplemental preliminary injunction that Defendants now appeal.
B. Facts
In 1999, McCreary County erected a display of the Ten Commandments in the McCreary County Courthouse consisting of "at least one framed copy of one version of the Ten Commandments and [which] was not part of any 442 larger educational, historical, or retrospective exhibit." *442 McCreary I, supra note 1, at 684. The display was erected pursuant to an order signed by Defendant Jimmie Greene, McCreary County Judge Executive. Id. Likewise, Pulaski County officials erected a copy of the Ten Commandments in the Pulaski County courthouse in the same fashion. Pulaski, supra note 1, at 695. The Pulaski display was erected by Defendant Darrell Beshears, Pulaski County Judge Executive. Id. The courthouse displays, both in their initial and later in their modified forms, were "readily visible to the plaintiffs and the other county citizens who use the courthouse to conduct civic business, to obtain or renew driver's licenses and permits, to register cars, to pay local taxes, and to register to vote." McCreary I, supra note 1, at 684; Pulaski, supra note 1, at 695. The schools in Harlan County School District displayed copies of a version of the Ten Commandments in their classrooms which, like the courthouse displays, initially consisted of "framed copies of one version of the Ten Commandments which were not part of larger educational, historical or retrospective exhibits." Harlan, supra note 1, at 671.
After Plaintiffs filed suit, Defendants amended the respective displays "in an attempt to bring the display[s] within the parameters of the First Amendment and to insulate themselves from suit." McCreary I, supra note 1, at 684. Specifically, the Courthouse displays were modified to consist of:

(1) an excerpt from the Declaration of Independence; (2) the Preamble to the Constitution of Kentucky; (3) the national motto of "In God We Trust"; (4) a page from the Congressional Record of Wednesday, February 2, 1983, Vol. 129, No. 8, declaring it the Year of the Bible and including a copy of the Ten Commandments; (5) a proclamation by President Abraham Lincoln designating April 30, 1863 a National Day of Prayer and Humiliation; (6) an excerpt from President Lincoln's "Reply to Loyal Colored People of Baltimore upon Presentation of a Bible" reading, "The Bible is the best gift God has ever given to man."; (7) a proclamation by President Ronald Reagan marking 1983 the Year of the Bible; and (8) the Mayflower Compact.
Id. (footnote omitted); see also Pulaski, supra note 1, at 695-96. The School Board display was modified to include those documents included in the modified courthouse displays, along with the addition of "a recently enacted Kentucky statute, K.R.S. 158.195, which the defendants allege permits the posting of the Ten Commandments; and ...a Harlan County School Board resolution permitting the posting of the Ten Commandments." Harlan, supra note 1, at 672. Also common to all three modified displays was the fact that while some of the added documents were "displayed in their entirety, the defendants [] excerpted a small portion of others to include only that document's reference to God or the Bible with little or no surrounding text." McCreary I, supra note 1, at 684; Pulaski, supra note 1, at 696; Harlan, supra note 1, at 672.
Despite the modifications, Plaintiffs sought a preliminary injunction from the district court to enjoin Defendants from displaying the modified exhibits, and the district court granted the preliminary injunction as to all three displays. See McCreary I, supra note 1, at 691. The district court found that "the amended displays failed the `purpose' and `effect' prongs of the three-part test set out in Lemon v. Kurtzman, 403 U.S. 602, 91 S.Ct. 2105, 29 443 L.Ed.2d 745 (1971), in that they lacked a secular purpose and had the effect of endorsing religion." McCreary *443 II, supra note 1, at 846 (footnotes omitted). The court ordered that the displays be removed "immediately" and further ordered that "similar displays" could not be erected in the future. McCreary I, supra note 1, at 691.
Defendants then posted a third version of the displays, presuming that the modified displays were in conformity with the law as set forth in the district court's opinions. The new courthouse displays consisted of the entire Star Spangled Banner, the Declaration of Independence, the Mayflower Compact, the Bill of Rights, the Magna Carta, the National Motto, the Preamble to the Kentucky Constitution, the Ten Commandments[2], Lady Justice and a one-page prefatory document entitled "The Foundations of American Law and Government Display." (J.A. 161-74.) The prefatory description states that the "display contains documents that played a significant role in the foundation of our system of law and government." (J.A. at 161.) With regard to the Ten Commandments, the prefatory description states:
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.
Id. There is no other discussion of the Ten Commandments and how it purportedly relates to any of the other documents in the display.
The new School Board displays consisted of the entire Star Spangled Banner, the Declaration of Independence, the Mayflower Compact, the Bill of Rights, the Magna Carta, the National Motto, the Preamble to the Kentucky 444 Constitution, an excerpt of the Congressional Record containing the Ten Commandments,[3] Kentucky Statute *444 § 158.195 regarding the posting of historical displays and a School Board Resolution ("the Resolution"). (J.A. at 198-208.) The Resolution stated, in part:
We believe these ... documents positively contribute to the educational foundations and moral character of students in our schools.... [I]t is our opinion that these ... documents, taken as a whole, are valuable examples of documents that may instill qualities desirable of the students in our schools, and have had particular historical significance in the development of this country.

(J.A. at 198.) The Resolution also contained a procedure that would permit any person to request the posting of other historical documents with the permission of the Harlan County Board of Education. (J.A. at 198-99.)
The district court, after recognizing the Supreme Court's approval of "two constitutionally permissible uses of the Ten Commandments within the public arena," found that the new displays were "clearly outside the bounds of these permissible uses and [were] violative of the Establishment Clause." McCreary II, supra note 1, at 852-53 (citing County of Allegheny v. ACLU, 492 U.S. 573, 109 S.Ct. 3086, 106 L.Ed.2d 472 (1989) and Stone v. Graham, 449 U.S. 39, 101 S.Ct. 192, 66 L.Ed.2d 199 (1980)). The district court thus enjoined Defendants from continuing with the new displays and ordered all three to be removed immediately from their respective locations. McCreary II, supra note 1, at 853.
II.
DISCUSSION
A. Standard of Review
A preliminary injunction is an extraordinary measure that has been characterized as "one of the most drastic tools in the arsenal of judicial remedies." Hanson Trust PLC v. ML SCM Acquisition Inc., 781 F.2d 264, 273 (2d Cir.1986) (citation omitted); see also Detroit Newspaper Publishers. Ass'n v. Detroit Typographical Union No. 18, 471 F.2d 872, 876 (6th Cir.1972) (emphasizing that a preliminary injunction is the strong arm of equity which should not be extended to cases which are doubtful or do not come within well-established principles of law). This Court reviews the district court's decision to grant a preliminary injunction for an abuse of discretion while giving great deference to the district court's determination; however, this Court's deference to the district court is not absolute. Mascio v. Pub. Employees Ret. Sys., 160 F.3d 310, 312-13 (6th Cir.1998). The injunction will be disturbed if the district court relied upon clearly erroneous findings of fact, improperly applied the governing law, or used an erroneous legal standard. See Blue Cross & Blue Shield Mut. v. Blue Cross & Blue Shield Ass'n, 110 F.3d 318, 322 (6th Cir.1997). "A finding is `clearly erroneous' when although there is evidence to support it, the reviewing court is left with the definite and firm conviction that a mistake has been committed." See United States v. United States Gypsum, Co., 333 U.S. 364, 395, 68 S.Ct. 525, 92 L.Ed. 746 (1948).
445 *445 B. Analysis
In the exercise of its discretion with respect to a motion for preliminary injunction,
a district court must give consideration to four factors: "(1) whether the movant has a strong likelihood of success on the merits; (2) whether the movant would suffer irreparable injury without the injunction; (3) whether issuance of the injunction would cause substantial harm to others; and (4) whether the public interest would be served by issuance of the injunction." Rock and Roll Hall of Fame & Museum, Inc. v. Gentile Prods., 134 F.3d 749, 753 (6th Cir.1998).
Mascio, 160 F.3d at 312-13. Federal Rule of Civil Procedure 52(c) "requires a district court to make specific findings concerning each of these four factors, unless fewer are dispositive of the issue." See In re DeLorean Co., 755 F.2d 1223, 1228 (6th Cir. 1985).
In Elrod v. Burns, 427 U.S. 347, 373, 96 S.Ct. 2673, 49 L.Ed.2d 547 (1976), the Supreme Court held that when reviewing a motion for a preliminary injunction, if it is found that a constitutional right is being threatened or impaired, a finding of irreparable injury is mandated. In other words, the first factor of the four-factor preliminary injunction inquiry 0907 whether the plaintiff shows a substantial likelihood of succeeding on the merits 0907 should be addressed first insofar as a successful showing on the first factor mandates a successful showing on the second factor 0907 whether the plaintiff will suffer irreparable harm. See id.; see also Connection Distrib. Co. v. Reno, 154 F.3d 281, 288 (6th Cir.1998) (finding that "[w]hen a party seeks a preliminary injunction on the basis of the

potential violation of the First Amendment, the likelihood of success on the merits often will be the determinative factor").
1. Strong Likelihood of Success on the Merits
The Establishment Clause of the First Amendment provides that "Congress shall make no law respecting an establishment of religion." U.S. Const. amend. I. This clause is made applicable to the states through the Fourteenth Amendment. See Everson v. Bd. of Educ., 330 U.S. 1, 8, 67 S.Ct. 504, 91 L.Ed. 711 (1947). As the Supreme Court has recognized, "[t]he Establishment Clause, at the very least, prohibits government from appearing to take a position on questions of religious beliefs or from `making adherence to a religion relevant in any way to a person's standing in the political community.'" County of Allegheny v. Am. Civil Liberties Union, 492 U.S. 573, 593-94, 109 S.Ct. 3086, 106 L.Ed.2d 472 (1989) (quoting Lynch v. Donnelly, 465 U.S. 668, 104 S.Ct. 1355, 79 L.Ed.2d 604 (1984)).
While sitting en banc, this Court recently observed that although individual Supreme Court justices have expressed reservations regarding the test set forth in Lemon v. Kurtzman, 403 U.S. 602, 91 S.Ct. 2105 (1971) for determining whether a particular government action violates the Establishment Clause, see Am. Civil Liberties Union of Ohio v. Capitol Square Review & Advisory Bd., 243 F.3d 289, 306 & n. 15 (6th Cir.2001) (en banc) (collecting cases), this Court, as an intermediate federal court, is bound to follow the Lemon test until the Supreme Court explicitly overrules or abandons it. Adland v. Russ, 307 F.3d 471, 479 (6th Cir.2002) (citing Grutter v. Bollinger, 288 F.3d 732, 743 (6th Cir.2002)).
The Lemon test, as originally formulated, required reviewing courts to consider whether (1) the government 446 activity in question has a secular purpose; *446 (2) whether the activity's primary effect advances or inhibits
religion; and (3) whether the government activity fosters an excessive entanglement with religion. Lemon, 403 U.S. at 612-13, 91 S.Ct. 2105. Although this remains the original formulation of the Lemon test, this Court has recognized in recent years that the Supreme Court has applied what is known as the "endorsement" test, which looks to whether a reasonable observer would believe that a particular action constitutes an endorsement of religion by the government. See Adland, 307 F.3d at 479 (citing Granzeier v. Middleton, 173 F.3d 568, 573 (6th Cir.1999) (collecting cases) and Hawley v. City of Cleveland, 24 F.3d 814, 822 (6th Cir.1994)). Accordingly, this Court has held that the endorsement test "should be treated `as a refinement of the second Lemon prong.'" Baker v. Adams County/Ohio Valley Sch. Bd., 310 F.3d 927, 929 (6th Cir.2002) (quoting Adland, 307 F.3d at 479). If a plaintiff establishes a violation of any prong of the Lemon test, then the government action is unconstitutional. See, e.g., Edwards v. Aguillard, 482 U.S. 578, 583, 107 S.Ct. 2573, 96 L.Ed.2d 510 (1987).
a. "Purpose" Prong of the Lemon Test
Although a government's stated purposes for a challenged action are to be given some deference, it remains the task of the reviewing court to "distinguis[h] a sham secular purpose from a sincere one." Santa Fe Indep. Sch. Dist. v. Doe, 530 U.S. 290, 308, 120 S.Ct. 2266, 147 L.Ed.2d 295 (2000). Specifically, it is up to this Court to determine whether Defendants' inclusion of the Ten Commandments in the displays was a "purposeful or surreptitious effort to express some kind of subtle governmental advocacy of a particular religious message." Lynch, 465 U.S. at 680, 104 S.Ct. 1355. To satisfy this prong of the Lemon test, Plaintiffs must show that Defendants' predominate purpose for the displays was religious. See Adland, 307 F.3d at 480 ("Although a totally secular purpose is not required, it is clear that the secular purpose requirement is not satisfied ... by the mere existence of some secular purpose, however dominated by religious purposes.") (internal quotation marks and citations omitted). See also Stone, 449 U.S. at 41, 101 S.Ct. 192 (examining "pre-eminent purpose for posting the Ten Commandments on schoolroom walls"); Aguillard, 482 U.S. at 599, 107 S.Ct. 2573 (Powell, J., concurring) ("A religious purpose alone is not enough to invalidate an act of a state legislature. The religious purpose must predominate.") (citations omitted).
As noted by the district court below, Defendants herein articulated the following purposes for the latest versions of the displays:

(1) to erect a display containing the Ten Commandments that is constitutional;

(2) to demonstrate that the Ten Commandments were part of the foundation of American Law and Government;

(3) [to include the Ten Commandments] as part of the display for their significance in providing "the moral background of the Declaration of Independence and the foundation of our legal tradition;"

(4) to educate the citizens of the county regarding some of the documents that played a significant role in the foundation of our system of law and government; and

(5) [as stated by the Harlan County School Board] to create a limited public forum on designated

walls within the school district for the purpose of posting historical documents which played a

447

significant role in the development, origins *447 or foundations of American or Kentucky law....

McCreary II, supra note 1, at 848 (citations to record and footnotes omitted). The district court found that the first three purposes were, "on their face, religious in nature and therefore impermissible," and that "the history of the display belies the secular intentions of the other two." Id. at 848-49. We agree with the district court's ultimate conclusion that the predominate purpose of the displays was religious. We do take issue, however, with some of the district court's reasoning underpinning that conclusion.

The district court reasoned that the first three articulated purposes were "facially" unconstitutional under the Supreme Court's holding in Stone v. Graham, inasmuch as "that case established that a state's desire to proclaim the Ten Commandments' foundational value for American law and government is a religious, rather than secular, purpose." McCreary II, supra note 1, at 849. The court went on to note that in Stone, the Commonwealth of Kentucky sought to post the Ten Commandments along with the following notation: "`The secular application of the Ten Commandments is clearly seen in its adoption as the fundamental legal code of Western Civilization and the Common Law of the United States.'" Id. (quoting Stone, 449 U.S. at 41, 101 S.Ct. 192). The court opined that this "putatively secular purpose" in Stone was rejected by the Supreme Court, and "is fundamentally the same as the defendants' first three articulated purposes" in the matter at hand. Id.

This Court disagrees. On its face, the first articulated purpose 0907 to erect a constitutional display of the Ten Commandments 0907 has nothing to do with the state's desire to proclaim the Ten Commandments' foundational contribution to American law and government. Rather, the facial purpose is simply to comport governmental conduct (i.e., the displays) with the law. Nevertheless, the first statement of purpose does not satisfy Defendants' burden of articulating a secular purpose for the displays, because this statement merely begs the ultimate legal question of whether Defendants' conduct is constitutional. This avowed purpose fails to shed any light on Defendants' motivation for creating the displays; at most, this purpose explains certain alterations Defendants made to the displays, but not the raison d'etre of the displays.[4] Accordingly, the first stated purpose does not constitute a secular purpose as a matter of law. See Adland, 307 F.3d at 482 (finding that government had failed to articulate a secular explanation for Ten Commandments display where "its asserted secular justification is intended merely to avoid Establishment Clause liability rather than to actually further a legitimate secular purpose"); Books v. City of Elkhart, Ind., 235 F.3d 292, 304 (7th Cir. 2000) ("... [W]e shall not accept a stated purpose that merely seeks to avoid a potential Establishment Clause violation.")

This Court also disagrees with the district court's pronouncement about the second and third stated purposes, based on the Supreme Court's decision in Stone, that "a state's desire to proclaim the Ten Commandments' foundational value for American law and government is a religious, rather than secular, purpose." McCreary II, supra note 1, at 849. In Stone, a state statute required the posting of the Ten Commandments on the wall of each 448 public school classroom. Underneath *448 the last Commandment appeared the following disclaimer: "The secular application of the Ten Commandments is clearly seen in its adoption of the fundamental legal code of Western Civilization and the Common Law of the United States." Id. at 40 n. 1, 101 S.Ct. 192. The Court held that the "pre-eminent purpose for posting the Ten Commandments on schoolroom walls is plainly religious in nature" because the Commandments "are undeniably a sacred text in the Jewish and Christian faiths." Id. at 41, 101

S.Ct. 192. The Court rejected the "supposed" secular purpose of teaching the foundational role the Ten Commandments played in our civilization and legal system because merely posting the Ten Commandments fulfilled no "educational function." Id. at 42, 101 S.Ct. 192. The Court further opined that the outcome of the case may have been different had the Ten Commandments been "integrated into the school curriculum ... in an appropriate study of history, civilization, ethics, comparative religion, or the like." Id. (citation omitted).
Stone established no per se rule that displaying the Ten Commandments in an educational setting is unconstitutional. See also Aguillard, 482 U.S. at 607-08, 107 S.Ct. 2573 (Powell, J., concurring) ("[I]t is worth noting that the Establishment Clause does not prohibit per se the educational use of religious documents in public school education."); Lynch, 465 U.S. at 678-79, 104 S.Ct. 1355 ("... [A]n absolutist approach in applying the Establishment Clause is simplistic and has been uniformly rejected by the Court.... In each case, the inquiry calls for line drawing; no fixed, per se rule can be framed."). Moreover, contrary to the district court's conclusion, Stone announced no per se prohibition against displaying the Ten Commandments for the purpose of demonstrating a connection with the structure of American law or government. In fact, several courts have indicated that a display for such a purpose may be permissible. See Aguillard, 482 U.S. at 593-94, 107 S.Ct. 2573 ("[T]he Court acknowledged in Stone that its decision forbidding the posting of the Ten Commandments did not mean that no use could ever be made of the Ten Commandments, or that the Ten Commandments played an exclusively religious role in the history of Western Civilization.") (citing Stone, 449 U.S. at 42, 101 S.Ct. 192); Books, 235 F.3d at 302 ("The text of the Ten Commandments no doubt has played a role in the secular development of our society and can no doubt be presented by the government as playing such a role in our civic order.") Similarly, it is conceivable that the Ten Commandments could be incorporated into a comparative religion course or a study of "the nature of the Founding Father's religious beliefs and how these beliefs affected the attitudes of the times and the structure of our government." Aguillard, 482 U.S. at 606-07, 107 S.Ct. 2573 (Powell, J., concurring) (discussing the Bible generally).
To comply with Stone, however, a purported historical display must present the Ten Commandments objectively and integrate them with a secular message. When such a display consists almost entirely of reading material posted in a public school, the most logical way of achieving this goal is by integrating the Ten Commandments with a secular curriculum, such as through the objective study of history, ethics or comparative religion. See Stone, 449 U.S. at 42, 101 S.Ct. 192; Sch. Dist. Abington v. Schempp, 374 U.S. 203, 225, 83 S.Ct. 1560, 10 L.Ed.2d 844 (1963) ("... [S]tudy of the Bible or of religion, when presented objectively as part of a secular program of education, may ... be effected consistently with the First Amendment."). Several factors are relevant 449 when assessing whether the Ten *449 Commandments have been presented objectively and integrated with a secular message: the content of the displays, the physical setting in which the Ten Commandments are displayed and any changes that Defendants have made to the displays since their inception. See Santa Fe Indep. Sch. Dist., 530 U.S. at 315, 120 S.Ct. 2266 (holding that school's original policy on student-led prayer, which "unquestionably violated the Establishment Clause," was relevant to determining constitutionality of modified policy because the Court's inquiry "not only can, but must, include an examination of the circumstances surrounding its enactment"); Adland, 307 F.3d at 481 (in assessing state's avowed secular purpose in displaying Ten Commandments monument, Court looked to linguistic content of the statute authorizing the display and the intended physical context of the display).
The animating principle of Stone applies equally in a courthouse setting: the government must present the Ten Commandments objectively and must integrate them with a secular message. The government achieves this goal by ensuring that the symbols, pictures and/or words in the display share a common secular theme or subject matter. See Adland, 307 F.3d at 481 (applying Stone to display of Ten Commandments on State's capitol grounds; expressing approval of the frieze on the wall of the Supreme Court, which depicts Moses carrying the Ten Commandments alongside Confucius, Mohammed, Caesar Augustus, William Blackstone, Napoleon Bonaparte and John Marshall because it does not convey the message that the Ten Commandments are the only precedent legal code of the State) (citing Allegheny, 492 U.S. at 652-53, 109 S.Ct. 3086 (Stevens, J., concurring in part and dissenting in part) (noting that Supreme Court's friezes convey a message of "respect not for great proselytizers but for great law-givers")). Accordingly, a court examines the same factors (content, context and the evolution of the displays) to assess the nature of the governmental purpose, regardless of whether the display is in a school building or a courthouse.

The district court failed to apply these legal standards to Defendants' second and third articulated purposes, dismissing them without sufficient analysis. Nevertheless, as discussed below, the undisputed evidence in the record concerning the content and context of the displays, as well as the evolution of the displays, demonstrates that the district court did not clearly err in finding that Defendants' actual purposes were religious. Further, although the district court's legal analysis of Defendants' fourth and fifth articulated purposes was more substantive, it, too, was incomplete. Again, however, any flaws in the district court's reasoning were not outcomedeterminative because the displays' content, particularly when viewed in light of Defendants' past attempts to display the Ten Commandments in a blatantly religious manner, showed that Defendants' predominate purpose for the displays was religious.
i. Content of the displays

a) School displays

The School Board's display of, inter alia, the Star Spangled Banner, the Declaration of Independence, the Mayflower Compact, the Bill of Rights, the Magna Carta, the National Motto and the Preamble to the Kentucky Constitution was accompanied by a School Board Resolution ("the Resolution"), the only document that purported to explain the significance of the documents. The Resolution stated, in part:

450

We believe these ... documents positively contribute to the educational foundations *450 and

moral character of students in our schools.... [I]t is our opinion that these ... documents, taken as a

whole, are valuable examples of documents that may instill qualities desirable of the students in

our schools, and have had particular historical significance in the development of this country.

The Resolution provided the sole source of commentary about the documents in the display.

Even a generous reading of the Resolution reveals that the Ten Commandments are not integrated with a secular study of American law or government. The Resolution merely asserts, without further elaboration, the School Board's "belie[f]" and "opinion" that the documents, including the Ten Commandments, have educational and moral value, as well as historical significance. It is difficult to determine what subject, if any, the display even purports to study.

Moreover, the Resolution in no way connects the Ten Commandments with the other historical documents. The likely explanation for this phenomenon is that the "Ten Commandments are undeniably a sacred text in the Jewish and Christian faiths," Stone, 449 U.S. at 41, 101 S.Ct. 192, and the other historical documents are not. As the Supreme Court has observed, "the first part of the Commandments concerns the religious duties of believers: worshipping the Lord God alone, avoiding idolatry, not using the Lord's name in vain, and observing the Sabbath Day." Id. at 42, 101 S.Ct. 192 (citing Exodus 20: 1-11; Deuteronomy 5: 6-15). None of the other historical documents concern the religious duties of those who believe in God. Nor do these documents discuss the Ten Commandments' requirement to honor parents or the prohibitions against killing, committing adultery, stealing, bearing false witness and coveting.

The Ten Commandments themselves are contained in an excerpt from the Congressional Record, which reprints a Joint Resolution of Congress declaring 1983 to be "Year of the Bible." (J.A. 208.) The fact that the Ten Commandments appear in a historical governmental publication, such as the Congressional Record, however, does not "secularize" the Ten Commandments. Rather, the question is whether the language of the Congressional Record excerpt integrates the Ten Commandments with an objective discussion of a secular subject matter. It clearly does not. The excerpt, like the School Board's Resolution, asserts an opinion (that of a Representative) that "it would serve an educational purpose for our citizens to become familiar with the important role which the Bible and Ten Commandments have played in molding our American traditions and laws." (J.A. 208.) The excerpt, however, never explains the connection between the Ten Commandments and American traditions. The Joint Resolution itself makes assertions about the role of the Bible in forming the United States and inspiring the Declaration of Independence and the Constitution of the United States. It then concludes with the following statements:

Whereas the history of our Nation clearly illustrates the value of voluntarily applying the teachings of the Scriptures in the lives of individuals, families, and societies;

. . .

Whereas that renewing our knowledge of and faith in God through Holy Scriptures can strengthen us as a Nation and a people; Now, therefore, be it

Resolved by the Senate and House of Representatives of the United States of America in

Congress assembled, That the President is authorized and requested to designate 1983 as a

451

national "Year *451 of the Bible" in recognition of both the formative influence the Bible has been

for our nation, and our national need to study and apply the teaching of the Holy Scriptures."

(J.A. 208.) In short, Defendants' public school displays of the Ten Commandments are contained within a text that exhorts Americans to acknowledge the Bible as "the Word of God" and to apply the teachings of the Bible to their lives. The message is patently religious and in no way resembles an objective study of the role that the Ten Commandments, or even the Bible generally, played in the foundation of the American government.

b) Courthouse displays

The courthouse displays of the Star Spangled Banner, the Declaration of Independence, the Mayflower Compact, the Bill of Rights, the Magna Carta, the National Motto, the Preamble to the Kentucky Constitution, the Ten Commandments and Lady Justice were preceded by a one-page prefatory description of the documents entitled "The Foundations of American Law and Government Display." The prefatory description of the Ten Commandments is limited to the following:
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.
Although a bit different in form from the school displays, the courthouse displays of the Ten Commandments suffer from the same fundamental flaw 0907 the lack of a demonstrated analytical or historical connection with the other documents.
As noted, the prefatory document asserts a connection between the Ten Commandments and "the formation of our country" and "our legal tradition." To support this thesis, the preface cites to the "clear[]" influence that the Ten Commandments had on the Declaration of Independence. It is not facially apparent, and the preface offers no explanation, how the quotation from the Declaration is in any way connected with the Ten Commandments, which say nothing about men being created equal and with the rights to life, liberty and the pursuit of happiness. The only facial similarity between the two documents is that they both recognize the existence of a deity. The concept of a deity, however, is by no means unique to the Ten Commandments or even the Judeo-Christian tradition. Thus, this solitary similarity hardly demonstrates how the Ten Commandments in particular influenced the writing of the Declaration and, hence, the foundation of our country and legal tradition.
To buttress this alleged connection, Defendants have proffered evidence that each of the Ten Commandments was codified, to one extent or another, into the legal codes of some American Colonies, and that some of the Commandments (such as prohibitions against stealing, perjury and killing) persist to this day in American legal codes. Specifically, Defendants cite to a 1610 Virginia law requiring its leaders to give "allegiance" to God; a 1680 New Hampshire law barring idolatry; a 1610 Virginia law and a 1639 Connecticut law against taking God's name in vain; laws from the 1600's and 1700's recognizing the Sabbath; a 1642 Connecticut law exhorting children to 452 honor their parents; laws prohibiting killing; *452 laws from the 1600's and 1700's prohibiting adultery; laws

against stealing; and anti-perjury laws that prohibit bearing "false witness." Defendants cite to no particular law that prohibits "coveting."
The problem with this evidence and Defendants' accompanying argument is two-fold. One, the evidence does not appear in the actual display of the Ten Commandments, so an observer would not actually be made aware of these facts 0907 a phenomenon equally relevant to the discussion of the "endorsement" issue below. Two, even assuming that the Ten Commandments are the sole or primary source of some laws codified by certain Colonies and State legislatures, this "fact" is irrelevant to the fundamental assertion in the display that the Ten Commandments clearly influenced the creation of the Declaration of the Independence and, thus, the formation of our country and legal tradition. The dissent expends a considerable amount of effort discussing "the influence of religion upon American law." We have no reason to doubt the existence of such an influence, but that is not the issue in this case. Even granting that religion in general influenced the development of our country and our legal traditions, we cannot simply take judicial notice of the very different and very specific claim that the Ten Commandments profoundly influenced the drafting of the Declaration of Independence. An assertion of such a connection is not evidence of such a connection. Thus, the dissent's discussion, like Defendants' evidence, simply misses the mark.
The Court finds it significant that neither Defendants nor the dissent have attempted to buttress the historical claim that the prefatory document makes about the Ten Commandments' foundational role in the drafting of the Declaration of Independence. To be sure, "[t]he fact that the Founding Fathers believed devotedly that there was a God and that the unalienable rights of man were rooted in Him is clearly evidenced in their writings, from the Mayflower Compact to the Constitution itself." Sch. Dist. Abington, 374 U.S. at 213, 83 S.Ct. 1560. There is by no means a consensus, however, that the source of Thomas Jefferson's belief in divinely-bestowed, unalienable rights, to the extent this belief inspired the writing of the Declaration,[5] was the Ten Commandments or even the Bible. One historian has noted that Jefferson believed in the "watchmaker God of deism ... who established the laws of nature in the material universe at the time of creation and then left it alone." Allen Jayne, Jefferson's Declaration of Independence: Origins, Philosophy and Theology 24 (1998). He therefore posits that the "Nature's God" Jefferson referenced in the Declaration was not the God of the Bible (and thus the Ten Commandments), 453 but the God of deism.[6] Further, several historians *453 have concluded that Jefferson was most inspired by contemporaneous political writings as well as the musings of European philosophers and writers.[7] Defendants have not cited the Court to a single historical source in support of the proposition that the Ten Commandments inspired the drafting of the Declaration of Independence.
Although this Court has neither the ability nor the authority to determine the "correct" view of American history, it is our role to recognize that (a) Defendants' displays provided the viewer with no analytical or historical connection between the Ten Commandments and the other historical documents; and (b) Defendants have made no attempt in this litigation to support the displays' historical assertions with relevant and credible evidence. The Court's reference to historical sources is intended merely to illuminate these fundamental deficiencies in Defendants' argument and to suggest that an objective presentation of the Ten Commandments would at least take into account the abundant historical evidence regarding the sources that influenced the drafters of the Declaration of Independence.[8] Contrary to the dissent's assertion, we do not "envision a display that contains a recounting of the history of the nation's founding [or] a summary of American constitutional law and history." We do envision, however, a display that does not go out of its way to stress the proposition that the Ten Commandments formed the foundation of the Declaration of Independence while utterly ignoring (and implicitly denying) all other influences. It is up to Defendants to determine the most efficient manner of integrating the Ten Commandments with an objective historical display.
c) Summary
In sum, the very text in which the Ten Commandments are contained in the schoolhouse displays manifests a 454 patently religious purpose. Defendants' courthouse displays also manifest a religious purpose *454 because they
utterly fail to integrate the Ten Commandments with a secular subject matter. When distilled to their essence, the courthouse displays demonstrate that Defendants intend to convey the bald assertion that the Ten

Commandments formed the foundation of American legal tradition. The Supreme Court has held, however, that "such an `avowed' secular purpose is not sufficient to avoid conflict with the First Amendment" when no effort has been made to integrate the Ten Commandments with a discussion or display of a secular subject matter. Stone, 449 U.S. at 41, 101 S.Ct. 192. Since Defendants' displays make no such effort, the district court correctly concluded that Defendants' primary purpose was religious.
This Court's decision in Adland, which was rendered after the district court's decision, further supports its conclusion. In Adland, a Kentucky law directed the Department for Facilities Management to "relocate the monument inscribed with the Ten Commandments which was displayed on the Capital grounds for nearly three decades to a permanent site on the Capital grounds near Kentucky's floral clock to be made part of a historical and cultural display including the display of [the law] to remind Kentuckians of the Biblical foundations of the laws of the Commonwealth." Id. at 474-75. In finding that the stated purpose of the law, "to remind Kentuckians of the Biblical foundations of the laws of the Commonwealth," failed the secular purpose prong of the Lemon test, this Court concluded that "this avowed secular purpose, which is essentially the same secular purpose that the Commonwealth of Kentucky put forth in Stone, is insufficient, standing alone, to satisfy the secular purpose requirement." Id. at 481 (citing Stone, 449 U.S. at 42, 101 S.Ct. 192). The Court further opined:
While the Commonwealth need not commemorate every arguable historical influence on the laws of the Commonwealth or keep current with the views of every scholar to ensure compliance with the Establishment Clause, we cannot ignore its decision to focus only on the "Biblical foundations" of the law.... [I]n addressing the Commonwealth's avowed secular purpose for displaying an overtly religious symbol such as the Ten Commandments, we cannot ignore the Commonwealth's adoption of a view that emphasizes a single religious influence to the exclusion of all other religious and secular influences.
Id. at 481-82 (citation omitted).
Like the display in Adland, Defendants' courthouse displays assert that the Ten Commandments provide "the moral background of the Declaration of Independence and the foundation of our legal tradition." (J.A. 161) (emphases added). The displays emphasize a single religious influence, with no mention of any other religious or secular influences. This fact confirms the rectitude of the district court's conclusion that Defendants' purposes were religious.
ii. Context of the displays
The "intended physical context" of the Ten Commandment displays also is relevant to a determination of the primary purpose behind them. Adland, 307 F.3d at 481. Here, the displays did not provide undue physical emphasis to the Ten Commandments. In both the school and courthouse displays, the Ten Commandments appeared on a single piece of paper, the same size as that containing the secular documents. With that said, sandwiching the Ten Commandments between secular texts does not necessitate a finding that the primary purpose of the displays is secular. See Indiana Civil Liberties Union v. O'Bannon, 259 F.3d 766, 771 (7th 455 Cir.2001) ("[T]he display of secular texts *455 along with the Ten Commandments does not automatically lead to a finding that the purpose in erecting the monument is primarily secular."). Thus, where the content of the displays otherwise indicates a predominate religious purpose, the fact that the Ten Commandments are not physically prominent is not dispositive.
A finding of religious purpose is militated by the blatantly religious content of the displays. The displays do not present a "passive symbol" of religion like a crèche, which, when accompanied by secular reminders of the holiday season, has come to be associated more with the public celebration of Christmas, rather than that holiday's religious origins. Lynch, 465 U.S. at 686, 104 S.Ct. 1355. Instead, the Ten Commandments are an active symbol of religion because they "concern[] the religious duties of believers: worshipping the Lord God alone, avoiding idolatry, not using the Lord's name in vain, and observing the Sabbath Day." Stone, 449 U.S. at 42, 101 S.Ct. 192 (Biblical citations omitted). The Ten Commandments "are undeniably a sacred text in the Jewish and Christian faiths," id. at 41, 101 S.Ct. 192, and, therefore, are "still an inherently religious text." Indiana Civil Liberties Union, 259 F.3d at 771. As such, Defendants had to exercise special care to present the Ten

Commandments objectively and as an integral part of a non-religious message. As discussed above, Defendants failed in this endeavor.
iii. Evolution of the displays

Defendants' conduct from the time it created the Ten Commandments displays throughout the time it modified the displays is relevant to determining their primary purpose. The Supreme Court made this legal principle abundantly clear in Santa Fe Indep. Sch., supra. That case involved a challenge to a policy of student-led prayer at high school football games. Prior to 1995, the school district's policy authorized a student elected as "Student Chaplain" to deliver a prayer over the public address system before each game. After several students and their parents filed suit challenging the policy under the Establishment Clause, the school district adopted a different policy in August 1995. The policy, entitled "Prayer at Football Games," authorized two student elections, the first to determine whether "invocations" and "benedictions" should be delivered at games, and the second to select the spokesperson to deliver them. Santa Fe Indep. Sch., 530 U.S. at 297, 120 S.Ct. 2266. The policy omitted any requirement that invocations and benedictions be nonsectarian and nonproselytising, but contained a fallback provision that automatically added the provision if the preferred policy should be enjoined. Id. The policy was changed again in October 1995 to omit the word "prayers" from the title, and to refer to "messages" and "statements" as well as "invocations." Id. at 298, 120 S.Ct. 2266.

In holding that the school district had run afoul of the Establishment Clause by sponsoring a religious message, the Court looked, among other things, to "the evolution of the current policy from the long-sanctioned office of `Student Chaplain' to the candidly titled `Prayer at Football Games' regulation." Id. at 309, 120 S.Ct. 2266. The Court held that "[t]his history indicates that the District intended to preserve the practice of prayer before football games." Id. Later in its decision, the Court held that the school district's history of noncompliance with the Establishment Clause not only could be considered, but had to be considered, in determining whether the school district's latest iteration of the challenged policy was constitutional. As the Court stated:

456

This case comes to us as the latest step in developing litigation brought as a *456 challenge to

institutional practices that unquestionably violated the Establishment Clause. One of those

practices was the District's long-established tradition of sanctioning student-led prayer at varsity

football games. The narrow question before us is whether implementation of the October policy

insulates the continuation of such prayers from constitutional scrutiny. It does not. Our inquiry into

this question not only can, but must, include an examination of the circumstances surrounding its

enactment.... Our discussion in the previous sections ... demonstrates that in this case the

District's direct involvement with school prayer exceeds constitutional limits.

The District, nevertheless, asks us to pretend that we do not recognize what every Santa Fe High School student understands clearly 0907 that this policy is about prayer. The District further asks us to accept what is obviously untrue: that these messages are necessary to "solemnize" a football game and that this single-student, year-long position is essential to the protection of student speech. We refuse to turn a blind eye to the context in which this policy arose, and that context quells any doubt that this policy was implemented with the purpose of endorsing school prayer.

Id. at 315, 120 S.Ct. 2266.

This Court similarly has held that a government's earlier policies or practices involving religious speech are relevant when determining the primary purpose behind a revised policy that ostensibly is designed to address earlier violations of the Establishment Clause. In Adland, this Court was faced with a Kentucky statute that compelled the location of a monument inscribed with the Ten Commandments on the grounds of the state capitol, near a floral clock. Adland, 307 F.3d at 474-75. The statute was silent with regard to any other contents of the display. In the course of litigation, Kentucky "clarifie[d]" that the display would consist of other "markers, signs and monuments," including a sign commemorating a Civil War event, a "Welcome to Kentucky" plaque, a prisoner of war marker and markers for other civic leaders. Id. at 477. The Court found Kentucky's litigation-inspired "clarification" to its Ten Commandments display, which originally consisted only of the Ten Commandments monument and a clock, to be probative of the Commonwealth's religious purpose:

[T]he Commonwealth did not reveal the contents of this display until it was in the midst of litigation. In our view, this indicates that the other components of the display are an afterthought, at best, secondary in importance to the Ten Commandments, and suggests that the Commonwealth acted with a predominantly religious purpose.
Id. at 481.
Contrary to Defendants' argument, this Court's decision in Granzeier, supra, does not deem Defendants' past unconstitutional displays of the Ten Commandments irrelevant to the primary purpose behind the latest version of the displays. The issue in Granzeier was whether the closing of county and state courts and offices on Good Friday violated the Establishment Clause. At one point, an employee of one of the county defendants, "acting without knowledge or authorization of any defendant, made signs bearing an image of the Crucifixion and announcing that the building would be closed `for observance of Good Friday.'" Granzeier, 173 F.3d at 571. When the county was sued, it removed the signs from the courthouse and put up new signs announcing that the 457 building would be closed; at the time of the litigation, the defendants referred to *457 the Friday before Easter as "Spring Holiday." Id. The plaintiffs argued that the original sign showed that the defendants intention to close for a Spring holiday on the Friday before Easter was a "sham." Id. at 574.
This Court rejected the plaintiffs' argument because it saw "no reason that Defendants' policy here, if otherwise constitutional, should not remain so after an unauthorized employee posted an unconstitutional sign for a few days." Id. (emphasis added). The sign did not permanently taint all future closings for a Spring holiday because the evidence showed that the recognition of Good Friday as a secular Spring holiday was "otherwise constitutional."[9] Importantly, Granzeier did not hold that evidence of past unconstitutional conduct is never probative evidence of present unconstitutional conduct. Rather, it held that where the remaining evidence shows that the government policy is "otherwise constitutional," past unconstitutional conduct does not preclude a finding of constitutionality. This holding is consistent with the Supreme Court's direction in Santa Fe Indep. Sch. that courts can, and must, look to prior unconstitutional practices when determining the primary purpose behind the government's present practices.
In looking to the context and history of Defendants' Ten Commandments displays, the court below found that "the history of these displays indicates that the defendants' overall purpose is religious in nature: to display the Ten Commandments." McCreary II, supra note 1, at 849. The district court, therefore, held that Defendants fourth and fifth purported secular purposes (to educate citizens regarding some of the documents that played a significant role in the foundation of the American and Kentucky systems of law and government) were primarily religious. Id. at 850. The district court found it "significant" that Defendants' original displays, containing only the Ten Commandments, "were erected in violation of the Supreme Court's clear ruling in Stone." Id. at 849-50 (footnote omitted). "This defiance," according to the district court, "imprinted the defendants' purpose, from the beginning, with an unconstitutional taint observed not only by this court, but by anyone acquainted with this litigation." Id. at 850 (footnote omitted). The district court's finding is consistent with the Supreme Court's decision in Santa Fe Indep. Sch., which compels courts to consider the government's past violations of the Establishment Clause when evaluating its present conduct, and with this Court's Adland decision, which authorizes courts to rely on evidence of such prior violations as proof that subsequently-added, secular components of an otherwiseunconstitutional display are an "afterthought."
The district court further noted that Defendants' amended displays (which were the subject of the court's original preliminary injunction) "accentuated the defendants' religious purpose, rather than diminishing it, by posting the Commandments along with `specific references to Christianity and texts that, while promulgated by the federal government, were chosen solely for their religious references.'" McCreary II, supra note 1, at 850 (citing Pulaski, 458 96 F.Supp.2d at 699). Again, the district court was correct in concluding that the evolution of Defendants' *458 Ten Commandments displays bore directly on the primary purpose behind the ultimate versions of the displays.
Based on "the history of the government's involvement in these displays," the district court held that the final version of the displays which portrayed the Ten Commandments alongside the full text of various historical documents and was erected allegedly "to educate the citizens of McCreary and Pulaski Counties and the schoolchildren of Harlan County regarding the history of this nation's law and government," actually was done for

a non-secular purpose. Id. The Court agrees with the district court insofar as the history of Defendants' involvement with the displays strongly indicated that the primary purpose was religious. This Court is concerned, however, that the district court appeared to afford exclusive weight to Defendants' past conduct without addressing the specific content of the revised displays. Nevertheless, as discussed in detail above, the content of the modified displays patently evidence a religious purpose, and the district court recognized as much in its subsequent discussion of the "endorsement" prong. See id. at 851. Accordingly, the district court did not clearly err in finding that Defendants' fourth and fifth avowed secular purposes 0907 to educate citizens regarding some of the documents that played a significant role in the foundation of the American and Kentucky systems of law and government 0907 fail the first prong of the Lemon test. For the same reasons, the district court did not clearly err in finding that Defendants' first three avowed secular purposes, which specifically mention the Ten Commandments, were predominated by a religious purpose.
Although the inquiry into the constitutionality of the displays could end here, inasmuch as failure under any one of the Lemon prongs deems governmental action violative of the Establishment Clause, see Edwards, 482 U.S. at 583, 107 S.Ct. 2573, we shall address the "endorsement" prong of Lemon because the district court addressed the second prong as well.
b. "Endorsement" Prong of the Lemon Test
In determining whether Defendants' displays impermissibly endorse religion, this Court must ask "whether an objective observer, acquainted with the text, legislative history, and implementation" of the displays would view them as state endorsement of religion. Santa Fe Indep. Sch. Dist., 530 U.S. at 308, 120 S.Ct. 2266 (citations omitted); Capitol Square Review & Advisory Bd., 243 F.3d at 302. "In making this inquiry, [this Court] do[es] not allow a state `to hide behind the application of formally neutral criteria and remain studiously oblivious to the effects of its actions.'" Adland, 307 F.3d at 484 (quoting Pinette, 515 U.S. at 777, 115 S.Ct. 2440). In addition, the inquiry must be viewed under the "totality of the circumstances surrounding the display." Books, 235 F.3d at 304. As a result, the Court must "look to both the specific content of the display and the context of its presentation." Adland, 307 F.3d at 484 (citing Allegheny, 492 U.S. at 598, 109 S.Ct. 3086).
The Supreme Court decisions involving Christmas-time crèche displays demonstrate how the failure to integrate religious symbols with an overall secular theme can result in the impermissible endorsement of religion. In Allegheny, supra, the Court noted that "the crèche itself is capable of communicating a religious message." Allegheny, 492 U.S. at 598, 109 S.Ct. 3086. The Court struck down a courthouse crèche display because nothing 459 in the context of the display detracted from the crèche's religious message. Id. The Court *459 distinguished the display from the one at issue in Lynch, supra, which had been composed of a "series of figures and objects, each group of which had its own focal point." Id. The Lynch display had included numerous purely secular symbols, such as a Santa Claus house, a lighted Christmas tree, a "talking" wishing well, a miniature village, a banner proclaiming "SEASONS GREETINGS," and candy-striped poles. Lynch, 465 U.S. at 671, 104 S.Ct. 1355. In Allegheny, by contrast, "the crèche [stood] alone: it [was] the single element of the display" in the courthouse, thereby sending "an unmistakable message that [the county] supports and promotes the Christian praise to God that is the crèche's religious message." Allegheny, 492 U.S. at 598-99, 109 S.Ct. 3086. Thus, the crèche display in Lynch was permissible because the symbols shared a common secular link 0907 the holiday season[10] 0907 and the arrangement of the symbols conveyed that link to the display's observers. This secular link overcame any religious message that any one component of the display (i.e., the crèche) might otherwise have conveyed on its own.
The dissent appears to read Lynch and Allegheny to hold that a symbol which is wholly or partially religious no longer conveys its religious message when it is physically surrounded by wholly secular symbols. This overlysimplistic reading of the case law ignores the requirements that (a) the symbols be interconnected in a manner that is facially apparent to the observer and (b) the interconnection be secular in nature. For example, if Defendants in this case had substituted the Ten Commandments with a depiction of the Crucifixion or a religious sermon exhorting the citizenry to worship God and abide by the Ten Commandments, the religious messages would not have been subordinate to an overall secular theme simply because the religious document would have been surrounded by secular documents, such as the Declaration of Independence and the Magna Carta. Instead

of blending in with an overall secular theme, the religious document, although physically contiguous, would have stood apart from the rest from a thematic point of view.
As to the composition of the displays in this case, the district court opined:
The composition of the current set of displays accentuates the religious nature of the Ten Commandments by placing them alongside American historical documents. Given the religious nature of this document, placing it among these patriotic and political documents, with no other religious or moral codes of any kind, imbues it with a national significance constituting endorsement. The Ten Commandments are completely different from the remainder of the displays. The reasonable observer will see one religious code placed alongside eight political or patriotic documents, and will understand that the counties promote that one religious code as being on a par with our nation's most cherished secular symbols and documents. This is endorsement.... [T]he current set of displays conveys the counties' comment on the Ten Commandments' (and consequently, religion's) foundational value to our shared history as citizens; a reasonable person would perceive this message as endorsement.
McCreary II, supra note 1, at 851 (footnotes omitted). We agree with the district court's conclusion.
460 *460 In Books, the Seventh Circuit held that "the placement of the American Eagle gripping the national colors at the top of the [Ten Commandments] monument hardly detracts from the message of endorsement; rather, it specifically links religion ... and civil government." Books, 235 F.3d at 307. See also Adland, 307 F.3d at 486-87 (agreeing with the Seventh Circuit's holding in Books that "the inclusion of an American eagle gripping the national colors at the top of the monument, serves to heighten the appearance of government endorsement of religion"). Here, the same can be said of Defendants' transparent attempt to "secularize" the displays by surrounding the Ten Commandments with other patriotic documents and symbols, such as the Bill of Rights and the Preamble to the Kentucky Constitution. See Indiana Civil Liberties Union, 259 F.3d at 773 (holding that display consisting of Bill of Rights, Preamble to Indiana Constitution and Ten Commandments would signal to the reasonable observer "that the state approved of such a link, and was sending a message of endorsement") (citing Books, 235 F.3d at 307).
Ultimately, the displays convey a message of religious endorsement because of the complete lack of any analytical connection between the Ten Commandments and the other patriotic documents and symbols. A reasonable observer of the displays cannot connect the Ten Commandments with a unifying historical or cultural theme that is also secular. All of the other documents relate in some fashion to Western European or American culture since 1215; several of the documents are legal in nature, one is an American symbol, one is an American slogan and one is an American song. The Ten Commandments are several thousands of years old, were not a product of European or American culture and, many believe, are the word of God. See Baruch J. Schwartz, Ten Commandments, in The Oxford Dictionary of the Jewish Religion, 683 (1997) (noting that in both Biblical accounts of the revelation of the Ten Commandments at Sinai, "[t]he `Ten Words' were inscribed by God on the first set of Tablets given to Moses.") A reasonable observer would not be able to link all of these texts to the foundation of American law and government; the displays' mere assertion of such a link does not cure the problem any more than a disclaimer stating that the Ten Commandments has been "adopt[ed] as the fundamental legal code of Western Civilization and the Common Law of the United States." Stone, 449 U.S. at 40 n. 1, 101 S.Ct. 192 (holding that such a disclaimer is not sufficient to avoid a conflict with the First Amendment). See also Adland, 307 F.3d at 488 (noting that "`no sign can disclaim an overwhelming message of endorsement'") (quoting Allegheny, 492 U.S. at 619, 109 S.Ct. 3086). Upon seeing the Ten Commandments, which sticks out in the displays like a proverbial "sore thumb," a "reasonable person will think religion, not history." Indiana Civil Liberties Union, 259 F.3d at 773 (holding that reasonable observer would not be able to make an analytical connection between Ten Commandments, Bill of Rights and Preamble to Indiana Constitution).
The district court further found that the location of the displays 0907 in the McCreary and Pulaski County courthouses and Harlan County public schools 0907 had "the effect of advancing religion." McCreary II, supra note 1, at 852. We agree. With regard to the school displays, it is noteworthy that the Supreme Court "has been particularly vigilant in monitoring compliance with the Establishment Clause in elementary and secondary

schools." Aguillard, 482 U.S. at 583-84, 107 S.Ct. 2573. This is because the public schools hold a position of 461 trust that parents condition "on *461 the understanding that the classroom will not purposely be used to advance
religious views that may conflict with the private beliefs of the student and his or her family." Id. at 584, 107 S.Ct. 2573. Public school students are especially impressionable due to the coercive power that the State exerts through mandatory attendance requirements, "and because of the students' emulation of teachers as role models and the children's susceptibility to peer pressure." Id. (footnote and citations omitted). Thus, the presence of these displays in the schools enhances the underlying message of religious endorsement contained in the displays. As the Supreme Court has commented, if such displays "are to have any effect at all, it will be to induce the schoolchildren to read, meditate upon, perhaps to venerate and obey, the Commandments. However desirable this might be as a matter of private devotion, it is not a permissible state objective under the Establishment Clause." Stone, 449 U.S. at 42, 101 S.Ct. 192.
The citizenry exhibits a similar impressionability in the setting of a county courthouse, where the government carries out one of its quintessential functions 0907 the enforcement of the civil and criminal laws. Typically, citizens are at the courthouse by necessity-whether they are on trial for a crime, have been subpoenaed as witnesses, are seeking to vindicate their civil rights, have been called to jury duty or are simply contesting parking tickets, registering to vote or renewing their driver's licenses. County courthouses also exude a coercive pressure, ranging from compulsory jury service to bench warrants to judicial decrees. Accordingly, a courthouse display of the Ten Commandments that conveys a religious message is nothing like a similar display in "a typical museum setting[;] though not neutralizing the religious content ..., [the museum setting] negates any message of endorsement of that content." Lynch, 465 U.S. at 692, 104 S.Ct. 1355 (O'Connor, J., concurring). As in Books, Defendants' courthouse displays posted at the seat of government, which "`is so plainly under government ownership and control' that every display on its property is marked implicitly with government approval." Books, 235 F.3d at 306 (quoting Am. Jewish Congress v. City of Chicago, 827 F.2d 120, 128 (7th Cir.1987)).
Finally, the district court found that the history of the displays bolstered the reasonable observer's perception of the state endorsement of religion inasmuch as the observer is charged with knowing the history of the respective displays, and in each case the history indicates that the displays were originally intended to enshrine the Ten Commandments; it was only upon fear of litigation that the displays were modified to include secular material in the hope of rendering the displays constitutional. McCreary II, supra note 1, at 852. We agree with the district in this regard as well. See Santa Fe Indep. Sch. Dist., 530 U.S. at 308, 120 S.Ct. 2266 (crediting the objective observer with being "acquainted with the text, legislative history, and implementation" of the displays). As a result, this Court concludes that the district court did not clearly err in finding that the displays have the impermissible effect of endorsing religion.[11]
2. Other Preliminary Injunction Factors
462 As Plaintiffs note in their brief, Defendants do not address the other three preliminary *462 injunction factors on appeal and, therefore, have abandoned any argument as to these factors. However, because Plaintiffs have demonstrated a likelihood of succeeding on the merits of their Establishment Clause claim, the other three preliminary factors follow in favor of granting the injunction. See Connection Distrib. Co., 154 F.3d at 288 (finding that "[w]hen a party seeks a preliminary injunction on the basis of a potential violation of the First Amendment, the likelihood of success on the merits often will be the determinative factor").
III.
CONCLUSION
For the above-stated reasons, the district court's order requiring the removal of the displays from the McCreary and Pulaski County courthouses and from the Harlan County schools is AFFIRMED.
GIBBONS, Circuit Judge, concurring.

The district court's decision to grant plaintiffs-appellees' motion for a supplemental preliminary injunction enjoining the continued exhibition of the current displays was proper. With respect to the "secular purpose" prong of the test used to determine the constitutionality of the current displays, as set forth by the Supreme Court in Lemon v. Kurtzman, 403 U.S. 602, 91 S.Ct. 2105 (1971), the majority opinion appropriately follows controlling precedent, and I generally agree with its application of the law to the facts of this case.
In light of the inherently religious nature of the Ten Commandments, defendants-appellants' failure to articulate a facially secular purpose until after litigation had commenced, the "overtly religious" quality of the second display, Am. Civil Liberties Union of Kentucky v. McCreary County, Kentucky, 145 F.Supp.2d 845, 850 n. 19 (E.D.Ky.2001), the absence of any evidence in the record indicating that the Ten Commandments have been or will be integrated into the school curriculum as part of an appropriate program of study, the absence of any discussion integrating the Ten Commandments into a secular subject matter other than a conclusory assertion about the Declaration of Independence, and the emphasis on the Ten Commandments as the only religious text in the displays, plaintiffs-appellees have shown a strong or substantial likelihood of success on the merits of their claim that the displays lack a secular purpose. I therefore concur in the result. I write separately, however, to emphasize that, as the majority opinion notes, "the inquiry into the constitutionality of the displays could end here, inasmuch as failure under any one of the Lemon prongs deems governmental action violative of the Establishment Clause." Consequently, I express no opinion as to whether the displays violate the "effect/ endorsement" prong of the Lemon test.
Finally, I offer two further observations relating to the dissenting opinion. First, the dissent concludes that the majority opinion questions a link between religion and our laws and government. In my view, the majority opinion says nothing whatsoever about this topic. Its subject is the application of the Lemon test to this particular case, and the only discussion to which the dissent could possibly refer in reaching this conclusion concerns defendants' failure to include in the displays any support for their conclusory assertion about the relationship between the Ten Commandments and the Declaration of Independence.
Second, the dissent seeks to characterize the majority opinion's descriptions of the facts on which its conclusion 463 rests as statements *463 of broad rules. For example, the dissent says that the majority opinion creates rules that
the government may display the Ten Commandments in a public building only if they are integrated into a secular curriculum and that any display must include a narration of proof of the relationship between religion and the foundation of American law. In my view, this reading of the majority opinion is unjustified. Rather, the majority considers the lack of integration of the displays into a secular curriculum and the lack of recited proof of a relationship between the Ten Commandments and the Declaration of Independence as factors that support a lack of secular purpose in this case and considers these factors, along with other evidence in this record, in reaching its result.
RYAN, Circuit Judge, dissenting.
The majority holds that the displays mounted on the walls of the county courthouses in McCreary and Pulaski counties and in the school buildings in Harlan County, Kentucky, offend the Establishment Clause of the First Amendment of the United States Constitution, and it affirms the district court's order that the displays be removed. I disagree and, with respect, must dissent.
The defendants' displays comport with the requirements of the Constitution in every respect, as is clearly indicated by the Supreme Court's two landmark cases permitting the use of religious symbols on public property: Lynch v. Donnelly, 465 U.S. 668, 104 S.Ct. 1355, 79 L.Ed.2d 604 (1984), and County of Allegheny v. ACLU, 492 U.S. 573, 109 S.Ct. 3086, 106 L.Ed.2d 472 (1989). Rather than address these authorities in a meaningful fashion, the majority conjures a rule from the case of Stone v. Graham, 449 U.S. 39, 101 S.Ct. 192, 66 L.Ed.2d 199 (1980), a two-page, per curiam decision of the Court that preceded both Lynch and Allegheny, that was decided without the benefit of oral argument or briefs on the merits, and that bears no factual similarity to the case before us.
With one exception, the majority's analysis fails to properly apply the relevant Supreme Court precedent to the facts of the case before us. Inasmuch as my colleagues have expressed their disagreement with the reasoning

that led the district court to conclude that the displays are unconstitutional, there is no need to point out why that is an eminently correct judgment. Nevertheless, having rejected much of the district court's analysis, the majority now affirms the judgment of that court by employing a wholly independent rationale that was not developed below and not presented to this court for review.
I.
As the majority has correctly said, the controlling law in this case is the three-part "Lemon test" found in Lemon v. Kurtzman, 403 U.S. 602, 91 S.Ct. 2105 (1971), as refashioned, it should be added, in Lynch v. Donnelly, 465 U.S. 668, 104 S.Ct. 1355, 79 L.Ed.2d 604, and County of Allegheny v. ACLU, 492 U.S. 573, 109 S.Ct. 3086, 106 L.Ed.2d 472. The Lemon test has proved difficult to apply in many Establishment Clause cases because its three elements are frequently ill-suited to ever more imaginative Establishment Clause challenges. Indeed, the Supreme Court has cautioned against mechanically applying the test to every Establishment Clause case, Lynch, 465 U.S. at 679, 104 S.Ct. 1355, and has variously criticized, modified, and even ignored it. See, e.g., Lamb's Chapel v. Ctr. Moriches Sch. Dist., 508 U.S. 384, 398-99, 113 S.Ct. 2141, 124 L.Ed.2d 352 (1993) (Scalia, J., concurring) (citing cases).
464 *464 Of the current members of the Supreme Court, six have criticized the Lemon test. For example, in Wallace v. Jaffree, 472 U.S. 38, 105 S.Ct. 2479, 86 L.Ed.2d 29 (1985), then-Justice Rehnquist stated:
[T]he Lemon test has no more grounding in the history of the First Amendment than does the wall theory upon which it rests. The three-part test represents a determined effort to craft a workable rule from a historically faulty doctrine; but the rule can only be as sound as the doctrine it attempts to service.
Id. at 110, 105 S.Ct. 2479 (Rehnquist, J., dissenting). Justice O'Connor once called the analysis under the Lemon test "problematic" and warned that there are "certain difficulties inherent in the Court's use of the test." Corp. of the Presiding Bishop of the Church of Jesus Christ of Latter-Day Saints v. Amos, 483 U.S. 327, 346, 107 S.Ct. 2862, 97 L.Ed.2d 273 (1987) (O'Connor, J., concurring in the judgment). Justice Stevens has lamented "the sisyphean task of trying to patch together the `blurred, indistinct, and variable barrier' described in Lemon." Comm. for Pub. Educ. & Religious Liberty v. Regan, 444 U.S. 646, 671, 100 S.Ct. 840, 63 L.Ed.2d 94 (1980) (Stevens, J., dissenting). Also registering his dissatisfaction with Lemon, Justice Kennedy stated:
I ... do not wish to be seen as advocating, let alone adopting, [the Lemon] test as our primary guide in this difficult area. Persuasive criticism of Lemon has emerged. Our cases often question its utility in providing concrete answers to Establishment Clause questions, calling it but a helpful signpos[t] or guidelin[e], to assist our deliberations rather than a comprehensive test. Substantial revision of our Establishment Clause doctrine may be in order.
Allegheny, 492 U.S. at 655-56, 109 S.Ct. 3086 (Kennedy, J., concurring in the judgment in part and dissenting in part) (internal quotation marks and citations omitted). Finally, Justice Thomas joined the refrain when he signed on to a dissent written by Justice Scalia, the Court's severest critic of Lemon, who had this to say about the much-maligned test:
Our Religion Clause jurisprudence has become bedeviled (so to speak) by reliance on formulaic abstractions that are not derived from, but positively conflict with our long-accepted constitutional traditions. Foremost among these has been the so-called Lemon test, which has received wellearned criticism from many Members of this Court.
Lee v. Weisman, 505 U.S. 577, 644, 112 S.Ct. 2649, 120 L.Ed.2d 467 (1992) (Scalia, J., joined by, inter alios, Thomas, J., dissenting) (citation omitted).
The Court has also modified the Lemon test by adopting Justice O'Connor's "endorsement test" from Lynch:
[Justice O'Connor's] concurrence articulates a method for determining whether the government's use of an object with religious meaning has the effect of endorsing religion. The effect of the

display depends upon the message that the government's practice communicates: the question is "what viewers may fairly understand to be the purpose of the display."
Allegheny, 492 U.S. at 595, 109 S.Ct. 3086 (quoting Lynch, 465 U.S. at 692, 104 S.Ct. 1355 (O'Connor, J., concurring)). The test has been further modified by "fold[ing] the entanglement inquiry into the primary effect inquiry." Zelman v. Simmons-Harris, 536 U.S. 639, 668, 122 S.Ct. 2460, 153 L.Ed.2d 604 (2002) (O'Connor, J., concurring).
465 In some cases, the Supreme Court has simply ignored the Lemon test. In Larson *465 v. Valente, 456 U.S. 228, 102 S.Ct. 1673, 72 L.Ed.2d 33 (1982), the Court, holding that Minnesota's charitable solicitation statute violated the Establishment Clause, stated that the "application of the Lemon tests is not necessary to the disposition of the case before us." Id. at 252, 102 S.Ct. 1673. Chief Justice Warren Burger, himself the author of Lemon, also declined to apply the test in an Establishment Clause challenge to Nebraska's practice of paying a chaplain to offer prayers at the opening of the state's legislative sessions. See Marsh v. Chambers, 463 U.S. 783, 103 S.Ct. 3330, 77 L.Ed.2d 1019 (1983).
Not surprisingly, the Court has consistently emphasized that the Lemon test is not the sine qua non of Establishment Clause jurisprudence. In Mueller v. Allen, 463 U.S. 388, 103 S.Ct. 3062, 77 L.Ed.2d 721 (1983), the Court stated that the Lemon test "provides `no more than [a] helpful signpos[t]' in dealing with Establishment Clause challenges." Id. at 394, 103 S.Ct. 3062 (quoting Hunt v. McNair, 413 U.S. 734, 741, 93 S.Ct. 2868, 37 L.Ed.2d 923 (1973)). And in Lynch, citing cases in which it did not utilize the Lemon test at all, the Court stated: "[W]e have repeatedly emphasized our unwillingness to be confined to any single test or criterion in this sensitive area." 465 U.S. at 679, 104 S.Ct. 1355. In the Lemon case itself, the Supreme Court grappled with the question whether statutes in Pennsylvania and Rhode Island that authorized limited state financial aid to church-related schools violated the Establishment Clause. The Court said they did, because neither statute could pass the new test Chief Justice Warren Burger conjured, mid-opinion, which provides:
First, the statute must have a secular legislative purpose; second, its principal or primary effect must be one that neither advances nor inhibits religion; [and] finally, the statute must not foster an excessive government entanglement with religion.
Lemon, 403 U.S. at 612-13, 91 S.Ct. 2105 (internal quotation marks and citations omitted).
Over the years, the Supreme Court has broadened the test to apply not only to legislative enactments, but to any government action. For example, in Widmar v. Vincent, 454 U.S. 263, 102 S.Ct. 269, 70 L.Ed.2d 440 (1981), the Court applied the test to a university policy that excluded religious groups from a public forum. After experiencing considerable difficulty applying the test to various Establishment Clause challenges, especially its second part which proscribes government action whose primary effect either advances or inhibits religion, the Court modified that part of the test to prohibit government action that has the principal or primary effect of "endorsing" religion. Allegheny, 492 U.S. at 595, 109 S.Ct. 3086 (citing Lynch, 465 U.S. at 691-94, 104 S.Ct. 1355 (O'Connor, J., concurring)).
While judges, lawyers, and constitutional law scholars continue to criticize Lemon, and repeatedly urge the Supreme Court to fashion a new, more workable test for determining whether a unit of government has made a "law respecting an establishment of religion," U.S. Const. amend. I, we (the lower federal courts) are stuck with the three-part Lemon test, and we must apply it in this case.
Having done so, I conclude that the three displays the plaintiffs have challenged, easily and obviously pass the Lemon test, and that, perforce, my colleagues' conclusion to the contrary is mistaken.
II.
466 The majority opinion has partially misstated the proper standard of review in *466 this case. It is certainly true that we review a district court's decision to grant a preliminary injunction for an abuse of discretion. Sandison v. Mich. High Sch. Athletic Ass'n, 64 F.3d 1026, 1030 (6th Cir.1995). However, in determining whether the district court abused its discretion, we review its findings of fact for clear error and its legal conclusions de novo. Id. Moreover,

we will overturn a district court's decision to grant a preliminary injunction "if the district court relied upon clearly erroneous findings of fact, improperly applied the governing law, or used an erroneous legal standard." Blue Cross & Blue Shield Mut. v. Blue Cross & Blue Shield Ass'n, 110 F.3d 318, 322 (6th Cir.1997). In this case, because the district court based its decision to grant the injunction on the legal conclusion that the displays failed the purpose and effect prongs of the Lemon test, that conclusion should properly be reviewed de novo.
III.
What the district court and my colleagues have held unconstitutional is an arrangement of ten framed documents on the courthouse lobby walls in McCreary and Pulaski counties and in the Harlan County school buildings.
The courthouse displays consist of the following documents:
1. The Star Spangled Banner;
2. The Declaration of Independence;
3. The Mayflower Compact;
4. The Bill of Rights;
5. The Magna Carta;
6. The National Motto;
7. The Preamble to the Kentucky Constitution;
8. The Ten Commandments;
9. A printed figure of the Lady Justice; and
10. An explanatory sign identifying the foregoing documents and stating that the entire display is of "documents that played a significant role in the foundation of our system of law and government."
In addition, the courthouse displays are prominently identified as: "Foundations of American Law and Government Display."
The Harlan County School Board display is essentially identical to the McCreary and Pulaski courthouse displays, except that it is not identified as the "Foundations of American Law and Government Display," and the Lady Justice document and the explanatory sign are omitted. In their places are the text of Kentucky Revised Statute § 158.195, authorizing the posting of historical displays, and a lengthy Harlan County School Board resolution, stating, among other things, that the "many documents [comprising the display], taken as a whole, have special historical significance to our community, our country, and our country's history." No one of the framed documents in any of the displays has, by its size or location in the arrangement, any greater prominence than any other.
The defendants claim their purposes were to assemble and post in the courthouse and school district buildings, an array of historical documents that, taken together, have the educational and patriotic value of illustrating some of the ideas and influences that "were part of the foundation of American Law and Government" and "played a significant role in the development, origins or foundations of American or Kentucky law." ACLU v. McCreary County (McCreary II), 145 F.Supp.2d 845, 848 (E.D.Ky.2001) (internal quotation marks and citations omitted). They argue that these purposes are entirely secular.
467 *467 The district court correctly summarized the defendants' secular purposes as follows:
1. To erect a display containing the Ten Commandments that is constitutional;

2. To demonstrate that the Ten Commandments are part of the foundation of American law and government;
3. To include the Ten Commandments as part of the display for their significance in providing the moral background of the Declaration of Independence and the foundation of our legal tradition;
4. To educate the citizens of the county regarding some of the documents that played a significant role in the foundation of our system of law and government; and
5. As designated by the Harlan School Board, to create a limited public forum on designated walls within the school district for the purpose of posting historical documents that played a significant role in the development, origins, or foundations of American and Kentucky law.
See id.
IV.
Inquiry into the constitutionality of the defendants' displays must begin, as I have said, with the Supreme Court case of Lemon v. Kurtzman, 403 U.S. 602, 91 S.Ct. 2105. That inquiry, of necessity, includes Lynch v. Donnelly, 465 U.S. 668, 104 S.Ct. 1355, 79 L.Ed.2d 604, and County of Allegheny v. ACLU, 492 U.S. 573, 109 S.Ct. 3086, 106 L.Ed.2d 472, in which the Supreme Court directly addressed the issue of whether a government may display an inherently religious, even sectarian symbol, on public property. The Court held in both Lynch and Allegheny that a government may use a religious symbol to accomplish a secular purpose, if the symbol is displayed in a way that does not create an impression of endorsement in the mind of the reasonable observer. A review of the facts in this case indicates that the defendants have rigorously complied with the criteria established by the Court in both Lynch and Allegheny, and that their displays in no way constitute an establishment of religion.
A.
The first question we must consider under the Lemon test is whether the government's display has a secular purpose. Lemon, 403 U.S. at 612, 91 S.Ct. 2105. "A statute or practice that is motivated in part by a religious purpose may satisfy the first Lemon criterion so long as it is not motivated entirely by a purpose to advance religion." ACLU v. City of Birmingham, 791 F.2d 1561, 1565 (6th Cir.1986).
Furthermore, the Supreme Court has informed us that we have "no license to psychoanalyze ... legislators" and that we must refrain from ascribing improper motives to legislators who "express[] a plausible secular purpose." Wallace, 472 U.S. at 74, 105 S.Ct. 2479. If the government offers an explanation of its purpose, that explanation is owed deference by the judiciary unless and until shown to be a "sham," for "[w]e must be cautious about attributing unconstitutional motives to state officials." Chaudhuri v. Tennessee, 130 F.3d 232, 236 (6th Cir.1997).
Five legitimate secular purposes motivated the defendants to erect the displays in their current format. First, the defendants desired to erect a display of the Ten Commandments that is constitutional. I find in this stated desire 468 nothing that even hints at a primarily religious purpose, much less a sham. Neither the Supreme *468 Court, nor this court, nor any federal appellate court, insofar as I know, has ever suggested that displaying the Ten Commandments is an impermissible objective under the Establishment Clause. In fact, quite the contrary is true. As we stated on one occasion:
[W]e believe that the Supreme Court's opinion in Stone and Justice Stevens' statements in Allegheny not only acknowledge that the Ten Commandments may be constitutionally displayed, they provide considerable guidance how they can be displayed.
Adland v. Russ, 307 F.3d 471, 489 (6th Cir.2002), cert. denied, 538 U.S. 999, 123 S.Ct. 1909, 155 L.Ed.2d 826 (2003).

Similarly, there is no reason to doubt the legitimacy of the second and third secular purposes for the displays, namely, to demonstrate that the Ten Commandments were part of the foundation of American law and government, and to recognize the significance of the Ten Commandments in providing the moral and cultural background of the Declaration of Independence and the foundation of our legal tradition. With respect to these two iterations of the defendants' secular purposes, the majority singles out the Declaration of Independence and complains that "[t]here is by no means a consensus ... that the source of Thomas Jefferson's belief in divinelybestowed, unalienable rights, to the extent this belief inspired the writing of the Declaration, was the Ten Commandments or even the Bible." Maj. op. at 452. In fact, the majority seems to hold that no government could ever plausibly proclaim the religious heritage of this nation because the prevailing view among historians is that our founders were primarily inspired by secular influences. See id. Not only is this observation a complete non sequitur, it is highly debatable as an historical matter. But more significantly, the source of Thomas Jefferson's "belief in divinely-bestowed, unalienable rights" proclaimed in the Declaration of Independence is utterly immaterial, because it does not resolve the real issue before us today, which is whether the defendants' avowed secular purposes are shams. The Declaration of Independence is not the sole source of evidence that religion, of which the Ten Commandments are a nearly universal symbol, was a significant influence upon the foundation of American law and government. My colleagues' interesting diversion about Thomas Jefferson, the Declaration of Independence, and the Bible offers no basis whatever to conclude, as a matter of law, as my colleagues do, that the defendants' avowed secular purposes are shams.

The influence of religion upon American law and government is a fact of American history and politics that has been widely recognized by scholars, jurists, legislators, presidents, and, not least, the Founders themselves.

In his Farewell Address to the nation, George Washington stated that religion was not only a part of the foundation of our law and government, it was a necessity:

Of all the dispositions and habits which lead to political prosperity, Religion and morality are

indispensable supports. In vain would that man claim the tribute of Patriotism, who should labour

to subvert these great Pillars of human happiness, these firmest props of the duties of Men and

citizens. The mere Politician, equally with the pious man ought to respect and to cherish them. A

volume could not trace all their connections with private and public felicity.... Whatever may be

conceded to the influence of refined education on minds of peculiar structure, reason and

469

experience both forbid us to expect that National *469 morality can prevail in exclusion of religious

principle.

George Washington, Farewell Address (Sept. 19, 1796), in 1 The Founder's Constitution 681, 684 (Philip B. Kurland & Ralph Lerner eds., 1987). Similarly Thomas Jefferson, in his First Inaugural Address, listed religion as one of the necessary sources of our nation's prosperity:

[E]nlightened by a benign religion, professed, indeed, and practiced in various forms, yet all of them inculcating honesty, truth, temperance, gratitude, and the love of man; acknowledging and adoring an overruling Providence, which by all its dispensations proves that it delights in the happiness of man here and his greater happiness hereafter 0907 with all these blessings, what more is necessary to make us a happy and a prosperous people?

Thomas Jefferson, First Inaugural Address (Mar. 4, 1801), in id. 140, 141.

In fact, in recognition of religion's foundational role in our law and government, both Thomas Jefferson and Benjamin Franklin independently proposed that the new American seal depict Moses leading Israel through the wilderness under the protection of God, with the motto, "Rebellion to Tyrants is Obedience to God." James H. Hutson, Religion and the Foundation of the American Republic 50-51 (1998). Although the Continental Congress never accepted Jefferson's and Franklin's proposals, it did adopt a seal with numerous religious references. "What is unmistakable ... is the theistic framework in which the Continental Congress sought to have the world understand the creation of the American republic." Derek H. Davis, Religion and the Continental Congress, 1774-1789: Contributions to Original Intent 144 (Oxford Univ. Press 2000).

Like Washington, the Continental Congress also drew the connection between religion and government. On October 11, 1782, in a Thanksgiving proclamation near the end of the Revolutionary War, the Congress asked Americans
to testify their gratitude to God for his goodness, by a cheerful obedience to his laws, and by promoting ... the practice of true and undefiled religion, which is the great foundation of public prosperity and national happiness.
23 Journals of the Continental Congress, 1774-1789, 647 (Gaillard Hunt ed., Government Printing Office 1914). These same sentiments were expressed by the Congress the day after the First Amendment was proposed when it urged President Washington to proclaim "`a day of public thanksgiving and prayer, to be observed by acknowledging with grateful hearts the many signal favours of Almighty God.'" See Davis, supra at 89 (citation omitted).
President John Adams likewise described the importance of religion to the American system of government:
As the safety and prosperity of nations ultimately and essentially depend on the protection and the blessing of Almighty God, and the national acknowledgment of this truth is not only an indispensable duty which the people owe to Him, but a duty whose natural influence is favorable to the promotion of that morality and piety without which social happiness can not exist nor the blessings of a free government be enjoyed.
John Adams, Fast Day Proclamation (Mar. 23, 1798), in A Compilation of the Messages and Papers of the Presidents, 1789-1897, 268, 268-69 (James D. Richardson ed., 1899).
These are only a few of the numerous statements by our early political leaders drawing the same conclusion as 470 did the *470 defendants in this case: that religion played a foundational role in American law and government.
This is a conclusion, incidentally, that is widely accepted by scholars. As one of the earliest observers of American political life, Alexis de Tocqueville recognized, religion is an essential component of American government:
Religion in America takes no direct part in the government of society, but it must be regarded as the first of the political institutions; for if it does not impart a taste for freedom, it facilitates the use of it. Indeed, it is in this same point of view that the inhabitants of the United States themselves look upon religious belief. I do not know whether all Americans have a sincere faith in their religion 0907 for who can search the human heart? 0907 but I am certain that they hold it to be indispensable to the maintenance of republican institutions.
Alexis de Tocqueville, Democracy in America 305-06 (Alfred A. Knopf, Inc. 1972) (1835). De Tocqueville's observation is confirmed by historical scholarship:
As intellectual heirs of a tradition which had entwined republicanism and Christian theism, New Englanders in the last two decades of the [eighteenth] century were unable to perceive religion as free from matters of civil government. From ancient history they were convinced that "the state cannot stand without religion" and from their own experience that "Rational Freedom cannot be preserved without the aid of Christianity."
Nathan O. Hatch, The Sacred Cause of Liberty: Republican Thought and the Millennium in Revolutionary New England 168 (Yale Univ. Press 1977) (footnotes and citations omitted). The distinguished jurist and professor of law, Thomas M. Cooley, also recognized the close relationship between religion and American law:
It was never intended that by the Constitution the government should be prohibited from recognizing religion.... The Christian religion was always recognized in the administration of the common law; and so far as that law continues to be the law of the land, the fundamental principles of that religion must continue to be recognized in the same cases and to the same extent as formerly.

Thomas M. Cooley, The General Principles of Constitutional Law in the United States of America 205-06 (The Lawbook Exchange 2000) (1880).
Relevant to our purposes here, the Supreme Court has repeatedly stated that there is a crucial link between religion and our laws and government, for "[w]e are a religious people whose institutions presuppose a Supreme Being." Zorach v. Clauson, 343 U.S. 306, 313, 72 S.Ct. 679, 96 L.Ed. 954 (1952). This link has been consistently celebrated by our political leaders from the founding to the present day and nowhere has this practice been questioned as fiercely as the majority does today. In fact, the majority's incredulity as to the avowed relationship between religion and our public life is unprecedented:
There is an unbroken history of official acknowledgment by all three branches of government of the role of religion in American life from at least 1789....
Our history is replete with official references to the value and invocation of Divine guidance in deliberations and pronouncements of the Founding Fathers and contemporary leaders.
Lynch, 465 U.S. at 674-75, 104 S.Ct. 1355.
With regard to the Ten Commandments, the legitimacy of the defendants' view of American history as expressed 471 in their displays is supported by the Supreme *471 Court's own appraisal of its Establishment Clause precedent:
[I]n Stone ... [our] decision forbidding the posting of the Ten Commandments did not mean that no use could ever be made of the Ten Commandments, or that the Ten Commandments played an exclusively religious role in the history of Western Civilization.
Edwards v. Aguillard, 482 U.S. 578, 593-94, 107 S.Ct. 2573, 96 L.Ed.2d 510 (1987).
Moreover, every one of our sister circuits that has considered a challenge to the public display of the Ten Commandments has recognized its foundational role in American law and government and, consequently, has declared that such displays can have a secular purpose.
Most recently, the Fifth Circuit in Van Orden v. Perry, 351 F.3d 173, 2003 WL 22664490 (5th Cir. Nov.12, 2003), approved of a granite monument inscribed with the Ten Commandments and displayed at the Texas Capitol. Having concluded that the State had a valid secular purpose for the display, the court also affirmed the relationship between the Ten Commandments and American law:
To say this is not to diminish the reality that it is a sacred text to many, for it is also a powerful teacher of ethics, of wise counsel urging a regimen of just governance among free people. The power of that counsel is evidenced by its expression in the civil and criminal laws of the free world. No judicial decree can erase that history and its continuing influence on our laws 0907 there is no escape from its secular and religious character.
Id. at *7.
In Freethought Society v. Chester County, 334 F.3d 247 (3d Cir.2003), the Third Circuit upheld the display of a bronze plaque inscribed with the Ten Commandments that hung alone on the exterior of a county courthouse. The county commissioners had stated at trial that they wanted to maintain the plaque, in part, because they believed that the Ten Commandments contributed to the development of American law. The court held that this was a "`non-sham' secular purpose" and that there was a
well documented history ... to the effect that the Ten Commandments have an independent secular meaning in our society because they are regarded as a significant basis of American law and the American polity.
Id. at 267.
The Eleventh Circuit recently approved of a court clerk seal that included an outline of two stone tablets inscribed with the Roman numbers I through X, because the Ten Commandments are a popularly recognized symbol of the

law. King v. Richmond County, Ga., 331 F.3d 1271, 1278 (11th Cir.2003). In its consideration of the seal's secular purpose, the court was satisfied "that during the 1870s the outline of the Ten Commandments presumably would have enabled illiterate citizens to recognize the legal validity of documents displaying the Seal." Id.
The Seventh Circuit, while striking down as unconstitutional a large granite monument bearing an inscription of the Ten Commandments, situated on the Elkhart, Indiana, City Hall grounds, nonetheless noted:
The display of a religious symbol still may, under certain circumstances, have a secular purpose. The text of the Ten Commandments no doubt has played a role in the secular development of our society and can no doubt be presented by the government as playing such a role in our civic order.
Books v. City of Elkhart, 235 F.3d 292, 302 (7th Cir.2000).
472 *472 The Tenth Circuit, using the Lemon test, approved of the display of a granite Ten Commandments monument at a city-county courthouse in Salt Lake City. Anderson v. Salt Lake City Corp., 475 F.2d 29 (10th Cir.1973). In doing so, the court stated that
the Decalogue is at once religious and secular, as, indeed, one would expect, considering the role of religion in our traditions....
It does not seem reasonable to require removal of a passive monument, involving no compulsion, because its accepted precepts, as a foundation for law, reflect the religious nature of an ancient era.... [W]e cannot say that the monument, as it stands, is more than a depiction of a historically important monument with both secular and sectarian effects.
Id. at 33-34. Although Anderson predates the Supreme Court's decisions in Stone, Lynch, and Allegheny, neither the Supreme Court nor the Tenth Circuit has overruled Anderson and it remains good law. See Summum v. Callaghan, 130 F.3d 906, 912 n. 8 (10th Cir.1997).
Thus, in their reasoned judgment, our sister circuits that have had the opportunity to consider this question have unanimously declared the validity of the very same premise that the defendants advance here today: "The Ten Commandments have profoundly influenced the formation of Western legal thought and the formation of our country." This judgment is not precluded by any decision of this court, and, in fact, would seem to be welcomed by it. Having had the opportunity to consider the place of the Ten Commandments in our public life, we have never rejected the historical relationship between the Ten Commandments and our law and government. In Adland v. Russ, 307 F.3d 471, we struck down a Kentucky legislative resolution directing that a six-foot tall granite monument inscribed with the Ten Commandments be displayed on the lawn at the State Capitol. The monument, which was totally different from the display at issue here, was essentially a stand alone piece, save for an accompanying clock and some small plaques nearby. Notwithstanding our objections to the monument in that case, we explicitly acknowledged that the Commonwealth could cure the defects in the display. Although we declined to render an advisory opinion on the constitutionality of alternative displays, we applauded the plaintiffs for proposing "to their credit, ... a historical display showcasing the various influences on our law by both secular and religious sources." Id. at 489-90 (emphasis added).
This collection of sources is not intended to settle the issue of whether the Decalogue is in fact a foundational document in American law and government, for that is not the question before us today. What we must decide is whether the displays were motivated by a secular purpose. In answering that particular question, our only concern is with the defendants' subjective belief, because government action will fail the purpose prong of the Lemon test if the "government intends to convey a message of endorsement or disapproval of religion." Lynch, 465 U.S. at 691, 104 S.Ct. 1355 (O'Connor, J., concurring). Specifically, given the defendants' articulation of a secular purpose, we must consider whether such a purpose is a sham, i.e., whether the defendants subjectively believed that the Decalogue was part of the foundation of American law and government and that it provided the moral background of the Declaration of Independence and the foundation of our legal tradition.
Not only is the record utterly devoid of any evidence that the defendants subjectively intended to convey a 473 message of *473 endorsement, but the historical evidence dispels any suspicion that the defendants' theory of

American law and history is a sham. In common, ordinary English usage, a sham means a fraud, a hoax, or an intentionally deceptive counterfeit. See 15 Oxford English Dictionary 159 (2d ed.1989). Given the "unbroken history of official acknowledgment by all three branches of government of the role of religion in American life," Lynch, 465 U.S. at 674, 104 S.Ct. 1355, and the consistent view of the courts that "[t]he text of the Ten Commandments no doubt has played a role in the secular development of our society," Books, 235 F.3d at 302, it cannot plausibly be said that the defendants' desire to demonstrate the foundational role of the Ten Commandments is a fraud or hoax. The voluminous historical evidence, common sense, and the decisional law of the federal courts all lead to one inevitable conclusion in the case before us: that the defendants' second and third articulated purposes are not shams and should, therefore, be accepted by this court as legitimate secular purposes.
Similarly, there is no evidence in the record that would justify this court in questioning the sincerity of the defendants' fourth articulated purpose: to educate the citizens of the county regarding some of the documents that played a significant role in the foundation of our system of law and government. The displays unquestionably contain numerous documents in "a historical display showcasing the various influences on our law by both secular and religious sources." Adland, 307 F.3d at 490. Lest there be any confusion about the displays' educative purpose, the defendants have posted signs explaining that all the documents "played a significant role in the foundation of our system of law and government." The signs go on to describe in considerable detail the significance of each document, including the Ten Commandments, which, the defendants assert, "provide[d] the moral background of the Declaration of Independence and the foundation of our legal tradition." As my earlier discussion of the historical evidence indicates, the defendants' purpose of educating their citizens about the relationship between religion and the American system of law and government is grounded in clear and indisputable fact and, as such, cannot be justifiably characterized as a sham. In their assessment of the relationship between religion and the Declaration of Independence, the defendants got it absolutely right:
[T]he numerous references to God were enough to place the Declaration in an overall theistic framework so as to satisfy virtually anyone who held a theistic worldview. Thus in drafting the Declaration of Independence, Thomas Jefferson and his congressional colleagues seized upon, and indeed helped to further shape, a bond between Enlightenment latitudinarianism and Christian orthodoxy that made it possible to formally dissolve all bonds with Great Britain and at the same time confidently assert "the protection of Divine Providence."
Davis, supra at 109.
Nevertheless, according to my colleagues, the displays in this case are defective because they "provided the viewer with no analytical or historical connection between the Ten Commandments and the other historical documents," maj. op. at 454, and, thus, fail to prove conclusively the defendants' thesis: that the Decalogue has a historical connection to American law and government. The majority rejects the evidence, as it appeared in the defendants' brief, "that each of the Ten Commandments were codified, to one extent or another, into the legal 474 codes of some American Colonies, and that some of *474 the Commandments ... persist to this day in American legal codes." Maj. op. at 452. In doing so the majority complains that this "evidence does not appear in the actual display of the Ten Commandments, so an observer would not actually be made aware of these facts." Maj. op. at 452. Thus, the majority seems to envision a display that contains a recounting of the history of the nation's founding, a summary of American constitutional law and history, perhaps a syllogism incorporating the foregoing, and, I suppose, at least as much evidence as was presented to this court in the official record of more than 200 pages.
In support of their reasoning, my colleagues cite Stone v. Graham, 449 U.S. 39, 101 S.Ct. 192, 66 L.Ed.2d 199 (1980) (per curiam), a case that the majority has both misapplied and misinterpreted and that, nevertheless, bears no factual relation to the case before us. Stone was a case about the constitutionality of a Kentucky statute mandating the posting of a copy of the Ten Commandments, standing alone, in every school classroom in Kentucky. Acting upon a petition for a writ of certiorari, and without benefit of oral argument or briefing on the merits, the Court, in a two-page, per curiam opinion from which four justices dissented, summarily reversed the Kentucky Supreme Court's judgment of constitutionality, stating:

We conclude that Kentucky's statute requiring the posting of the Ten Commandments in public schoolrooms had no secular legislative purpose, and is therefore unconstitutional.
Id. at 41, 101 S.Ct. 192. Noting that the Court's holding was without precedent, then-Justice Rehnquist called the decision "a cavalier summary reversal" having "no support beyond [the Court's] own ipse dixit." Id. at 43, 47, 101 S.Ct. 192 (Rehnquist, J., dissenting).
Although they cite no authority, my colleagues are apparently relying on Stone when they state that "a purported historical display must present the Ten Commandments objectively and integrate them with a secular message." Maj. op. at 449. If this is, in fact, the rule that my colleagues glean from Stone, it is not the rule they apply to the facts of the case before us. Rather, the defendants are faulted because they did not choose to display the Ten Commandments in "the most logical way," which the majority defines as "integrating the Ten Commandments with a secular curriculum, such as through the objective study of history, ethics or comparative religion." Maj. op. at 449. This is the actual standard by which my colleagues judge the defendants' displays. Accordingly, my colleagues condemn the defendants' displays because "the Ten Commandments are not integrated with a secular study of American law or government," maj. op. at 450 (emphasis added), and because of "the lack of a demonstrated analytical or historical connection with the other documents [in the displays]," maj. op. at 451 (emphasis added). These criticisms demonstrate that my colleagues think that it is no longer sufficient for a display to serve a secular purpose, for the majority now demands that such a display be "integrat[ed] ... with a secular curriculum." Maj. op. at 448.
It should first be observed that there is no obligation to display the Ten Commandments in an otherwise secular exhibit in a way that appeals to the logic of scrutinizing federal judges. I am not aware of any authority that would require us to condemn a government display simply because it did not choose "the most logical way" of conveying a message. Furthermore, insofar as the majority relies on Stone for guidance in forming its rule that "a 475 purported historical display must present *475 the Ten Commandments objectively and integrate them with a secular message," maj. op. at 449, it is better to quote this portion of Stone in full. What the Court actually said in Stone was the following:
This is not a case in which the Ten Commandments are integrated into the school curriculum, where the Bible may constitutionally be used in an appropriate study of history, civilization, ethics, comparative religion, or the like.
Stone, 449 U.S. at 42, 101 S.Ct. 192. Clearly, this statement by the Court is a gratuitous hypothetical, describing one possible scenario in which the Kentucky legislature could have mandated the use of the Ten Commandments in the classroom. But this hypothetical simply does not establish a rule that all efforts to post the Ten Commandments on public property must integrate them into a curriculum of study. If that were the case, the Court would have to condemn its own display of Moses, who, bearing the Ten Commandments, is represented among other historical figures in a frieze on the south wall of the Supreme Court courtroom:
Placement of secular figures such as Caesar Augustus, William Blackstone, Napoleon Bonaparte, and John Marshall alongside [Moses, Confucius, and Mohammed], however, signals respect not for great proselytizers but for great law-givers. It would be absurd to exclude such a fitting message from a courtroom, as it would be to exclude religious paintings by Italian Renaissance masters from a public museum.
Allegheny, 492 U.S. at 652-53, 109 S.Ct. 3086 (footnote omitted) (Stevens, J., concurring in part and dissenting in part).
Rather than attempting to divine a rule from Stone, this court should apply the actual rules from the Supreme Court's landmark decisions approving the government's use of religious symbols: Lynch and Allegheny. It is revealing that my colleagues are unable to offer any meaningful citation to either of these cases to support their reasoning. This is not surprising given the fact that the Court has never even suggested that there is any validity to the rules my colleagues have crafted today: that a government may display the Ten Commandments in a public building only if they are integrated into a secular curriculum, and that the display must include a narration

of the proof of the relationship between religion and the ideas and impulses that contributed to the foundation of American law and government.
In Lynch, the Court approved of the use of a crèche in a Christmas display that contained other symbols of the holiday such as a Santa Claus house and reindeer, even though the display contained no signs explaining the secular purpose of the display and the defendants made no attempt to demonstrate the link between the crèche and the celebration of Christmas. Despite the defendant's failure to integrate the crèche into "a secular curriculum, such as ... the study of history, ethics or comparative religion," see maj. op. at 448, the Court held that the defendant had nonetheless achieved its purpose of "tak[ing] note of a significant historical religious event long celebrated in the Western World." Lynch, 465 U.S. at 680, 104 S.Ct. 1355.
Similarly in Allegheny, where the Court approved of a Christmas display containing a Christmas tree, a menorah, and a sign bearing the phrase "Salute to Liberty," there is not even a hint of the need to integrate the menorah into a secular curriculum. The only other message at the menorah display was the following: "`During this holiday 476 season, the city of Pittsburgh salutes liberty. Let these festive lights remind us that we are the keepers of *476 the flame of liberty and our legacy of freedom.'" Allegheny, 492 U.S. at 582, 109 S.Ct. 3086 (citation omitted). Justice Blackmun concluded that this "sign serves to confirm what the context [of the display] already reveals: that the display of the menorah is not an endorsement of religious faith but simply a recognition of cultural diversity." Id. at 619, 109 S.Ct. 3086 (Blackmun, J., concurring). Thus, the defendant was able to achieve the secular purpose of recognizing cultural diversity merely through the context of the display, and not by integrating the menorah into a secular curriculum. Moreover, the defendant's sign confirmed that same secular purpose even though it made no mention of diversity and, therefore, required the reader to make an inferential step in order to draw the connection between "our legacy of freedom" and the "recognition of cultural diversity."
Thus, neither Lynch, nor Allegheny, nor any other decision, and certainly not Stone, support the majority's rule that a government that wishes to use a religious symbol in a public display must integrate that symbol into a secular curriculum. As if the absence of authority were not enough, common sense militates against such a rule. Government monuments and displays appear in a context in which the displays must speak for themselves, for they do not present an opportunity to attach lengthy disclaimers and statements of purpose. However, in order to integrate the Ten Commandments into a secular curriculum in a manner that would satisfy the majority's new rule, the defendants would have to append to their displays a library of learned treatises and court briefs, or perhaps audio or video accompaniment, explaining beyond all reasonable doubt and in great detail what most Americans already know and the courts have expressly recognized: that "the Ten Commandments no doubt has played a role in the secular development of our society." Books, 235 F.3d at 302. Significantly, the majority has dismissed out of hand the signs accompanying the displays, which, among other things explain that "[t]he Ten Commandments have profoundly influenced the formation of Western legal thought and the formation of our country." This statement succinctly describes the secular purposes for the displays and, under Lynch and Allegheny, is more than sufficient.
In its review of the context of the defendants' displays, the majority objects that the displays are "blatantly religious" because they contain an "active symbol of religion" "`concern[ing] the religious duties of believers.'" Maj. op. at 455 (quoting Stone, 449 U.S. at 42, 101 S.Ct. 192). This, again, is a novel statement of the law that finds no support in the Supreme Court's landmark decisions of Lynch and Allegheny. In Lynch, the Court approved the display of the crèche despite the fact that the crèche has "special meaning to those whose faith includes the celebration of religious Masses." Lynch, 465 U.S. at 685, 104 S.Ct. 1355. In Allegheny, the Court approved of the display containing the menorah even though it also concerned certain religious duties of the Jewish faith:
[T]he Talmud prescribes that it is a mitzvah (i.e., a religious deed or commandment) ... for Jews to place a lamp with eight lights just outside the entrance to their homes or in a front window during the eight days of Chanukah.
Allegheny, 492 U.S. at 583, 109 S.Ct. 3086 (emphasis added) (footnote omitted). In both cases, the Court held that these religious icons, which necessarily concerned the religious duties of believers, were also symbols of a 477 holiday that had both secular and religious meaning. See Lynch, 465 *477 U.S. at 680, 104 S.Ct. 1355; Allegheny, 492 U.S. at 613-14, 109 S.Ct. 3086. Therefore, simply because the Ten Commandments may

prescribe religious duties for Jews and Christians, that fact alone does not detract from its place as a symbol of the religious origins of our law and government.

Finally, there is no evidence that would undermine the defendants' fifth articulated purpose: to create a limited public forum on the walls of the Harlan County school buildings for the purpose of posting historical documents that played a significant role in the development, origins, or foundations of American and Kentucky law. "The establishment of a public forum is a laudable goal, and part of a worthy tradition dating back to the Greek agora and the Roman forum." Americans United for Separation of Church & State v. City of Grand Rapids, 980 F.2d 1538, 1543 (6th Cir.1992). There is simply no indication in the record that the defendants have manipulated the forum in any way or have excluded other speakers from using the forum in a manner that would cause us to believe that this purpose is a sham. See Capitol Square Review & Advisory Bd. v. Pinette, 515 U.S. 753, 766, 115 S.Ct. 2440, 132 L.Ed.2d 650 (1995) (plurality opinion).

The majority raises an objection to the "evolution" of the displays. In doing so, it adopts the reasoning of the district court, which held that the history of the defendants' earlier attempts to erect constitutionally invalid displays conclusively "imprinted the defendants' purpose, from the beginning, with an unconstitutional taint[.]" McCreary II, 145 F.Supp.2d at 850. This theory of indelible, unconstitutional "taint" not only offends common sense, it is also contrary to the law of this circuit.

We have explicitly rejected the idea that the government's past unconstitutional conduct forever taints its actions in the future. In Granzeier v. Middleton, 173 F.3d 568 (6th Cir.1999), we considered whether closing government offices on Good Friday was done for a religious purpose, violating the Establishment Clause. The county's claimed secular purpose was that Good Friday had become part of an extended spring weekend in which many people took a short vacation and very little business was conducted. As evidence that this explanation was a sham, the plaintiffs produced a government sign the defendant had previously posted that depicted a crucifix and stated that the offices were being closed in observance of Good Friday. We rejected the plaintiffs' contention that the defendant's earlier religious purpose forever tainted the secular purpose it proffered at trial. "[T]he fact that a particular closing was once constitutionally suspect does not prevent it from being reinstated in a constitutional form." Id. at 574.

We noted our agreement with Judge Posner of the Seventh Circuit who reasoned in a case factually similar to Granzeier, that "Illinois can accomplish much the same thing either by officially adopting a `spring weekend' rationale for the law, in place of the governor's proclamation of a state religious holiday, or by moving to a system of local option for school districts." Metzl v. Leininger, 57 F.3d 618, 623-24 (7th Cir.1995).

If a unit of government's past unconstitutional conduct forever taints its actions in the future, we would not have advised the defendants in Adland, 307 F.3d 471, that they could cure the constitutional defects in their Ten Commandments display by changing its composition.

While we cannot pass on the merits of plaintiffs' proposals [to amend the display], we are

nevertheless confident that with careful planning and deliberation, and perhaps consultation with

478

the plaintiffs, *478 the Commonwealth can permissibly display the [Ten Commandments]

monument in question.

Id. at 490 (emphasis added).

Our sister circuits have likewise rejected the idea that a prior unconstitutional display forever taints a subsequent display as religious. In ACLU v. Schundler, 168 F.3d 92 (3d Cir.1999), the Third Circuit approved a city's Christmas display that had been modified in response to an Establishment Clause challenge:

The mere fact that Jersey City's first display was held to violate the Establishment Clause is plainly insufficient to show that the second display lacked a secular legislative purpose, or that it was intend[ed] to convey a message of endorsement or disapproval of religion.

Id. at 105 (internal quotation marks and citations omitted). In fact, in Books, 235 F.3d 292, the Seventh Circuit actually imposed on the defendant an affirmative duty to modify an unconstitutional display:

[T]he district court must ensure that, although the condition that offends the Constitution is eliminated, [the city] retains the authority to make decisions regarding the placement of the monument. In making those decisions, [the city] has the right and, indeed, the obligation to take into consideration the religious sensibilities of its people and to accommodate that aspect of its citizens' lives in any way that does not offend the strictures of the Establishment Clause.
Id. at 307 (emphasis added).
The U.S. Supreme Court's holding in Santa Fe Independent School District v. Doe, 530 U.S. 290, 120 S.Ct. 2266, 147 L.Ed.2d 295 (2000), did not overrule these cases; nor does it require us to find that the defendants' displays are unconstitutional merely due to some past constitutional violation. In Santa Fe, the plaintiffs challenged a school district practice that permitted students to deliver invocations and benedictions at graduation ceremonies and football games through the elected office of student council chaplain. In response, the defendants modified their policy in order to permit students, "with the advice and counsel of the senior class principal" to decide by vote whether to have an invocation at graduation. Id. at 296, 120 S.Ct. 2266 (internal quotation marks and citation omitted). Later, the District drafted another policy entitled "Prayer at Football Games" that permitted students to decide whether to have an invocation at football games. Id. at 297, 120 S.Ct. 2266. The final iteration of the policy, the "October policy," permitted students to vote whether they wanted to have a student-led "invocation and/or message" at football games, and, if so, who should give the invocation or message. Id. at 298 & n. 6, 120 S.Ct. 2266. It was the October policy that was at issue in Santa Fe.
Significantly, the Court announced its holding by stating that "the text of the October policy alone reveals that it has an unconstitutional purpose." Id. at 314, 120 S.Ct. 2266 (emphasis added). Thus, while the Court discussed the evolution of the District's prayer policy, see id. at 315, 120 S.Ct. 2266, it expressly limited its holding to "[t]he narrow question ... [of] whether implementation of the October policy insulates the continuation of such prayers from constitutional scrutiny." Id. At most, Santa Fe held that a modified policy, or display, cannot be used as a shield to prevent litigation. However, Santa Fe does not state that a history of unconstitutional displays can be used as a sword to strike down an otherwise constitutional display.
Based on the record before us, there is abundant evidence to conclude that the defendants' declared purposes 479 for erecting *479 these displays were primarily secular, a complete lack of evidence that their purpose was
primarily religious, and, therefore, no evidence whatever that the defendants' declared purposes constitute a hoax or fraud upon this court. I conclude that the defendants' displays do not violate the first prong of the Lemon test.
B.
The second element of the Lemon test, as modified in Lynch, is whether a reasonable observer would believe that the challenged government action constitutes an "endorsement" of religion. Lynch, 465 U.S. at 691-94, 104 S.Ct. 1355 (O'Connor, J., concurring). Incidentally, the opinions of my brother, Judge Clay, on this issue, are his own and do not represent those of the majority of the panel.
The first thing that must be said about the Lemon endorsement test, is that it asks whether a "reasonable observer" 0907 not a proselytizing religious zealot committed to the establishment of a state religion, or, on the other hand, an indefatigable professional litigant dedicated, in the name of civil liberty, to expunging God, religion, and all reference to religion from the public square 0907 would understand these displays as having a primarily religious purpose and the principal or primary effect of endorsing religion.
As it did with respect to the secular purpose issue, Justice O'Connor's concurrence in Lynch "provides a sound analytical framework for evaluating governmental use of religious symbols" to decide the endorsement issue. Allegheny, 492 U.S. at 595, 109 S.Ct. 3086. Lynch, the reader will recall, upheld a Christmas display that included a crèche, a Santa Claus house, reindeer, clowns, an elephant, a teddy bear, colored lights, and a sign bearing the phrase "Seasons Greetings." Lynch, 465 U.S. at 671, 104 S.Ct. 1355. Justice O'Connor concluded

that although the crèche was an inherently religious symbol, a reasonable observer would not view the overall display as an endorsement of religion:
Although the religious and indeed sectarian significance of the crèche, as the District Court found, is not neutralized by the setting, the overall holiday setting changes what viewers may fairly understand to be the purpose of the display 0907 as a typical museum setting, though not neutralizing the religious content of a religious painting, negates any message of endorsement of that content.
Id. at 692, 104 S.Ct. 1355 (O'Connor, J., concurring).
Justice O'Connor cited "legislative prayers ..., government declaration of Thanksgiving as a public holiday, printing of `In God We Trust' on coins, and opening court sessions with `God save the United States and this honorable court,'" as examples of "government acknowledgments of religion" rather than endorsements of it. Id. at 693, 104 S.Ct. 1355 (internal citations omitted). She stated: "[The] history and ubiquity [of] those practices are not understood as conveying government approval of particular religious beliefs." Id. They
serve, in the only ways reasonably possible in our culture, the legitimate secular purposes of solemnizing public occasions, expressing confidence in the future, and encouraging the recognition of what is worthy of appreciation in society.
Id.
The Supreme Court returned to the issue of government use of religious symbols and the endorsement issue in Allegheny, when it considered the legality of two separate holiday displays. The Court held that the first display, a 480 crèche that stood *480 alone in a prominent location inside the county courthouse, violated the Establishment Clause because "nothing in the context of the display detracts from the crèche's religious message." Allegheny, 492 U.S. at 598, 109 S.Ct. 3086. The Court found it significant that, unlike the crèche in Lynch, the Allegheny County crèche was not accompanied by other secular symbols of Christmas. However, the Court approved the second challenged display 0907 a Christmas tree, a menorah, and a sign entitled "Salute to Liberty" 0907 which was located at the city-county building. Justice Blackmun concluded that the second display, in which a religious symbol, the menorah, stood alongside two secular symbols, the Christmas tree and the sign, would not be perceived by the reasonable observer as an endorsement of religion: "[F]or purposes of the Establishment Clause, the city's overall display must be understood as conveying the city's secular recognition of different traditions for celebrating the winter-holiday season." Id. at 620, 109 S.Ct. 3086 (Blackmun, J., concurring) (emphasis added).
Applying the analysis from Lynch and Allegheny, this court in Adland found that a reasonable observer would perceive a six-foot granite monument of the Ten Commandments as an endorsement of religion and that nothing in the overall display, which included a clock and several small plaques, reduced or diluted this message of endorsement. The court said it came to that conclusion largely because the monument "physically dominate[d]" the display and "`dwarf[ed]' all the other memorials ... in the vicinity." Adland, 307 F.3d at 487 (internal quotation marks and citation omitted). But we explicitly left the door open for the possibility that some other display that included the Ten Commandments, in addition to secular articles, might pass the Lemon endorsement test if the overall display conveyed "an easily discernible, unified theme to a reasonable observer." Id. at 488.
Without a unifying theme to hold the display together, a reasonable observer could only view the monuments separately. If a reasonable observer views the monuments separately, unconnected by a common context, his or her attention is naturally drawn to the Ten Commandments monument, the largest monument in the display, and its accompanying religious message.
Id.
But that is not this case. Here, the exhibition of ten documents, one religious and the rest secular, all of identical size, none having a position of prominence greater than another, and the whole labeled as contributing to "the foundation of American Law and Government," possesses a "unifying theme" that "hold[s] the display together" and conveys a single secular message that is spelled out in each display. No reasonable observer would ignore the nine secular documents in the display, including the one explicitly declaring the secular purpose for the

display, and focus exclusively on the single religious document in order to conclude that the display is an endorsement of religion.
Just like the menorah, the Christmas tree, and the "Salute to Liberty" sign in Allegheny, and the crèche, the reindeer, the Santa Claus house, and related secular paraphernalia in Lynch, and in each display in this case, it is the documents in their totality that comprise the defendants' displays. Therefore, it is the documents in their totality, their unifying theme, that must be assessed to determine whether a reasonable observer would see them as having the "principal or primary effect" of endorsing religion.
481 My colleague rejects as "transparent" the defendants' "attempt to `secularize' the *481 displays by surrounding the Ten Commandments with other patriotic documents and symbols." Maj. op. at 460. Thus, contrary to the directives of the Supreme Court on this issue, my colleague refuses to evaluate the displays in their totality, including the statement of educational purpose that is part of each display, but instead focuses exclusively on the single framed copy of the Ten Commandments and the history of the defendants' repeated efforts to assemble a display that would satisfy even federal judges.
My colleague makes much of the fact that the Ten Commandments have a "`religious nature.'" Maj. op. at 460 (quoting McCreary II, 145 F.Supp.2d at 851). This indisputable characterization of the Ten Commandments, however, has nothing to do with the issue of our endorsement inquiry, which asks "`what viewers may fairly understand to be the purpose of the display.'" Allegheny, 492 U.S. at 595, 109 S.Ct. 3086 (emphasis added) (quoting Lynch, 465 U.S. at 692, 104 S.Ct. 1355 (O'Connor, J., concurring)). In both Lynch and Allegheny, the Supreme Court approved of displays that contained inherently religious, even sectarian, symbols: the crèche and the menorah. The crucial fact of both of those cases was not that the symbols were religious, but that they were accompanied by secular symbols that, taken together, conveyed no message of endorsement. See Lynch, 465 U.S. at 679-81, 104 S.Ct. 1355; Allegheny, 492 U.S. at 613-14, 109 S.Ct. 3086. By focusing on the religious aspect of only one part of the defendants' displays, my colleague conducts precisely the same analysis that the Supreme Court rejected in Lynch:
The District Court plainly erred by focusing almost exclusively on the crèche. When viewed in the proper context of the Christmas Holiday season, it is apparent that, on this record, there is insufficient evidence to establish that the inclusion of the crèche is a purposeful or surreptitious effort to express some kind of subtle governmental advocacy of a particular religious message. In a pluralistic society a variety of motives and purposes are implicated.
Lynch, 465 U.S. at 680, 104 S.Ct. 1355. My colleague's error may be summed up as follows: "Focus exclusively on the religious component of any activity would inevitably lead to its invalidation under the Establishment Clause." Id.
In concluding that a reasonable observer would understand these displays, in their totality, as conveying a message of endorsement of religion, because of the religious "taint" imparted by the Ten Commandments, my colleague attributes to reasonable observers an utter lack of common sense, a profound ignorance of American history, and, arguably, an outright hostility to religion in our nation's public life. In my judgment, no reasonable observer, gazing at these displays in McCreary, Pulaski, and Harlan counties could fail to appreciate what, apparently, my colleague does not: that from the founding of the republic, religion was and always has been, an inherent component of the law and culture of our pluralistic society, and that saying so in the public square acknowledges religion, but does not endorse it.
The Supreme Court itself has declared that "religion has been closely identified with our history and government." Sch. Dist. Abington v. Schempp, 374 U.S. 203, 212, 83 S.Ct. 1560, 10 L.Ed.2d 844 (1963). It is uncontested that depictions of the Ten Commandments and Moses appear in secular context in, among other places, the United States House chamber, the entrance to the national archives, and in three separate locations in the United States 482 Supreme Court, as well as numerous *482 courtrooms and legal settings across the country.
The history and ubiquity of the Ten Commandments in public buildings throughout the country and the universal practice of courts and legislatures publicly invoking God's blessing and guidance each day, before beginning the public's business, confirm the obvious: The inclusion of the Ten Commandments in these displays did nothing

more than acknowledge the indisputable historical role of religion, and especially the canons of the Decalogue, as one of many principles, ideas, values, and impulses that, taken together, influenced the founders of this republic in shaping our law and government. Indeed, to have omitted the Ten Commandments from the collage of documents the defendants labeled "part of the foundations of American Law and Government," would have been historically inaccurate. No reasonable observer would consider the defendants' displays to have the "principal or primary effect" of endorsing religion.
V.
My colleagues' reasoning and conclusions are faithful neither to the language and meaning of the Establishment Clause nor to the Supreme Court's interpretation of it. What the Supreme Court said about the Christmas display in Lynch is perfectly applicable to the historical document displays in this case:
The Court has acknowledged that the fears and political problems that gave rise to the Religion Clauses in the 18th century are of far less concern today. We are unable to perceive the Archbishop of Canterbury, the Bishop of Rome, or other powerful religious leaders behind every public acknowledgment of the religious heritage long officially recognized by the three constitutional branches of government. Any notion that these symbols pose a real danger of establishment of a state church is farfetched indeed.
Lynch, 465 U.S. at 686, 104 S.Ct. 1355 (internal quotation marks and citations omitted) (emphasis added).
The district court erred in the legal analysis it applied and clearly erred in its findings of fact in holding that these displays violate the Establishment Clause. Therefore, it also erred in its conclusion that the plaintiffs have a likelihood of success on the merits of their claim, and perforce, abused its discretion in issuing its preliminary injunction.
I would reverse the district court's judgment and set aside the preliminary injunction.
[1] The three lawsuits were considered as one by the district court, and are so considered on appeal. See ACLU of Ky. v. McCreary County, Ky., 96 F.Supp.2d 679, 682 n. 2 (E.D.Ky. 2000) ("This is one of three companion cases, simultaneously filed, which attack such displays. Any minimal variances among the three displays possess no legal significance for the purpose of the motions now pending before the court. Having observed that the case records also share similar complaints, memoranda, and motions and that the three cases share identical lead counsel on both sides, the court combined the three for oral argument and today enters virtually identical opinions 0907 with necessary but slight factual variations 0907 in all three."). The three opinions of which the district court spoke are as follows: ACLU of Ky. v. McCreary County, Ky., 96 F.Supp.2d 679 (E.D.Ky.2000) ("McCreary I") ; ACLU of Ky. v. Pulaski County, Ky., 96 F.Supp.2d 691 (E.D.Ky.2000); Doe v. Harlan County Sch. Dist., 96 F.Supp.2d 667 (E.D.Ky. 2000). The district court eventually consolidated the three cases under case number 99-507. All Defendants filed a single notice of appeal from the district court's June 22, 2001, order granting Plaintiffs' motion for a supplemental preliminary injunction. ACLU of Ky. v. McCreary County, Ky., 145 F.Supp.2d 845 (E.D.Ky.2001) ("McCreary II") (order granting Plaintiffs' motion for supplemental preliminary injunction).
[2] This version of the Ten Commandments reads as follows:
Thou shalt have no other gods before me.
Thou shalt not make unto thee any graven image, or any likeness of any thing that is in heaven above, or that is in the earth beneath, or that is in the water underneath the earth: Thou shalt not bow down thyself to them, nor serve them: for I the LORD thy God am a jealous God, visiting the iniquity of the fathers upon the children unto the third and fourth generation of them that hate me.
Thou shalt not take the name of the LORD thy God in vain: for the LORD will not hold him guiltless that taketh his name in vain. Remember the sabbath day, to keep it holy. Honour thy father and mother: that thy days may be long upon the land which the LORD thy God giveth thee.

Thou shalt not kill.
Thou shalt not commit adultery.
Thou shalt not steal.
Thou shalt not bear false witness against thy neigbour.
Thou shalt not covet thy neighbour's house, thou shalt not covet thy neighbour's wife, nor his manservant, nor his maidservant, nor his ox, nor his ass, nor any thing that is thy neighbour's.
Exodus 20: 3-17
King James Version
(J.A. 169.)
[3] The Ten Commandments are included in a statement of Representative Philip M. Crane of Illinois in which he discusses a Joint Resolution authorizing then-President Reagan to declare 1983 to be the "Year of the Bible." See (J.A. 208.) (statement of Rep. Crane; quoting H.J. Res. 487, 98th Cong. (1983)). Representative Crane's version of the Ten Commandments reads:
1. I am the Lord thy God, thou shalt have no other gods before me.
2. Thou shalt not make unto thee any graven image.
3. Thou shalt not take the name of the Lord thy God in vain.
4. Remember the Sabbath day to keep it holy.
5. Honor thy father and mother.
6. Thou shalt not kill.
7. Thou shalt not commit adultery.
8. Thou shalt not steal.
9. Thou shalt not bear false witness.
10. Thou shalt not covet.
Id.
[4] The first stated purpose might not be question-begging if Defendants had created the displays in the context of a legal discussion in order to illustrate the constitutional limits of religious expression by governmental entities. This is clearly not the case.
[5] The Continental Congress appointed a committee of five to decide who would write the Declaration. Pauline Maier, American Scripture 99 (1998). The committee assigned Jefferson the task of drafting the document. Id. at 100. The draft was revised based on comments from Benjamin Franklin and John Adams. Id. at 100-02. After incorporating their comments, Jefferson reported the revised draft to the Congress. Id. at 100. Once in Congress, the Declaration was revised by other men. Id. at 105.
[6] Id. at 19 ("Jefferson's heterodox religious views were founded on an Enlightenment outlook in general and the writings of Henry St. John, Lord Viscount Bolingbroke, in particular. It is the God of his heterodoxy that appears in the Declaration of Independence rather than the God of the Bible."); id. at 38 ("Jefferson's God of the Declaration is ... antithetical to any God who would manifest partiality by choosing one people or nation over others, as did the God of the Old Testament."). Jayne also quotes a letter written by Jefferson in which he expressed doubt about the origin and authenticity of the Ten Commandments. Id. at 34 ("`[T]he whole history of these books

[containing the Ten Commandments] is so defective and doubtful, that it seems vain to attempt minute inquiry into it; and such tricks have been played with their text, and with the other texts of other books relating to them, that we have a right from that cause to entertain much doubt what parts of them are genuine.'") (quoting January 24, 1824, letter from Jefferson to John Adams).
[7] See David McCullough, John Adams 121 (2001) (noting that Jefferson borrowed from his previous writings, as well as the writings of George Mason and Pennsylvania delegate James Wilson; further noting that Jefferson was "drawing on long familiarity with the seminal works of the English and Scottish writers John Locke, David Hume, Francis Hutcheson, and Henry St. John Bolingbroke, or such English poets as Defoe"); Maier, supra note 5, at 104 (noting evidence that Jefferson hastily produced a draft of the Declaration in a day or two and adapted two texts to complete a draft in this short time-frame: the preamble to the Virginia Constitution, "which was itself based on the English Declaration of Rights," and a preliminary version of the Virginia Declaration of Rights that had been drafted by George Mason); id. at 136 (noting that the Declaration's reference to "the laws of nature and nature's god" parallels the laws applicable to "individuals in a state of nature, a point, incidentally, that John Locke made explicitly in his Second Treatise of Government"); Carl Becker, The Declaration of Independence: A Study in the History of Ideas 79 (1922) (noting that with respect to "the political philosophy of Nature and natural rights" referenced in the Declaration that the "lineage is direct: Jefferson copied Locke"); Jayne, supra, at 44 (noting "the similarity of many of the provisions of [Locke's] Second Treatise with those of the Declaration, which clearly shows that Jefferson not only had extensive knowledge of Locke's work but put it to use in drafting the Declaration").
[8] See, e.g., note 7, supra.
[9] The evidence showed that Good Friday had become a holiday with significant "secular effects" (e.g., absent school children, high traffic volume from vacationers, and low activity at public offices and courts) and, therefore, the recognition of Good Friday as a secular holiday was permissible in the same way that Christmas Day and Thanksgiving are so recognized. Id. at 574-76.
[10] Cf. Allegheny, 492 U.S. at 596, 109 S.Ct. 3086 (noting that Christmas is "a holiday with strong secular elements") (citing Lynch, 465 U.S. at 692, 104 S.Ct. 1355 (O'Connor, J., concurring)).
[11] The district court did not address the third Lemon factor and, therefore, neither shall we. As stated, failure under any one of the Lemon factors invalidates the challenged governmental action, and thus the third factor need not be addressed. See Edwards, 482 U.S. at 583, 107 S.Ct. 2573.
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 361 F.3d 928 (2004)
AMERICAN CIVIL LIBERTIES UNION OF KENTUCKY, et al., Plaintiffs-Appellees, v.
McCREARY COUNTY, KENTUCKY, et al., Defendants-Appellants.
No. 01-5935.
United States Court of Appeals, Sixth Circuit.
March 23, 2004.
David A. Friedman, American Civil Liberties Union of Kentucky, General Counsel, Louisville, KY, for PlaintiffsAppellees.
Mathew D. Staver, Erik W. Stanley, Liberty Counsel, Liberty Counsel, Johnnie L. Turner, Law Offices of Johnnie L. Turner, Harlan, KY, for Defendants-Appellants.
Before RYAN, CLAY, and GIBBONS, Circuit Judges.
ORDER
The court having received a petition for rehearing en banc, and the petition having been circulated not only to the original panel members but also to all other active judges of this court, and less than a majority of the judges having favored the suggestion, the petition for rehearing has been referred to the original panel.
The panel has further reviewed the petition for rehearing and concludes that the issues raised in the petition were fully considered upon the original submission and decision of the case. Accordingly, the petition is denied.
929 *929 CLAY, Circuit Judge, concurring in denial of rehearing en banc, joined by MARTIN, J.
In Stone v. Graham, 449 U.S. 39, 101 S.Ct. 192, 66 L.Ed.2d 199 (1980)(per curiam), the Supreme Court held that it was patently insufficient for the government to justify schoolhouse displays of the Ten Commandments merely by asserting that "[t]he secular application of the Ten Commandments is clearly seen in its adoption as the fundamental legal code of Western Civilization and the Common Law of the United States." Id. at 40 n. 1, 101 S.Ct. 192. The Court reasoned that posting the Ten Commandments with only this disclaimer served no "educational function." Id. at 42, 101 S.Ct. 192.
The Court further opined that the display may have been permissible had the Ten Commandments been "integrated into the school curriculum ... in an appropriate study of history, civilization, ethics, comparative religion, or the like." Id. (citation omitted). This statement was a critical component of the Court's holding. Indeed, the Supreme Court expressly endorsed this statement in Lynch v. Donnelly, 465 U.S. 668, 104 S.Ct. 1355, 79 L.Ed.2d 604 (1984). See id. at 679, 104 S.Ct. 1355 (expressing approval of Stone and noting that the Stone decision "carefully pointed out that the Commandments were posted purely as a religious admonition, not `integrated into the school curriculum, where the Bible may constitutionally be used in an appropriate study of history, civilization, ethics, comparative religion, or the like'") (quoting Stone, 449 U.S. at 42, 101 S.Ct. 192.). The Court further elaborated that study of the Bible or of religion, "`when presented objectively as part of a secular program of education,'" may be effected consistently with the First Amendment. Id. at 679-80, 104 S.Ct. 1355 (quoting Abington Sch. Dist. v. Schempp, 374 U.S. 203, 225, 83 S.Ct. 1560, 10 L.Ed.2d 844 (1963)).[1] Thus, both Stone and Lynch support the view that the government's presentation of the Ten Commandments, or religious messages generally, is constitutional so long as the religious messages are presented objectively and as an integral component of an overarching secular subject matter.
This view is manifested even in those Supreme Court decisions upholding governmental displays containing patently religious symbols, including the cases cited by the dissent 0907 Lynch, supra, and County of Allegheny v.

ACLU, supra.[2]Lynch approved of a Christmastime display of a creche because that symbol, as a matter of fact in that case, shared a common secular link 0907 the holiday season 0907 with the numerous other secular symbols included in the display. The display was permissible because the secular connection between the symbols 930 rendered "indirect, remote and incidental" the religious message that the creche would have conveyed standing *930 alone. Lynch, 465 U.S. at 683, 104 S.Ct. 1355. Consistently, the Court struck down a creche display in County of Allegheny because the creche was the display's solitary element. County of Allegheny, 492 U.S. at 599, 109 S.Ct. 3086 (holding that "nothing in the context of the display detracts from the creche's religious message"). In contrast, through a series of fractured opinions, a majority of the Court in County of Allegheny approved the display of a menorah, alongside a Christmas tree and an explanatory sign, because the overall theme conveyed by the display was one of diversity, secularism, the holiday season and/or freedom. These decisions demonstrate that the manner in which a display's religious and secular elements integrate with one another is highly relevant to the inquiry concerning the government's purpose behind the display.[3]
Using this approach, the panel concluded that the documents and symbols in Defendants' displays utterly lacked a unifying secular theme. The dissent has not disputed this conclusion. Under Stone, Defendants' mere assertion of such a unifying theme did not render the displays' purpose secular. Moreover, neither Defendants' displays, nor their legal briefs, provided a shred of evidence to support the principal assertion in the courthouse displays that the Ten Commandments profoundly influenced the drafting of the Declaration of Independence. Defendants' schoolhouse displays did not even purport to cite to objective historical evidence, instead relying on the Harlan County School Board's subjective "belief" and "opinion" that the displays will "positively contribute to the ... moral character of students" and "instill qualities desirable of the students in [their] schools." Like the display of the Ten Commandments in Stone, the schoolhouse displays, as a matter of fact, served no educational mission, as might have been the case had the Ten Commandments been integrated into the objective study of a secular subject matter. Defendants' posting of the Ten Commandments served no purpose but as a religious admonition. Accordingly, the content of the displays sufficiently demonstrated that Defendants' true purpose for the displays was religious.
The dissent suggests that as long as the Ten Commandments are displayed "as part of an array containing eight or nine otherwise secular, historical documents," further inquiry into Defendants' purpose must cease. This is 931 wrong. Neither the Supreme Court nor this Court has ever *931 adopted such a facile approach to the Establishment Clause. The determination of an Establishment Clause violation is a highly fact-specific inquiry that requires a court to pay careful attention to the content and context of the display containing a religious symbol. See, e.g., County of Allegheny, 492 U.S. at 597, 109 S.Ct. 3086 (stating that the Court's task was "to determine whether the display of the creche and the menorah, in their respective `particular physical settings,' has the effect of endorsing or disapproving religious beliefs"); Adland v. Russ, 307 F.3d 471, 481 (6th Cir.2002) (looking at the "intended physical context" of the Ten Commandments display). The dissent's approach would require courts to ignore disingenuous governmental attempts to convey religious messages whenever it has included secular elements in its speech, no matter how unrelated those secular elements are to the religious elements. If followed to its logical conclusion, the dissent's approach would justify a classroom display of a crucifix or the Lord's Prayer, so long as surrounded by the Magna Carta, the Declaration of Independence, the Star Spangled Banner and, perhaps, excerpts from the Internal Revenue Code.
The dissent inaccurately refers to the panel's "sympathetic treatment of the district court's conclusion that the history of the defendants' earlier attempts to erect `constitutionally invalid displays' had `imprinted the defendants' purpose, from the beginning, with an unconstitutional taint[.]'" (quoting ACLU v. McCreary County, 354 F.3d 438, 457 (6th Cir.2003)) (quoting ACLU v. McCreary County, 145 F.Supp.2d 845, 850 (E.D.Ky.2001)). In fact, the panel explicitly rejected the district court's heavy reliance on past conduct, instead concluding that "the history of Defendants' involvement with the displays strongly indicated that the primary purpose was religious." McCreary County, 354 F.3d at 438 (emphasis added; disagreeing with the district court's decision "to afford exclusive weight to Defendants' past conduct without addressing the specific content of the revised displays"). Although not dispositive of the issue, Defendants' prior unconstitutional conduct (initially displaying the Ten Commandments alone, in clear violation of Stone, then subsequently displaying the Ten Commandments alongside documents excerpted solely for their religious content), combined with the fact that Defendants added secular material only after this litigation ensued, was relevant evidence of their purpose behind the displays' final iteration.[4] A careful

reading of the panel's opinion does not support the dissent's attempt to conjure a conflict with Granzeier v. Middleton, 173 F.3d 568 (6th Cir.1999).
Finally, the dissent argues that "the lead opinion erroneously applies the heightened Establishment Clause standards for public schools to other public buildings such as courthouses." This argument is incorrect and misleading. First, the discussion of the public school and courthouse settings appeared in my separate discussion of the "endorsement" prong of the three-part test under Lemon v. Kurtzman, 403 U.S. 602, 91 S.Ct. 2105, 29 L.Ed.2d 745 (1971). Judge Gibbons did not join this aspect of my opinion and, therefore, the discussion was not adopted by a majority of the panel. It would have been inappropriate for the entire Court to review this non-binding opinion.
Second, my opinion did not equate the public school and courthouse settings for all Establishment Clause 932 purposes. Rather, the opinion observed that citizens typically *932 conduct business at a courthouse by
necessity, many times subject to the coercive powers of the court, and, therefore, they are a captive audience, similar to public school students, who are subject to mandatory attendance requirements. Further, the fact that a courthouse is so plainly the seat of government requires courts to exercise special care to ensure that a governmental display containing religious symbols is not tantamount to governmental endorsement of those symbols. See McCreary County, 354 F.3d at 461.
Third, my opinion never suggested that the same concerns about governmental coercion and endorsement apply to all public buildings. As the authorities cited above hold, the inquiry into an alleged Establishment Clause violation is a highly fact-specific inquiry that depends, in part, on the particular physical setting of the speech at issue. I expressed no opinion about a display containing the Ten Commandments outside of a public school or a courthouse.
For the foregoing reasons, I concur in the decision of the en banc Court denying review of the panel opinion.
BOGGS, Chief Judge, dissenting from the denial of rehearing en banc, joined by BATCHELDER, J.
The core question in this case is whether the district court and the panel majority erred in holding, as a matter of law, that despite the statement of historical and patriotic secular purpose included in each display at issue here, and despite the five separate secular purposes for the displays articulated by the defendants in the district court, they nonetheless have an essentially religious purpose because the Ten Commandments appear beside eight or nine otherwise indisputably secular documents.
This court has held that in Establishment Clause cases federal courts must defer to the government's articulation of a secular purpose unless the stated purpose is shown to be a "sham." Chaudhuri v. Tenn., 130 F.3d 232, 236 (6th Cir.1997). That rule has been misapplied by the panel majority.
In coming to the conclusion that the defendants' carefully articulated secular purposes are a sham, the court ignores the First Amendment principles laid out in County of Allegheny v. ACLU, 492 U.S. 573, 109 S.Ct. 3086, 106 L.Ed.2d 472 (1989), and Lynch v. Donnelly, 465 U.S. 668, 104 S.Ct. 1355, 79 L.Ed.2d 604 (1984). It establishes a new and heightened standard of proof, holding that the displays lacked a secular purpose because they "provided the viewer with no analytical or historical connection between the Ten Commandments and the other historical documents." ACLU of Ky. v. McCreary County, 354 F.3d 438, 453 (6th Cir.2003). Neither the Supreme Court nor this court has ever adopted such a standard. On the contrary, the Supreme Court has upheld displays of a cross, Capitol Square Review & Advisory Bd. v. Pinette, 515 U.S. 753, 766, 115 S.Ct. 2440, 132 L.Ed.2d 650 (1995) (plurality opinion), a creche, Lynch, 465 U.S. 668, 104 S.Ct. 1355, 79 L.Ed.2d 604, and a menorah, County of Allegheny, 492 U.S. 573, 109 S.Ct. 3086, 106 L.Ed.2d 472, none of which made explicit an "analytical or historical connection" between the religious item and other, secular items in the displays.
The implication of the court's decision is that the presence of the Ten Commandments, in an array containing indisputably historical and patriotic secular documents, converts the whole into a display having a primarily religious purpose. The panel majority appears to have drawn this rule from Stone v. Graham, 449 U.S. 39, 101 S.Ct. 192, 66 L.Ed.2d 199 (1980), a brief, per curiam disposition that preceded both Lynch and Donnelly, and that 933 bears no *933 meaningful factual resemblance to this case. Stone struck down a Kentucky statute that mandated the posting of the Ten Commandments, standing alone, in every classroom in the Commonwealth. In dicta, the

Court stated that the Ten Commandments "may constitutionally be used in an appropriate study of history, civilization, ethics, comparative religion, or the like." 449 U.S. at 42, 101 S.Ct. 192 (citing Sch. Dist. of Abington Township v. Schempp, 374 U.S. 203, 225, 83 S.Ct. 1560, 10 L.Ed.2d 844 (1963)) (emphasis added). I do not believe this language can be read as an attempt to state binding limits on all future constitutionally valid displays. And even if it were to be read in that aggressive fashion, Stone certainly does not suggest that a display that includes the Ten Commandments as part of an array containing eight or nine otherwise secular, historical documents, violates the First Amendment unless the display also provides an explicit analytical or historical connection between the clearly secular and the arguably religious items.
Another troubling aspect of the majority opinion concerns its sympathetic treatment of the district court's conclusion that the history of the defendants' earlier attempts to erect "constitutionally invalid displays" had "`imprinted the defendants' purpose, from the beginning, with an unconstitutional taint[.]'" McCreary County, 354 F.3d at 457 (quoting ACLU of Ky. v, McCreary County, 145 F.Supp.2d 845, 850 (E.D.Ky.2001)). I think the history of the defendants' displays is entitled to considerably less weight than the majority gives it. Our court has previously expressed great reluctance to allow a government's past actions to taint its future actions from the standpoint of the Establishment Clause. In Granzeier v. Middleton, 173 F.3d 568 (6th Cir.1999), we held that the government could close its offices on Good Friday without violating the Establishment Clause by adopting a "spring weekend" rationale, even though there was evidence that the government's purpose was originally religious, including a poster put up by a government employee depicting the Crucifixion. We stated that "the fact that a particular closing was once constitutionally suspect does not prevent it from being reinstated in a constitutional form." Id. at 574. Our holding in Granzeier reflects an important principle of equal treatment that is slighted by the panel's opinion. In general, governmental bodies, like other litigants, should be free to take instruction from prior decisions or arguments, and thus to eschew, or move away from, practices that are contrary to law.[5]
934 Finally, the lead opinion erroneously applies the heightened Establishment Clause *934 standards for public schools to other public buildings such as courthouses. See McCreary County, 354 F.3d at 461. This ignores the reasons given by the Supreme Court for creating a heightened constitutional standard in public schools, namely that young children are impressionable and that the state exercises coercive power through mandatory school attendance requirements. Edwards v. Aguillard, 482 U.S. 578, 584, 107 S.Ct. 2573, 96 L.Ed.2d 510 (1987). By applying these heightened requirements to courthouses and other public buildings, the lead opinion not only misapplies the law, it also invites a new round of First Amendment challenges to religious texts and symbols that are nearly ubiquitous in non-schoolhouse public buildings throughout the nation, particularly courthouses.
The court's decision, that the Ten Commandments' text is impermissible as one of ten otherwise secular documents, gives no further guidance. Would it be permissible as one of twenty other texts, or one of one hundred? Would it make a difference if the display involved a pictorial representation, rather than a text?
I have seen at one institution what seemed to me a possible solution to some controversies of this type. There was a representation of two tablets, bearing only the Roman numerals from "I" to "X." This left it to all observers to decide what exact text they wished to impose on that symbol. But under the court's decision, I have no idea if even this display could pass muster.
Believing the panel's decision to be both draconian and legally unsupported, I would rehear this case, so that the full court could give it more nuanced consideration. I therefore respectfully dissent from the denial of rehearing en banc.
[1] The Court also discussed Stone with approval in County of Allegheny v. ACLU, 492 U.S. 573, 590-91 n. 40, 109 S.Ct. 3086, 106 L.Ed.2d 472 (1989) ("[T]he content of a public school's curriculum may not be based on a desire to promote religious beliefs.... For the same reason, posting the Ten Commandments on the wall of a public-school classroom violates the Establishment Clause.") (citing Stone, supra; other citations omitted).
[2] The dissent's citation to Capitol Square Review & Advisory Bd. v. Pinette, 515 U.S. 753, 115 S.Ct. 2440, 132 L.Ed.2d 650 (1995) is baffling. That case is irrelevant because, there, the display of a cross involved private speech, not government speech as in the case at bar. Id. at 760, 765, 115 S.Ct. 2440 ("There is a crucial

difference between government speech endorsing religion, which the Establishment Clause forbids, and private speech endorsing religion, which the Free Speech and Free Exercise Clauses protect.") (internal quotation marks, punctuation and citation omitted).
[3] A hypothetical from Justice Stevens illustrates how the thematic integration of the Ten Commandments with secular symbols or messages, or the lack thereof, can render a display containing the Ten Commandments religious or non-religious in nature:
... [A] carving of Moses holding the Ten Commandments, if that is the only adornment on a courtroom wall, conveys an equivocal message, perhaps of respect for Judaism, for religion in general, or for law. The addition of carvings depicting Confucius and Mohammed may honor religion, or particular religions, to an extent that the First Amendment does not tolerate any more than it does "the permanent erection of a large Latin cross on the roof of city hall." See post [492 U.S. at 661, 109 S.Ct. 3086] (KENNEDY, J., concurring in judgment in part and dissenting in part). Cf. Stone v. Graham, 449 U.S. 39, 101 S.Ct. 192, 66 L.Ed.2d 199 (1980) (per curiam). Placement of secular figures such as Caesar Augustus, William Blackstone, Napoleon Bonaparte, and John Marshall alongside these three religious leaders, however, signals respect not for great proselytizers but for great lawgivers. It would be absurd to exclude such a fitting message from a courtroom, as it would to exclude religious paintings by Italian Renaissance masters from a public museum. Cf. Lynch, 465 U.S., at 712-713, 717, 104 S.Ct., at 1379-1380, 1382 (BRENNAN, J., dissenting).
County of Allegheny, 492 U.S. at 652-53, 109 S.Ct. 3086 (Stevens, J., concurring, in part, and dissenting, in part).
[4] This holding was justified by Santa Fe Indep. Sch. Dist. v. Doe, 530 U.S. 290, 309, 315, 120 S.Ct. 2266, 147 L.Ed.2d 295 (2000) (looking at the "evolution" of the student-led prayer policy to determine whether an Establishment Clause violation had occurred).
[5] The holding and reasoning of Granzeier are consistent with the Supreme Court's decision in Santa Fe Independent School District v. Doe, 530 U.S. 290, 120 S.Ct. 2266, 147 L.Ed.2d 295 (2000), relied upon by the panel. While the Santa Fe majority considered both the "text and history" of the school policy at issue in that case, which authorized a student-elected speaker to make an "invocation" to "solemnize" home football games, id. at 298 & n. 6, 315, 120 S.Ct. 2266, it also made clear that the policy was, in fact, invalid on its face. Id. at 306-07, 314-15, 120 S.Ct. 2266; see id. at 315, 120 S.Ct. 2266 ("The narrow question before us is whether implementation of the October policy insulates the continuation of such prayers from constitutional scrutiny."). Moreover, the evidence of a "continuous" Establishment Clause violation, as well as other troubling aspects of the case's history, were far stronger in Santa Fe than in this case, where the counties have seriously rethought and reorganized their displays in response to constitutional concerns. Cf. id. at 294-98, 120 S.Ct. 2266 (detailing various cosmetic alterations made to school district's long-standing policy of pregame and graduation prayers, which were frequently explicitly Christian in nature; also noting that the record suggested that there had been official harassment and intimidation of the Santa Fe plaintiffs during the litigation).
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 McCreary County, Ky. v. American Civil Liberties Union of Kentucky, 543 U.S. 924 (2004) 125 S.Ct. 310
Supreme Court of the United States McCREARY COUNTY, KENTUCKY, et al., petitioners,
v. AMERICAN CIVIL LIBERTIES UNION OF KENTUCKY, et al.
No. 03-1693. | Oct. 12, 2004. Case below, 354 F.3d 438, 361 F.3d 928. Opinion Petition for writ of certiorari to the United States Court of Appeals for the Sixth Circuit granted. Parallel Citations 125 S.Ct. 310 (Mem), 160 L.Ed.2d 221, 73 USLW 3015, 73 USLW 3229, 73 USLW 3235, 192 Ed. Law Rep. 631
1

 
 McCreary County, Ky. v. American Civil Liberties Union of Ky., 545 U.S. 844 (2005)

125 S.Ct. 2722 Supreme Court of the United States
MCCREARY COUNTY, KENTUCKY, et al., Petitioners, v.
AMERICAN CIVIL LIBERTIES UNION OF KENTUCKY et al.
No. 03–1693. | Argued March 2, 2005. | Decided June 27, 2005.
Synopsis Background: Civil liberties organization sued counties claiming that posting of Ten Commandments at courthouses violated the First Amendment. The District Court, 96 F.Supp.2d 679, granted preliminary injunction requiring removal of display. After displays were modified to include documents from American history, organization sought supplemental injunction. The District Court, 145 F.Supp.2d 845, issued supplemental injunction, and counties appealed. The United States Court of Appeals for the Sixth Circuit, 354 F.3d 438, Clay, Circuit Judge, affirmed. Counties’ petition for writ of certiorari was granted.
Holdings: The Supreme Court, Justice Souter, held that:
[1] a determination of counties’ purpose in displaying the Ten Commandments at county courthouse was a sound basis for ruling on complaints alleging that the display violated the Establishment Clause;
[2] evolution of the display could be taken into account when evaluating the counties’ claim of a secular purpose for the display;
[3] preliminary injunction preventing counties from displaying a revised display of the Ten Commandments that included other historical documents in courthouse was adequately supported by evidence that the counties’ purpose was to emphasize and celebrate the Commandments’ religious message, in violation of the First Amendment.
Affirmed.
Justice O’Connor, concurred and filed opinion.
Justice Scalia, with whom Chief Justice Rehnquist and Justice Thomas joined, and with whom Justice Kennedy joined as to Parts II and III, dissented and filed opinion.

West Headnotes (9)
[1] Constitutional Law Neutrality
When the government acts with the ostensible and predominant purpose of advancing religion, it violates that central Establishment Clause value of official religious neutrality, there being no neutrality when the government’s ostensible object is to take sides. U.S.C.A. Const.Amend. 1.
105 Cases that cite this headnote
[2] Constitutional Law Freedom of Religion and Conscience
Manifesting a purpose to favor one faith over another, or adherence to religion generally, clashes with the understanding, reached after decades of religious war, that liberty and social stability demand a religious tolerance that respects the religious views of all citizens. U.S.C.A. Const.Amend. 1.
11 Cases that cite this headnote
[3] Constitutional Law Freedom of Religion and Conscience
By showing a purpose to favor religion, the government sends the message to nonadherents that they are outsiders, not full members of the political community, and an accompanying message to adherents that they are insiders, favored members. U.S.C.A. Const.Amend. 1.
17 Cases that cite this headnote
[4] Constitutional Law 1

McCreary County, Ky. v. American Civil Liberties Union of Ky., 545 U.S. 844 (2005)

Ten Commandments Counties
Control and regulation of public property, buildings, and places

ultimate conclusion for abuse of discretion. 7 Cases that cite this headnote

A determination of counties’ purpose in displaying the Ten Commandments at county courthouse was a sound basis for ruling on complaints brought by civil rights organization and others alleging that the display violated the Establishment Clause. U.S.C.A. Const.Amend. 1.
41 Cases that cite this headnote
[5] Constitutional Law Constitutional Rights in General
Statutes Purpose
Examination of purpose is a staple of statutory interpretation that makes up the daily fare of every appellate court in the country, and governmental purpose is a key element of a good deal of constitutional doctrine.
4 Cases that cite this headnote
[6] Constitutional Law Freedom of Religion and Conscience
Under Lemon, government action must have “a secular purpose,” and, 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. U.S.C.A. Const.Amend. 1.

[8] Constitutional Law Ten Commandments
Counties Control and regulation of public property,
buildings, and places
Evaluation of the counties’ claim of a secular purpose for the ultimate display of the Ten Commandments and other historical documents in courthouses could take the evolution of the display into account, for purposes of action brought by civil rights organization and others alleging that the display violated the Establishment Clause of the First Amendment. U.S.C.A. Const.Amend. 1.
97 Cases that cite this headnote

[9]

Civil Rights

Public accommodations or facilities

Preliminary injunction preventing counties from displaying a revised display of the Ten Commandments that included other historical documents in courthouse was adequately supported by evidence that the counties’ purpose was to emphasize and celebrate the Commandments’ religious message, in violation of the First Amendment. U.S.C.A. Const.Amend. 1; 42 U.S.C.A. § 1983.

39 Cases that cite this headnote

58 Cases that cite this headnote
[7] Federal Courts Review of federal district courts
On appeal from a preliminary injunction granted by the district court, the Supreme Court reviews the district court’s legal rulings de novo and its

**2723 *844 Syllabus*

*

The syllabus constitutes no part of the opinion of the

Court but has been prepared by the Reporter of

Decisions for the convenience of the reader. See United

States v. Detroit Timber & Lumber Co., 200 U.S. 321,

337, 26 S.Ct. 282, 50 L.Ed. 499.

After petitioners, two Kentucky Counties, each posted large, readily visible copies of the Ten Commandments in
2

McCreary County, Ky. v. American Civil Liberties Union of Ky., 545 U.S. 844 (2005)

their courthouses, respondents, the American Civil Liberties Union (ACLU) et al., sued under 42 U.S.C. § 1983 to enjoin the displays on the ground that they violated the First Amendment’s Establishment Clause. The Counties then adopted nearly identical resolutions calling for a more extensive exhibit meant to show that the Commandments are Kentucky’s “precedent legal code.” The resolutions noted several grounds for taking that position, including the state legislature’s acknowledgment of Christ as the “Prince of Ethics.” The displays around the Commandments were modified to include eight smaller, historical documents containing religious references as their sole common element, e.g., the Declaration of Independence’s “endowed by their Creator” passage. Entering a preliminary injunction, the District Court followed the Lemon v. Kurtzman, 403 U.S. 602, 91 S.Ct. 2105, test to find, inter alia, that the original display lacked any secular purpose because the Commandments are a distinctly religious document, and that the second version lacked such a purpose because the Counties narrowly tailored their selection of foundational documents to those specifically referring to Christianity. After changing counsel, the Counties revised the exhibits again. No new resolution **2724 authorized the new exhibits, nor did the Counties repeal the resolutions that preceded the second one. The new posting, entitled “The Foundations of American Law and Government Display,” consists of nine framed documents of equal size. One sets out the Commandments explicitly identified as the “King James Version,” quotes them at greater length, and explains that they have profoundly influenced the formation of Western legal thought and this Nation. With the Commandments are framed copies of, e.g., the Star Spangled Banner’s lyrics and the Declaration of Independence, accompanied by statements about their historical and legal significance. On the ACLU’s motion, the District Court included this third display in the injunction despite the Counties’ professed intent to show that the Commandments were part of the foundation of American Law and Government and to educate county citizens as to the documents. The court took proclaiming the Commandments’ foundational value as a religious, *845 rather than secular, purpose under Stone v. Graham, 449 U.S. 39, 101 S.Ct. 192, 66 L.Ed.2d 199, and found that the Counties’ asserted educational goals crumbled upon an examination of this litigation’s history. Affirming, the Sixth Circuit stressed that, under Stone, displaying the Commandments bespeaks a religious object unless they are integrated with a secular message. The court saw no integration here because of a lack of a demonstrated analytical or historical connection between the Commandments and the other documents.
Held:
1. A determination of the Counties’ purpose is a sound basis for ruling on the Establishment Clause complaints. The Counties’ objective may be dispositive of the

constitutional enquiry. Pp. 2732–2737.
(a) Lemon’s “‘secular legislative purpose” enquiry, 403 U.S., at 612, 91 S.Ct. 2105, has been a common, albeit seldom dispositive, element of this Court’s cases, Wallace v. Jaffree, 472 U.S. 38, 75, 105 S.Ct. 2479, 86 L.Ed.2d 29. When the government acts with the ostensible and predominant purpose of advancing religion, it violates the central Establishment Clause value of official religious neutrality, there being no neutrality when the government’s ostensible object is to take sides. Corporation of Presiding Bishop of Church of Jesus Christ of Latter—day Saints v. Amos, 483 U.S. 327, 335, 107 S.Ct. 2862, 97 L.Ed.2d 273. A purpose to favor one faith over another, or adherence to religion generally, clashes with the “understanding ... that liberty and social stability demand a ... tolerance that respects the religious views of all citizens.” Zelman v. Simmons–Harris, 536 U.S. 639, 718, 122 S.Ct. 2460, 153 L.Ed.2d 604. Pp. 2732–2734.
(b) The Court declines the Counties’ request to abandon Lemon’s purpose test. Their assertions that true “purpose” is unknowable, and its search merely an excuse for courts to act selectively and unpredictably in picking out evidence of subjective intent, are as seismic as they are unconvincing. Examination of purpose is a staple of statutory interpretation for every American appellate court, e.g., General Dynamics Land Systems, Inc. v. Cline, 540 U.S. 581, 600, 124 S.Ct. 1236, 157 L.Ed.2d 1094, and governmental purpose is a key element of a good deal of constitutional doctrine, e.g., Washington v. Davis, 426 U.S. 229, 96 S.Ct. 2040, 48 L.Ed.2d 597. Scrutinizing purpose makes practical sense in Establishment Clause analysis, where an understanding of official objective emerges from readily discoverable fact set forth in a statute’s text, legislative history, and implementation or comparable official act. **2725 Wallace v. Jaffree, supra, at 73–74, 105 S.Ct. 2479. Nor is there any indication that the purpose enquiry is rigged in practice to finding a religious purpose dominant every time a case is filed. Pp. 2734–2735.
(c) The Court also avoids the Counties’ alternative tack of trivializing the purpose enquiry. They would read the Court’s cases as if the enquiry were so naive that any transparent claim to secularity would *846 satisfy it, and they would cut context out of the enquiry, to the point of ignoring history, no matter what bearing it actually had on the significance of current circumstances. There is no precedent for these arguments, or reason supporting them. Pp. 2735–2737.
(1) A legislature’s stated reasons will generally warrant the deference owed in the first instance to such official claims, but Lemon requires the secular purpose to be genuine, not a sham, and not merely secondary to a religious objective, see, e.g., Santa Fe Independent School
3

McCreary County, Ky. v. American Civil Liberties Union of Ky., 545 U.S. 844 (2005)

Dist. v. Doe, 530 U.S. 290, 308, 120 S.Ct. 2266, 147 L.Ed.2d 295. In those unusual cases where the claim was an apparent sham, or the secular purpose secondary, the unsurprising results have been findings of no adequate secular object, as against a predominantly religious one. See, e.g., Stone, supra, at 41, 101 S.Ct. 192. Pp. 2735–2736.
(2) The Counties’ argument that purpose in a case like this should be inferred only from the latest in a series of governmental actions, however close they may all be in time and subject, bucks common sense. Reasonable observers have reasonable memories, and the Court’s precedents sensibly forbid an observer “to turn a blind eye to the context in which [the] policy arose.” Santa Fe, supra, at 315, 120 S.Ct. 2266. Pp. 2736–2737.
2. Evaluation of the Counties’ claim of secular purpose for the ultimate displays may take their evolution into account. The development of the presentation should be considered in determining its purpose. Pp. 2737–2741.
(a) Stone is the Court’s initial benchmark as its only case dealing with the constitutionality of displaying the Commandments. It recognized that the Commandments are an “instrument of religion” and that, at least on the facts before the Court, their text’s display could presumptively be understood as meant to advance religion: although state law specifically required their posting in classrooms, their isolated exhibition did not allow even for an argument that secular education explained their being there. 449 U.S., at 41, n. 3, 101 S.Ct. 192. But Stone did not purport to decide the constitutionality of every possible way the government might set out the Commandments, and under the Establishment Clause detail is key, County of Allegheny v. American Civil Liberties Union, Greater Pittsburgh Chapter, 492 U.S. 573, 595, 109 S.Ct. 3086, 106 L.Ed.2d 472. Hence, the Court looks to the record showing the progression leading up to the Commandments’ third display, beginning with the first. Pp. 2737–2738.
(b) There are two obvious similarities between the display Stone rejected and the first one here: both set out the Commandments’ text as distinct from any traditionally symbolic representation like blank tablets, and each stood alone, not as part of an arguably secular display. Stone stressed the significance of integrating the Commandments into *847 a secular scheme to forestall the broadcast of an otherwise clearly religious message, 449 U.S., at 42, 101 S.Ct. 192, and for good reason, the Commandments being a central point of reference in the religious and moral history of Jews and Christians. They proclaim the existence of a monotheistic god (no other gods), regulate details of religious **2726 obligation (no graven images, sabbath breaking, or vain oath swearing), and unmistakably rest even the universally accepted prohibitions (as against murder, theft, etc.) on the sanction

of the divinity proclaimed at the text’s beginning. Displaying that text is thus different from symbolic representation, like tablets with 10 roman numerals, which could be seen as alluding to a general notion of law, not a sectarian conception of faith. Where the text is set out, the insistence of the religious message is hard to avoid in the absence of a context plausibly suggesting a message going beyond an excuse to promote the religious point of view. The display in Stone had no such context, and the Counties’ solo exhibit here did nothing more to counter the sectarian implication than the Stone postings. The reasonable observer could only think that the Counties meant to emphasize and celebrate the Commandments’ religious message. Pp. 2738–2739.
(c) The Counties’ second display, unlike the first, did not hang the Commandments in isolation, but included the statement of the government’s purpose expressly set out in the county resolutions, and underscored it by juxtaposing the Commandments to other documents whose references to God were highlighted as their sole common element. The display’s unstinting focus was on religious passages, showing that the Counties posted the Commandments precisely because of their sectarian content. That demonstration of the government’s objective was enhanced by serial religious references and the accompanying resolutions’ claim about the embodiment of ethics in Christ. Together, the display and resolution presented an indisputable, and undisputed, showing of an impermissible purpose. P. 2739.
(d) The lower courts’ conclusion that no legitimizing secular purpose prompted the Counties’ third display, the “Foundations of American Law and Government” exhibit, is amply justified. That display placed the Commandments in the company of other documents the Counties deemed especially significant in the historical foundation of American government. In trying to persuade the District Court to lift the preliminary injunction, the Counties cited several new purposes for the third version, including a desire to educate county citizens as to the significance of the documents displayed. The Counties’ claims, however, persuaded neither that court, which was intimately familiar with this litigation’s details, nor the Sixth Circuit. Where both lower courts were unable to discern an arguably valid secular purpose, this Court normally should hesitate to find one. *848 Edwards v. Aguillard, 482 U.S. 578, 594, 107 S.Ct. 2573, 96 L.Ed.2d 510. The Counties’ new statements of purpose were presented only as a litigating position, there being no further authorizing resolutions by the Counties’ governing boards. And although repeal of the earlier county authorizations would not have erased them from the record of evidence bearing on current purpose, the extraordinary resolutions for the second displays passed just months earlier were not repealed or otherwise repudiated. Indeed, the sectarian spirit of the resolutions found enhanced expression in the third display, which
4

McCreary County, Ky. v. American Civil Liberties Union of Ky., 545 U.S. 844 (2005)

quoted more of the Commandments’ purely religious language than the first two displays had done. No reasonable observer, therefore, could accept the claim that the Counties had cast off the objective so unmistakable in the earlier displays. Nor did the selection of posted material suggest a clear theme that might prevail over evidence of the continuing religious object. For example, it is at least odd in a collection of documents said to be “foundational” to include a patriotic anthem, but to **2727 omit the Fourteenth Amendment, the most significant structural provision adopted since the original framing. An observer would probably suspect the Counties of reaching for any way to keep a religious document on the walls of courthouses constitutionally required to embody religious neutrality. Pp. 2739–2741.
(e) In holding that the preliminary injunction was adequately supported by evidence that the Counties’ purpose had not changed at the third stage, the Court does not decide that the Counties’ past actions forever taint any effort on their part to deal with the subject matter. The Court holds only that purpose is to be taken seriously under the Establishment Clause and is to be understood in light of context. District courts are fully capable of adjusting preliminary relief to take account of genuine changes in constitutionally significant conditions. Nor does the Court hold that a sacred text can never be integrated constitutionally into a governmental display on law or history. Its own courtroom frieze depicts Moses holding tablets exhibiting a portion of the secularly phrased Commandments; in the company of 17 other lawgivers, most of them secular figures, there is no risk that Moses would strike an observer as evidence that the National Government was violating religious neutrality. P. 2741.
354 F.3d 438, affirmed.

David A. Friedman, Counsel of Record, Lili R. Lutgens, American Civil Liberties Union of Kentucky, Louisville, KY, Steven R. Shapiro, ACLU Foundation, New York, NY, Of counsel: Kenneth J. Falk, Legal Director, Indiana Civil Liberties Union, Indianapolis, IN, Brief for Respondents.
Opinion
Justice SOUTER delivered the opinion of the Court.
*850 Executives of two counties posted a version of the Ten Commandments on the walls of their courthouses. After suits were filed charging violations of the Establishment Clause, the legislative body of each county adopted a resolution calling for a more extensive exhibit meant to show that the Commandments are Kentucky’s “precedent legal code,” Def. Exh. 1 in Memorandum in Support of Defendants’ Motion to Dismiss in Civ. Action No. 99–507, p. 1 (ED Ky.) (hereinafter Def. Exh. 1). The result in each instance was a modified display of the Commandments surrounded by texts containing religious references as their sole common element. After changing counsel, the counties revised the exhibits again by eliminating **2728 some documents, expanding the text set out in another, and adding some new ones.
The issues are whether a determination of the counties’ purpose is a sound basis for ruling on the Establishment Clause complaints, and whether evaluation of the counties’ claim of secular purpose for the ultimate displays may take their evolution into account. We hold that the counties’ manifest objective may be dispositive of the constitutional *851 enquiry, and that the development of the presentation should be considered when determining its purpose.

SOUTER, J., delivered the opinion of the Court, in which STEVENS, O’CONNOR, GINSBURG, and BREYER, JJ., joined. O’CONNOR, J., filed a concurring opinion, post, p. 2746. SCALIA, J., filed a dissenting opinion, in which REHNQUIST, C.J., and THOMAS, J., joined, and in which KENNEDY, J., joined as to Parts II and III, post, p. 2748.
Attorneys and Law Firms
Paul D. Clement, Washington, D.C., for United States as amicus curiae, by special leave of the Court, supporting the petitioners.
Matthew D. Staver, Counsel of Record, Erik W. Stanley, Anita L. Staver, Rena M. Lindevaldsen, Bruce W. Green, Mary E. McAlister, Lindsey F. Martin, Johnnie L. Turner, Liberty Counsel, Longwood, FL, Attorneys for Petitioners.

I
In the summer of 1999, petitioners McCreary County and Pulaski County, Kentucky (hereinafter Counties), put up in their respective courthouses large, gold-framed copies of an abridged text of the King James version of the Ten Commandments, including a citation to the Book of Exodus.1 In McCreary County, the placement of the Commandments responded to an order of the county legislative body requiring “the display [to] be posted in ‘a very high traffic area’ of the courthouse.” 96 F.Supp.2d 679, 684 (E.D.Ky.2000). In Pulaski County, amidst reported controversy over the propriety of the display, the Commandments were hung in a ceremony presided over by the county Judge–Executive, who called them “good rules to live by” and who recounted the story of an astronaut who became convinced “there must be a divine
5

McCreary County, Ky. v. American Civil Liberties Union of Ky., 545 U.S. 844 (2005)

God” after viewing the Earth from the moon. Dodson, Commonwealth Journal, July 25, 1999, p. A1, col. 2, in Memorandum in Support of Plaintiffs’ Motion for Preliminary Injunction in Civ. Action No. 99–509 (ED Ky.) (internal quotation marks omitted). The Judge–Executive was accompanied by the pastor of his church, who called the Commandments “a creed of ethics” and told the press after the ceremony that displaying the Commandments was “one of the greatest things the judge could have done to close out the millennium.” Id., at A2, col. 3 (internal quotation marks omitted). In both Counties, this was the version of the Commandments posted:

1

We do not consider here a display of the Ten

Commandments in schoolrooms in Harlan County,

Kentucky, that was litigated in consolidated

proceedings in the District Court and Court of Appeals.

That display is the subject of a separate petition to this

Court.

“Thou shalt have no other gods before me.

*852 “Thou shalt not make unto thee any graven images.

“Thou shalt not take the name of the Lord thy God in vain.

“Remember the sabbath day, to keep it holy.

“Honor thy father and thy mother.

“Thou shalt not kill.

“Thou shalt not commit adultery.

“Thou shalt not steal.

“Thou shalt not bear false witness.

“Thou shalt not covet.

“Exodus 20:3–17.”2 Def. Exh. 9 in Memorandum in Support of Defendants’ Motion to Dismiss in Civ. A. No. 99–507 (ED Ky.) (hereinafter Def. Exh. 9).

2

This text comes from a record exhibit showing the

Pulaski County Commandments that were part of the

County’s first and second displays. The District Court

found that the displays in each County were

functionally identical. 96 F.Supp.2d 679, 682, n. 2

(E.D.Ky.2000); 96 F.Supp.2d 691, 693, n. 2

(E.D.Ky.2000).

In each County, the hallway display was “readily visible to ... county citizens who use the courthouse to conduct

their civic business, to obtain or renew driver’s licenses and permits, to register cars, to pay local taxes, and to register to vote.” **2729 96 F.Supp.2d, at 684; American Civil Liberties Union of Kentucky v. Pulaski County, 96 F.Supp.2d 691, 695 (E.D.Ky.2000).
In November 1999, respondents American Civil Liberties Union of Kentucky et al. sued the Counties in Federal District Court under Rev. Stat. § 1979, 42 U.S.C. § 1983, and sought a preliminary injunction against maintaining the displays, which the ACLU charged were violations of the prohibition of religious establishment included in the First Amendment of the Constitution.3 Within a month, and before *853 the District Court had responded to the request for injunction, the legislative body of each County authorized a second, expanded display, by nearly identical resolutions reciting that the Ten Commandments are “the precedent legal code upon which the civil and criminal codes of ... Kentucky are founded,” and stating several grounds for taking that position: that “the Ten Commandments are codified in Kentucky’s civil and criminal laws”; that the Kentucky House of Representatives had in 1993 “voted unanimously ... to adjourn ... ‘in remembrance and honor of Jesus Christ, the Prince of Ethics’ ”; that the “County Judge and ... magistrates agree with the arguments set out by Judge [Roy] Moore” in defense of his “display [of] the Ten Commandments in his courtroom”; 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.” Def. Exh. 1, at 1–3, 6.

3

The First Amendment provides that “Congress shall

make no law respecting an establishment of religion, or

prohibiting the free exercise thereof ... .” This

prohibition of establishment applies to “the States and

their political subdivisions” through the Fourteenth

Amendment. Santa Fe Independent School Dist. v.

Doe, 530 U.S. 290, 301, 120 S.Ct. 2266, 147 L.Ed.2d

295 (2000)

As directed by the resolutions, the Counties expanded the displays of the Ten Commandments in their locations, presumably along with copies of the resolution, which instructed that it, too, be posted, id., at 9. In addition to the first display’s large framed copy of the edited King James version of the Commandments,4 the second included eight other documents in smaller frames, each either having a religious *854 theme or excerpted to highlight a religious element. The documents were the “endowed by their Creator” passage from the Declaration of Independence; the Preamble to the Constitution of Kentucky; the national motto, “In God We Trust”; a page from the Congressional Record of February 2, 1983, proclaiming the Year of the Bible and including a statement of the Ten Commandments; a proclamation by
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McCreary County, Ky. v. American Civil Liberties Union of Ky., 545 U.S. 844 (2005)

President Abraham Lincoln designating April 30, 1863, a National Day of Prayer and Humiliation; an excerpt from President Lincoln’s “Reply to Loyal Colored People of Baltimore upon Presentation of a Bible,” reading that “[t]he Bible is the best gift God has ever given to man”; a proclamation by President Reagan marking 1983 the Year of the Bible; and the Mayflower **2730 Compact. 96 F.Supp.2d, at 684; 96 F.Supp.2d, at 695–696.

4

The District Court noted that there was some confusion

as to whether the Ten Commandments hung

independently in the second display, or were

incorporated into the copy of the page from the

Congressional Record declaring 1983 “the Year of the

Bible.” 96 F.Supp.2d, at 684, and n. 4; 96 F.Supp.2d, at

695–696, and n. 4. The exhibits in the record depict the

Commandments hanging as a separate item, Def. Exh.

9, and that is more consistent with the Counties’

description of the second display in this Court. “[After

erecting the first display] Petitioners posted additional

donated documents .... This display consisted of the

Ten Commandments along with other historical

documents.” Brief for Petitioners 2. Like the District

Court, we find our analysis applies equally to either

format.

After argument, the District Court entered a preliminary injunction on May 5, 2000, ordering that the “display ... be removed from [each] County Courthouse IMMEDIATELY” and that no county official “erect or cause to be erected similar displays.” 96 F.Supp.2d, at 691; 96 F.Supp.2d, at 702–703. The court’s analysis of the situation followed the three-part formulation first stated in Lemon v. Kurtzman, 403 U.S. 602, 91 S.Ct. 2105, 29 L.Ed.2d 745 (1971). As to governmental purpose, it concluded that the original display “lack[ed] any secular purpose” because the Commandments “are a distinctly religious document, believed by many Christians and Jews to be the direct and revealed word of God.” 96 F.Supp.2d, at 686; 96 F.Supp.2d, at 698. Although the Counties had maintained that the original display was meant to be educational, “[t]he narrow scope of the display—a single religious text unaccompanied by any interpretation explaining its role as a foundational document—can hardly be said to present meaningfully the story of this country’s religious traditions.” 96 F.Supp.2d, at 686–687; 96 F.Supp.2d, at 698. The court found that the second version also “clearly lack[ed] a secular purpose” because the “Count[ies] narrowly tailored [their] selection of *855 foundational documents to incorporate only those with specific references to Christianity.”5 96 F.Supp.2d, at 687; 96 F.Supp.2d, at 699.

5

The court also found that the display had the effect of

endorsing religion: “Removed from their historical

context and placed with other documents with which

the only common link is religion, the documents have

the undeniable effect of endorsing religion.” 96 F.Supp.2d, at 688; 96 F.Supp.2d, at 699–700.
The Counties filed a notice of appeal from the preliminary injunction but voluntarily dismissed it after hiring new lawyers. They then installed another display in each courthouse, the third within a year. No new resolution authorized this one, nor did the Counties repeal the resolutions that preceded the second. The posting consists of nine framed documents of equal size, one of them setting out the Ten Commandments explicitly identified as the “King James Version” at Exodus 20:3–17, 145 F.Supp.2d 845, 847 (E.D.Ky.2001), and quoted at greater length than before:
“Thou shalt have no other gods before me.
“Thou shalt not make unto thee any graven image, or any likeness of any thing that is in heaven above, or that is in the earth beneath, or that is in the water underneath the earth: Thou shalt not bow down thyself to them, nor serve them: for I the LORD thy God am a jealous God, visiting the iniquity of the fathers upon the children unto the third and fourth generation of them that hate me.
“Thou shalt not take the name of the LORD thy God in vain: for the LORD will not hold him guiltless that taketh his name in vain.
“Remember the sabbath day, to keep it holy.
“Honour thy father and thy mother: that thy days may be long upon the land which the LORD thy God giveth thee.
“Thou shalt not kill.
*856 “Thou shalt not commit adultery.
“Thou shalt not steal.
“Thou shalt not bear false witness against thy neighbour.
“Thou shalt not covet thy neighbour’s house, thou shalt not covet th[y] neighbor’s wife, nor his manservant, nor his maidservant, nor his ox, nor his ass, nor **2731 anything that is th[y] neighbour’s.” App. to Pet. for Cert. 189a.
Assembled with the Commandments are framed copies of the Magna Carta, the Declaration of Independence, the Bill of Rights, the lyrics of the Star Spangled Banner, the Mayflower Compact, the National Motto, the Preamble to the Kentucky Constitution, and a picture of Lady Justice. The collection is entitled “The Foundations of American Law and Government Display” and each document comes
7

McCreary County, Ky. v. American Civil Liberties Union of Ky., 545 U.S. 844 (2005)

with a statement about its historical and legal significance. The comment on the Ten Commandments reads:
“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.” Id., at 180a.
The ACLU moved to supplement the preliminary injunction to enjoin the Counties’ third display,6 and the Counties responded with several explanations for the new version, including *857 desires “to demonstrate that the Ten Commandments were part of the foundation of American Law and Government” and “to educate the citizens of the county regarding some of the documents that played a significant role in the foundation of our system of law and government.” 145 F.Supp.2d, at 848 (internal quotation marks omitted). The court, however, took the objective of proclaiming the Commandments’ foundational value as “a religious, rather than secular, purpose” under Stone v. Graham, 449 U.S. 39, 101 S.Ct. 192, 66 L.Ed.2d 199 (1980) (per curiam), 145 F.Supp.2d, at 849, and found that the assertion that the Counties’ broader educational goals are secular “crumble[s] ... upon an examination of the history of this litigation,” ibid. In light of the Counties’ decision to post the Commandments by themselves in the first instance, contrary to Stone, and later to “accentuat[e]” the religious objective by surrounding the Commandments with “specific references to Christianity,” the District Court understood the Counties’ “clear” purpose as being to post the Commandments, not to educate.7 145 F.Supp.2d, at 849–850 (internal quotation marks omitted).

6

Before the District Court issued the modified

injunction, the Counties removed the label of “King

James Version” and the citation to Exodus. 145

F.Supp.2d 845, 847 (E.D.Ky.2001).

7

The court also found that the effect of the third display

was to endorse religion because the “reasonable

observer will see one religious code placed alongside

eight political or patriotic documents, and will

understand that the counties promote that one religious

code as being on a par with our nation’s most cherished

secular symbols and documents” and because the

“reasonable observer [would know] something of the

controversy surrounding these displays, which has

focused on only one of the nine framed documents: the

Ten Commandments.” Id., at 851, 852.

As requested, the trial court supplemented the injunction, and a divided panel of the Court of Appeals for the Sixth Circuit affirmed. The Circuit majority stressed that under Stone, displaying the Commandments bespeaks a religious object unless they are integrated with other material so as to carry “a secular message,” 354 F.3d 438, 449 (2003). The majority judges saw no integration here because of a “lack of a demonstrated analytical **2732 or historical connection [between *858 the Commandments and] the other documents.” Id., at 451. They noted in particular that the Counties offered no support for their claim that the Ten Commandments “provide[d] the moral backdrop” to the Declaration of Independence or otherwise “profoundly influenced” it. Ibid. (internal quotation marks omitted). The majority found that the Counties’ purpose was religious, not educational, given the nature of the Commandments as “an active symbol of religion [stating] ‘the religious duties of believers.’ ” Id., at 455. The judges in the majority understood the identical displays to emphasize “a single religious influence, with no mention of any other religious or secular influences,” id., at 454, and they took the very history of the litigation as evidence of the Counties’ religious objective, id., at 457.
Judge Ryan dissented on the basis of wide recognition that religion, and the Ten Commandments in particular, have played a foundational part in the evolution of American law and government; he saw no reason to gainsay the Counties’ claim of secular purposes. Id., at 472–473. The dissent denied that the prior displays should have any bearing on the constitutionality of the current one: a “history of unconstitutional displays can[not] be used as a sword to strike down an otherwise constitutional display.”8 Id., at 478.

8

The Sixth Circuit did not decide whether the display

had the impermissible effect of advancing religion

because one judge, having found the display motivated

by a religious purpose, did not reach that issue. 354

F.3d, at 462 (Gibbons, J., concurring). The other judge

in the majority concluded that a reasonable observer

would find that the display had the effect of endorsing

religion given the lack of analytical connection between

the Commandments and the other documents in the

display, the courthouse location of the display, and the

history of the displays. Id., at 458–459. The dissent

found no effect of endorsement because it concluded

that a reasonable observer would only see that the

County had merely acknowledged the foundational role

of the Ten Commandments rather than endorsed their

religious content. Id., at 479–480.

We granted certiorari, 543 U.S. 924, 125 S.Ct. 310, 160 8

McCreary County, Ky. v. American Civil Liberties Union of Ky., 545 U.S. 844 (2005)

L.Ed.2d 221 (2004), and now affirm.

*859 II
Twenty-five years ago in a case prompted by posting the Ten Commandments in Kentucky’s public schools, this Court recognized that the Commandments “are undeniably a sacred text in the Jewish and Christian faiths” and held that their display in public classrooms violated the First Amendment’s bar against establishment of religion. Stone, 449 U.S., at 41, 101 S.Ct. 192. Stone found a predominantly religious purpose in the government’s posting of the Commandments, given their prominence as “ ‘an instrument of religion,’ ” id., at 41, n. 3, 101 S.Ct. 192 (quoting School Dist. of Abington Township v. Schempp, 374 U.S. 203, 224, 83 S.Ct. 1560, 10 L.Ed.2d 844 (1963)). The Counties ask for a different approach here by arguing that official purpose is unknowable and the search for it inherently vain. In the alternative, the Counties would avoid the District Court’s conclusion by having us limit the scope of the purpose enquiry so severely that any trivial rationalization would suffice, under a standard oblivious to the history of religious government action like the progression of exhibits in this case.

A
Ever since Lemon v. Kurtzman summarized the three familiar considerations for evaluating Establishment Clause claims, looking to whether government action has “a secular legislative purpose” has been a common, albeit seldom dispositive, element **2733 of our cases. 403 U.S., at 612, 91 S.Ct. 2105. Though we have found government action motivated by an illegitimate purpose only four times since Lemon,9 and “the secular purpose requirement alone may rarely be determinative ..., it nevertheless serves an important function.”10 Wallace v. *860 Jaffree, 472 U.S. 38, 75, 105 S.Ct. 2479, 86 L.Ed.2d 29 (1985) (O’CONNOR, J., concurring in judgment).

9

Stone v. Graham, 449 U.S. 39, 41, 101 S.Ct. 192, 66

L.Ed.2d 199 (1980) (per curiam); Wallace v. Jaffree,

472 U.S. 38, 56–61, 105 S.Ct. 2479, 86 L.Ed.2d 29

(1985); Edwards v. Aguillard, 482 U.S. 578, 586–593,

107 S.Ct. 2573, 96 L.Ed.2d 510 (1987); Santa Fe, 530

U.S., at 308–309, 120 S.Ct. 2266.

10

At least since Everson v. Board of Ed. of Ewing, 330

U.S. 1, 67 S.Ct. 504, 91 L.Ed. 711 (1947), it has been

clear that Establishment Clause doctrine lacks the

comfort of categorical absolutes. In special instances we have found good reason to hold governmental action legitimate even where its manifest purpose was presumably religious. See, e.g., Marsh v. Chambers, 463 U.S. 783, 103 S.Ct. 3330, 77 L.Ed.2d 1019 (1983) (upholding legislative prayer despite its religious nature). No such reasons present themselves here.
[1] [2] [3] The touchstone for our analysis is the principle that the “First Amendment mandates governmental neutrality between religion and religion, and between religion and nonreligion.” Epperson v. Arkansas, 393 U.S. 97, 104, 89 S.Ct. 266, 21 L.Ed.2d 228 (1968); Everson v. Board of Ed. of Ewing, 330 U.S. 1, 15–16, 67 S.Ct. 504, 91 L.Ed. 711 (1947); Wallace, supra, at 53, 105 S.Ct. 2479. When the government acts with the ostensible and predominant purpose of advancing religion, it violates that central Establishment Clause value of official religious neutrality, there being no neutrality when the government’s ostensible object is to take sides. Corporation of Presiding Bishop of Church of Jesus Christ of Latter—day Saints v. Amos, 483 U.S. 327, 335, 107 S.Ct. 2862, 97 L.Ed.2d 273 (1987) ( “Lemon’s “‘purpose’ requirement aims at preventing [government] from abandoning neutrality and acting with the intent of promoting a particular point of view in religious matters”). Manifesting a purpose to favor one faith over another, or adherence to religion generally, clashes with the “understanding, reached ... after decades of religious war, that liberty and social stability demand a religious tolerance that respects the religious views of all citizens ....” Zelman v. Simmons–Harris, 536 U.S. 639, 718, 122 S.Ct. 2460, 153 L.Ed.2d 604 (2002) (BREYER, J., dissenting). By showing a purpose to favor religion, the government “sends the ... message to ... nonadherents ‘that they are outsiders, not full members of the political community, and an accompanying message to adherents that they are insiders, favored members ....’ ” Santa Fe Independent School Dist. v. Doe, 530 U.S. 290, 309–310, 120 S.Ct. 2266, 147 L.Ed.2d 295 (2000) (quoting Lynch v. Donnelly, 465 U.S. 668, 688, 104 S.Ct. 1355, 79 L.Ed.2d 604 (1984) (O’CONNOR, J., concurring)).
Indeed, the purpose apparent from government action can have an impact more significant than the result expressly *861 decreed: when the government maintains Sunday closing laws, it advances religion only minimally because many working people would take the day as one of rest regardless, but if the government justified its decision with a stated desire for all Americans to honor Christ, the divisive thrust of the official action would be inescapable. This is the teaching of McGowan v. Maryland, 366 U.S. 420, 81 S.Ct. 1101, 6 L.Ed.2d 393 (1961), which upheld Sunday closing statutes on practical, secular grounds after finding that the government had forsaken the religious purposes behind **2734 centuries-old predecessor laws. Id., at 449–451, 81 S.Ct. 1101.
9

McCreary County, Ky. v. American Civil Liberties Union of Ky., 545 U.S. 844 (2005)

B
[4] Despite the intuitive importance of official purpose to the realization of Establishment Clause values, the Counties ask us to abandon Lemon’s purpose test, or at least to truncate any enquiry into purpose here. Their first argument is that the very consideration of purpose is deceptive: according to them, true “purpose” is unknowable, and its search merely an excuse for courts to act selectively and unpredictably in picking out evidence of subjective intent. The assertions are as seismic as they are unconvincing.
[5] Examination of purpose is a staple of statutory interpretation that makes up the daily fare of every appellate court in the country, e.g., General Dynamics Land Systems, Inc. v. Cline, 540 U.S. 581, 600, 124 S.Ct. 1236, 157 L.Ed.2d 1094 (2004) (interpreting statute in light of its “text, structure, purpose, and history”), and governmental purpose is a key element of a good deal of constitutional doctrine, e.g., Washington v. Davis, 426 U.S. 229, 96 S.Ct. 2040, 48 L.Ed.2d 597 (1976) (discriminatory purpose required for Equal Protection violation); Hunt v. Washington State Apple Advertising Comm’n, 432 U.S. 333, 352–353, 97 S.Ct. 2434, 53 L.Ed.2d 383 (1977) (discriminatory purpose relevant to dormant Commerce Clause claim); Church of Lukumi Babalu Aye, Inc. v. Hialeah, 508 U.S. 520, 113 S.Ct. 2217, 124 L.Ed.2d 472 (1993) (discriminatory purpose raises level of scrutiny required by free exercise claim). With enquiries into purpose this common, if they were nothing but hunts for mares’ nests deflecting *862 attention from bare judicial will, the whole notion of purpose in law would have dropped into disrepute long ago.
But scrutinizing purpose does make practical sense, as in Establishment Clause analysis, where an understanding of official objective emerges from readily discoverable fact, without any judicial psychoanalysis of a drafter’s heart of hearts. Wallace, 472 U.S., at 74, 105 S.Ct. 2479 (O’CONNOR, J., concurring in judgment). The eyes that look to purpose belong to an “ ‘objective observer,’ ” one who takes account of the traditional external signs that show up in the “ ‘text, legislative history, and implementation of the statute,’ ” or comparable official act. Santa Fe, supra, at 308, 120 S.Ct. 2266 (quoting Wallace, supra, 472 U.S., at 76, 105 S.Ct. 2479) (O’CONNOR, J., concurring in judgment); see also Edwards v. Aguillard, 482 U.S. 578, 594–595, 107 S.Ct. 2573, 96 L.Ed.2d 510 (1987) (enquiry looks to “plain meaning of the statute’s words, enlightened by their context and the contemporaneous legislative history [and] the historical context of the statute, ... and the specific

sequence of events leading to [its] passage”). There is, then, nothing hinting at an unpredictable or disingenuous exercise when a court enquires into purpose after a claim is raised under the Establishment Clause.
The cases with findings of a predominantly religious purpose point to the straightforward nature of the test. In Wallace, for example, we inferred purpose from a change of wording from an earlier statute to a later one, each dealing with prayer in schools. 472 U.S., at 58–60, 105 S.Ct. 2479. And in Edwards, we relied on a statute’s text and the detailed public comments of its sponsor, when we sought the purpose of a state law requiring creationism to be taught alongside evolution. 482 U.S., at 586–588, 107 S.Ct. 2573. In other cases, the government action itself bespoke the purpose, as in Abington, where the object of required Bible study in **2735 public schools was patently religious, 374 U.S., at 223–224, 83 S.Ct. 1560; in Stone, the Court held that the “[p]osting of religious texts on the wall serve[d] no ... educational function,” and found that if “the posted copies of the Ten Commandments [were] to have any effect at all, it *863 [would] be to induce the schoolchildren to read, meditate upon, perhaps to venerate and obey, the Commandments.” 449 U.S., at 42, 101 S.Ct. 192. In each case, the government’s action was held unconstitutional only because openly available data supported a commonsense conclusion that a religious objective permeated the government’s action.
Nor is there any indication that the enquiry is rigged in practice to finding a religious purpose dominant every time a case is filed. In the past, the test has not been fatal very often, presumably because government does not generally act unconstitutionally, with the predominant purpose of advancing religion. That said, one consequence of the corollary that Establishment Clause analysis does not look to the veiled psyche of government officers could be that in some of the cases in which establishment complaints failed, savvy officials had disguised their religious intent so cleverly that the objective observer just missed it. But that is no reason for great constitutional concern. If someone in the government hides religious motive so well that the “ ‘objective observer, acquainted with the text, legislative history, and implementation of the statute,’ ” Santa Fe, 530 U.S., at 308, 120 S.Ct. 2266 (quoting Wallace, supra, at 73, 105 S.Ct. 2479) (O’CONNOR, J., concurring in judgment), cannot see it, then without something more the government does not make a divisive announcement that in itself amounts to taking religious sides. A secret motive stirs up no strife and does nothing to make outsiders of nonadherents, and it suffices to wait and see whether such government action turns out to have (as it may even be likely to have) the illegitimate effect of advancing religion.
10

McCreary County, Ky. v. American Civil Liberties Union of Ky., 545 U.S. 844 (2005)

C
After declining the invitation to abandon concern with purpose wholesale, we also have to avoid the Counties’ alternative tack of trivializing the enquiry into it. The Counties would read the cases as if the purpose enquiry were so naive that any transparent claim to secularity would satisfy it, and *864 they would cut context out of the enquiry, to the point of ignoring history, no matter what bearing it actually had on the significance of current circumstances. There is no precedent for the Counties’ arguments, or reason supporting them.

claims of secular purposes that turned out to be implausible or inadequate:11 Stone, supra, at 41, 101 S.Ct. 192; Abington, 374 U.S., at 223–224, 83 S.Ct. 1560.12 See also Bowen v. Kendrick, 487 U.S. 589, 602, 108 S.Ct. 2562, 101 L.Ed.2d 520 (1988) (using the “motivated wholly by an impermissible purpose” language, but citing Lynch and Stone). As we said, the Court often does accept governmental statements of purpose, in keeping with the respect owed in the first instance to such official claims. But in those unusual cases where the claim was an apparent sham, or the secular purpose secondary, the unsurprising results have been findings of no adequate secular object, as against a predominantly religious one.13

1
[6] Lemon said that government action must have “a secular ... purpose,” 403 U.S., at 612, 91 S.Ct. 2105, and after a host of cases it is fair to add that 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. See, e.g., Santa Fe, supra, at 308, 120 S.Ct. 2266 (“When a governmental entity professes a secular purpose for an arguably religious policy, the government’s characterization is, of course, entitled to some deference. But it is nonetheless the duty of the courts to ‘distinguis[h] a sham secular purpose from a sincere one’ ”); Edwards, 482 U.S., at 586–587, 107 S.Ct. 2573 (“While the Court is normally deferential to a State’s articulation of a secular purpose, it is required that the statement of such purpose be sincere and not a sham”); id., at 590, 594, 107 S.Ct. 2573 (referring to enquiry as one into “preeminent” or “primary” purpose); Stone, supra, **2736 at 41, 101 S.Ct. 192 (looking to the “pre-eminent purpose” of government action).
Even the Counties’ own cited authority confirms that we have not made the purpose test a pushover for any secular claim. True, Wallace said government action is tainted by its object “if it is entirely motivated by a purpose to advance religion,” 472 U.S., at 56, 105 S.Ct. 2479, a remark that suggests, in isolation, a fairly complaisant attitude. But in that very case the Court declined to credit Alabama’s stated secular rationale of “accommodation” for legislation authorizing a period of silence in school for meditation or voluntary prayer, given the implausibility of that explanation in light of another statute already accommodating children wishing to pray. Id., at 57, n. 45, 105 S.Ct. 2479 (internal quotation marks omitted). And it would *865 be just as much a mistake to infer that a timid standard underlies the statement in Lynch v. Donnelly that the purpose enquiry looks to whether government “activity was motivated wholly by religious considerations,” 465 U.S., at 680, 104 S.Ct. 1355; for two cases cited for that proposition had examined and rejected

11

Moreover, Justice O’CONNOR provided the fifth vote

for the Lynch majority and her concurrence emphasized

the point made implicitly in the majority opinion that a

secular purpose must be serious to be sufficient. 465

U.S., at 691, 104 S.Ct. 1355 (The purpose inquiry “is

not satisfied ... by the mere existence of some secular

purpose, however dominated by religious purposes”).

12

Stone found the sacred character of the Ten

Commandments preeminent despite an avowed secular

purpose to show their “adoption as the fundamental

legal code of Western Civilization and the Common

Law ... .” 449 U.S., at 39–40, n. 1, 101 S.Ct. 192

(internal quotation marks omitted). And the Abington

Court was unconvinced that music education or the

teaching of literature were actual secular objects behind

laws requiring public school teachers to lead recitations

from the Lord’s Prayer and readings from the Bible.

374 U.S., at 273, 83 S.Ct. 1560.

13

The dissent nonetheless maintains that the purpose test

is satisfied so long as any secular purpose for the

government action is apparent. Post, at 2757–2758

(opinion of SCALIA, J.). Leaving aside the fact that

this position is inconsistent with the language of the

cases just discussed, it would leave the purpose test

with no real bite, given the ease of finding some secular

purpose for almost any government action. While

heightened deference to legislatures is appropriate for

the review of economic legislation, an approach that

credits any valid purpose, no matter how trivial, has not

been the way the Court has approached government

action that implicates establishment.

*866 2
The Counties’ second proffered limitation can be dispatched quickly. They argue that purpose in a case like this one should be inferred, if at all, only from the latest
11

McCreary County, Ky. v. American Civil Liberties Union of Ky., 545 U.S. 844 (2005)

news about the last in a series of governmental actions, however close they may all be in time and subject. But the world is not made brand new every morning, and the Counties are simply asking us **2737 to ignore perfectly probative evidence; they want an absentminded objective observer, not one presumed to be familiar with the history of the government’s actions and competent to learn what history has to show, Santa Fe, 530 U.S., at 308, 120 S.Ct. 2266 (objective observer is familiar with “ ‘implementation of’ ” government action (quoting Wallace, supra, at 76, 105 S.Ct. 2479) (O’CONNOR, J., concurring in judgment)); Edwards, supra, at 595, 107 S.Ct. 2573 (enquiry looks to “the historical context of the statute ... and the specific sequence of events leading to [its] passage”); Capitol Square Review and Advisory Bd. v. Pinette, 515 U.S. 753, 780, 115 S.Ct. 2440, 132 L.Ed.2d 650 (1995) (O’CONNOR, J., concurring in part and concurring in judgment) (“[T]he reasonable observer in the endorsement inquiry must be deemed aware of the history and context of the community and forum in which the religious display appears”). The Counties’ position just bucks common sense: reasonable observers have reasonable memories, and our precedents sensibly forbid an observer “to turn a blind eye to the context in which [the] policy arose.”14 Santa Fe, supra, at 315, 120 S.Ct. 2266.

14

One consequence of taking account of the purpose

underlying past actions is that the same government

action may be constitutional if taken in the first

instance and unconstitutional if it has a sectarian

heritage. This presents no incongruity, however,

because purpose matters. Just as Holmes’s dog could

tell the difference between being kicked and being

stumbled over, it will matter to objective observers

whether posting the Commandments follows on the

heels of displays motivated by sectarianism, or whether

it lacks a history demonstrating that purpose. The

dissent, apparently not giving the reasonable observer

as much credit as Holmes’s dog, contends that in

practice it will be “absur[d]” to rely upon differences in

purpose in assessing government action. Post, at 2761.

As an initial matter, it will be the rare case in which one

of two identical displays violates the purpose prong. In

general, like displays tend to show like objectives and

will be treated accordingly. But where one display has a

history manifesting sectarian purpose that the other

lacks, it is appropriate that they be treated differently,

for the one display will be properly understood as

demonstrating a preference for one group of religious

believers as against another. See supra, at 2733–2734.

While posting the Commandments may not have the

effect of causing greater adherence to them, an

ostensible indication of a purpose to promote a

particular faith certainly will have the effect of causing

viewers to understand the government is taking sides.

*867 III
[7] This case comes to us on appeal from a preliminary injunction. We accordingly review the District Court’s legal rulings de novo, and its ultimate conclusion for abuse of discretion.15 Ashcroft v. American Civil Liberties Union, 542 U.S. 656, 124 S.Ct. 2783, 159 L.Ed.2d 690 (2004).

15

We note that the only factor in the preliminary

injunction analysis that is at issue here is the likelihood

of the ACLU’s success on the merits.

We take Stone as the initial legal benchmark, our only case dealing with the constitutionality of displaying the Commandments. Stone recognized that the Commandments are an “instrument of religion” and that, at least on the facts before it, the display of their text could presumptively be understood as meant to advance religion: although state law specifically required their posting in public school classrooms, their isolated exhibition did not leave room even for an argument that secular education explained their being there. 449 U.S., at 41, n. 3, 101 S.Ct. 192 (internal quotation marks omitted). But Stone did not purport to decide the constitutionality of every possible way the **2738 Commandments might be set out by the government, and under the Establishment Clause detail is key. County of Allegheny v. American Civil Liberties Union, Greater Pittsburgh Chapter, 492 U.S. 573, 595, 109 S.Ct. 3086, 106 L.Ed.2d 472 (1989) *868 opinion of Blackmun, J.) (“[T]he question is what viewers may fairly understand to be the purpose of the display. That inquiry, of necessity, turns upon the context in which the contested object appears” (internal quotation marks and citation omitted)). Hence, we look to the record of evidence showing the progression leading up to the third display of the Commandments.

A
[8] The display rejected in Stone had two obvious similarities to the first one in the sequence here: both set out a text of the Commandments as distinct from any traditionally symbolic representation, and each stood alone, not part of an arguably secular display. Stone stressed the significance of integrating the Commandments into a secular scheme to forestall the broadcast of an otherwise clearly religious message, 449 U.S., at 42, 101 S.Ct. 192, and for good reason, the Commandments being a central point of reference in the religious and moral history of Jews and Christians. They proclaim the existence of a monotheistic god (no other gods). They regulate details of religious obligation (no graven images, no sabbath breaking, no vain oath
12

McCreary County, Ky. v. American Civil Liberties Union of Ky., 545 U.S. 844 (2005)

swearing). And they unmistakably rest even the universally accepted prohibitions (as against murder, theft, and the like) on the sanction of the divinity proclaimed at the beginning of the text. Displaying that text is thus different from a symbolic depiction, like tablets with 10 roman numerals, which could be seen as alluding to a general notion of law, not a sectarian conception of faith. Where the text is set out, the insistence of the religious message is hard to avoid in the absence of a context plausibly suggesting a message going beyond an excuse to promote the religious point of view. The display in Stone had no context that might have indicated an object beyond the religious character of the text, and the Counties’ solo exhibit here did nothing more to counter the sectarian implication than the *869 postings at issue in Stone.16 See also County of Allegheny, supra, at 598, 109 S.Ct. 3086 (“Here, unlike in Lynch [v. Donnelly], nothing in the context of the display detracts from the crèche’s religious message”). Actually, the posting by the Counties lacked even the Stone display’s implausible disclaimer that the Commandments were set out to show their effect on the civil law.17 What is more, at the ceremony for posting the framed Commandments in Pulaski County, the county executive was accompanied by his pastor, who testified to the certainty of the existence of God. The reasonable observer could only think that the Counties meant to emphasize and celebrate the Commandments’ religious message.

16

Although the Counties point out that the courthouses

contained other displays besides the Ten

Commandments, there is no suggestion that the

Commandments display was integrated to form a

secular display.

17

In Stone, the Commandments were accompanied by a

small disclaimer: “The secular application of the Ten

Commandments is clearly seen in its adoption as the

fundamental legal code of Western Civilization and the

Common Law of the United States.” 449 U.S., at

39–40, n. 1, 101 S.Ct. 192 (internal quotation marks

omitted).

B
Once the Counties were sued, they modified the exhibits and invited additional insight into their purpose in a display that hung for about six months. This new one was the product of forthright and nearly identical Pulaski and McCreary County resolutions listing a series of American historical documents with theistic and Christian references, which *870 were to be posted in order to furnish a setting for displaying the Ten Commandments and any “other Kentucky and American historical documen[t]” without raising concern about “any Christian or religious references” in them. Def. Exh. 1, at 1. As mentioned, the resolutions expressed support for an Alabama judge who posted the Commandments in his courtroom, and cited the fact the Kentucky Legislature once adjourned a session in honor of “Jesus Christ, the Prince of Ethics.” Id., at 2–3.
In this second display, unlike the first, the Commandments were not hung in isolation, merely leaving the Counties’ purpose to emerge from the pervasively religious text of the Commandments themselves. Instead, the second version was required to include the statement of the government’s purpose expressly set out in the county resolutions, and underscored it by juxtaposing the Commandments to other documents with highlighted references to God as their sole common element. The display’s unstinting focus was on religious passages, showing that the Counties were posting the Commandments precisely because of their sectarian content. That demonstration of the government’s objective was enhanced by serial religious references and the accompanying resolution’s claim about the embodiment of ethics in Christ. Together, the display and resolution presented an indisputable, and undisputed, showing of an impermissible purpose.
Today, the Counties make no attempt to defend their undeniable objective, but instead hopefully describe version two as “dead and buried.” Reply Brief for Petitioners 15. Their refusal to defend the second display is understandable, but the reasonable observer could not forget it.

This is not to deny that the Commandments have had influence on civil or secular law; a major text of a majority religion is bound to be felt. The point is simply **2739 that the original text viewed in its entirety is an unmistakably religious statement dealing with religious obligations and with morality subject to religious sanction. When the government initiates an effort to place this statement alone in public view, a religious object is unmistakable.

C
1 After the Counties changed lawyers, they mounted a third display, without a new resolution or repeal of the old one. The result was the “Foundations of American Law and Government” *871 exhibit, which placed the

13

McCreary County, Ky. v. American Civil Liberties Union of Ky., 545 U.S. 844 (2005)

Commandments in the company of other documents the Counties thought especially significant in the historical foundation of American government. In trying to persuade the District Court to lift the preliminary injunction, the Counties cited several new purposes for the third version, including a desire “to educate the citizens of the county regarding some of the documents that played a significant role in the foundation of our system of law and government.”18 **2740 145 F.Supp.2d, at 848 (internal quotation marks omitted). The Counties’ claims did not, however, persuade the court, intimately familiar with the details of this litigation, or the Court of Appeals, neither of which found a legitimizing secular purpose in this third version of the display. “ ‘When both courts [that have already passed on the case] are unable to discern an arguably valid secular purpose, this Court normally should hesitate to find one.’ ” Edwards, 482 U.S., at 594, n. 15, 107 S.Ct. 2573 (quoting Wallace, 472 U.S., at 66, 105 S.Ct. 2479 (Powell, J., concurring)). The conclusions of the two courts preceding us in this case are well warranted.

18

The Counties’ other purposes were:

“to erect a display containing the Ten

Commandments that is constitutional; ... to

demonstrate that the Ten Commandments were part

of the foundation of American Law and Government;

... [to include the Ten Commandments] as part of the

display for their significance in providing ‘the moral

background of the Declaration of Independence and

the foundation of our legal tradition.’ ” 145

F.Supp.2d, at 848 (some internal quotation marks

omitted).

[9] These new statements of purpose were presented only as a litigating position, there being no further authorizing action by the Counties’ governing boards. And although repeal of the earlier county authorizations would not have erased them from the record of evidence bearing on current purpose,19 the extraordinary resolutions for the second display passed just months earlier were not repealed or otherwise *872 repudiated.20 Indeed, the sectarian spirit of the common resolution found enhanced expression in the third display, which quoted more of the purely religious language of the Commandments than the first two displays had done; for additions, see App. to Pet. for Cert. 189a (“I the LORD thy God am a jealous God”) (text of Second Commandment in third display); (“the LORD will not hold him guiltless that taketh his name in vain”) (text of Third Commandment); and (“that thy days may be long upon the land which the LORD thy God giveth thee”) (text of Fifth Commandment). No reasonable observer could swallow the claim that the Counties had cast off the objective so unmistakable in the earlier displays.

19

Following argument in this case, in which the

resolutions were discussed, the McCreary and Pulaski

County Boards did repeal the resolutions, acts of

obviously minimal significance in the evolution of the

evidence.

20

The Counties argue that the objective observer would

not continue to believe that the resolution was in effect

after the third display went up because the resolution

authorized only the second display. But the resolution

on its face is not limited to any particular display. On

the contrary, it encourages the creation of a display

with the Ten Commandments that also includes such

documents as “the National anthem ... the National

Motto ... the preamble to the Kentucky Constitution[,]

the Declaration of Independence [and] the Mayflower

Compact ... without censorship because of any

Christian or religious references.” Def. Exh. 1, at 1. The

third display contains all of these documents,

suggesting that it fell within the resolutions as well. The

record does not indicate whether the resolutions were

posted with the third display.

Nor did the selection of posted material suggest a clear theme that might prevail over evidence of the continuing religious object. In a collection of documents said to be “foundational” to American government, it is at least odd to include a patriotic anthem, but to omit the Fourteenth Amendment, the most significant structural provision adopted since the original Framing. And it is no less baffling to leave out the original Constitution of 1787 while quoting the 1215 Magna Carta even to the point of its declaration that “fish-weirs shall be removed from the Thames.” Id., at 205a, ¶ 33. If an observer found these choices and omissions perplexing in isolation, he would be puzzled for a *873 different reason when he read the Declaration of Independence seeking confirmation for the Counties’ **2741 posted explanation that the Ten Commandments’ “influence is clearly seen in the Declaration,” id., at 180a; in fact the observer would find that the Commandments are sanctioned as divine imperatives, while the Declaration of Independence holds that the authority of government to enforce the law derives “from the consent of the governed,” id., at 190a.21 If the observer had not thrown up his hands, he would probably suspect that the Counties were simply reaching for any way to keep a religious document on the walls of courthouses constitutionally required to embody religious neutrality.22

21

The Counties have now backed away from their broad

assertion that the Commandments provide “the” moral

background of the Declaration of Independence, and

now merely claim that many of the Commandments

“regarding murder, property, theft, coveting, marriage,

rest from labor and honoring parents are compatible

14

McCreary County, Ky. v. American Civil Liberties Union of Ky., 545 U.S. 844 (2005)

with the rights to life, liberty and happiness.” Brief for Petitioners 10, n. 7.

22

The Counties grasp at McGowan v. Maryland, 366 U.S.

420, 81 S.Ct. 1101 (1961), but it bears little

resemblance to this case. As noted supra, at

2733–2734, McGowan held that religious purposes

behind centuries-old predecessors of Maryland’s

Sunday laws were not dispositive of the purposes of

modern Sunday laws, where the legislature had

removed much of the religious reference in the laws

and stated secular and pragmatic justifications for them.

366 U.S., at 446–452, 81 S.Ct. 1101. But a conclusion

that centuries-old purposes may no longer be operative

says nothing about the relevance of recent evidence of

purpose, and this case is far more like Santa Fe, with its

evolution of a school football game prayer policy over

the course of a single lawsuit. Like that case, “[t]his

[one] comes to us as the latest step in developing

litigation brought as a challenge to institutional

practices that unquestionably violated the

Establishment Clause.” 530 U.S., at 315, 120 S.Ct.

2266 (describing the evolution of the school district’s

football prayer policy). Thus, as in Santa Fe, it makes

sense to examine the Counties’ latest action “in light of

[their] history of” unconstitutional practices. Id., at 309,

120 S.Ct. 2266.

2
In holding the preliminary injunction adequately supported by evidence that the Counties’ purpose had not changed at the third stage, we do not decide that the Counties’ *874 past actions forever taint any effort on their part to deal with the subject matter. We hold only that purpose needs to be taken seriously under the Establishment Clause and needs to be understood in light of context; an implausible claim that governmental purpose has changed should not carry the day in a court of law any more than in a head with common sense. It is enough to say here that district courts are fully capable of adjusting preliminary relief to take account of genuine changes in constitutionally significant conditions. See Ashcroft v. American Civil Liberties Union, 542 U.S. 656, 124 S.Ct. 2783 (2004).
Nor do we have occasion here to hold that a sacred text can never be integrated constitutionally into a governmental display on the subject of law, or American history. We do not forget, and in this litigation have frequently been reminded, that our own courtroom frieze was deliberately designed in the exercise of governmental authority so as to include the figure of Moses holding tablets exhibiting a portion of the Hebrew text of the later,

secularly phrased Commandments; in the company of 17 other lawgivers, most of them secular figures, there is no risk that Moses would strike an observer as evidence that the National Government was violating neutrality in religion.23

23

The dissent notes that another depiction of Moses and

the Commandments adorns this Court’s east pediment.

Post, at 2760. But as with the courtroom frieze, Moses

is found in the company of other figures, not only great

but secular.

**2742 IV
The importance of neutrality as an interpretive guide is no less true now than it was when the Court broached the principle in Everson v. Board of Ed. of Ewing, 330 U.S. 1, 67 S.Ct. 504, 91 L.Ed. 711 (1947), and a word needs to be said about the different view taken in today’s dissent. We all agree, of course, on the need for some interpretative help. The First Amendment contains no textual definition of “establishment,” and the *875 term is certainly not self-defining. No one contends that the prohibition of establishment stops at a designation of a national (or with Fourteenth Amendment incorporation, Cantwell v. Connecticut, 310 U.S. 296, 303, 60 S.Ct. 900, 84 L.Ed. 1213 (1940), a state) church, but nothing in the text says just how much more it covers. There is no simple answer, for more than one reason.
The prohibition on establishment covers a variety of issues from prayer in widely varying government settings, to financial aid for religious individuals and institutions, to comment on religious questions. In these varied settings, issues of interpreting inexact Establishment Clause language, like difficult interpretative issues generally, arise from the tension of competing values, each constitutionally respectable, but none open to realization to the logical limit.
The First Amendment has not one but two clauses tied to “religion,” the second forbidding any prohibition on “the free exercise thereof,” and sometimes, the two clauses compete: spending government money on the clergy looks like establishing religion, but if the government cannot pay for military chaplains a good many soldiers and sailors would be kept from the opportunity to exercise their chosen religions. See Cutter v. Wilkinson, 544 U.S. 709, 719, 125 S.Ct. 2113, 2120, 161 L.Ed.2d 1020 (2005). At other times, limits on governmental action that might make sense as a way to avoid establishment could arguably limit freedom of speech when the speaking is done under government auspices. Rosenberger v. Rector and Visitors of Univ. of Va., 515 U.S. 819, 115 S.Ct.
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McCreary County, Ky. v. American Civil Liberties Union of Ky., 545 U.S. 844 (2005)

2510, 132 L.Ed.2d 700 (1995). The dissent, then, is wrong to read cases like Walz v. Tax Comm’n of City of New York, 397 U.S. 664, 90 S.Ct. 1409, 25 L.Ed.2d 697 (1970), as a rejection of neutrality on its own terms, post, at 2751–2752, for tradeoffs are inevitable, and an elegant interpretative rule to draw the line in all the multifarious situations is not to be had.
Given the variety of interpretative problems, the principle of neutrality has provided a good sense of direction: the government may not favor one religion over another, or religion over irreligion, religious choice being the prerogative of individuals *876 under the Free Exercise Clause. The principle has been helpful simply because it responds to one of the major concerns that prompted adoption of the Religion Clauses. The Framers and the citizens of their time intended not only to protect the integrity of individual conscience in religious matters, Wallace, 472 U.S., at 52–54, and n. 38, 105 S.Ct. 2479, but to guard against the civic divisiveness that follows when the government weighs in on one side of religious debate; nothing does a better job of roiling society, a point that needed no explanation to the descendants of English Puritans and Cavaliers (or Massachusetts Puritans and Baptists). E.g., Everson, supra, at 8, 67 S.Ct. 504 (“A large proportion of the early settlers of this country came here from Europe to escape [religious persecution]”). A sense of the past thus points to governmental neutrality as an objective of the Establishment Clause, and a sensible standard for **2743 applying it. To be sure, given its generality as a principle, an appeal to neutrality alone cannot possibly lay every issue to rest, or tell us what issues on the margins are substantial enough for constitutional significance, a point that has been clear from the founding era to modern times. E.g., Letter from J. Madison to R. Adams (1832), in 5 The Founders’ Constitution 107 (P. Kurland & R. Lerner eds. 1987) (“[In calling for separation] I must admit moreover that it may not be easy, in every possible case, to trace the line of separation between the rights of religion and the Civil authority with such distinctness as to avoid collisions & doubts on unessential points”); Sherbert v. Verner, 374 U.S. 398, 422, 83 S.Ct. 1790, 10 L.Ed.2d 965 (1963) (Harlan, J., dissenting) (“The constitutional obligation of ‘neutrality’ ... is not so narrow a channel that the slightest deviation from an absolutely straight course leads to condemnation”). But invoking neutrality is a prudent way of keeping sight of something the Framers of the First Amendment thought important.
The dissent, however, puts forward a limitation on the application of the neutrality principle, with citations to historical evidence said to show that the Framers understood the *877 ban on establishment of religion as sufficiently narrow to allow the government to espouse submission to the divine will. The dissent identifies God as the God of monotheism, all of whose three principal strains (Jewish, Christian, and Muslim) acknowledge the

religious importance of the Ten Commandments. Post, at 2752–2753. On the dissent’s view, it apparently follows that even rigorous espousal of a common element of this common monotheism is consistent with the establishment ban.
But the dissent’s argument for the original understanding is flawed from the outset by its failure to consider the full range of evidence showing what the Framers believed. The dissent is certainly correct in putting forward evidence that some of the Framers thought some endorsement of religion was compatible with the establishment ban; the dissent quotes the first President as stating that “[n]ational morality [cannot] prevail in exclusion of religious principle,” for example, post, at 2749 (internal quotation marks omitted), and it cites his first Thanksgiving proclamation giving thanks to God, post, at 2748–2749. Surely if expressions like these from Washington and his contemporaries were all we had to go on, there would be a good case that the neutrality principle has the effect of broadening the ban on establishment beyond the Framers’ understanding of it (although there would, of course, still be the question of whether the historical case could overcome some 60 years of precedent taking neutrality as its guiding principle).24

24

The dissent also maintains that our precedents show

that a solo display of the Commandments is a mere

acknowledgment of religion “on par with the inclusion

of a crèche or a menorah” in a holiday display, or an

official’s speech or prayer, post, at 2759. Whether or

not our views would differ about the significance of

those practices if we were considering them as original

matters, they manifest no objective of subjecting

individual lives to religious influence comparable to the

apparent and openly acknowledged purpose behind

posting the Commandments. Crèches placed with

holiday symbols and prayers by legislators do not

insistently call for religious action on the part of

citizens; the history of posting the Commandments

expressed a purpose to urge citizens to act in prescribed

ways as a personal response to divine authority.

*878 But the fact is that we do have more to go on, for there is also evidence supporting the proposition that the Framers intended the Establishment Clause to require governmental neutrality in matters of religion, including neutrality in statements **2744 acknowledging religion. The very language of the Establishment Clause represented a significant departure from early drafts that merely prohibited a single national religion, and the final language instead “extended [the] prohibition to state support for ‘religion’ in general.” See Lee v. Weisman, 505 U.S. 577, 614–615, 112 S.Ct. 2649, 120 L.Ed.2d 467 (1992) (SOUTER, J., concurring) (tracing development of language).

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McCreary County, Ky. v. American Civil Liberties Union of Ky., 545 U.S. 844 (2005)

The historical record, moreover, is complicated beyond the dissent’s account by the writings and practices of figures no less influential than Thomas Jefferson and James Madison. Jefferson, for example, refused to issue Thanksgiving Proclamations because he believed that they violated the Constitution. See Letter to S. Miller (Jan. 23, 1808), in 5 The Founders’ Constitution, supra, at 98. And Madison, whom the dissent claims as supporting its thesis, post, at 2749–2750, criticized Virginia’s general assessment tax not just because it required people to donate “three pence” to religion, but because “it is itself a signal of persecution. It degrades from the equal rank of Citizens all those whose opinions in Religion do not bend to those of the Legislative authority.” 505 U.S., at 622, 112 S.Ct. 2649 (internal quotation marks omitted); see also Letter from J. Madison to E. Livingston (July 10, 1822), in 5 The Founders’ Constitution, supra, at 106 (“[R]eligion & Govt. will both exist in greater purity, the less they are mixed together”); Letter from J. Madison to J. Adams (Sept. 1833,) in Religion and Politics in the Early Republic 120 (D. Dresibach ed.1996) (stating that with respect to religion and government the “tendency to a usurpation on one side, or the other, or to a corrupting coalition or alliance between them, will be best guarded against by an entire abstinence of the *879 Government from interference”); Van Orden v. Perry, post, 545 U.S., at 724–725, 125 S.Ct. 2854, 2882, 162 L.Ed.2d 607, 2005 WL 1500276, *22 (2005) (STEVENS, J., dissenting).25

25

The dissent cites material suggesting that separationists

like Jefferson and Madison were not absolutely

consistent in abstaining from official religious

acknowledgment. Post, at 2749–2750. But, a record of

inconsistent historical practice is too weak a lever to

upset decades of precedent adhering to the neutrality

principle. And it is worth noting that Jefferson thought

his actions were consistent with nonendorsement of

religion and Madison regretted any backsliding he may

have done. Lee v. Weisman, 505 U.S. 577, 622–625,

112 S.Ct. 2649, 120 L.Ed.2d 467 (1992) (SOUTER, J.,

concurring). “Homer nodded.” Id., at 624, 112 S.Ct.

2649, n. 5 (corrected in erratum at 535 U.S. II).

The fair inference is that there was no common understanding about the limits of the establishment prohibition, and the dissent’s conclusion that its narrower view was the original understanding, post, at 2748–2749, stretches the evidence beyond tensile capacity. What the evidence does show is a group of statesmen, like others before and after them, who proposed a guarantee with contours not wholly worked out, leaving the Establishment Clause with edges still to be determined. And none the worse for that. Indeterminate edges are the kind to have in a constitution meant to endure, and to meet “exigencies which, if foreseen at all, must have been seen dimly, and which can be best provided for as they occur.” McCulloch v. Maryland, 4 Wheat. 316, 415, 4

L.Ed. 579 (1819).
While the dissent fails to show a consistent original understanding from which to argue that the neutrality principle should be rejected, it does manage to deliver a surprise. As mentioned, the dissent says that the deity the Framers had in mind was the God of monotheism, with the consequence that government may espouse a tenet of traditional monotheism. This is **2745 truly a remarkable view. Other Members of the Court have dissented on the ground that the Establishment Clause bars nothing more than governmental preference for one religion over another, e.g., Wallace, 472 U.S., at 98–99, 105 S.Ct. 2479 (REHNQUIST, J., dissenting), but at least religion has previously been treated inclusively. Today’s dissent, however,apparently *880 means that government should be free to approve the core beliefs of a favored religion over the tenets of others, a view that should trouble anyone who prizes religious liberty. Certainly history cannot justify it; on the contrary, history shows that the religion of concern to the Framers was not that of the monotheistic faiths generally, but Christianity in particular, a fact that no Member of this Court takes as a premise for construing the Religion Clauses. Justice Story probably reflected the thinking of the framing generation when he wrote in his Commentaries that the purpose of the Clause was “not to countenance, much less to advance, Mahometanism, or Judaism, or infidelity, by prostrating Christianity; but to exclude all rivalry among Christian sects.” R. Cord, Separation of Church and State: Historical Fact and Current Fiction 13 (1988) (emphasis deleted). The Framers would, therefore, almost certainly object to the dissent’s unstated reasoning that because Christianity was a monotheistic “religion,” monotheism with Mosaic antecedents should be a touchstone of establishment interpretation.26 Even on originalist critiques of existing precedent there is, it seems, no escape from interpretative consequences that would surprise the Framers. Thus, it appears to be common ground in the interpretation of a Constitution “intended to endure for ages to come,” McCulloch v. *881 Maryland, supra, at 415, that applications unanticipated by the Framers are inevitable.

26

There might, indeed, even have been some reservations

about monotheism as the paradigm example. It is worth

noting that the canonical biography of George

Washington, the dissent’s primary exemplar of the

monotheistic tradition, calls him a deist. J. Flexner,

George Washington: Anguish and Farewell

(1793–1799), p. 490 (1972) (“Washington’s religious

belief was that of the enlightenment: deism”). It would

have been odd for the First Congress to propose an

Amendment with Religion Clauses that took no account

of the President’s religion. As with other historical

matters pertinent here, however, there are conflicting

conclusions. R. Brookhiser, Founding Father:

Rediscovering George Washington 146 (1996)

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(“Washington’s God was no watchmaker”). History writ small does not give clear and certain answers to questions about the limits of “religion” or “establishment.”
Historical evidence thus supports no solid argument for changing course (whatever force the argument might have when directed at the existing precedent), whereas public discourse at the present time certainly raises no doubt about the value of the interpretative approach invoked for 60 years now. We are centuries away from the St. Bartholomew’s Day massacre and the treatment of heretics in early Massachusetts, but the divisiveness of religion in current public life is inescapable. This is no time to deny the prudence of understanding the Establishment Clause to require the Government to stay neutral on religious belief, which is reserved for the conscience of the individual.
V
Given the ample support for the District Court’s finding of a predominantly religious purpose behind the Counties’ third display, we affirm the Sixth Circuit in upholding the preliminary injunction.
It is so ordered.
**2746 Justice O’CONNOR, concurring.
I join in the Court’s opinion. The First Amendment expresses our Nation’s fundamental commitment to religious liberty by means of two provisions—one protecting the free exercise of religion, the other barring establishment of religion. They were written by the descendents of people who had come to this land precisely so that they could practice their religion freely. Together with the other First Amendment guarantees—of free speech, a free press, and the rights to assemble and petition—the Religion Clauses were designed to safeguard the freedom of conscience and belief that those immigrants had sought. They embody an idea that was once considered radical: Free people are entitled to free *882 and diverse thoughts, which government ought neither to constrain nor to direct.
Reasonable minds can disagree about how to apply the Religion Clauses in a given case. But the goal of the Clauses is clear: to carry out the Founders’ plan of preserving religious liberty to the fullest extent possible in a pluralistic society. By enforcing the Clauses, we have kept religion a matter for the individual conscience, not for the prosecutor or bureaucrat. At a time when we see

around the world the violent consequences of the assumption of religious authority by government, Americans may count themselves fortunate: Our regard for constitutional boundaries has protected us from similar travails, while allowing private religious exercise to flourish. The well-known statement that “[w]e are a religious people,” Zorach v. Clauson, 343 U.S. 306, 313, 72 S.Ct. 679, 96 L.Ed. 954 (1952), has proved true. Americans attend their places of worship more often than do citizens of other developed nations, R. Fowler, A. Hertzke, & L. Olson, Religion and Politics in America 28–29 (2d ed.1999), and describe religion as playing an especially important role in their lives, Pew Global Attitudes Project, Among Wealthy Nations ... U.S. Stands Alone in its Embrace of Religion (Dec. 19, 2002). Those who would renegotiate the boundaries between church and state must therefore answer a difficult question: Why would we trade a system that has served us so well for one that has served others so poorly?
Our guiding principle has been James Madison’s—that “[t]he Religion ... of every man must be left to the conviction and conscience of every man.” Memorial and Remonstrance Against Religious Assessments, 2 Writings of James Madison 183, 184 (G. Hunt ed.1901) (hereinafter Memorial). To that end, we have held that the guarantees of religious freedom protect citizens from religious incursions by the States as well as by the Federal Government. Everson v. Board of Ed. of Ewing, 330 U.S. 1, 16, 67 S.Ct. 504, 91 L.Ed. 711 (1947); Cantwell v. Connecticut, 310 U.S. 296, 60 S.Ct. 900, 84 L.Ed. 1213 (1940). Government may not coerce a person *883 into worshiping against her will, nor prohibit her from worshiping according to it. It may not prefer one religion over another or promote religion over nonbelief. Everson, supra, at 15–16, 67 S.Ct. 504. It may not entangle itself with religion. Walz v. Tax Comm’n of City of New York, 397 U.S. 664, 674, 90 S.Ct. 1409, 25 L.Ed.2d 697 (1970). And government may not, by “endorsing religion or a religious practice,” “mak[e] adherence to religion relevant to a person’s standing in the political community.” Wallace v. Jaffree, 472 U.S. 38, 69, 105 S.Ct. 2479, 86 L.Ed.2d 29 (1985) (O’CONNOR, J., concurring in judgment).
When we enforce these restrictions, we do so for the same reason that guided the Framers—respect for religion’s special role in society. Our Founders conceived of a Republic receptive to voluntary religious **2747 expression, and provided for the possibility of judicial intervention when government action threatens or impedes such expression. Voluntary religious belief and expression may be as threatened when government takes the mantle of religion upon itself as when government directly interferes with private religious practices. When the government associates one set of religious beliefs with the state and identifies nonadherents as outsiders, it encroaches upon the individual’s decision about whether
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and how to worship. In the marketplace of ideas, the government has vast resources and special status. Government religious expression therefore risks crowding out private observance and distorting the natural interplay between competing beliefs. Allowing government to be a potential mouthpiece for competing religious ideas risks the sort of division that might easily spill over into suppression of rival beliefs. Tying secular and religious authority together poses risks to both.
Given the history of this particular display of the Ten Commandments, the Court correctly finds an Establishment Clause violation. See ante, at 2737–2741. The purpose behind the counties’ display is relevant because it conveys an unmistakable message of endorsement to the reasonable observer. *884 See Lynch v. Donnelly, 465 U.S. 668, 690, 104 S.Ct. 1355, 79 L.Ed.2d 604 (1984) (O’CONNOR, J., concurring).
It is true that many Americans find the Commandments in accord with their personal beliefs. But we do not count heads before enforcing the First Amendment. See West Virginia Bd. of Ed. v. Barnette, 319 U.S. 624, 638, 63 S.Ct. 1178, 87 L.Ed. 1628 (1943) (“The very purpose of a Bill of Rights was to withdraw certain subjects from the vicissitudes of political controversy, to place them beyond the reach of majorities and officials and to establish them as legal principles to be applied by the courts”). Nor can we accept the theory that Americans who do not accept the Commandments’ validity are outside the First Amendment’s protections. There is no list of approved and disapproved beliefs appended to the First Amendment—and the Amendment’s broad terms (“free exercise,” “establishment,” “religion”) do not admit of such a cramped reading. It is true that the Framers lived at a time when our national religious diversity was neither as robust nor as well recognized as it is now. They may not have foreseen the variety of religions for which this Nation would eventually provide a home. They surely could not have predicted new religions, some of them born in this country. But they did know that line-drawing between religions is an enterprise that, once begun, has no logical stopping point. They worried that “the same authority which can establish Christianity, in exclusion of all other Religions, may establish with the same ease any particular sect of Christians, in exclusion of all other Sects.” Memorial 186. The Religion Clauses, as a result, protect adherents of all religions, as well as those who believe in no religion at all.
* * *
We owe our First Amendment to a generation with a profound commitment to religion and a profound commitment to religious liberty—visionaries who held

their faith “with enough confidence to believe that what should be rendered *885 to God does not need to be decided and collected by Caesar.” Zorach, 343 U.S., at 324–325, 72 S.Ct. 679 (Jackson, J., dissenting). In my opinion, the display at issue was an establishment of religion in violation of our Constitution. For the reasons given above, I join in the Court’s opinion.
**2748 Justice SCALIA, with whom THE CHIEF JUSTICE and Justice THOMAS join, and with whom Justice KENNEDY joins as to Parts II and III, dissenting.
I would uphold McCreary County and Pulaski County, Kentucky’s (hereinafter Counties) displays of the Ten Commandments. I shall discuss, first, why the Court’s oft repeated assertion that the government cannot favor religious practice is false; second, why today’s opinion extends the scope of that falsehood even beyond prior cases; and third, why even on the basis of the Court’s false assumptions the judgment here is wrong.
I
A
On September 11, 2001, I was attending in Rome, Italy, an international conference of judges and lawyers, principally from Europe and the United States. That night and the next morning virtually all of the participants watched, in their hotel rooms, the address to the Nation by the President of the United States concerning the murderous attacks upon the Twin Towers and the Pentagon, in which thousands of Americans had been killed. The address ended, as Presidential addresses often do, with the prayer “God bless America.” The next afternoon I was approached by one of the judges from a European country, who, after extending his profound condolences for my country’s loss, sadly observed: “How I wish that the Head of State of my country, at a similar time of national tragedy and distress, could conclude his address ‘God bless ______.’ It is of course absolutely forbidden.”
*886 That is one model of the relationship between church and state—a model spread across Europe by the armies of Napoleon, and reflected in the Constitution of France, which begins, “France is [a] ... secular ... Republic.” France Const., Art. 1, in 7 Constitutions of the Countries of the World, p. 1 (G. Flanz ed.2000). Religion is to be strictly excluded from the public forum. This is not, and never was, the model adopted by America. George Washington added to the form of Presidential oath
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prescribed by Art. II, § 1, cl. 8, of the Constitution, the concluding words “so help me God.” See Blomquist, The Presidential Oath, the American National Interest and a Call for Presiprudence, 73 UMKC L.Rev. 1, 34 (2004). The Supreme Court under John Marshall opened its sessions with the prayer, “God save the United States and this Honorable Court.” 1 C. Warren, The Supreme Court in United States History 469 (rev. ed.1926) (internal quotation marks omitted). The First Congress instituted the practice of beginning its legislative sessions with a prayer. Marsh v. Chambers, 463 U.S. 783, 787–788, 103 S.Ct. 3330, 77 L.Ed.2d 1019 (1983). The same week that Congress submitted the Establishment Clause as part of the Bill of Rights for ratification by the States, it enacted legislation providing for paid chaplains in the House and Senate. Id., at 788, 103 S.Ct. 3330. The day after the First Amendment was proposed, the same Congress that had proposed it requested the President to proclaim “ a day of public thanksgiving and prayer, to be observed, by acknowledging, with grateful hearts, the many signal favours of Almighty God.” H.R. Jour., 1st Cong., 1st Sess., 123 (1826 ed.); see also Sen. Jour., 1st Sess., 88 (1820 ed.). President Washington offered the first Thanksgiving Proclamation shortly thereafter, devoting November 26, 1789, on behalf of the American people “ ‘to the service of that great and glorious Being who is the beneficent author of all the good that was, that is, or that will be,’ ” Van Orden v. Perry, post, 545 U.S., at 687, 125 S.Ct. at 2882, 2005 WL 1500276, *22 (plurality opinion) **2749 (quoting President Washington’s first Thanksgiving Proclamation), thus beginning a tradition of offering gratitude to *887 God that continues today. See Wallace v. Jaffree, 472 U.S. 38, 100–103, 105 S.Ct. 2479, 86 L.Ed.2d 29 (1985) (REHNQUIST, J., dissenting).1 The same Congress also reenacted the Northwest Territory Ordinance of 1787, 1 Stat. 50, Article III of which provided: “Religion, morality, and knowledge, being necessary to good government and the happiness of mankind, schools and the means of education shall forever be encouraged.” Id., at 52, n. (a). And of course the First Amendment itself accords religion (and no other manner of belief) special constitutional protection.

1

See, e.g., President’s Thanksgiving Day 2004

Proclamation (Nov. 23, 2004), available at

http://www.whitehouse.

gov/news/releases/2004/11/20041123–4.html

(all

Internet materials as visited June 24, 2005, and

available in Clerk of Court’s case file).

These actions of our First President and Congress and the Marshall Court were not idiosyncratic; they reflected the beliefs of the period. Those who wrote the Constitution believed that morality was essential to the well-being of society and that encouragement of religion was the best way to foster morality. The “fact that the Founding

Fathers believed devotedly that there was a God and that the unalienable rights of man were rooted in Him is clearly evidenced in their writings, from the Mayflower Compact to the Constitution itself.” School Dist. of Abington Township v. Schempp, 374 U.S. 203, 213, 83 S.Ct. 1560, 10 L.Ed.2d 844 (1963). See Underkuffler–Freund, The Separation of the Religious and the Secular: A Foundational Challenge to First–Amendment Theory, 36 Wm. & Mary L.Rev. 837, 896–918 (1995). President Washington opened his Presidency with a prayer, see Inaugural Addresses of the Presidents of the United States 1, 2 (1989), and reminded his fellow citizens at the conclusion of it that “reason and experience both forbid us to expect that National morality can prevail in exclusion of religious principle,” Farewell Address (1796), reprinted in 35 Writings of George Washington 229 (J. Fitzpatrick ed.1940). President John Adams wrote to the Massachusetts Militia, “we have no government *888 armed with power capable of contending with human passions unbridled by morality and religion.... Our Constitution was made only for a moral and religious people. It is wholly inadequate to the government of any other.” Letter (Oct. 11, 1798), reprinted in 9 Works of John Adams 229 (C. Adams ed.1971). Thomas Jefferson concluded his second inaugural address by inviting his audience to pray:
“I shall need, too, the favor of that Being in whose hands we are, who led our fathers, as Israel of old, from their native land and planted them in a country flowing with all the necessaries and comforts of life; who has covered our infancy with His providence and our riper years with His wisdom and power and to whose goodness I ask you to join in supplications with me that He will so enlighten the minds of your servants, guide their councils, and prosper their measures that whatsoever they do shall result in your good, and shall secure to you the peace, friendship, and approbation of all nations.” Inaugural Addresses of the Presidents of the United States, at 18, 22–23.
James Madison, in his first inaugural address, likewise placed his confidence “in the guardianship and guidance of that Almighty Being whose power regulates the destiny of nations, whose blessings have been so conspicuously dispensed to this rising Republic, and to whom we are bound to address our devout gratitude for the past, as well as our fervent supplications **2750 and best hopes for the future.” Id., at 25, 28.
Nor have the views of our people on this matter significantly changed. Presidents continue to conclude the Presidential oath with the words “so help me God.” Our legislatures, state and national, continue to open their sessions with prayer led by official chaplains. The sessions of this Court continue to open with the prayer “God save the United States and this Honorable Court.” Invocation of the Almighty by our public figures, at all
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levels of government, *889 remains commonplace. Our coinage bears the motto, “IN GOD WE TRUST.” And our Pledge of Allegiance contains the acknowledgment that we are a Nation “under God.” As one of our Supreme Court opinions rightly observed, “We are a religious people whose institutions presuppose a Supreme Being.” Zorach v. Clauson, 343 U.S. 306, 313, 72 S.Ct. 679, 96 L.Ed. 954 (1952), repeated with approval in Lynch v. Donnelly, 465 U.S. 668, 675, 104 S.Ct. 1355, 79 L.Ed.2d 604 (1984); Marsh, 463 U.S., at 792, 103 S.Ct. 3330; Abington Township, supra, at 213, 83 S.Ct. 1560.
With all of this reality (and much more) staring it in the face, how can the Court possibly assert that the “ ‘First Amendment mandates governmental neutrality between ... religion and nonreligion,’ ” ante, at 2733, and that “[m]anifesting a purpose to favor ... adherence to religion generally,” ibid., is unconstitutional? Who says so? Surely not the words of the Constitution. Surely not the history and traditions that reflect our society’s constant understanding of those words. Surely not even the current sense of our society, recently reflected in an Act of Congress adopted unanimously by the Senate and with only five nays in the House of Representatives, see 148 Cong. Rec. 12041 (June 28, 2002); id., at 19518 (Oct. 8, 2002), criticizing a Court of Appeals opinion that had held “under God” in the Pledge of Allegiance unconstitutional. See Act of Nov. 13, 2002, §§ 1(9), 2(a), 3(a), 116 Stat.2057, 2058, 2060–2061 (reaffirming the Pledge of Allegiance and the National Motto (“In God We Trust”) and stating that the Pledge of Allegiance is “clearly consistent with the text and intent of the Constitution”). Nothing stands behind the Court’s assertion that governmental affirmation of the society’s belief in God is unconstitutional except the Court’s own say-so, citing as support only the unsubstantiated say-so of earlier Courts going back no further than the mid–20th century. See ante, at 2733, citing Corporation of Presiding Bishop of Church of Jesus Christ of Latter—day Saints v. Amos, 483 U.S. 327, 335, 107 S.Ct. 2862, 97 L.Ed.2d 273 (1987), in turn citing Lemon v. Kurtzman, 403 U.S. 602, 612, 91 S.Ct. 2105, 29 L.Ed.2d 745 (1971), in *890 turn citing Board of Ed. of Central School Dist. No. 1 v. Allen, 392 U.S. 236, 243, 88 S.Ct. 1923, 20 L.Ed.2d 1060 (1968), in turn quoting Abington Township, 374 U.S., at 222, 83 S.Ct. 1560, in turn citing Everson v. Board of Ed. of Ewing, 330 U.S. 1, 15, 67 S.Ct. 504, 91 L.Ed. 711 (1947).2 And it is, moreover, a thoroughly discredited say-so. It is discredited, to **2751 begin with, because a majority of the Justices on the current Court (including at least one Member of today’s majority) have, in separate opinions, repudiated the brain-spun “Lemon test” that embodies the supposed principle of neutrality between religion and irreligion. See Lamb’s Chapel v. Center Moriches Union Free School Dist., 508 U.S. 384, 398–399, 113 S.Ct. 2141, 124 L.Ed.2d 352 (1993) (SCALIA, J., concurring in judgment) (collecting criticism of Lemon); Van Orden,

post, 545 U.S., at 692–693, 125 S.Ct., at 2865, 2867 (THOMAS, J., concurring); Board of Ed. of Kiryas Joel Village School Dist. v. Grumet, 512 U.S. 687, 720, 114 S.Ct. 2481, 129 L.Ed.2d 546 (1994) (O’CONNOR, J., concurring in part and concurring in judgment); County of Allegheny v. American Civil Liberties Union, Greater Pittsburgh Chapter, 492 U.S. 573, 655–656, 672–673, 109 S.Ct. 3086, 106 L.Ed.2d 472 (1989) (KENNEDY, J., concurring in judgment in part and dissenting in part); Wallace, 472 U.S., at 112, 105 S.Ct. 2479 (REHNQUIST, J., dissenting); see also Committee for Public Ed. and Religious Liberty v. Regan, 444 U.S. 646, 671, 100 S.Ct. 840, 63 L.Ed.2d 94 (1980) (STEVENS, J., dissenting) (disparaging “the sisyphean task of trying to patch together the ‘blurred, indistinct, and variable barrier’ described in Lemon ”). And it is discredited because the Court has not had the courage (or the foolhardiness) to apply the neutrality principle consistently.

2

The fountainhead of this jurisprudence, Everson v.

Board of Ed. of Ewing, based its dictum that “[n]either

a state nor the Federal Government ... can pass laws

which ... aid all religions,” 330 U.S., at 15, 67 S.Ct.

504, on a review of historical evidence that focused on

the debate leading up to the passage of the Virginia Bill

for Religious Liberty, see id., at 11–13, 67 S.Ct. 504. A

prominent commentator of the time remarked (after a

thorough review of the evidence himself) that it

appeared the Court had been “sold ... a bill of goods.”

Corwin, The Supreme Court as National School Board,

14 Law & Contemp. Prob. 3, 16 (1949).

What distinguishes the rule of law from the dictatorship of a shifting Supreme Court majority is the absolutely indispensable *891 requirement that judicial opinions be grounded in consistently applied principle. That is what prevents judges from ruling now this way, now that—thumbs up or thumbs down—as their personal preferences dictate. Today’s opinion forthrightly (or actually, somewhat less than forthrightly) admits that it does not rest upon consistently applied principle. In a revealing footnote, ante, at 2733, n. 10, the Court acknowledges that the “Establishment Clause doctrine” it purports to be applying “lacks the comfort of categorical absolutes.” What the Court means by this lovely euphemism is that sometimes the Court chooses to decide cases on the principle that government cannot favor religion, and sometimes it does not. The footnote goes on to say that “[i]n special instances we have found good reason” to dispense with the principle, but “[n]o such reasons present themselves here.” Ibid. It does not identify all of those “special instances,” much less identify the “good reason” for their existence.
I have cataloged elsewhere the variety of circumstances in which this Court—even after its embrace of Lemon’s stated prohibition of such behavior—has approved
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government action “undertaken with the specific intention of improving the position of religion,” Edwards v. Aguillard, 482 U.S. 578, 616, 107 S.Ct. 2573, 96 L.Ed.2d 510 (1987) (SCALIA, J., dissenting). See id., at 616–618, 107 S.Ct. 2573. Suffice it to say here that when the government relieves churches from the obligation to pay property taxes, when it allows students to absent themselves from public school to take religious classes, and when it exempts religious organizations from generally applicable prohibitions of religious discrimination, it surely means to bestow a benefit on religious practice—but we have approved it. See Amos, supra, at 338, 107 S.Ct. 2862 (exemption from federal prohibition of religious discrimination by employers); Walz v. Tax Comm’n of City of New York, 397 U.S. 664, 673, 90 S.Ct. 1409, 25 L.Ed.2d 697 (1970) (property tax exemption for church property); Zorach, supra, at 308, 315, 72 S.Ct. 679 (law permitting students to leave public school for the purpose of *892 receiving religious education). Indeed, we have even approved **2752 (post-Lemon) government-led prayer to God. In Marsh v. Chambers, the Court upheld the Nebraska State Legislature’s practice of paying a chaplain to lead it in prayer at the opening of legislative sessions. The Court explained that “[t]o invoke Divine guidance on a public body entrusted with making the laws is not ... an ‘establishment’ of religion or a step toward establishment; it is simply a tolerable acknowledgment of beliefs widely held among the people of this country.” 463 U.S., at 792, 103 S.Ct. 3330. (Why, one wonders, is not respect for the Ten Commandments a tolerable acknowledgment of beliefs widely held among the people of this country?)
The only “good reason” for ignoring the neutrality principle set forth in any of these cases was the antiquity of the practice at issue. See id., at 786–792, 794, 103 S.Ct. 3330; Walz, supra, at 676–680, 90 S.Ct. 1409. That would be a good reason for finding the neutrality principle a mistaken interpretation of the Constitution, but it is hardly a good reason for letting an unconstitutional practice continue. We did not hide behind that reason in Reynolds v. Sims, 377 U.S. 533, 84 S.Ct. 1362, 12 L.Ed.2d 506 (1964), which found unconstitutional bicameral state legislatures of a sort that had existed since the beginning of the Republic. And almost monthly, it seems, the Court has not shrunk from invalidating aspects of criminal procedure and penology of similar vintage. See, e.g., Deck v. Missouri, 544 U.S. 622, 633, 125 S.Ct. 2007, 2014–2015, 161 L.Ed.2d 953, 2005 WL 1200394 (2005) (invalidating practice of shackling defendants absent “special circumstances”); id., at 641–645, 125 S.Ct., at 2020–2022 (THOMAS, J., dissenting); Roper v. Simmons, 543 U.S. 551, 568, 125 S.Ct. 1183, 1194–1195, 161 L.Ed.2d 1, 2005 WL 464890 (2005) (invalidating practice of executing under–18–year–old offenders); id., at 611, n. 2, 125 S.Ct., at 2018 n. 2, (SCALIA, J., dissenting). What, then, could be the genuine “good reason” for occasionally ignoring the neutrality principle? I suggest it is the

instinct for self-preservation, and the recognition that the Court, which “has no influence over either the sword or the purse,” The Federalist No. 78, p. 412 (J. Pole ed.2005) (A. Hamilton), cannot go *893 too far down the road of an enforced neutrality that contradicts both historical fact and current practice without losing all that sustains it: the willingness of the people to accept its interpretation of the Constitution as definitive, in preference to the contrary interpretation of the democratically elected branches.
Besides appealing to the demonstrably false principle that the government cannot favor religion over irreligion, today’s opinion suggests that the posting of the Ten Commandments violates the principle that the government cannot favor one religion over another. See ante, at 2738; see also Van Orden, post, 545 U.S., at 717–718, 125 S.Ct. at 2879 (STEVENS, J., dissenting). That is indeed a valid principle where public aid or assistance to religion is concerned, see Zelman v. Simmons–Harris, 536 U.S. 639, 652, 122 S.Ct. 2460, 153 L.Ed.2d 604 (2002), or where the free exercise of religion is at issue, Church of Lukumi Babalu Aye, Inc. v. Hialeah, 508 U.S. 520, 532–533, 113 S.Ct. 2217, 124 L.Ed.2d 472 (1993); id., at 557–558, 113 S.Ct. 2217 (SCALIA, J., concurring in part and concurring in judgment), but it necessarily applies in a more limited sense to public acknowledgment of the Creator. If religion in the public forum had to be entirely nondenominational, there could be no religion in the public forum at all. One cannot say the word “God,” or “the Almighty,” one cannot offer public supplication or thanksgiving, without contradicting the beliefs of some **2753 people that there are many gods, or that God or the gods pay no attention to human affairs. With respect to public acknowledgment of religious belief, it is entirely clear from our Nation’s historical practices that the Establishment Clause permits this disregard of polytheists and believers in unconcerned deities, just as it permits the disregard of devout atheists. The Thanksgiving Proclamation issued by George Washington at the instance of the First Congress was scrupulously nondenominational—but it was monotheistic.3 In Marsh v. *894 Chambers, supra, we said that the fact the particular prayers offered in the Nebraska Legislature were “in the Judeo–Christian tradition,” id., at 793, 103 S.Ct. 3330, posed no additional problem, because “there is no indication that the prayer opportunity has been exploited to proselytize or advance any one, or to disparage any other, faith or belief,” id., at 794–795, 103 S.Ct. 3330.

3

The Court thinks it “surpris[ing]” and “truly ...

remarkable” to believe that “the deity the Framers had

in mind” (presumably in all the instances of invocation

of the deity I have cited) “was the God of

monotheism.” Ante, at 2744–2745. This reaction would

be more comprehensible if the Court could suggest

what other God (in the singular, and with a capital G)

there is, other than “the God of monotheism.” This is

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not necessarily the Christian God (though if it were, one would expect Christ regularly to be invoked, which He is not); but it is inescapably the God of monotheism.

Historical practices thus demonstrate that there is a distance between the acknowledgment of a single Creator and the establishment of a religion. The former is, as Marsh v. Chambers put it, “a tolerable acknowledgment of beliefs widely held among the people of this country.” Id., at 792, 103 S.Ct. 3330. The three most popular religions in the United States, Christianity, Judaism, and Islam—which combined account for 97.7% of all believers—are monotheistic. See U.S. Dept. of Commerce, Bureau of Census, Statistical Abstract of the United States: 2004–2005, p. 55 (124th ed. 2004) (Table No. 67). All of them, moreover (Islam included), believe that the Ten Commandments were given by God to Moses, and are divine prescriptions for a virtuous life. See 13 Encyclopedia of Religion 9074 (2d ed.2005); The Qur’an 104 (M. Haleem transl.2004). Publicly honoring the Ten Commandments is thus indistinguishable, insofar as discriminating against other religions is concerned, from publicly honoring God. Both practices are recognized across such a broad and diverse range of the population—from Christians to Muslims—that they cannot be reasonably understood as a government endorsement of a particular religious viewpoint.4

4

This is not to say that a display of the Ten

Commandments could never constitute an

impermissible endorsement of a particular religious

view. The Establishment Clause would prohibit, for

example, governmental endorsement of a particular

version of the Decalogue as authoritative. Here the

display of the Ten Commandments alongside eight

secular documents, and the plaque’s explanation for

their inclusion, make clear that they were not posted to

take sides in a theological dispute.

*895 B
A few remarks are necessary in response to the criticism of this dissent by the Court, as well as Justice STEVENS’ criticism in the related case of Van Orden v. Perry, post, 545 U.S. 677, 707, 125 S.Ct. 2854, 2873–2874. Justice STEVENS’ writing is largely devoted to an attack upon a straw man. “[R]eliance on early religious proclamations and statements made by the Founders is ... problematic,” he says, “because those views were not espoused at **2754 the Constitutional Convention in 1787 nor enshrined in the Constitution’s text.” Van Orden, post, 545 U.S., at 724, 125 S.Ct., at 2882, 2005 WL 1500276,

at *22 (dissenting opinion) (footnote omitted). But I have not relied upon (as he and the Court in this case do) mere “proclamations and statements” of the Founders. I have relied primarily upon official acts and official proclamations of the United States or of the component branches of its Government, including the First Congress’s beginning of the tradition of legislative prayer to God, its appointment of congressional chaplains, its legislative proposal of a Thanksgiving Proclamation, and its reenactment of the Northwest Territory Ordinance; our first President’s issuance of a Thanksgiving Proclamation; and invocation of God at the opening of sessions of the Supreme Court. The only mere “proclamations and statements” of the Founders I have relied upon were statements of Founders who occupied federal office, and spoke in at least a quasi-official capacity—Washington’s prayer at the opening of his Presidency and his Farewell Address, President John Adams’ letter to the Massachusetts Militia, and Jefferson’s and Madison’s inaugural addresses. The Court and Justice STEVENS, by contrast, appeal to no official or even quasi-official action in support of their view of the Establishment Clause—only James Madison’s Memorial and Remonstrance Against Religious Assessments, written before the Federal Constitution had even been proposed, *896 two letters written by Madison long after he was President, and the quasi-official inaction of Thomas Jefferson in refusing to issue a Thanksgiving Proclamation. See ante, at 2743–2744; Van Orden, post, 545 U.S., at 724–25, 125 S.Ct., at 2884 (STEVENS, J., dissenting). The Madison Memorial and Remonstrance, dealing as it does with enforced contribution to religion rather than public acknowledgment of God, is irrelevant; one of the letters is utterly ambiguous as to the point at issue here, and should not be read to contradict Madison’s statements in his first inaugural address, quoted earlier; even the other letter does not disapprove public acknowledgment of God, unless one posits (what Madison’s own actions as President would contradict) that reference to God contradicts “the equality of all religious sects.” See Letter from James Madison to Edward Livingston (July 10, 1822), in 5 The Founders’ Constitution 105–106 (P. Kurland & R. Lerner eds.1987). And as to Jefferson: The notoriously self-contradicting Jefferson did not choose to have his nonauthorship of a Thanksgiving Proclamation inscribed on his tombstone. What he did have inscribed was his authorship of the Virginia Statute for Religious Freedom, a governmental act which begins “Whereas, Almighty God hath created the mind free....” Va.Code Ann. § 57–1 (Lexis 2003).
It is no answer for Justice STEVENS to say that the understanding that these official and quasi-official actions reflect was not “enshrined in the Constitution’s text.” Van Orden, post, 545 U.S., at 724, 125 S.Ct., at 2883 (dissenting opinion). The Establishment Clause, upon which Justice STEVENS would rely, was enshrined in the Constitution’s text, and these official actions show what it
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McCreary County, Ky. v. American Civil Liberties Union of Ky., 545 U.S. 844 (2005)

meant. There were doubtless some who thought it should have a broader meaning, but those views were plainly rejected. Justice STEVENS says that reliance on these actions is “bound to paint a misleading picture,” ibid., but it is hard to see why. What is more probative of the meaning of the Establishment Clause than the actions of *897 the very Congress **2755 that proposed it, and of the first President charged with observing it?
Justice STEVENS also appeals to the undoubted fact that some in the founding generation thought that the Religion Clauses of the First Amendment should have a narrower meaning, protecting only the Christian religion or perhaps only Protestantism. See Van Orden, post, 545 U.S., at 725–728, 125 S.Ct., at 2884–2885. I am at a loss to see how this helps his case, except by providing a cloud of obfuscating smoke. (Since most thought the Clause permitted government invocation of monotheism, and some others thought it permitted government invocation of Christianity, he proposes that it be construed not to permit any government invocation of religion at all.) At any rate, those narrower views of the Establishment Clause were as clearly rejected as the more expansive ones. Washington’s First Thanksgiving Proclamation is merely an example. All of the actions of Washington and the First Congress upon which I have relied, virtually all Thanksgiving Proclamations throughout our history,5 and all the other examples of our Government’s favoring religion that I have cited, have invoked God, but not Jesus Christ.6 Rather than relying *898 upon Justice STEVENS’ assurance that “[t]he original understanding of the type of ‘religion’ that qualified for constitutional protection under the Establishment Clause likely did not include ... followers of Judaism and Islam,” Van Orden, post, 545 U.S., at 728, 125 S.Ct., at 2886, 2005 WL 1500276, at *24; see also ante, at 2745, I would prefer to take the word of George Washington, who, in his famous Letter to the Hebrew Congregation of Newport, Rhode Island, wrote:

5

The two exceptions are the March 23, 1798,

proclamation of John Adams, which asks God “freely

to remit all our offenses” “through the Redeemer of the

World,”

http://www.pilgrimhall.org/ThanxProc1789.htm, and

the November 17, 1972, proclamation of Richard

Nixon, which stated, “From Moses at the Red Sea to

Jesus preparing to feed the multitudes, the Scriptures

summon us to words and deeds of gratitude, even

before divine blessings are fully perceived,”

Presidential Proclamation No. 4170, 37 Fed.Reg. 24647

(1972).

6

Justice STEVENS finds that Presidential inaugural and

farewell speeches (which are the only speeches upon

which I have relied) do not violate the Establishment

Clause only because everyone knows that they express

the personal religious views of the speaker, and not government policy. See Van Orden v. Perry, post, 545 U.S., at 723, 125 S.Ct., at 2883 (dissenting opinion). This is a peculiar stance for one who has voted that a student-led invocation at a high school football game and a rabbi-led invocation at a high school graduation did constitute the sort of governmental endorsement of religion that the Establishment Clause forbids. See Santa Fe Independent School Dist. v. Doe, 530 U.S. 290, 120 S.Ct. 2266, 147 L.Ed.2d 295 (2000); Lee v. Weisman, 505 U.S. 577, 112 S.Ct. 2649, 120 L.Ed.2d 467 (1992).
“All possess alike liberty of conscience and immunities of citizenship. It is now no more that toleration is spoken of, as if it was by the indulgence of one class of people, that another enjoyed the exercise of their inherent natural rights.” 6 The Papers of George Washington, Presidential Series 285 (D. Twohig ed.1996). The letter concluded, by the way, with an invocation of the one God:
“May the father of all mercies scatter light and not darkness in our paths, and make us all in our several vocations useful here, and in his own due time and way everlastingly happy.” Ibid. Justice STEVENS says that if one is serious about following the original understanding of the Establishment Clause, he must repudiate its incorporation into the Fourteenth Amendment, and hold that it **2756 does not apply against the States. See Van Orden, post, 545 U.S., at 729–731, 125 S.Ct., at 2887–2888 (dissenting opinion). This is more smoke. Justice STEVENS did not feel that way last Term, when he joined an opinion insisting upon the original meaning of the Confrontation Clause, but nonetheless applying it against the State of Washington. See Crawford v. Washington, 541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004). The notion that incorporation empties the incorporated provisions of their original meaning has no support in either reason or precedent.
*899 Justice STEVENS argues that original meaning should not be the touchstone anyway, but that we should rather “expoun[d] the meaning of constitutional provisions with one eye toward our Nation’s history and the other fixed on its democratic aspirations.” Van Orden, post, 545 U.S., at 732, 125 S.Ct., at 2888–2889 (dissenting opinion). This is not the place to debate the merits of the “living Constitution,” though I must observe that Justice STEVENS’ quotation from McCulloch v. Maryland, 4 Wheat. 316, 407, 4 L.Ed. 579 (1819), refutes rather than supports that approach.7 Even assuming, however, that the meaning of the Constitution ought to change according to “democratic aspirations,” why are
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McCreary County, Ky. v. American Civil Liberties Union of Ky., 545 U.S. 844 (2005)

those aspirations to be found in Justices’ notions of what the Establishment Clause ought to mean, rather than in the democratically adopted dispositions of our current society? As I have observed above, numerous provisions of our laws and numerous continuing practices of our people demonstrate that the government’s invocation of God (and hence the government’s invocation of the Ten Commandments) is unobjectionable—including a statute enacted by Congress almost unanimously less than three years ago, stating that “under God” in the Pledge of Allegiance is constitutional, see 116 Stat. 2058. To ignore all this is not to give effect to “democratic aspirations” but to frustrate them.

7

See Scalia, Originalism: The Lesser Evil, 57 Cincinnati

L.Rev. 852–853 (1989).

Finally, I must respond to Justice STEVENS’ assertion that I would “marginaliz [e] the belief systems of more than 7 million Americans” who adhere to religions that are not monotheistic. Van Orden, post, 545 U.S., at 719, n. 18, 125 S.Ct., at 2881, n. 18, 2005 WL 1500276, at *20 (dissenting opinion). Surely that is a gross exaggeration. The beliefs of those citizens are entirely protected by the Free Exercise Clause, and by those aspects of the Establishment Clause that do not relate to government acknowledgment of the Creator. Invocation of God despite their beliefs is permitted not because nonmonotheistic religions cease to be religions recognized by the Religion Clauses of the First *900 Amendment, but because governmental invocation of God is not an establishment. Justice STEVENS fails to recognize that in the context of public acknowledgments of God there are legitimate competing interests: On the one hand, the interest of that minority in not feeling “excluded”; but on the other, the interest of the overwhelming majority of religious believers in being able to give God thanks and supplication as a people, and with respect to our national endeavors. Our national tradition has resolved that conflict in favor of the majority.8 It **2757 is not for this Court to change a disposition that accounts, many Americans think, for the phenomenon remarked upon in a quotation attributed to various authors, including Bismarck, but which I prefer to associate with Charles de Gaulle: “God watches over little children, drunkards, and the United States of America.”

8

Nothing so clearly demonstrates the utter inconsistency

of our Establishment Clause jurisprudence as Justice

O’CONNOR’s stirring concurrence in the present case.

“[W]e do not,” she says, “count heads before enforcing

the First Amendment.” Ante, at 2747. But Justice

O’CONNOR joined the opinion of the Court in Marsh

v. Chambers, 463 U.S. 783, 103 S.Ct. 3330, 77 L.Ed.2d

1019 (1983), which held legislative prayer to be “a

tolerable acknowledgment of beliefs widely held

among the people of this country.” Id., at 792, 103 S.Ct. 3330.
II
As bad as the Lemon test is, it is worse for the fact that, since its inception, its seemingly simple mandates have been manipulated to fit whatever result the Court aimed to achieve. Today’s opinion is no different. In two respects it modifies Lemon to ratchet up the Court’s hostility to religion. First, the Court justifies inquiry into legislative purpose, not as an end itself, but as a means to ascertain the appearance of the government action to an “ ‘objective observer.’ ” Ante, at 2734. Because in the Court’s view the true danger to be guarded against is that the objective observer would feel like an “ ‘outside[r] ’ ” or “ ‘not [a] full membe[r] of the political community,’ ” its inquiry focuses not on *901 the actual purpose of government action, but the “purpose apparent from government action.” Ante, at 2733. Under this approach, even if a government could show that its actual purpose was not to advance religion, it would presumably violate the Constitution as long as the Court’s objective observer would think otherwise. See Capitol Square Review and Advisory Bd. v. Pinette, 515 U.S. 753, 776–777, 115 S.Ct. 2440, 132 L.Ed.2d 650 (1995) (O’CONNOR, J., concurring in part and concurring in judgment) (stating that “when the reasonable observer would view a government practice as endorsing religion, ... it is our duty to hold the practice invalid,” even if the law at issue was neutral and the benefit conferred on the religious entity was incidental).
I have remarked before that it is an odd jurisprudence that bases the unconstitutionality of a government practice that does not actually advance religion on the hopes of the government that it would do so. See Edwards, 482 U.S., at 639, 107 S.Ct. 2573. But that oddity pales in comparison to the one invited by today’s analysis: the legitimacy of a government action with a wholly secular effect would turn on the misperception of an imaginary observer that the government officials behind the action had the intent to advance religion.
Second, the Court replaces Lemon’s requirement that the government have “a secular ... purpose,” 403 U.S., at 612, 91 S.Ct. 2105 (emphasis added), with the heightened requirement that the secular purpose “predominate” over any purpose to advance religion. Ante, at 2735–2736. The Court treats this extension as a natural outgrowth of the longstanding requirement that the government’s secular purpose not be a sham, but simple logic shows the two to be unrelated. If the government’s proffered secular

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McCreary County, Ky. v. American Civil Liberties Union of Ky., 545 U.S. 844 (2005)

purpose is not genuine, then the government has no secular purpose at all. The new demand that secular purpose predominate contradicts Lemon’s more limited requirement, and finds no support in our cases. In all but one of the five cases in which this Court has invalidated a government practice on the basis of its purpose to *902 benefit religion, it has first declared that the statute was motivated entirely by the desire to advance religion. See Santa Fe Independent School Dist. v. Doe, 530 U.S. 290, 308–309, 120 S.Ct. 2266, 147 L.Ed.2d 295 (2000) (dismissing the school district’s **2758 proffered secular purposes as shams); Wallace, 472 U.S., at 56, 105 S.Ct. 2479 (finding “no secular purpose” (emphasis in original)); Stone v. Graham, 449 U.S. 39, 41, 101 S.Ct. 192, 66 L.Ed.2d 199 (1980) (per curiam) (finding that “Kentucky’s statute requiring the posting of the Ten Commandments in public school rooms has no secular legislative purpose” (emphasis added)); Epperson v. Arkansas, 393 U.S. 97, 107–109, 89 S.Ct. 266, 21 L.Ed.2d 228 (1968). In Edwards, supra, the Court did say that the state action was invalid because its “primary” or “preeminent” purpose was to advance a particular religious belief, 482 U.S., at 590, 593, 594, 107 S.Ct. 2573, but that statement was unnecessary to the result, since the Court rejected the State’s only proffered secular purpose as a sham. See id., at 589, 107 S.Ct. 2573.
I have urged that Lemon’s purpose prong be abandoned, because (as I have discussed in Part I) even an exclusive purpose to foster or assist religious practice is not necessarily invalidating. But today’s extension makes things even worse. By shifting the focus of Lemon’s purpose prong from the search for a genuine, secular motivation to the hunt for a predominantly religious purpose, the Court converts what has in the past been a fairly limited inquiry into a rigorous review of the full record.9 Those responsible for the *903 adoption of the Religion Clauses would surely regard it as a bitter irony that the religious values they designed those Clauses to protect have now become so distasteful to this Court that if they constitute anything more than a subordinate motive for government action they will invalidate it.

9

The Court’s reflexive skepticism of the government’s

asserted secular purposes is flatly inconsistent with the

deferential approach taken by our previous

Establishment Clause cases. We have repeated many

times that, where a court undertakes the sensitive task

of reviewing a government’s asserted purpose, it must

take the government at its word absent compelling

evidence to the contrary. See, e.g., Edwards v.

Aguillard, 482 U.S. 578, 586, 107 S.Ct. 2573, 96

L.Ed.2d 510 (1987) (stating that “the Court is ...

deferential to a State’s articulation of a secular

purpose,” unless that purpose is insincere or a sham);

Mueller v. Allen, 463 U.S. 388, 394–395, 103 S.Ct.

3062, 77 L.Ed.2d 721 (1983) (ascribing the Court’s

disinclination to invalidate government practices under

Lemon’s purpose prong to 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”); see also Wallace v. Jaffree, 472 U.S. 38, 74, 105 S.Ct. 2479, 86 L.Ed.2d 29 (1985) (O’CONNOR, J., concurring in judgment) (“[T]he inquiry into the purpose of the legislature ... should be deferential and limited”).
III
Even accepting the Court’s Lemon-based premises, the displays at issue here were constitutional.
A
To any person who happened to walk down the hallway of the McCreary or Pulaski County Courthouse during the roughly nine months when the Foundations Displays were exhibited, the displays must have seemed unremarkable—if indeed they were noticed at all. The walls of both courthouses were already lined with historical documents and other assorted portraits; each Foundations Display was exhibited in the same format as these other displays and nothing in the record suggests that either County took steps to give it greater prominence.
Entitled “The Foundations of American Law and Government Display,” each display consisted of nine equally sized documents: the original version of the Magna Carta, the Declaration of Independence, the Bill of Rights, the Star Spangled Banner, **2759 the Mayflower Compact of 1620, a picture of Lady Justice, the National Motto of the United States (“In God We Trust”), the Preamble to the Kentucky Constitution, and the Ten Commandments. The displays did not emphasize any of the nine documents in any way: The frame holding the Ten Commandments was of the same size and had the *904 same appearance as that which held each of the other documents. See 354 F.3d 438, 443 (C.A.6 2003).
Posted with the documents was a plaque, identifying the display, and explaining that it “ ‘contains documents that played a significant role in the foundation of our system of law and government.’ ” Ibid. The explanation related to the Ten Commandments was third in the list of nine and did not serve to distinguish it from the other documents. It stated:
“ ‘The Ten Commandments have profoundly 26

McCreary County, Ky. v. American Civil Liberties Union of Ky., 545 U.S. 844 (2005)

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.’ ” Ibid.
B
On its face, the Foundations Displays manifested the purely secular purpose that the Counties asserted before the District Court: “to display documents that played a significant role in the foundation of our system of law and government.” Affidavit of Judge Jimmie Green in Support of Defendants’ Opposition to Plaintiffs’ Motion for Contempt or, in the Alternative, for Supplemental Preliminary Injunction in Civ. Action No. 99–507 (ED Ky.), p. 2, ¶ 4, App. 57. That the displays included the Ten Commandments did not transform their apparent secular purpose into one of impermissible advocacy for Judeo–Christian beliefs. Even an isolated display of the Decalogue conveys, at worst, “an equivocal message, perhaps of respect for Judaism, for religion in general, or for law.” Allegheny County, 492 U.S., at 652, 109 S.Ct. 3086 (STEVENS, J., *905 concurring in part and dissenting in part). But when the Ten Commandments appear alongside other documents of secular significance in a display devoted to the foundations of American law and government, the context communicates that the Ten Commandments are included, not to teach their binding nature as a religious text, but to show their unique contribution to the development of the legal system. See id., at 652–653, 109 S.Ct. 3086. This is doubly true when the display is introduced by a document that informs passersby that it “ ‘contains documents that played a significant role in the foundation of our system of law and government.’ ” 354 F.3d, at 443.
The same result follows if the Ten Commandments display is viewed in light of the government practices that this Court has countenanced in the past. The acknowledgment of the contribution that religion in general, and the Ten Commandments in particular, have made to our Nation’s legal and governmental heritage is surely no more of a step toward establishment of religion than was the practice of legislative prayer we approved in Marsh v. Chambers, 463 U.S. 783, 103 S.Ct. 3330, 77 L.Ed.2d 1019 (1983), and it seems to be on par with the inclusion of a crèche or a menorah in a “Holiday” display that incorporates other secular symbols, see Lynch v. Donnelly, 465 U.S., at 679–680, 104 S.Ct. 1355;

Allegheny County, supra, at 621, 109 S.Ct. 3086 (Blackmun, J., concurring in part and dissenting **2760 in part). The parallels between this case and Marsh and Lynch are sufficiently compelling that they ought to decide this case, even under the Court’s misguided Establishment Clause jurisprudence.10

10

The Court’s only response is that the inclusion of the

Ten Commandments in a display about the foundations

of American law reflects “a purpose to [call on] citizens

to act in prescribed ways as a personal response to

divine authority,” in a way that legislative prayer and

the inclusion of a crèche in a holiday display do not.

See ante, at 2743, n. 24. That might be true if the

Commandments were displayed by themselves in a

church, or even in someone’s home. It seems to me

patently untrue—given the Decalogue’s “undeniable

historical meaning” as a symbol of the religious

foundations of law, see Van Orden, post, 545 U.S., at

690, 125 S.Ct., at 2863–2864 (plurality

opinion)—when they are posted in a courthouse display

of historical documents. The observer would no more

think himself “called upon to act” in conformance with

the Commandments than he would think himself called

upon to think and act like William Bradford because of

the courthouse posting of the Mayflower

Compact—especially when he is told that the exhibit

consists of documents that contributed to American law

and government.

*906 Acknowledgment of the contribution that religion has made to our Nation’s legal and governmental heritage partakes of a centuries-old tradition. Members of this Court have themselves often detailed the degree to which religious belief pervaded the National Government during the founding era. See Lynch, supra, at 674–678, 104 S.Ct. 1355; Marsh, supra, at 786–788, 103 S.Ct. 3330; Lee v. Weisman, 505 U.S. 577, 633–636, 112 S.Ct. 2649, 120 L.Ed.2d 467 (1992) (SCALIA, J., dissenting); Wallace, 472 U.S., at 100–106, 105 S.Ct. 2479 (REHNQUIST, J., dissenting); Engel v. Vitale, 370 U.S. 421, 446–450, and n. 3, 82 S.Ct. 1261, 8 L.Ed.2d 601 (1962) (Stewart, J., dissenting). Display of the Ten Commandments is well within the mainstream of this practice of acknowledgment. Federal, state, and local governments across the Nation have engaged in such display.11 The Supreme Court Building itself includes depictions of Moses with the Ten Commandments in the Courtroom and on the east pediment of the building, and symbols of the Ten Commandments “adorn the metal gates lining the north and south sides of the Courtroom as well as the doors leading into the Courtroom.” Van Orden, post, 545 U.S., at 688, 125 S.Ct., at 2861, 2005 WL 1500276, at *5 (plurality opinion). Similar depictions of the Decalogue appear *907 on public buildings and monuments throughout our Nation’s Capital. Post, 545 U.S., at 689, 125 S.Ct., at 2861. The frequency of these displays testifies to the popular understanding that the Ten
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McCreary County, Ky. v. American Civil Liberties Union of Ky., 545 U.S. 844 (2005)

Commandments are a foundation of the rule of law, and a symbol of the role that religion played, and continues to play, in our system of government.

11

The significant number of cases involving Ten

Commandments displays in the last two years suggests

the breadth of their appearance. See, e.g., Books v.

Elkhart County, 401 F.3d 857, 858–859 (C.A.7 2005)

(Ten Commandments included in a display identical to

the Foundations Display); Mercier v. Fraternal Order

of Eagles, 395 F.3d 693, 696 (C.A.7 2005) (Ten

Commandments monument in city park since 1965);

Modrovich v. Allegheny County, 385 F.3d 397, 399

(C.A.3 2004) (Ten Commandments plaque, donated in

1918, on wall of Allegheny County Courthouse);

Freethought Soc. of Greater Philadelphia v. Chester

County, 334 F.3d 247, 249 (C.A.3 2003) (Ten

Commandments plaque, donated in 1920, on wall of

Chester County Courthouse); King v. Richmond

County, 331 F.3d 1271, 1273–1274 (C.A.11 2003) (Ten

Commandments depicted in county seal since 1872).

Perhaps in recognition of the centrality of the Ten Commandments as a widely recognized symbol of religion in public life, the Court is at pains to dispel the impression that its decision will require governments across the country to sandblast the Ten Commandments from the public square. See ante, at 2741. The constitutional **2761 problem, the Court says, is with the Counties’ purpose in erecting the Foundations Displays, not the displays themselves. The Court adds in a footnote: “One consequence of taking account of the purpose underlying past actions is that the same government action may be constitutional if taken in the first instance and unconstitutional if it has a sectarian heritage.” Ante, at 2737, n. 14.
This inconsistency may be explicable in theory, but I suspect that the “objective observer” with whom the Court is so concerned will recognize its absurdity in practice. By virtue of details familiar only to the parties to litigation and their lawyers, McCreary and Pulaski Counties, Kentucky, and Rutherford County, Tennessee, have been ordered to remove the same display that appears in courthouses from Mercer County, Kentucky, to Elkhart County, Indiana. Compare American Civil Liberties Union of Tenn. v. Rutherford County, 209 F.Supp.2d 799, 808–809 (M.D.Tenn.2002) (holding Foundations Display to be unconstitutional based on prior actions of county commission), with Books v. Elkhart County, 401 F.3d 857, 869 (C.A.7 2005) (sustaining Foundations Display as “secular ... in its purpose and effect”); American Civil Liberties Union of Ky. v. Mercer County, 219 F.Supp.2d 777, 787–789 (E.D.Ky.2002) (rejecting Establishment Clause challenge to an identical Foundations Display and distinguishing McCreary County on the ground *908 that the County’s purpose had not been “tainted with any prior history”). Displays

erected in silence (and under the direction of good legal advice) are permissible, while those hung after discussion and debate are deemed unconstitutional. Reduction of the Establishment Clause to such minutiae trivializes the Clause’s protection against religious establishment; indeed, it may inflame religious passions by making the passing comments of every government official the subject of endless litigation.
C
In any event, the Court’s conclusion that the Counties exhibited the Foundations Displays with the purpose of promoting religion is doubtful. In the Court’s view, the impermissible motive was apparent from the initial displays of the Ten Commandments all by themselves: When that occurs, the Court says, “a religious object is unmistakable.” Ante, at 2739. Surely that cannot be. If, as discussed above, the Commandments have a proper place in our civic history, even placing them by themselves can be civically motivated—especially when they are placed, not in a school (as they were in the Stone case upon which the Court places such reliance), but in a courthouse. Cf. Van Orden, post, 545 U.S., at 701, 125 S.Ct., at 2869–2870 (BREYER, J., concurring in judgment) (“The circumstances surrounding the display’s placement on the capitol grounds and its physical setting suggest that the State itself intended the ... nonreligious aspects of the tablets’ message to predominate”). And the fact that at the posting of the exhibit a clergyman was present is unremarkable (clergymen taking particular pride in the role of the Ten Commandments in our civic history); and even more unremarkable the fact that the clergyman “testified to the certainty of the existence of God,” ante, at 2738.
The Court has in the past prohibited government actions that “proselytize or advance any one, or ... disparage any other, faith or belief,” Marsh, 463 U.S., at 794–795, 103 S.Ct. 3330, or that apply some level of coercion (though I and others have disagreed *909 about the form that coercion must take), see, e.g., Lee v. Weisman, 505 U.S., at 592, 112 S.Ct. 2649 (prayer at high-school graduation invalid because of **2762 “subtle coercive pressure”); id., at 642, 112 S.Ct. 2649 (SCALIA, J., dissenting). The passive display of the Ten Commandments, even standing alone, does not begin to do either. What Justice KENNEDY said of the crèche in Allegheny County is equally true of the Counties’ original Ten Commandments displays:
“No one was compelled to observe or participate in any religious ceremony or activity. [T]he count[ies] [did not] contribut[e] significant amounts of tax money to serve the cause of one religious faith. [The Ten
28

McCreary County, Ky. v. American Civil Liberties Union of Ky., 545 U.S. 844 (2005)

Commandments] are purely passive symbols of [the religious foundation for many of our laws and governmental institutions]. Passersby who disagree with the message conveyed by th[e] displays are free to ignore them, or even to turn their backs, just as they are free to do when they disagree with any other form of government speech.” 492 U.S., at 664, 109 S.Ct. 3086 (opinion concurring in judgment in part and dissenting in part).
Nor is it the case that a solo display of the Ten Commandments advances any one faith. They are assuredly a religious symbol, but they are not so closely associated with a single religious belief that their display can reasonably be understood as preferring one religious sect over another. The Ten Commandments are recognized by Judaism, Christianity, and Islam alike as divinely given. See 13 Encyclopedia of Religion 9074 (2d ed.2005).12

12

Because there are interpretational differences between

faiths and within faiths concerning the meaning and

perhaps even the text of the Commandments, Justice

STEVENS maintains that any display of the text of the

Ten Commandments is impermissible because it

“invariably places the [government] at the center of a

serious sectarian dispute.” Van Orden, post, 545 U.S.,

at 718–719, 125 S.Ct., at 2880 (dissenting opinion). I

think not. The sectarian dispute regarding text, if

serious, is not widely known. I doubt that most

religious adherents are even aware that there are

competing versions with doctrinal consequences (I

certainly was not). In any event, the context of the

display here could not conceivably cause the viewer to

believe that the government was taking sides in a

doctrinal controversy.

*910 The Court also points to the Counties’ second displays, which featured a number of statements in historical documents reflecting a religious influence, and the resolutions that accompanied their erection, as evidence of an impermissible religious purpose.13 In the Court’s view, “[t]he [second] display’s unstinting focus ... on religious passages, show[s] that the Counties were posting the Commandments precisely because of their sectarian content.” Ante, at 2739. No, all it necessarily shows is that the exhibit was meant to focus upon the historic role of religious belief in our **2763 national life—which is entirely permissible. And the same can be said of the resolution. To forbid any government focus upon this aspect of our history is to display what Justice Goldberg called “untutored devotion to the concept of neutrality,” Abington Township, 374 U.S., at 306, 83 S.Ct. 1560 (concurring opinion), that would commit the Court (and the Nation) to a revisionist agenda of secularization.

13

Posted less than a month after respondents filed suit,

the second displays included an excerpt from the Declaration of Independence, the Preamble to the Kentucky Constitution, a page from the Congressional Record declaring 1983 to be the Year of the Bible and the proclamation of President Reagan stating the same, a proclamation of President Lincoln designating April 30, 1863, as a National Day of Prayer and Humiliation, an excerpt from Lincoln’s “Reply to Loyal Colored People of Baltimore upon Presentation of a Bible” stating that “[t]he Bible is the best gift God has ever given to man,” and the Mayflower Compact. 96 F.Supp.2d 679, 684 (E.D.Ky.2000) (internal quotation marks omitted). The Counties erected the displays in accordance with a resolution passed by their legislative bodies, authorizing the County–Judge Executives “to read or post the Ten Commandments as the precedent legal code upon which the civil and criminal codes of the Commonwealth of Kentucky are founded,” and to display alongside the Ten Commandments copies of the documents listed above “without censorship because of any Christian or religious references in these writings, documents, and historical records.” Def. Exh. 1 in Memorandum in Support of Defendants’ Motion to Dismiss in Civ. Action No. 99–507, p. 1 (ED Ky.) (hereinafter Def. Exh. 1).
*911 Turning at last to the displays actually at issue in this case, the Court faults the Counties for not repealing the resolution expressing what the Court believes to be an impermissible intent. Under these circumstances, the Court says, “[n]o reasonable observer could swallow the claim that the Counties had cast off the objective so unmistakable in the earlier displays.” Ante, at 2740. Even were I to accept all that the Court has said before, I would not agree with that assessment. To begin with, of course, it is unlikely that a reasonable observer would even have been aware of the resolutions, so there would be nothing to “cast off.” The Court implies that the Counties may have been able to remedy the “taint” from the old resolutions by enacting a new one. See ante, at 2740. But that action would have been wholly unnecessary in light of the explanation that the Counties included with the displays themselves: A plaque next to the documents informed all who passed by that each display “contains documents that played a significant role in the foundation of our system of law and government.” Additionally, there was no reason for the Counties to repeal or repudiate the resolutions adopted with the hanging of the second displays, since they related only to the second displays. After complying with the District Court’s order to remove the second displays “immediately,” and erecting new displays that in content and by express assertion reflected a different purpose from that identified in the resolutions, the Counties had no reason to believe that their previous resolutions would be deemed to be the basis for their actions.14 After the Counties *912 discovered that the sentiments expressed in the resolutions could be attributed to their most recent displays (in oral argument before this
29

McCreary County, Ky. v. American Civil Liberties Union of Ky., 545 U.S. 844 (2005)

Court), they repudiated them immediately.

14

Contrary to the Court’s suggestion, see ante, at 2740, n.

20, it is clear that the resolutions were closely tied to

the second displays, but not to the third. Each of the

documents included in the second displays was

authorized by the resolutions, and those displays,

consistent with the resolutions’ direction to “post the

Ten Commandments as the precedent legal code upon

which the civil and criminal codes of the

Commonwealth of Kentucky are founded,” Def. Exh. 1,

consisted of a large copy of the Ten Commandments

alongside much smaller framed copies of other

historical, religious documents. The third displays, in

contrast, included documents not mentioned in the

resolutions (the Magna Carta and a picture of Lady

Justice) and did not include documents authorized by

the resolutions (correspondence and proclamations of

Abraham Lincoln and the Resolution of Congress

declaring 1983 to be the Year of the Bible).

The resolutions also provided that they were to be

posted beside the displays that they authorized. Id., at

9. Yet respondents have never suggested the

resolutions were posted next to the third displays,

and the record before the Court indicates that they

were not. The photos included in the Appendix show

that the third displays included 10 frames—the nine

historical documents and the prefatory statement

explaining the relevance of each of the documents.

See App. to Pet. for Cert. 177a (McCreary County),

178a (Pulaski County).

intent to further religious practice; nor did the second displays, or the resolutions authorizing them; and there is in any event no basis for attributing whatever intent motivated the **2764 first and second displays to the third. Given the presumption of regularity that always accompanies our review of official action, see n. 9, supra, the Court has identified no evidence of a purpose to advance religion in a way that is inconsistent with our cases. The Court may well be correct in identifying the third displays as the fruit of a desire to display the Ten Commandments, ante, at 2740, but neither our cases nor our history support its assertion that such a desire renders the fruit poisonous.
* * *
For the foregoing reasons, I would reverse the judgment of the Court of Appeals.
Parallel Citations
125 S.Ct. 2722, 162 L.Ed.2d 729, 73 USLW 4639, 05 Cal. Daily Op. Serv. 5606, 05 Daily Journal D.A.R. 7715, 18 Fla. L. Weekly Fed. S 532, 15 A.L.R. Fed. 2d 865
	  

In sum: The first displays did not necessarily evidence an

30

 
 Harlan County, Ky. v. American Civil Liberties Union of Kentucky, 545 U.S. 1152 (2005)

125 S.Ct. 2988 Supreme Court of the United States
HARLAN COUNTY, KENTUCKY, et al., petitioners, v.
AMERICAN CIVIL LIBERTIES UNION OF KENTUCKY, et al.
No. 03-1698. | June 28, 2005.
Case below, American Civil Liberties Union of Kentucky v. McCreary County, Kentucky, 354 F.3d 438.

Opinion *2989 Petition for writ of certiorari to the United States Court of Appeals for the Sixth Circuit denied.
Parallel Citations 125 S.Ct. 2988 (Mem), 162 L.Ed.2d 910, 73 USLW 3015, 73 USLW 3754, 73 USLW 3755
	  

1