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RECOMMENDED FOR FULL-TEXT PUBLICATION

Pursuant to Sixth Circuit Rule 206

ELECTRONIC CITATION: 2004 FED App. 0089P (6th Cir.)

File Name: 04a0089p.06

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

_________________

AMERICAN CIVIL LIBERTIES

UNION OF KENTUCKY, et al.,

Plaintiffs-Appellees,

v.

MCCREARY COUNTY,

KENTUCKY, et al.,

Defendants-Appellants. 

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No. 01-5935

Appeal from the United States District Court

for the Eastern District of Kentucky at London.

Filed: March 23, 2004 

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.

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County, KY, et al.

No. 01-5935

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.

ENTERED BY ORDER OF THE COURT

/s/ Leonard Green

_________________________________

 Clerk
No. 01-5935 ACLU of KY, et al. v. McCreary

County, KY, et al.

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1

The Court also discussed Stone with approval in County of

Allegheny v. ACLU, 492 U.S. 573, 590-91 n.40 (1989) (“[T]he content of

a public school’s curriculum may not be based on a desire to promote

CLAY, Circuit Judge, concurring in denial of rehearing

en banc, joined by Martin, J.

In Stone v. Graham, 449 U.S. 39 (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. The Court reasoned that posting the Ten

Commandments with only this disclaimer served no

“educational function.” Id. at 42. 

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 (1984). See id. at 679 (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 442.). 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 (quoting Abbington Sch. Dist. v.

Schempp, 374 U.S. 203, 225 (1963)).1 Thus, both Stone and

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No. 01-5935

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 (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 (“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).

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 – 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 – the holiday season – with the

numerous other secular symbols included in the display. The

display was permissible because the secular connection

between the symbols rendered “indirect, remote and

incidental” the religious message that the creche would have

conveyed standing alone. Lynch, 465 U.S. at 683.

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

(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
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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]

(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 (Stevens, J., concurring, in part,

and dissenting, in part).

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

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No. 01-5935

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 wrong.

Neither the Supreme Court nor this Court has ever 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 (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
No. 01-5935 ACLU of KY, et al. v. McCreary

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4

This holding was justified by Santa Fe Indep. Sch. Dist. v. Doe, 530

U.S. 290, 309, 315 (2000) (looking at the “evolution” of the student-led

prayer policy to determine whether an Establishment Clause violation had

occurred). 

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 348 (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

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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 (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 purposes.

Rather, the opinion observed that citizens typically 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.
No. 01-5935 ACLU of KY, et al. v. McCreary

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For the foregoing reasons, I concur in the decision of the

en banc Court denying review of the panel opinion.

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No. 01-5935

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 (1989), and Lynch v. Donnelly, 465

U.S. 668 (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 (1995) (plurality opinion), a

creche, Lynch, 465 U.S. 668, and a menorah, County of

Allegheny, 492 U.S. 573, none of which made explicit an

“analytical or historical connection” between the religious

item and other, secular items in the displays. 
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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 (1980), a brief, per

curiam disposition that preceded both Lynch and Donnelly,

and that bears no 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 (citing Sch.

Dist. of Abington Township v. Schempp, 374 U.S. 203, 225

(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.

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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 (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,

it also made clear that the policy was, in fact, invalid on its face. Id. at

306-07, 314-15; see id. at 315 (“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

(detailing various cosmetic alterations made to school district’s

longstanding 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).

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 

Finally, the lead opinion erroneously applies the heightened

Establishment Clause 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
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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 (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 nonschoolhouse 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.