1 RECOMMENDED FOR FULL-TEXT PUBLICATION Pursuant to Six

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ATION: 2004 FED App . 0089P (6th C ir.) File Name: 04a00 89p.06



### UNITED STATES COURT OF APPEALS

FOR THE SIXT H CIR CUIT

_________________

A MERI CAN C IVIL L IBERTI ES U NION OF KENTUCKY , et al., Plaintiffs- Appellee s,

v.

M C C REARY C OUNTY , KENTUCKY , et al., Defendants-Appellants. X - - - -

> , - - - - - N No. 01-5935

Appeal from the United States District Court for the Eastern District of Kentucky at London.

Filed: March 23, 2004

Befor e: RYAN, C LAY, and GI BBONS, Circuit Judg es.

_________________ 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 judg es of this court, and less than a majority of the judg es having favored the suggestion, the petition for rehearing hasbeen re ferre d to the origina l panel. 2 ACLU of KY, et al . v. McCr eary County, KY, et

al. No. 01-5935

The panel ha s furth er reviewed the petition for rehearing and concludes that the issues raised in the petition w ere ful ly considered

uponthe original submission and decision of the case. Accordingly, the petition is denied.

ENTERED B Y ORDER OF THE COURT

/s/ Leonard Green

_________________________________ ClerkNo. 01-5935 ACLU of KY, et al . v. McCr eary County, KY, et

al. 3

1 The Court

als o dis cuss ed Stone with ap proval in County of Alle gheny v. ACLU, 492 U.S. 573, 590- 91 n.40 ( 1989) (“ [T]he content of

a publi c sch ool’ s cur

ric ulu m may not

be base d on a de sire to p rom ote CLAY, Circuit J

udge, conc urring in de nia l of rehe aring en banc, joined by Martin, J

.
In Stone v. Graham, 449 U.S. 39 ( 1980)(pe r curiam), the Supreme Court held that it was patently insuffici en t for the government

to justify schoolh ouse displays of the Ten Command ments merely by asserting that “[t]he secular ap pli cationof the Te

n Commandme

nts is clea rly seen in its adoptionas the fu

ndamenta l l egal code of Western Civilization and the Common Law of the United States.” Id. at 40 n.1. The Court reasoned that posting the Ten Commandme

nts with only

this discla

im er served no “educational function.” Id. at 42.

The Court further opined that the di splay may have been permissib le had the T en C ommandments been “integrated into the schoo l c urriculum...in an appropriate study of hi st or y, civilization, ethics, comparative religion, or the like.” I d. (ci tation omitted). This statement was a critical

c omponent

of the Court’s holding. Indee d, the S uprem e Courtexpressly endorsed this statement in Lynch v. Donnelly, 465 U.S. 668 (1984). Seeid. at 679 (expressing approval of Stone and noting that the Stone decision “care fully

point ed outthat the Commandments were posted purely as a religious admonition, not‘integrated into the schoolcurriculum, where the Bible ma

y c onstitutionally

be used in

an appropriate study of history, civilization, ethics, c ompar ative religion, or the like’”) (quoting Stone, 449 U.S. at 442.). The Court further elaborated

that study of the Bible or o f religion, “‘when pres ented objectively as par t of a secular program of education,’” may be ef

fected cons isten tly w

ith the Fi

rst Amendmen

t. Id. at 679 -80 (q uoti ng AbbingtonSch. Dist. v. Schempp, 374 U.S. 203, 225 (1963)). 1 Thus, both Stone and 4 ACLU of KY, et al . v. McCr eary County, KY, et

al. No. 01-5935

religi ous bel ief

s. ...For th e sa me reaso n, po sting the T en C omm and men ts

on the wall of

a public-school class room violates the Establi shment Clause.”) (cit ing Stone, supra; other citat ions omitted).

2 T he dis sent ’s cit ati on to Capitol Square Revi ew & Advisory Bd. v. Pinett e, 515 U.S. 753 (1995) is baf fli ng. That c ase is irre levant because, there, the disp lay of a c ross inv olved priva te speech, not government speech as in the c ase at b ar. Id. at 760, 765 (“ There is a c rucial diff erence between government

speech endorsing religi on, which the Establishment Cl ause for

bids, and priva te speech endors ing re lig ion, wh ich t he Free Speech and Fre e Exerc ise Claus es pr otect. ”) (internal quotation m arks, punctuation and citat ion omitted). Lynch support the view that the government’s presentation of the Ten Commandmen

ts, or re ligious me ssages

gener ally , is constitutional so long as the religious messagesare presented objective ly

andas an integral component of an overa rching secular subject matter.

This view is manifested even in th ose Supreme Court decisions upholding

gover nme n tal displays containing patently religio us sy mbols, inc lu ding t he cases cited by the dissent– Lynch, supra, and County of Alleghen y v. ACLU

, supra

. 2 Lynch approved of a Christmastime display of a
cr ec he because that sy

mbol, as a matter of fact in that case, shared a common secular link

– the holiday

season – with the

numerous ot he r s ec ul ar sym bo ls in cl ud ed in th e d is pl ay. The display was permissible because the secular c onnec tion between the symbols rendere d “indirect, remo te and incident al” the religious message that the crec he would have conveye d standing

alo ne. L

ynch, 465 U.S. at 683. Consistent ly, the Court struck dow n a crec he displa y in County of Allegheny

because the creche wa s the d is pl ay’ s solitary element. County of Allegheny, 492 U .S. at 599 (holding that “nothing in the contex t of t he displa y de tracts fromthe creche’s religious messag e”). In contra st, through a series of fractured opinions, a majority of the Courtin County of Allegheny

approved the display of a menor

ah, alongside aNo. 01-5935 ACLU of KY, et al . v. McCr eary County, KY, et

al. 5

3 A hypothetical from Ju stic e Stev ens illustrate s how the them atic int egration of the T en C omm and men ts with secul ar symbols or m essages,

or the lack t

hereof, can render a display containing the Ten Commandments reli gious or non-rel igi ous in n ature:

... [A] carvi ng of Moses holdi ng the Ten Commandments, if that is the onl y adornment on a courtroom wall, conveys an equivocal message, perhaps of res pect for Judai sm, f

or rel igi on in general, or for law. T he add ition of carvings d epic ting Confucius and Mohammed mayhonor r eli gion

, or parti cular religions, to an extent that the First Amendment does not tole rate

an y more than it does “the permanent erect ion of a large Lati n

cross on the roo f of city h all. ” See post [492 U.S. at 661] ( KENNED Y, J., concurring i n judgment in part and dissent ing i n part). Cf. St one v. Gra ham, 449 U.S. 39, 101 S. Ct . 19 2, 6 6 L.Ed.2d199 (198 0) (

per cur iam ). Placeme nt of secul ar fig ures such as Caesar Augustus, William Blacks to ne, Napoleon Bonaparte, and J ohn M arsha ll alo ngside these t hree religi ous leade rs, how ever, sig nals respect not for great proselyti zers but forgrea t l awgi vers . I t wou ld be absu rd to exclude such a fit ting
message fr om a co urt room, as it w ould to exclude religi ous paintings by Itali an Renaissance masters from a pub lic mus eum. Cf. Lynch, 465 U.S., at 712-713, 717, 104 S. Ct. , at 1379-1380, 1382 (B REN NAN , J., di ssenting)

.

Co unty of

Allegheny, 492 U.S. at 65 2-53 (S tevens, J., con curring , in part, and dissenting, in part). Christmas tree an d an ex plana tory sign

, because the over all themecon veyed by t he di sp la y wa s o ne of di ve rs it y, secular ism, the holida

y se ason and

/or free dom. Thes e decisions demon strat e that the manner in which a display ’s religious and secu

lar elements integ

rate wit h one ano ther is highly releva nt to the in quiry con cernin g t he go vernment’s pu rp os e b eh in d t he di sp la y. 3

Using this approach, the p anel c oncluded that the document s and sy

mbols in De fendant s’ display s utterly lacked a unifying

secular theme. The dissent has not disputed this conclusion. Under Stone
, Defendants’ mere assertion of sucha unify

ing theme did not r

ender the display

s’ purpos e 6 ACLU of KY, et al . v. McCr eary County, KY, et

al. No. 01-5935

secular. Moreove

r, neithe r Defen dants’ di splays, nor the ir legal briefs, provided a shred of evidence to support the prin cipal assertion in the courthouse display s that the Ten Commandme

nts profoundly influence d the drafting of the Declaration

of In depende nce. De fendant s’ school house di sp la ys did not ev en purport to cite to objective historical evidence, in st ea d r el yin g o n t he Ha rl an Co un ty S choo l Board’s subjective “belief” and “ opinio n” th at th e d is pl ays will “positively contribute to the ...moral chara cter of students” and “instill qualities desirable of the stude nts i n [their] schools.” Likethe display of the Ten Commandme

nts in Stone, the schoolhouse displays, as a ma tter of fact, served no educa tional miss ion, as mig

ht have be en the ca se had the Ten Commandme

nts been integrated into the objective study of a secul ar sub

ject m atter . Defen dants ’ post ing of the Ten Commandme

nts served no pur

po se but as a religious admo nition. Accord

ingly, the cont

ent of the

displa y s sufficie ntly demonstrated that Defendants’ true purpose for the displa ys was religious.

T he dissent suggests that as long as the Ten Commandme

nts are displaye d

“as part of an array

containing eight or nine otherwise secular, historical documents,” further inquiry into Defe ndants’ purpo se mus t cease . This is wro ng. Neither the Supreme Court nor this Court has ever adopted sucha facile

approac h to the Est

ablis hment Cl ause. The determination

of an Esta

blishment C lause vio lation is a highly fact-specific inquiry

that requires a court

to pay careful attentionto the content

and context of the display containing

a religious symbol. See, e.g., County of Allegheny, 492 U.S. at 597 (st at ing that the Court’s task was “to determine whether the display of the creche and the me norah, in their respective ‘particular phy sical settings,’” has the effect of endorsingor disapproving r eligiou s beliefs ”); Adland v. Russ, 307 F.3d 471, 481 (6th Cir. 2002) ( look ing at the “intended physical context” of the Ten Commandments display). The dissent’s approach would requ i re courts to ignore disingenuous go ve rn me nt al at te mp ts to co nv ey r elig iousNo. 01-5935 ACLU of KY, et al . v. McCr eary County, KY, et

al. 7

4 Th is holding was justified b y San ta Fe Ind ep. S ch. D ist. v. Do e, 530 U.S. 290, 309, 315 (2000) (looki ng at t he “evol uti on” of th e studen t-l ed
prayerpolicy

to deter mine whet

her an Est ablis hment Clau se viol ation had

occ urred ). messages wheneve

r it has includ ed secul ar eleme nts in its speech, no matter how unrelated those secular elements are to the religio

us eleme nts. If followed to its logical conclusion, the dissent’s approach would justify a classroom display of a crucif ix or the Lord’s Pray

er , so long as surrounded by the Magna Car ta, the Declaration of I ndependence, the Star Spangled Banner and, per haps, exce

rpts from the Internal Revenue Code.

The dissentinaccur

ately refers to the pa

nel’s “symp athetic treatment of the district court’s conclusion that the history of the defendants’ e ar lier atte mpts to ere ct ‘cons titutional ly invalid display s’ had “i mprin t ed the defendants’ purpose, fromthe beginning, with an unconstitutional taint[.] ” ” (quoting ACLU v. Mc Creary County, 354 F.3d 4 38, 457 (6 th Cir. 2003) (quot ing ACLU v. Mc Creary County, 145 F. Supp. 2 d 8 45, 850 (E .D. Ky . 2001)). In fa ct, the pa nel explici

tly rejected the distri ct court ’s heavy relianc e on past co nduct, instead concludi

ng that “

the his tor y of

Defend ants’ involvement

with the di splays strongly indicated tha t the primary purpose was religious.” McCreary County, 354 F.3d at 348 (emphasis added; disagreeing with the district court’s decision“to afford

excl usive we ight to De fendant s’ past conduct without addressing the specific content of the revised displays”). Although not dispos iti ve of the issue, De fendant s’ prior unco nst itutional conduct (initially display ing the Ten Commandme

nts alone, in clear vio lation of Stone , then

su bse quently

displaying the Te

n Commandments alongside document s excerpted solely for their religious content), combined with the fact that Defendants add ed sec ular material only after this litigation ensue d, was relevant evidence of their purpose behind the displays’ final itera

tion. 4 8 ACLU of KY, et al . v. McCr eary County, KY, et

al. No. 01-5935

A careful reading of the

panel’s opiniondoes not support the dissen t’s attempt to conjure a conflict with Granzeier v. Middleton, 173 F.3d 568 (6th Cir. 1999).

Fi na ll y, the disse

nt argu es t hat “ the lead opinion

errone ously

app l ies the he ightene d Establishment Clau se standards for publi c schools to other public buildings such as courthouses.” This arg

ument is incorrect an d mis leadi ng. First, the discu ss ion of the pub lic schoo l and cour thouse setti ngs appeared in my separate d iscu ssion of the “endors ement”

prong of the three-part test under Lemon v

. Kurtzman, 403 U. S. 60 2 (197 1). J udge Gibbons did notjoin this aspect o f my

o pinion and, therefore, the discussion was notadopted by a ma

jority of the panel. I

t would have been inappropriatefor the entire Court to review this non-binding opinion.

Second, my opinion di d not equa te the pub lic school and courthou se setting s for all E stablishme nt Clause p

urposes. Rather, th e o pi ni on ob se rv ed th at ci ti ze ns typ ic al ly c on duct business a

t a court house by necessi ty, many times subje ct to the coercive pow e rs of the court, and, therefore, they are a
captive audience, similar to public school students, who ar e subject to mandatory attenda

nce requirements. Further, the fact that a co urth ou se is so plainly the seat of government requires courtsto ex ercise special care to ensure t hat a governmentaldisplay containing r eligious symbols is not tantam ou ntto gove

rnmenta l endorse ment of tho se sy

mbols. See McCreary County, 354 F.3d at 461.

Third, my opinion

never suggested that the

same concerns about g overn mental co ercion a nd endorsement a

pply to all public buildings. As the authorities cited abov e hold, the inquiry into an al leged E stabli shment Clause vio lation is a highly fact-sp ecific i

nquiry that depe nds, in part, on the particular physical setting of

the speech

at issue. I

expressed

no opinion about a display containing the Te n Commandments outside of a public school or a courthouse.No. 01-5935 ACLU of KY, et al . v. McCr eary County, KY, et

al. 9

For the foregoing reasons, I

concur in the decision of the en banc Court denying r

eview of the panel opinion. 10 ACLU of KY, et al . v. McCr eary County, KY, et

al. No. 01-5935

BOGGS,Chief Judge,

dissenting

fr om the denial of rehear ing en banc, j o ined by Batchelder, J. The core questionin this cas e is whether the district court and the panel majority erred in holding, as a matter of law, that despite the statement of histori cal and p atriotic secular purpose included in each display

at issue here, an

d despite the five separa te secular purposes for the d isplays articul ated by

the defe ndants inthe district court, they nonet hele ss have a

n essenti ally religious purpose because the Ten Commandments appear beside eight or

nine othe

rwise ind

isp u tably secular document s.

This c ourt has held that in Establishment Clause cases federa l courts mu st

defer to the government’s articula tion of

a secular purpose unless the stated pur pose is shown to be a “sham.” Chaudhuri v. Tenn ., 130 F.3 d 23 2, 236 (6th Cir. 1997). That rule

ha s b ee n m is ap pl ie d b y th e p an el ma jo ri ty.

Incoming to the conclusion that the defendants’ care f ully articulated

secular purposes are a sham, the cour t ignores the First Amendment principles laid out in County of Allegheny

v. ACLU , 492 U.S . 5 73 (1989), and Lynch v. Donnelly , 465 U.S. 668 (1984). It establishes a new a nd heightened standard of proof, ho lding tha

t the displa

ys l a ck ed a sec

ular pur pose bec ause they

“provide d the viewer with no analy tical o r historical c o nnection between the Ten Commandments and th e other historical documents.” ACLU of Ky. v . McCrea ry 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 uphe ld di sp la ys of a cro ss, Capitol Squa reReview & Advisory Bd. v. Pinette
, 515 U.S. 753, 766 (1995) (plurality opinion), a

cre c he, Lynch , 465 U.S. 668, and a menorah, County of Allegheny

, 492 U.S. 573, non e of whi ch made explicit an “analytica

l or historical co nnection” between the religious item and o ther, se cular ite ms in the dis

play s.No. 01-5935 ACLU of KY, et al . v. McCr eary County, KY, et

al. 11

The implication of the court’s decisionis that the presence of the Ten Commandmen ts, in an a rray c ontaining indisputa bly historical an d pa triotic se cular do cuments, convert s the whole into a

display having a

primarily religious purpose. The panel majority a ppears to have drawn th

is rule from Stone v. Graham , 449 U.S. 39 (1980), a brief, per curi a m disposition that preceded both Lynch and Donnelly

, and that bea rs no mea ningful factua l resembl ance to t

his case. Stone struck down a Kentucky statute that mandated the posting of the Te

n Commandme

nts, standing

alone , in every classroom

in the Commonwea lt h. In dicta , the Court stated that the Ten Commandmen

ts “ may constitutionally be used in

anappropr iate study

of history

, civilizat

ion, ethic s, comparative religion, or the like.” 449 U.S. at 42 (citing Sch. Dist. of Ab ington Township v. Schempp , 374 U.S. 203, 225 (1963)) (emphas is added ). I do no t beli eve th is lan guage can be read a s an attempt to state binding limits on all future constituti onally

valid disp lay s. And eve

n if it were t o be read inthat aggressive fashion, Stone c ertainly does not su

gges t that a display that includes the Ten Commandments as part of

anarray containing eight or

nine otherwise secular, historical documents, violates the First Amendment unless the display also provides a

n exp licit analytical or historica

l connection between the clearly se cular

and the a rguab ly r eligiou s items.

Another troubling aspect of the majority opinion concerns its sym pathetic treatme nt of the d

istrict c ourt’s c onc lusion that the history of the de fend ants’ earlier attempts to erect “constitu tionally invalid di sp lays” had “ ‘imprinted the defenda nts’ purpose, from the b eginning, with an unconstitutional taint[.]’” McCreary County , 354 F.3d at 457 (quoting ACLU of Ky. v

, McCrea ry County
, 145 F. Supp. 2d 845, 850 (E.D. Ky. 20 01 )). I think the history of the defenda nts’ displays is entitled to co nsider ably less weig ht thanthe majority give s it. Our court ha s previou sly

expressed great relucta nce to al low a governmen t’s past actions to taint its f uture a ctions from the standpoint of the Establishment Clause. In Gran zeier v. Middleton , 173 F.3d 568 (6th Cir. 12 ACLU of KY, et al . v. McCr eary County, KY, et

al. No. 01-5935

5 The hold ing and reaso ning o f Gra nzeier are co nsistent with the Supr eme Co urt’s dec ision in Santa Fe Independent School Distr ict v. Doe
, 530 U.S. 290 ( 2000), r eli ed upon by the panel . While t he Sant a Fe majo rity con si dered both the “t ext and hi story ” of th e school pol icy a t issue in t hat cas e, which authori zed a stu dent-e lect ed speaker t o make an “invocation” to “sole mnize ” hom e foo tball gam es, id. at 298 & n.6, 315, it also m ade clear tha t the po licy was, in fac t, in valid on its face

. Id. at 306-07, 314-15; see id. at 315 (“The narrow question before us is wh ether implement ati on of th e October polic y ins ulat es the conti nuati on of such
prayers from c onstitutio nal s crutin y.”). M oreo ver, the e viden ce of a “continuous” Establishment Clause vi o lation, as well as ot her troubling
aspe cts of the case’s history, were far st ronger i n Santa Fe than in this
case, where the co unties ha ve serio usly retho ught an d reo rganiz ed the ir displa ys in resp onse to co nstitutiona l conc erns. Cf. id. at 294- 98 (detaili ng variou s cosm etic altera tions m ade to schoo l district’s longstanding policy of pregame and graduation prayers, whi ch were frequ ently explic itly Christi an in nature; also noting t hat the record suggest ed that t

here had been off

icia l harassment and inti midation of the Santa Fe plainti ffs duri ng the li tigati on). 1999), we held that

the gov ernment

could close its offices on Good F ri da y without violating the Establishment Clause by adopting a “spring weekend” ratio nale, even t hough there was evidence t hat the gov ernment ’s purpos e was or iginally

r eligiou s, including a poster put up by a govern

men t employee depicting the Crucifixion. We stated that “the fact that a partic ular clo sing wa s once co nstitutiona

ll y su sp ect does not prevent it from being reins tat ed in a constitutional form.” Id. at 574. Ou

r holdi ng in Granzeie

r reflects an important principle of equal treatment

that is slighted by the panel’s opinion. I

n gene ral, gover nmental b odies, like other litigant s, should be free to take i nstruc tion from prior decisions or arguments, and thu s to eschew, or move away from, practices that are contrary to law. 5

Fi na ll y, the lead op inio n erroneously a pplies the heightened EstablishmentClause standards for publ ic schools to other public buildings suchas courthouses. SeeMcCreary County
, 354 F.3d at 461 . This ignores the reasons given by the Supreme Co u rt for creating a heig htened constitutionalNo. 01-5935 ACLU of KY, et al . v. McCr eary County, KY, et

al. 13

st an dard in public schools, namely that y oung children are impressionableand that t he state exercise s c oerciv e power throu ghmandatory school a tten dance requirem ents. Edwards

v. Aguillard

, 4 82 U .S. 578, 584

(1987). B y a

pply ing thes e heightened

require ments to co

urthouse s and othe

r public building s, the lead

opinion not

only misapplie s the law, it also invites a new ro

und of Fi

rst Amend

ment cha llenge s to religious texts and symbols that are nearly

ubiquitous in nonsc hool housepublic buildings throughout the nation, particu larly courthou ses.

The court’s decision, that the Ten Comma ndments’ text is impermiss ible as one of

ten other

wise sec ular doc uments, gives no further guidance. Would it be permissible as one of twenty other texts, or

one of one hun dr ed ? Would it make a differenceif the display involved a pictorial r ep r esentation,

ra the r than a t ext ?

Ihave seen at

one institu

tion what s eemed to

me a possible solution to so me co nt ro ve rs ie s o f t hi s t yp e. There was a
re presentation

of two tablets, bearing only the R oman numeral s from “I” to “X .” This le ft it to all o bservers to decide what exact text they wished to i

mpose on that

sym bol. But under the court’s decision, I have no idea if even t

his display could pass muster.
Believing the panel’s dec ision to be both draconian and legally unsupported, I would rehear this ca se, so that the full court cou ld giv e it mo re n uan ced con si der ati on. I there fore respectfully dissent f

rom the denial of rehearing en ba nc.