In the

United States Court of Appeals

For the Seventh Circuit

No. 00-3011

Indiana Civil Liberties Union, Joan Laskowski, 

Alice Bennett, et al.,

Plaintiffs-Appellees,

v.

Frank O’Bannon, Governor of Indiana,

Defendant-Appellant.

Appeal from the United States District Court

for the Southern District of Indiana, Indianapolis Division.

No. 00 C 811--Sarah Evans Barker, Judge.

Argued January 9, 2001--Decided July 27, 2001

 Before Flaum, Chief Judge, and Bauer and

Coffey, Circuit Judges.

 Bauer, Circuit Judge. This case comes to

us upon the district court’s grant of a

preliminary injunction. On appeal, the

dispute concerns whether plaintiffs are

likely to succeed on the merits. Akin to

our recent decision in Books v. City of

Elkhart, 235 F.3d 292 (7th Cir.

2000),/1 we must determine whether a

monument to be placed on state government

property will violate the Establishment

Clause of the First Amendment to the

United States Constitution made

applicable to the states through the

Fourteenth Amendment. "This task requires

that we examine the history of the

monument’s placement and maintenance as

well as the physical characteristics of

the monument and of the surrounding

area," Books, 235 F.3d at 294, and then

apply the test articulated in Lemon v.

Kurtzman, 403 U.S. 602 (1971). We have

completed this work and affirm the

district court’s entrance of the

preliminary injunction pending resolution

on the merits.

BACKGROUND

 As detailed in Books, 235 F.3d at 294-

95, the Fraternal Order of the Eagles

donated plaques inscribed with a version

of the Ten Commandments (developed by
representatives of Judaism,

Protestantism, and Catholicism) to

communities across the United States

during the 1950s. In 1958, one of the

plaques was erected on the Indiana

Statehouse grounds in downtown

Indianapolis, where it stood until

smashed by a vandal in 1991. Indiana

State Representative Brent Steele

arranged for the creation of a new

monument to replace the destroyed plaque.

The Indiana Limestone Institute

generously agreed to donate both

limestone and labor for this purpose.

Steele, also an attorney, surmised that

it would be legally prudent if, in

addition to the Ten Commandments, the new

monument displayed historical texts. The

texts he chose were the Bill of Rights

from the United States Constitution and

the Preamble to the 1851 Indiana

Constitution.

 The planned monument consists of two

pieces of limestone--a four-sided block

resting upon a rectangular base-- and

will weigh 11,500 pounds. The two wider

sides of the four-sided block are carved

into rounded arcs at the top, which

resemble tablets, a form typically used

in artistic depictions of the stone

tablets delivered by Moses upon returning

from Mt. Sinai. The monument will stand

seven feet tall; six feet, seven inches

wide; and four feet, seven inches deep.

On one of the wide surfaces, the

following version of the Ten Commandments

will be engraved in one inch, all capital

lettering:

Ten Commandments

I. Thou shalt have no other Gods before me

II. Thou shalt not make unto thee any

graven image

III. Thou shalt not take the name of the

Lord thy God in vain

IV. Remember the Sabbath day to keep it

holy

V. Honor thy father and thy mother that

thy days may be long in the land which

the Lord thy God giveth thee

VI. Thou shalt not kill

VII. Thou shalt not commit adultery
VIII. Thou shalt not steal

IX. Thou shalt not bear false witness

against thy neighbor

X. Thou shalt not covet thy neighbor’s

house or wife or anything that is thy

neighbor’s

The other wide surface will display the

Bill of Rights in five-eighths inch, all

capital lettering. On one of the smaller

sides the 1851 Indiana Constitution

Preamble will be inscribed, which states:

To the end, that justice be established,

public order maintained, and liberty

perpetuated: We, the People of the State

of Indiana, grateful to Almighty God for

the free exercise of the right to choose

our own form of government, do ordain

this Constitution.

The 1851 Preamble will not be clearly

identified as such. The other small side

will read:

Gift of the Indiana Limestone Industry--

2000 A.D.

This monument replaces one donated by the

Aeries and Auxiliaries of the Indiana

Fraternal Order of the Eagles on October

25, 1958

The record is not clear as to the exact

size of the lettering for the 1851

Preamble and the dedication.

 The Statehouse park-like grounds span

almost two acres and are home to many

Indiana government buildings, including

the Capitol Building, the Governor’s

office, the General Assembly, the Indiana

Supreme Court, the Indiana Court of

Appeals, and other state offices. The

grounds are surrounded by Ohio Street to

the north, Washington Street to the

south, Capitol Avenue to the east, and

Senate Avenue to the west. There are

numerous monuments currently on the

grounds, including two monuments honoring

the civil engineering of the National

Road (U.S. Highway 40), a marker honoring

the women of Indiana, two friezes

depicting Civil War scenes, a marker

describing the Statehouse’s history, and

statues of Christopher Columbus, George

Washington, a coal miner, and Indiana
Governors Thomas A. Hendricks and Oliver

H.P. Morton. The grounds also showcase

seven dedicated trees. The planned site

for the monument at issue in this case is

the southwest corner of the grounds,

about forty-one feet from one of the

trees and ninety-two feet from the

National Road monument, although

precisely where and in what direction it

will face is as of yet undetermined.

 In May of 2000, plaintiffs filed an

action under 42 U.S.C. sec. 1983,

claiming that acceptance of the monument

and the plan to erect it on the grounds

of the Indiana Statehouse was state

action that violated the Establishment

Clause. On July 28, 2000, the district

court granted plaintiffs’ motion for a

preliminary injunction precluding the

State from erecting the monument pending

resolution on the merits. See Indiana

Civil Liberties Union v. O’Bannon, 110 F.

Supp. 2d 842 (S.D. Ind. 2000)./2 The

district court held that the plaintiffs

had demonstrated a likelihood of success

on the merits by showing that the state

action violated both of the first two

prongs of the Lemon test.

 Under the first prong of the Lemon test,

the district court reasoned that the

State’s purpose in displaying the

monument was to advance religion because

the State had not shown a historical link

between most of the Ten Commandments and

the ideals of government and the legal

system, that the monument’s tablet-shaped

design was religious in nature, the Ten

Commandments would be displayed apart

from the other texts, and there was no

explanation on the monument that the Ten

Commandments was being displayed for its

historical significance. Under the second

prong, the district court reiterated that

the content, shape, size, design,

permanence, and location at the seat of

Indiana’s government, would lead a

reasonable observer to believe that the

Ten Commandments were "marked with the

stamp of government approval."

 The State’s appeal asks for the vacation

of the preliminary injunction because the

plaintiffs have not shown that they are

likely to succeed on the merits.

DISCUSSION

 A preliminary injunction is an
extraordinary remedy intended to preserve

the status quo until the merits of a case

may be resolved. A preliminary injunction

may be issued only if the moving party

demonstrates some likelihood of success

on the merits, an inadequate remedy at

law, and irreparable harm if denied. If

these elements are demonstrated, the

court must balance the irreparable harm

the nonmovant will suffer if relief is

granted and the irreparable harm to the

movant if relief is denied. The court

must also consider the public interest in

either the grant or denial of the relief.

When a district court grants a

preliminary injunction, we review

conclusions of law de novo and findings

of fact for clear error while giving

substantial deference to the district

court’s discretionary acts of weighing

evidence or balancing equitable factors.

See Cooper v. Salazar, 196 F.3d 809, 813

(7th Cir. 1999).

 Deciding the merits of this case

involves the application of the Lemon

test. Under Lemon, the Establishment

Clause is violated if any of the

following are found: (1) the state action

does not have a secular purpose; (2) the

primary effect of the state action is the

advancement or inhibition of religion; or

(3) the state action fosters excessive

entanglement with religion. See 403 U.S.

at 612-13. In this case, the parties only

invoke the first two prongs, which have

been refined and dubbed the "endorsement

test." See Books, 235 F.3d at 301. Under

the endorsement test we focus on whether

the state’s action has the purpose or

effect of conveying a message of

endorsement or disapproval of religion.

See id. at 302.

 I. Secular Purpose

 Under the first prong of the Lemon test,

we ask whether the State’s actual purpose

in planning to erect this monument on the

Statehouse grounds is to advance or

inhibit religion. See id. We have

recognized that the Ten Commandments is a

religious and sacred text that transcends

secular ethical or moral concerns. See

id. This is so in part because its very

text commands the reader to worship only

the Lord God, to avoid idolatry, to not

use the Lord’s name in vain, and to

observe the Sabbath. These particular

commandments are wholly religious in
nature, and serve no conceivable secular

function. Yet, we have also recognized

that the Ten Commandments "can no doubt

be presented by the government as playing

. . . a role in our civic order." Id. at

302-03 (recognizing the secular nature of

the frieze on the wall of the United

States Supreme Court depicting

Mosesholding the Ten Commandments

alongside other "great lawgivers" or the

secular use of the Ten Commandments in

public schools to study history,

civilization, ethics, or comparative

religion).

 Since displaying the text of the Ten

Commandments may have a legitimate

secular purpose, the state bears the bur

den of demonstrating "that it has taken

steps to ’obviate its religious purpose.’"

Id. at 303 n.8 (quoting Gonzales v. North

Township, 4 F.3d 1412, 1421 (7th Cir.

1993)). We generally defer to the purpose

offered by the state for its action as

long as it is not a sham. Beyond

assessing the purpose expressly

articulated by the state, we ensure that

the stated secular purpose is legitimate

by also examining the context and the

content of the display. See id. at 302-

04.

 Since the new monument will be

significantly different than the 1958

version, we do not rely on the stated

purpose for the display of the 1958

plaque. Therefore, the March 14, 2000

press release issued by Governor O’Bannon

announcing that Indiana would accept the

new monument provides the state’s stated

purpose for agreeing to erect the

monument. In the press release, Governor

O’Bannon stated:

For more than three decades, a monument

inscribed with the Ten Commandments stood

on the Statehouse lawn as a reminder of

some of our nation’s core values. Soon

those words will stand alongside the

biding principals of our form of

government, especially its protections of

individual rights. They’re ideals we all

need to be reminded of from time to time.

Citing State v. Freedom From Religion

Found., Inc., 898 P.2d 1013 (Colo. 1995),

the State adds that the display reflects

the ideals of our legal system. Regarding

the context of the monument, Governor

O’Bannon stated: "The new monument will
be an integral part of the

Statehousesetting, which honors the

history of our state and our nation." As

for the monument’s content, the State

points out that most of the words

displayed on it are secular in nature. In

sum, the State says that the monument is

intended to honor our history by

reminding society of its core values and

to honor our legal tradition since

several of our secular laws are parallel

to the Ten Commandments. 

 We start by saying that the display of

secular texts along with the Ten

Commandments does not automatically lead

to a finding that the purpose in erecting

the monument is primarily secular. The

Ten Commandments is still an inherently

religious text, and we conclude that the

State has not articulated a valid secular

justification for planning to erect the

monument.

 The stated purpose that the Commandments

will remind society of its "core values"

is akin to the purpose of providing a

"code of conduct" rejected in Books. We

stated: "The code chosen, however, was a

religious code that focuses not only on

subjects that are the legitimate concern

of civil authorities, but are subjects

that are beyond the ken of any government

and that address directly the

relationship of the individual human

being and God." 235 F.3d at 303. The

Commandments are historical, secular

"core values" only to those who adhere to

them. This is all the more true since the

version here, as noted, maintains the

religion-based commandments. Moreover,

since each text stands apart, the

monument’s physical design belies any

suggestion that these texts are presented

as a whole to remind viewers of the core

values and legal ideals of our nation.

While we hold that the State’s

articulated purposes are not secular

ones, we go on to consider the next prong

of the Lemon test.

 II. Primary Effect

 Under the second prong, we ask,

irrespective of the state’s stated

purpose, whether accepting this monument

for display on the Statehouse grounds has

the primary effect of conveying a message

that the state is advancing or inhibiting
religion. See id. at 304. The question

is: would a reasonable person believe

that the display amounts to an

endorsement of religion? "An 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, of their individual

religious choices." Id. at 305

(quotations omitted). Again, to answer

these questions we examine the content

and context of the display. See id. at

304-06.

 The State argues that the other statues

and monuments help neutralize any

religious message emanating from the Ten

Commandments because they lend a

historical context. It is true that the

grounds house other statues and

monuments, which certainly helps the

State’s case because the grounds are

somewhat akin to a museum, and "a typical

museum setting, though not neutralizing

the religious content of a religious

painting, negates any message of

endorsement of that content." Lynch v.

Donnelly, 465 U.S. 668, 692 (1983)

(O’Connor, J., concurring). But, this is

not simply some museum nestled in some

secluded park. The grounds, which house,

among other things the Capitol, the

Governor’s office, the General Assembly,

the Indiana Supreme Court, and the

Indiana Court of Appeals, is the seat of

Indiana government. "[We subject] to

particularly careful scrutiny displays at

the seat of government." Books, 235 F.3d

at 305 (discussing Harris v. City of

Zion, 927 F.3d 1401 (7th Cir. 1999);

American Jewish Congress v. City of

Chicago, 827 F.2d 120 (7th Cir. 1987)).

Given that these grounds are home to all

of the branches of Indiana’s government,

we are hard-pressed to conclude anything

other than that a reasonable observer

would think that this monument,

regardless of the message it conveys,

occupies this location with the support

of the state government. And, since we

find that a reasonable observer would

think the monument conveys a religious

message, we hold that it impermissibly

endorses religion.

 The large limestone monument, weighing
just under six tons and standing seven

feet tall and four feet wide, will be a

permanent fixture on the Statehouse

grounds. Its very format conveys a

religious message. The limestone blocks

are tablet-shaped, so, particularly given

its height, even from afar the religious

nature of the monument is suggested to

observers. The lettering of the Ten

Commandments is larger (one inch capital

lettering) than the Bill of Rights

inscribed on the other side (five-eighths

inch capital lettering), making the

Commandments more prominent to observers.

The State explains that the lettering

sizes are difference because the Ten

Commandments consists of fewer words than

that of the Bill of Rights, and

therefore, the lettering of the Bill of

Rights is necessarily smaller so that it

can fit on the face of the stone. 

 While this is an eminently reasonable

reason, it is of no matter unless a

reasonable observer would surmise such,

which we doubt. But, even if a reasonable

observer would surmise such, the fact

that the Ten Commandments is in larger

lettering also means that it can be

observed more clearly from a distance.

And, depending on from which direction an

observer approaches, he or she may only

view the Commandments by peering back,

for it stands alone on one side, totally

isolated from the other texts. So,

approaching from one side, an observer

would only see the Ten Commandments,

reasonably leading he or she to believe

that the monument only displayed the

sacred text.

 The placement of the texts on different

sides also inhibits observers from

visually connecting the texts. We further

hazard that since the texts are not

visually connected, a reasonable observer

would be hard-pressed to make any

analytical connection between the texts,

particularly since the planned monument

lacks any marker explaining why these

particular texts have been combined,

although somewhat separately, on one slab

of limestone. A reasonable observer would

not necessarily link all three of these

texts to society’s legal development and

history. A reasonable person will think

religion, not history.

 Nothing in the context of the monument

itself or the surrounding grounds
mitigates the religious message conveyed.

The monument is a display distinct both

in its placement by other statues and

monuments and in its content. See

generally County of Allegheny v. ACLU,

492 U.S. 573, 598 n.48 (1988). There are

no other monuments or statues directly

near this one and there is no unifying

historical or legal significance between

this monument and the others.

 Moreover, an observer who views the

entire monument may reasonably believe

that it impermissibly links religion and

law since the Bill of Rights and the 1851

Preamble are near the sacred text. This

would signal that the state approved of

such a link, and was sending a message of

endorsement. See Books, 235 F.3d at 307

(finding that the placement of the

American Eagle gripping the national

colors at the top of a plaque inscribed

with the Ten Commandments endorsed a link

between religion and civil government);

City of Zion, 927 F.2d at 1412 (finding

that the placement of a Latin cross

surrounded by other symbols of city life

on a municipality’s corporate seal

endorsed a link between Christianity and

government).

 The permanence, content, design, and

context of the monument amounts to the

endorsement of religion by the state. Our

holding is in regards to the likelihood

of success on the merits based on the

facts available to us at this preliminary

stage, but we are hard-pressed to believe

that a trial on the merits will support a

different conclusion. See ACLU v. City of

St. Charles, 794 F.2d 265, 269 (7th Cir.

1986).

CONCLUSION

 We AFFIRM the district court’s entrance

of the preliminary injunction, pending

resolution on the merits.

FOOTNOTES

/1 On May 29, 2001, the Supreme Court denied the

petition for a writ of certiorari in our opinion

in Books. See Elkhart v. Books, 121 S. Ct. 2209,

2209 (2001). Chief Justice Rehnquist, joined by

Justices Scalia and Thomas dissented from the

denial of certiorari, and Justice Stevens issued

a statement in support of the denial. Justice

Stevens wrote:
Even though the first two lines of the monument’s

text appear in significantly larger font than the

remainder, they are ignored by the dissenters.

Those lines read: "THE TEN COMMANDMENTS--I AM the

LORD thy GOD." The graphic emphasis placed on

those first lines is rather hard to square with

the proposition that the monument expresses no

particular religious preference . . . .

121 S. Ct. at 2210. The denial of certiorari in

Books, coupled with Justice Stevens’ statement,

makes our reasoning and decision in this case all

the more sound.

/2 Shortly after entrance of the preliminary injunction in this case, Representative Steele asked

the President of the Lawrence County Commissioners, Timothy P. Terry, if the monument could be

erected on the Lawrence County Courthouse lawn

until a decision in this appeal was issued. The

Commission voted to accept the monument for

display. Not surprisingly, the erection of the

monument on the Courthouse lawn spurred the

filing of an identical case, which is also being

handled by Judge Barker. See Kimbley v. Lawrence

County, 119 F. Supp. 2d 856 (S.D. Ind. 2000).

 Coffey, Circuit Judge, dissenting. I do not

disagree with the majority’s presentation of the

facts at issue before us. The state of Indiana

plans to erect a monument on Indiana Statehouse

grounds that is to be engraved on various sides

with the Ten Commandments, the Bill of Rights,

and the Preamble to the Indiana Constitution

("Preamble") on its sides. The plan to erect the

monument originated after vandals destroyed a

monument inscribed with the Ten Commandments,

which had previously stood on the Statehouse

grounds since 1958. I respectfully dissent because I believe that applying Lemon and its

progeny should lead us to the conclusion that the

proposed monument by the State of Indiana is not

constitutionally prohibited under the Establishment Clause. 

I. Lemon Test

 In Lemon v. Kurtzman, 403 U.S. 602 (1971), the

Supreme Court adopted a three-part test for

analyzing Establishment Clause cases. Initially,

the government’s challenged practice must have a

secular purpose. Second, the principal or primary

effect must be one that neither advances nor

inhibits religion. Third, the government’s practice must not create an excessive entanglement of

religion. Because the third prong is not at

issue, the discussion focuses on the first two
prongs.

 The Lemon test continues to be criticized. See,

e.g., Santa Fe Indep. Sch. Dist. v. Doe, 120

S.Ct. 2266, 2284-85 (2000) (Rehnquist, C.J.,

dissenting); Lamb’s Chapel v. Center Moriches

Union Free Sch. Dist., 508 U.S. 384, 398-99

(Scalia, J., concurring in judgment); Committee

for Pub. Educ. & Religious Liberty v. Regan, 444

U.S. 646, 671 (1980) (Stevens, J., dissenting).

Although the Lemon test remains theframework

under which we analyze an Establishment Clause

issue, I believe it helpful to always bear in

mind the text of the First Amendment, which is

fundamental and clear:

Congress shall make no law respecting an establishment of religion, or prohibiting the free

exercise thereof.

U.S. Const., amend. I (emphasis added). 

 The Establishment Clause was intended to prohibit the establishment of a national church and

also to prohibit the Federal Government from

preferring one religious denomination over others. See Wallace v. Jaffree, 472 U.S. 38, 113

(1985) (Rehnquist, J., dissenting). It was never

intended to "build a wall of separation" between

government and religion. See id. at 98 (Rehnquist, J., dissenting). The wholesome neutrality

guaranteed by the Establishment and Free Exercise

Clauses does not dictate the obliteration of all

the nation’s religious traditions. Indeed, as the

Supreme Court has noted, "no significant segment

of our society and no institution within it can

exist in a vacuum or in total or absolute isolation from all the other parts, much less from

government." Lynch v. Donnelly, 465 U.S. 668, 673

(1984). The Constitution does not "require complete separation of church and state; it affirmatively mandates accommodation, not merely tolerance, of all religions, and forbids hostility

toward any." Id. (emphasis added)./1 

 Judges and legal scholars agree that the Lemon

test has led to inconsistent results. See Wallace, 472 U.S. at 110-11 (Rehnquist, J. dissenting) (discussing inconsistencies brought about by

the Supreme Court’s Establishment Clause jurisprudence). It is possible to pick and choose from

the myriad of case law dealing with the Establishment Clause to find case law to suit each and

every position on any given factual situation.

For example, public monuments invoking the deity

offend the Constitution, but mottos emblazoned on

coins or religious language contained in Constitutions or in the Bill of Rights do not. Teenagers may not participate in school-organized

prayer at football games, but Congress, the
courts, and state legislatures may open sessions

with a prayer. In the end, the Court annually

picks the winners and losers in a game of freeexercise roulette, expanding or contracting the

Establishment Clause as it sees fit to permit or

deny the claimed exemption in a given term.

Nevertheless, I acknowledge without hesitation

that we are bound to apply Lemon, though I

contend that no matter how the test is applied in

the factual situation before us, the proposed

monument can withstand constitutional scrutiny.

A. Secular Purpose

 Under Lemon, the government’s challenged practice must have a secular purpose. In determining

whether a secular purpose exists, the Supreme

Court merely requires that the displays not be

"motivated wholly by religious considerations."

Lynch, 465 U.S. at 680. This monument consists of

three sides--two of which are completely secular

in nature. Simply because some religious meaning

is conveyed by a monument does not destroy a

state’s valid secular purposes for its display.

See Lynch, 465 U.S. at 680; Bridenbaugh v. O’Bannon, 185 F.3d 796, 800 (7th Cir. 1999). 

 The majority concludes that "[t]he Ten Commandments is still an inherently religious text, and

. . . that the State [of Indiana] has not articulated a valid secular justification for planning

to erect the monument." The Commandments are a

"sacred text in the Jewish and Christian faiths,"

concerning, in part, the "religious duties of

believers." Stone v. Graham, 449 U.S. 39, 41-42

(1980). But neither Stone, nor any other Supreme

Court decision for that matter, even suggests

that the Ten Commandments are without a secular

significance. Indeed, Stone noted that "integrated into the school curriculum" the Commandments

"may constitutionally be used in an appropriate

study of history, civilization, [or] ethics." Id.

at 42.

 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). Six of the Ten Commandments

are, in fact, wholly secular, and form the basis

of much of our modern codes of criminal conduct.

The historic, secular nature of the Ten Commandments is recognized inside the walls of the

United States Supreme Court, one of which is

adorned with a frieze that contains Moses holding

the Ten Commandments, alongside other historic

figures, both religious and secular. See County

of Allegheny v. American Civil Liberties Union,

Greater Pittsburgh Chapter, 492 U.S. 573, 652
(1989) (Stevens, J., concurring in part and

dissenting in part). Justice Stevens stated that

the placement of these historic figures together

on the frieze signals a respect for great lawgivers, not great proselytizers, which is a fitting

message for the wall of a courtroom. See id. at

652-53. If the Ten Commandments properly convey

a secular message when adorning the wall of a

Federal Courtroom, I cannot understand how the

State of Indiana’s proposed placement of the

three-sided monument amidst twelve other secular

symbols of the nation’s legal and cultural history fails to similarly convey a secular message.

I do not understand why the majority reasons that

but four lines on the monument (those four Commandments that reference God) so overshadow the

remainder of the monument (which includes the

Bill of Rights and the Preamble to the Indiana

Constitution) such that the majority concludes

the monument has no secular purpose whatsoever.

 Here, the State of Indiana has architecturally

blended the text of the Ten Commandments with two

other important legal texts--the United States

Bill of Rights and the Preamble to the Indiana

Constitution (not to mention the twelve other

secular monuments with which it would share the

Statehouse lawn). The explicit language of the

Preamble further reflects the secular message of

the monument. The Preamble to the Indiana constitution states three goals: 1) for "justice [to]

be established"; 2) for "public order [to be]

maintained"; and 3) for "liberty [to be] perpetuated". The three goals espoused by the Preamble,

reinforced by the freedoms contained in the Bill

of Rights, clearly serve to secularize the monument, memorializing the cornerstones of our

civilization’s law.

 The majority somehow suggests that the design

and construction of the monument belies any

intention to convey a secular message. Respectfully, I am forced to disagree. It seems to me

that the majority is overly concerned with the

design of the monument. This court, nor any other

court, should not be in the business of monument

design. If the State of Indiana believes that it

is aesthetically pleasing (or more conducive to

conveying a historical message) to erect the

monument as designed, it should be permitted to

do so without the court making the assumption

based only on a foundation of quicksand that a

reasonable observer will glance only at a single

side or glance only at the side bearing the

larger letters. I believe that a court’s inquiry

should focus on the reasonable observer viewing

the display in its entirety, and not on an

observer’s potential misperception of an isolated

aspect of the display. When any person focuses on

only one particular aspect of a monument or
display to the exclusion of the other aspects it

will distort even the most reasonable observer’s

opinion. It seems far more reasonable to assume

that a person taking the time to gaze upon the

beautiful edifice will look at all three sides,

and draw conclusions from the whole--which presents three important steps in the development of

the law as they affect 1) the people of the

world; 2) the citizens of the United States; and

3) the citizens of the State of Indiana. 

 Further, because the Preamble to the Indiana

Constitution would occupy the smaller side of the

monument between the Ten Commandments and the

Bill of Rights, its message, "that justice be

established, public order maintained, and liberty

perpetuated," would link the Ten Commandments

with the Bill of Rights and convey a secular

message of the fundamental legal principles which

form the basis of our national history and culture.

 Indiana Governor O’Bannon explicitly articulated

the secular purpose of the monument, stating that

it was to be "an integral part of the Statehouse

setting, which honors the history of our state

and our nation." The Governor’s March 14, 2000,

press release further stated that the Ten Commandments "stood on the Statehouse lawn as a

reminder of some of our nation’s core values . .

. [and that] [s]oon those words will stand alongside the abiding principals of our form of government, especially its protections of individual

rights. They’re ideals we all need to be reminded

of from time to time." 

 We are "normally deferential" to "articulation[s] of secular purpose," so long as they are

"sincere and not a sham." Edwards v. Aguillard,

482 U.S. 578, 586-87 (1987). "This is in keeping

with the well settled maxim that courts are

’reluctan[t] to attribute unconstitutional motives to the States, particularly when a plausible secular purpose for the State’s program may

be discerned. . . .’" Cohen v. City of Des

Plaines, 8 F.3d 484, 489 (7th Cir. 1993) (quoting

Mueller v. Allen, 463 U.S. 388, 394-95 (1983)).

 The majority attempts to downplay Governor

O’Bannon’s press release, stating that reminding

society of its "core values" is akin to the

purpose of providing a "code of conduct" rejected

in Books. But this is not the same case as Books,

and "[e]very government practice must be judged

in its unique circumstances. . . ." Allegheny,

492 U.S. at 595. In Books, the only text set

forth on the single monument at issue was that of

the Ten Commandments. In the factual situation

before us, the Ten Commandments stands joined

with the Bill of Rights and the Preamble to the
Indiana Constitution, thus linking the three

texts and conveying a secular message regarding

our nation’s legal history. The Governor’s wellreasoned message in his press release cannot and

should not be construed as shallow words without

meaning or sincerity.

 Nevertheless, the majority here, partially based

on the recent decision in Books, 235 F.3d at 303-

04, seems to go out of its way to second guess

Governor O’Bannon’s stated purpose for the proposed monument in an attempt to discredit that

purpose. The Governor (and also the Elkhart City

Council, in Books) should be presumed to have

fulfilled the duties of his office with honesty

and integrity. There is not one iota of evidence

of insincerity here, and in my opinion no justification for the majority’s refusal to give

credit to the state’s articulated purpose. See,

e.g., American Jewish Congress v. City of Chicago, 827 F.2d 120, 127 (7th Cir. 1987) (relying on

affidavit from mayor’s chief of staff stating

secular reasons to attract visitors to downtown

businesses and to take official note of Christmas

to find a secular reason behind a nativity display and noting "the absence of any evidence that

the city’s stated purposes behind the display of

the nativity scene are merely a sham");

Bridenbaugh, 185 F.3d at 799 (relying on testimony offered during litigation as to Indiana’s

purpose for giving employees a Good Friday holiday). 

 I believe that the proposed monument conveys a

secular message that honors and pays due homage

to our nation’s legal history. Accordingly, I

would hold that the monument satisfies the first

prong of the Lemon test requiring a valid secular

purpose.

B. Principal or Primary Effect

 The second prong of Lemon focuses on whether

the government’s practice has the principal or

primary effect of advancing or inhibiting religion. Freedom From Religion Foundation, Inc. v.

City of Marshfield, 203 F.3d 487, 493 (7th Cir.

2000). Under this prong we ask only in the case

before us whether an "objective observer" would

perceive the display as a state endorsement of

religion. See Santa Fe Indep. Sch. Dist. v. Doe,

530 U.S. 290, 308 (2000). The appropriate inquiry

is thus, whether a citizen knowing the totality

of the facts and circumstances surrounding the

placement of the proposed monument would believe

that the State of Indiana and its officials seek

to endorse, rather than merely respect and tolerate, religion by placing it on the Statehouse

lawn. See Capitol Square Review and Advisory Bd.

v. Pinette, 515 U.S. 753, 777 (1995) (O’Connor,
J., concurring). "A policy which tolerates religion, [however], does not improperly endorse it."

Chandler v. Siegelman, 230 F.3d 1313, 1317 (11th

Cir. 2000) (emphasis in original).

 Even recent decisions of the Supreme Court have

looked favorably upon the constitutionality of

government displays of purely religious symbols--

a creche and a menorah--when those symbols were

part of a larger display, as in the factual

situation before us. See Lynch, 465 U.S. at 686;

Allegheny, 492 U.S. at 617-18; see also Books,

235 F.3d at 316-18 (Manion, J., dissenting)

(discussing Lynch and Allegheny). The Court’s

guidance appears to be that where the religious

display--the creche in Allegheny--stood alone, it

violated the Establishment Clause. Allegheny, 492

U.S. at 598-99. 

 As Lynch and Allegheny teach, the inquiry into

whether the display of a religious symbol violates the Establishment Clause turns upon the

context in which the symbol appears. In this

case, the Ten Commandments is not the only text

to be inscribed on the monument, but instead is

only one portion of the display, to be accompanied the Bill of Rights and the Preamble to the

State of Indiana’s Constitution. 

 The majority curiously suggests, however, that

an observer who views the entire display may

reasonably believe that it links religion and law

since the Bill of Rights and the Preamble are

near the Commandments. The cases the majority

cites for this proposition are distinguishable.

In Books, 235 F.3d 292, and Harris v. City of

Zion, 927 F.3d 1401 (7th Cir. 1999), the religious symbol was directly linked to a governmental symbol--an American Eagle gripping the national colors atop a plaque inscribed with the

Ten Commandments and a Latin cross surrounded by

other symbols of city life on a municipality’s

corporate seal. Here the monument does not join

government symbols (such as the American Eagle or

a municipality’s seal) with religious symbols or

text. 

 Moreover, the layout of monuments that adorn

the Statehouse lawn also serves to diminish any

perceived endorsement of religion that may allegedly flow from the monument at issue. The proposed monument would share the Statehouse lawn

with twelve other monuments--all wholly secular

in nature, thereby emphasizing the secular aspects not only of the proposed monument but of

the entire designated area. For instance, among

the twelve other monuments are busts and statues

of historic figures--Christopher Columbus, George

Washington, and Robert Dale Owen. There are

statues of former Indiana Governors Thomas A.
Hindricks and Oliver H.P. Morton. There are

monuments commemorating historic events and

ideals of liberty--two Civil War friezes and two

monuments dedicated to the National Road. There

is also a statue of a coal miner to honor Indiana’s coal mining history and a marker honoring

the Statehouse itself. In short the Statehouse

lawn is an area dedicated to monuments that pay

due homage to both the state’s and the nation’s

history that serves to situate the monument in an

appropriate cultural and historical context.

 As the Supreme Court clearly noted in Lynch, in

applying the second prong of the Lemon test a

court should not focus exclusively on the religious symbol, but within the context in which the

symbol appears. Lynch, 465 U.S. at 680. In Lynch,

the Court allowed the city of Pawtucket, Rhode

Island to erect a holiday display that included

a crechedepicting the nativity scene where that

creche was surrounded with other secular symbols,

such as reindeer, Santa Claus, candy-striped

poles, teddy bears, among others. Lynch, 465 U.S.

at 671. Here, the context of the proposed monument, placed amongst the twelve other secular

markers honoring Indiana’s and the nation’s

history, only serves to reinforce the secular

nature of the monument in question as set forth

and clearly delineated in Governor O’Bannon’s

press release. The twelve secular monuments that

would share the Statehouse lawn with the proposed

monument create a museum-like setting that effectively and persuasively does away with any conceivable endorsement of religion that would flow

from the proposed monument. 

 The majority suggests that the other monuments

would be too far away to contribute to the

secular message of the proposed monument. I fail

to see what effect the distance between the

monuments upon the very beautiful plot of land

has upon our analysis. Indeed the proposed monument is not given a special place on the Statehouse lawn any more than any of the other memorial edifices. Instead, it would be merely just one

of a number (12) of monuments on the lawn. In my

view, the vastness of the grounds, coupled with

the number and diversity of the subject matter of

the monuments, dilutes even the slightest perceived endorsement of religion flowing from the

proposed monument. Accordingly, I conclude that

the proposed monument does not constitute an

endorsement of religion. Because it also satisfies and fits within the parameters of the other

prongs of Lemon, I would further hold that it

does not violate the Establishment Clause.

II. Historical Practices

 Even if the proposed monument was found not to
satisfy the requirements of Lemon, which I am

convinced it does, I still would dissent from the

majority’s opinion. Where a religious symbol has

a landmark foundation and meaning in the history

of our country the Supreme Court has side-stepped

the strictures of Lemon to avoid a result contrary to the clear intent of the Framers of the

Constitution. Then-Justice Rehnquist discussed at

length the history and intent of the Framers who

crafted the First Amendment in Wallace, 472 U.S.

at 95-114 (Rehnquist, J., dissenting). I share in

the view that the First Amendment was never

intended to be read in a wholly secular fashion,

as if its objective were to remove all religious

expression from the public square and to prefer

irreligion over religion. 

 Our Nation’s history is replete with religious

symbols "linked" in some way to the government.

Indeed, George Washington, at the request of the

Congress that passed the Bill of Rights, proclaimed, Thanksgiving to be a day of "prayer to

be observed by acknowledging with grateful hearts

the many and signal favors of Almighty God." See

id., 472 U.S. at 113. Washington further declared

Thanksgiving "to be devoted by the people of

these states to the service of that great and

glorious Being who is the beneficial author of

all the good that was, that is, or that will be

. . . [and] that we may all unite in rendering

unto Him our sincere and humble thanks for his

kind care and protection of the people of this

country . . . and, in general, for all the great

and various favors which He has been pleased to

confer upon us . . . and beseech Him to pardon

our national and other transgressions . . . to

promote the knowledge and practice of true religion and virtue . . . and to grant all mankind a

degree of temporal prosperity as He alone knows

best." George Washington, Proclamation: A National Thanksgiving (reprinted in 5 Founders’ Constitution 94). Similarly, Thomas Jefferson signed

treaties with Indian tribes that provided annual

cash support in order for a Roman Catholic priest

to provide services for the tribes. Wallace, 472

U.S. at 103. 

 Washington’s and Jefferson’s examples have been

followed as the practice of Congressional prayer

has continued uninterrupted since the very first

Congress. Moreover, each Congress elects (and

pays a salary to) a Chaplain to preside over this

practice. See Marsh v. Chambers, 463 U.S. 783,

788-89 & n.10 (1982). The Supreme Court (and this

court) open their sessions with an declaration

that states "God save the United States and this

Honorable Court." Marsh, 463 U.S. at 786; Zorach

v. Clausen, 343 U.S. 306, 312-13 (1952). Numerous

other governmental practices pay homage to our

religious heritage, including national holidays
such as Christmas and Thanksgiving, military

chaplains, the motto, and the Pledge of Allegiance. See Lynch, 465 U.S. at 674-75. Our currency bears the motto "In God We Trust." "Because

of their history and ubiquity, those practices

are not understood as conveying government approval of particular religious beliefs," id. at

693, but instead as part of the richness of the

very fabric of our Judeo-Christian heritage which

comprises an integral part of our Nation’s history and culture./2

 The proposed monument’s reference to the Ten

Commandments is much like other references (that

have been deemed not to violate the Constitution)

to God as set forth in the Christian history of

our country--not an endorsement of religion, but

merely an acknowledgment of the historical fact

that the Ten Commandments served as an integral

part of the foundation for our country’s legal

system. Because of the Ten Commandments’ history

and ubiquity, I believe that even if the monument

would somehow fail the strictures of Lemon,

Indiana’s proposed monument as determined herein

does not violate the Establishment Clause.

III. Conclusion

 The majority’s decision, similar to that in

Books, 235 F.3d 292, leads us further away from

the mainstream--and to a point where irreligion

is favored over religion. The Constitution does

not require complete separation of church and

state, but instead "it affirmatively mandates

accommodation, not merely tolerance, and forbids

hostility toward any," Lynch, 465 U.S. at 673,

and the appropriate question to ask is whether an

"objective" observer would believe that the

display constitutes a government endorsement of

religion, Santa Fe. Indep. Sch. Dist., 120 S.Ct.

at 2278. After all, "[w]e are a religious people

whose institutions presuppose a Supreme Being."

Zorach, 343 U.S. at 313. 

 In my view, the proposed three-subject monument

inscribed with the Ten Commandments, the Bill of

Rights, and the Preamble to the Indiana Constitution, does not offend the Constitution. Instead,

it serves as a well-deserved recognition of our

country’s legal, historical, and religious roots.

Any possible endorsement of religion is diluted

by the monument’s placement on the Statehouse

lawn with at least twelve other secular monuments

memorializing and honoring the state’s and nation’s history. 

 Samuel Smith wrote My Country, ’Tis of Thee in

1831 and concluded his epic with the following

lines:
Our fathers’ God, to thee, Author of liberty, To

thee we sing;

Long may our land be bright, With freedom’s holy

light.

Protect us by thy might, Great God, our King!

Does Samuel Smith’s song no longer represent the

very values upon which this country was founded,

and indeed, where government officials are forbidden to sing of the liberty about which Smith

cherished above all else, simply because it

refers to religion?

 I therefore respectfully Dissent from the

court’s holding that Indiana’s proposed monument

violates the Establishment Clause or constitutes

an establishment of religion, and thus would

REVERSE the district court’s grant of the preliminary injunction.

FOOTNOTES

/1 While I obviously recognize the constitutional

distinction between state and private action, I

am surprised that the First Amendment has been

used at times to protect pornography (and those

who distribute and possess it) and private religious proselytization, while at the same time

also been used to prohibit well-intentioned

communities from expressing their understanding

of our nation’s history and culture and from

making any reference to God. Indeed, people can

receive pornography through the mail, over the

internet, on their televisions because of the

simple premise that one may turn it off. But

wouldn’t a person passing the proposed monument

also be free to believe whatever he or she wants,

to pass it by and thereby turn it off? In my

opinion, the pornography available on the internet (often sent unsolicited) and religious proselytizers who come to people’s homes seems far

more invasive and difficult to "turn off" than a

monument that sits passively among a beautiful

grassy lawn adorned with monuments that honor the

history of our nation and also the State of

Indiana. 

/2 Indeed, if one extends plaintiffs’ theory of the

case to its logical extreme, not only must every

public monument be shorn of religious reference,

but many of the nation’s most revered documents

must be cleansed as well. If the Ten Commandments

are deemed constitutionally offensive, how can

one justify the rich religious traditions of our

nation established in government practices including the opening of a Congressional session or

the opening of this court with a prayer; similarly, how can one justify the religious references

as found in innumerable public documents, including the Declaration of Independence (which de-
clares God as the source of our rights) or the

Constitutions to 46 out of the 50 states (which

include references to "God," "Almighty God," and

the "Supreme Ruler of the Universe," and with

notable frequency refer to God as the author or

source of human rights and liberties). A policy

that tolerates religion does not improperly

endorse it. See Chandler, 230 F.3d at 1317 (writing about the intersection of the Establishment

Clause and Free Exercise Clause).