*

Honorable Karl S. Forester, Senior United States District Judge for the Eastern District of

Kentucky, sitting by designation.

RECOMMENDED FOR FULL-TEXT PUBLICATION

Pursuant to Sixth Circuit Rule 206

File Name: 10a0006p.06

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT _________________

AMERICAN CIVIL LIBERTIES UNION OF

KENTUCKY, RAYMOND HARPER, and ED

MEREDITH,

Plaintiffs-Appellees,

v.

GRAYSON COUNTY, KENTUCKY,

Defendant-Appellant.

X

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>

,

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N

No. 08-5548

Appeal from the United States District Court

for the Western District of Kentucky at Owensboro.

No. 01-00202—Joseph H. McKinley, Jr., District Judge.

Argued: April 23, 2009

Decided and Filed: January 14, 2010 

Before: MOORE and McKEAGUE, Circuit Judges; FORESTER, Senior District Judge.*

_________________

COUNSEL

ARGUED: Mathew D. Staver, LIBERTY COUNSEL, Orlando, Florida, for Appellant.

William E. Sharp, GENERAL COUNSEL, AMERICAN CIVIL LIBERTIES UNION

OF KENTUCKY, Louisville, Kentucky, for Appellees. ON BRIEF: Mathew D.

Staver, LIBERTY COUNSEL, Orlando, Florida, Stephen M. Crampton, Mary E.

McAlister, LIBERTY COUNSEL, Lynchburg, Virginia, for Appellant. William E.

Sharp, David A. Friedman, GENERAL COUNSEL, AMERICAN CIVIL LIBERTIES

UNION OF KENTUCKY, Louisville, Kentucky, for Appellees. Steven W. Fitschen,

THE NATIONAL LEGAL FOUNDATION, Virginia Beach, Virginia, for Amicus

Curiae.

McKEAGUE, J., delivered the opinion of the court, in which FORESTER, D. J.,

joined. MOORE, J. (pp. 26-35), delivered a separate dissenting opinion.

1
No. 08-5548 ACLU, et al. v. Grayson County, Kentucky Page 2

1

This display appears to match exactly the displays at issue in McCreary County v. ACLU, 545

U.S. 844, 860 (2005), and Mercer County v. ACLU, 432 F.3d 624, 626 (6th Cir. 2005).

_________________

OPINION

_________________

McKEAGUE, Circuit Judge. In 2001, the Grayson County Fiscal Court

approved a proposal to hang a “Foundations of American Law and Government Display”

in the county courthouse. The display consisted of nine historical documents, including

a copy of the Ten Commandments, along with an “Explanation Document” purporting

to describe the significance of these items as foundations of law and government in the

United States. The district court found that the hanging of the display was shown to

have been motivated by a predominantly religious purpose, and so held that the inclusion

of the Ten Commandments in the display violated the Establishment Clause. We hold

that the district court erred in its assessment of the record, and conclude that plaintiffs

have failed to present sufficient evidence to prove that the Fiscal Court had an

impermissible purpose or that the Foundations Display endorses religion.

I

Reverend Chester Shartzer, a private citizen living in Grayson County, Kentucky,

appeared at a Grayson County Fiscal Court meeting on September 18, 2001 in order to

request that the Ten Commandments be placed in the Grayson County Courthouse as

part of a “Foundations of American Law and Government Display” (“Foundations

Display”). The display includes the Mayflower Compact, the Declaration of

Independence, the Ten Commandments, the Magna Carta, The Star Spangled Banner,

the National Motto, the Preamble to the Kentucky Constitution, the Bill of Rights, and

a picture of Lady Justice. The display also includes an “Explanation Document”

purporting to describe the historical significance of each item.1
No. 08-5548 ACLU, et al. v. Grayson County, Kentucky Page 3

The minutes recount what occurred at that September 18, 2001 meeting:

Reverend Chester Shartzer addressed the Court concerning his desire for

the County to place the Ten Commandments in the County buildings. He

said there were several Counties in the State who has [sic] them in their

Courthouses. He explained that some Counties has [sic] them hanging

in a group of other historical documents. He said he thought the Civil

Liberties would look more favorable toward it if they were hanging in a

grouping with the other historical documents. County Attorney, Tom

Goff said there had been some hearings concerning this in some of the

Eastern Counties of the State. Judge Logsdon and the Court members

expressed the desire to place them in the County buildings and asked the

County attorney if he thought they could do so in a way that would not

cause problems for the County. He explained that there could be law

suits filed against the County, and that he wanted to study the results of

the hearings from the other Counties, before advising them.

Damon Hornback made a motion to place the Ten Commandments in the

buildings. Motion died for lack of a second.

On motion by Sandy Farris, seconded by Damon Hornback, vote 7 for 0

against, be and it is ordered that:

The County place the Ten Commandments in the Court House along with

the Historical documents of the Declaration of Independence, Bill of

Rights, Mayflower Compact, Star Spangled Banner, National Anthem,

Magna Charta [sic], Explanation Document, and a County Resolution,

after County attorney Tom Goff has looked at the results of the hearings

in other Counties, and if he thinks this can be done without legal action

against the County.

On September 28, 2001, the Fiscal Court revisited the display. While there is no

transcript of this second meeting, Shartzer recalled in deposition what he had said in

support of his motion:

I simply said, “I was on my way up here, and I seen a stop sign. Some

of [sic] guys went ahead of me and put that up. I seen a sign that said

turn right. If I’d have went straight, I’d have went over a bank.” I said,

“There’s not everybody [sic] going to read and understand half of these

displays that we’re talking about. Some people will not be more

interested in the Declaration of Independence than a fly. Neither are they

the Ten Commandments, but they’re signs, they’re signs about our

heritage, they’re signs about turning right. I’d like for my kid to hear

somebody say, ‘You oughtn’t to kill somebody.’ I’d like to hear

somebody say to my children and I’d like to say to other kids, ‘Don’t try
No. 08-5548 ACLU, et al. v. Grayson County, Kentucky Page 4

to want everything the other guy’s got. Get it yourself or not have it.’”

I said, “That sign was put up for me. It’s a road sign. I’m just wanting

to put a road sign in the courthouse as a directive for young people to see

where the heritage of America is” – “how it’s embedded in my heart, and

I want it in other hearts.

(Shartzer Dep. at 29-30.) After a 6-0 vote, the Fiscal Court ordered that “The following

resolution along with the Historical Documents and the Ten Commandments be placed

in a grouping in the Courthouse.” No resolution was ever composed or posted with the

Foundations Display. Once the Fiscal Court had approved, Shartzer obtained the display

for installation; to that point, the members of the Fiscal Court had never seen the

“Explanation Document” or any of the other display items.

With the help of two or three other private citizens, Shartzer posted the

Foundations Display, which he had procured at private expense, on the second floor of

the Grayson County Courthouse, where there was relatively little foot traffic. There was

no public ceremony accompanying the unveiling of the display. Included as part of the

authorized display from the beginning, along with the Ten Commandments and the other

historical documents, was an “Explanation Document,” consisting of an introduction

describing the purpose of the Foundations Display and a paragraph-long explanation of

each document’s relation to the purpose. The introduction includes a listing of the nine

historical documents and provides: “The Foundations of American Law and

Government display contains documents that played a significant role in the foundation

of our system of law and government.” Each of the following nine paragraphs of the

Explanation Document contains a statement about the respective historical document’s

historical and legal significance. The significance of the Ten Commandments is

described as follows:

The Ten Commandments have profoundly influenced the formation of

Western legal thought and the formation of our country. That influence

is clearly seen in the Declaration of Independence, which declared that

“We hold these truths to be self-evident, that all men are created equal,

that they are endowed by their Creator with certain unalienable rights,

that among these are Life, Liberty, and the Pursuit of Happiness.” The

Ten Commandments provide the moral background of the Declaration of

Independence and the foundation of our legal tradition.
No. 08-5548 ACLU, et al. v. Grayson County, Kentucky Page 5

 Several weeks after the display was posted, two private citizens, Ed Meredith and

Raymond Harper, discussed the Fiscal Court’s decision, after which the two went

together to the courthouse and viewed the Foundations Display. Meredith and Harper

wrote a letter to the ACLU, and on November 27, 2001, the ACLU, Harper, and

Meredith filed a complaint in the United States District Court for the Western District

of Kentucky challenging the Foundations Display’s presence in the county courthouse.

On May 15, 2002, the district court entered a preliminary injunction ordering the Fiscal

Court to remove the Ten Commandments. The Fiscal Court complied with the

injunction and removed the Ten Commandments from the display, leaving the other

eight items undisturbed.

The district court issued a stay of further proceedings pending resolution of

similar litigation then pending before the Sixth Circuit in ACLU v. McCreary County,

6th Cir. No. 01-5935. The stay remained in place until September 5, 2006. Once the stay

was lifted, all parties filed motions for summary judgment. On March 28, 2008, the

district court granted summary judgment for the plaintiffs, permanently enjoining the

display of the Ten Commandments as part of the Foundations Display. Grayson County

now appeals.

II

This court reviews a grant of summary judgment de novo. ACLU v. Mercer

County, 432 F.3d 624, 628 (6th Cir. 2005). Summary judgment “should be rendered if

the pleadings, the discovery and disclosure materials on file, and any affidavits show that

there is no genuine issue as to any material fact and that the movant is entitled to

judgment as a matter of law.” FED.R.CIV.P. 56(c). The district court must construe the

evidence and draw all reasonable inferences in favor of the nonmoving party.

Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986); Jones v.

Potter, 488 F.3d 397, 403 (6th Cir. 2007).
No. 08-5548 ACLU, et al. v. Grayson County, Kentucky Page 6

III

The burden is on the party invoking federal jurisdiction to demonstrate Article

III standing. Stalley v. Methodist Healthcare, 517 F.3d 911, 916 (6th Cir. 2008). The

presence of one party with standing is sufficient. Rumsfeld v. Forum for Academic and

Institutional Rights, Inc., 547 U.S. 47, 52 n.2 (2006); Bowsher v. Synar, 478 U.S. 714,

721 (1986). In order to demonstrate Article III standing, a plaintiff “must show that

(1) he or she has suffered an ‘injury in fact’; (2) there is a causal connection between the

injury and the conduct complained of; and (3) the injury will likely be redressed by a

favorable decision.” Am. Fed’n of Gov’t Employees v. Clinton, 180 F.3d 727, 729 (6th

Cir. 1999). Each element of standing must be supported with the “manner and degree

of evidence required at the successive stages of litigation.” Lujan v. Defenders of

Wildlife, 504 U.S. 555, 561 (1992).

Under the Establishment Clause, a plaintiff may demonstrate an injury by

showing direct and unwelcome contact with a government-sponsored religious object.

ACLU v. Ashbrook, 375 F.3d 484, 489 (6th Cir. 2004); Adland v. Russ, 307 F.3d 471,

478 (6th Cir. 2002). Direct and unwelcome contact requires more than a general

grievance; the harm cannot be remote, vicarious or generalized. Washegesic v.

Bloomingdale Pub. Schs., 33 F.3d 679, 681-82 (6th Cir. 1994). The harm is sufficient

when a plaintiff comes into direct, unwelcome contact with a government-sponsored

religious object during business or recreational activities. See Ashbrook, 375 F.3d at

489; Adland, 307 F.3d at 478; Washegesic, 33 F.3d at 682.

The district court found that Meredith, Harper, and the ACLU had standing.

Because we find no error in the finding that Meredith has standing, there is no need to

address the standing of the other plaintiffs. See Rumsfeld, 547 U.S. at 52 n.2. Meredith

alleged in his verified complaint that he used the “courthouse to transact civic business”

and that, during the course of that business, he had “occasion to view the Ten

Commandments display.” The complaint further indicates that the exposure was

unwelcome. These statements are sufficient to establish direct and unwelcome contact

with the Ten Commandments. As this injury is caused by the inclusion of the Ten
No. 08-5548 ACLU, et al. v. Grayson County, Kentucky Page 7

2

Grayson County contends that Meredith did not meet his burden at the summary judgment stage

because he may not rest on allegations in the pleadings. However, Meredith signed a verified complaint

that sets out allegations sufficient to establish standing. A verified complaint “carries the same weight as

would an affidavit for the purposes of summary judgment.” El Bey v. Roop, 530 F.3d 407, 414 (6th Cir.

2008); Smith v. Campbell, 250 F.3d 1032, 1036 (6th Cir. 2001); Williams v. Browman, 981 F.2d 901, 905

(6th Cir. 1992). Grayson County has not met Meredith’s allegations with anything more than speculation.

Therefore, Grayson County did not raise a genuine issue of material fact with regard to Meredith’s

standing. See Arendale v. City of Memphis, 519 F.3d 587, 605 (6th Cir. 2008).

Commandments in the Foundations Display and can be redressed by the removal of the

Ten Commandments, Meredith has standing to challenge the inclusion of the Ten

Commandments.2

IV

The First Amendment provides that “Congress shall make no law respecting an

establishment of religion.” U.S. CONST. amend. I. The defining principle of

Establishment Clause jurisprudence is that the “First Amendment mandates government

neutrality between religion and religion, and between religion and nonreligion.”

McCreary County v. ACLU, 545 U.S. 844, 860 (2005) (quoting Epperson v. Arkansas,

393 U.S. 97, 104 (1968)). Neutrality, however, “is not so narrow a channel that the

slightest deviation from an absolutely straight course leads to condemnation.”

McCreary, 545 U.S. at 876 (quoting Sherbert v. Verner, 374 U.S. 398, 422 (1963)

(Harlan, J. dissenting)). The fact that “government must remain neutral in matters of

religion does not foreclose it from ever taking religion into account.” Lee v. Weisman,

505 U.S. 577, 627 (1992) (Souter, J., concurring).

The long-standing (but not always applied) test for determining whether

government action violates the Establishment Clause was first articulated in Lemon v.

Kurtzman, 403 U.S. 602 (1971). Under the Lemon test, government action is upheld

unless it is shown not to satisfy any of three elements: “First, the statute must have a

secular legislative purpose; second, its principal or primary effect must be one that

neither advances nor inhibits religion; finally, the statute must not foster an excessive

government entanglement with religion.” Id. at 612-13 (citations and quotation marks

omitted). Since Lemon, the Supreme Court has revised the first two prongs of this test.

In McCreary County, the court explained that, although a government’s stated secular
No. 08-5548 ACLU, et al. v. Grayson County, Kentucky Page 8

3

The district court held that Grayson County’s Foundations Display violated the first two prongs

of the Lemon test. It did not address the third prong, the excessive entanglement inquiry. As there is no

argument from the parties regarding the third prong, we too consider only whether the Foundations Display

is shown to have been marked by an impermissible purpose and effect. 

reason for erecting a display is usually given deference by the courts, the secular purpose

must be “genuine, not a sham, and not merely secondary to a religious objective.”

McCreary County, 545 U.S. at 865. Where the government acts with the “ostensible and

predominant purpose of advancing religion” it violates the constitutional touchstone of

religious neutrality. Id. at 860. In addition, Justice O’Connor’s concurring opinion in

Lynch v. Donnelly, 465 U.S. 668 (1984), was incorporated into Lemon’s “effect” prong

by the Court in County of Allegheny v. ACLU, 492 U.S. 573, 595 (1989) (“[The Lynch]

concurrence articulates a method for determining whether the government’s use of an

object with religious meaning has the effect of endorsing.”). The Court held that a

challenged governmental action has a religious effect where it “is sufficiently likely to

be perceived by adherents of the controlling denominations as an endorsement, and by

the nonadherents as a disapproval, of their religious choices.” Id. at 597.3

In 2005, the Supreme Court decided two Establishment Clause cases that provide

substantial guidance regarding the governing legal framework: McCreary County v.

ACLU, 545 U.S. 844 (2005), which applied the Lemon test in evaluating a county

courthouse display that included the Ten Commandments; and Van Perry v. Orden, 545

U.S. 677 (2005), which held the display of a Ten Commandments monument on state

grounds constitutional without applying the Lemon test. Because these cases provide the

most recent Supreme Court guidance in the convoluted jurisprudence arising out of the

Establishment Clause, we turn first to them.

A

In McCreary County, the Court reaffirmed the utility of the Lemon test. Two

counties in Kentucky, McCreary County and Pulaski County, had placed the Ten

Commandments, standing alone, in their respective courthouses. McCreary County, 545

U.S. at 851. McCreary County placed the Ten Commandments in its courthouse in

response to a county order requiring the Ten Commandments to be displayed in a high-
No. 08-5548 ACLU, et al. v. Grayson County, Kentucky Page 9

4

Stone v. Graham, 449 US. 39, 42 (1980) (Ten Commandments display); Wallace v. Jaffree, 472

U.S. 38 (1985) (school prayer); Edwards v. Aguillard, 482 U.S. 578, 593 (1987) (act prohibiting the

teaching of evolution); Santa Fe Indep. Sch. Dist. v. Doe, 530 U.S. 290, 308-09 (2000) (school prayer).

traffic area of the courthouse. Id. The Pulaski County display was accompanied by a

ceremony at which the county Judge-Executive and a local pastor spoke. Id.

After a district court preliminarily enjoined both counties’ displays, the counties

authorized expanded displays featuring large copies of the Ten Commandments

surrounded by smaller copies of eight other documents with religious elements. Id. at

853. Each display was accompanied by a resolution reciting, among other things, that

the Ten Commandments are “the precedent legal code upon which the civil and criminal

codes of . . . Kentucky are founded” and that the “Founding Father[s] [had an] explicit

understanding of the duty of elected officials to publicly acknowledge God as the source

of America’s strength and direction.” Id. at 853.

After another preliminary injunction, the counties installed new displays. These

displays included equally sized copies of the Ten Commandments, the Magna Carta, the

Declaration of Independence, the Bill of Rights, The Star Spangled Banner, the

Mayflower Compact, the National Motto, the Preamble to the Kentucky Constitution,

and a picture of Lady Justice. Id. at 855-56. Neither county issued a new resolution

explaining the new displays. The district court supplemented the injunction so as to

encompass the new displays as well, and the Sixth Circuit affirmed. Id. at 857.

The Supreme Court granted certiorari and held that the displays violated the

purpose prong of the Lemon test. It noted that, since Lemon, the Court had found that

a government action had an improper purpose only four times.4

 Id. at 859. In

rearticulating the test for assessing purpose, the Court made clear that the test requires

“an understanding of official objective [that] emerges from readily discoverable fact,

without any judicial psychoanalysis of a drafter’s heart of hearts.” Id. at 862.

The McCreary County Court noted that, while Stone v. Graham found a standalone display of the Ten Commandments unconstitutional, “Stone did not purport to

decide the constitutionality of every possible way the Commandments might be set out
No. 08-5548 ACLU, et al. v. Grayson County, Kentucky Page 10

5

In Van Orden, five justices stated that Stone “stands as an example of the fact that we have been

particularly vigilant in monitoring compliance with the Establishment Clause in elementary and secondary

schools.” 545 U.S. at 690-91 (plurality opinion) (internal quotation marks omitted); 545 U.S. at 703

(Breyer, J., concurring).

by the government.”5 Id. at 867. The Court found that the counties’ first displays, like

the display in Stone, had an unmistakable religious purpose because the displays

consisted solely of the Ten Commandments standing alone. Id. at 869. The second

display had a similarly unmistakable religious purpose because, though other documents

were included in the display, highlighted references to God indicated that “[t]he

display’s unstinting focus was on religious passages” and the accompanying resolution

mentioned “Jesus Christ, the Prince of Ethics.” Id. at 870.

The third display presented a closer question for the Court. Rather than focusing

solely on the physical context of the display, the Court relied primarily on the history of

the counties’ displays. See id. at 871-72. The Court did not credit the counties’ newly

proffered secular reasons as they “were presented only as a litigation position there being

no further authorizing action” by the counties. Id. at 871. Instead, the Court noted that

the counties had not repealed or repudiated the earlier religious resolutions. Id. at 872.

The Court also found that the collection of documents in the third display did not

“suggest a clear theme that might prevail over evidence of the continuing religious

object.” Id. The Court, however, made clear that it was not holding “that a sacred text

can never be integrated constitutionally into a governmental display on the subject of

law, or American history.” Id.

B

In Van Orden, the Supreme Court dealt with a different Ten Commandments

display. Rather than a recently erected display with a history evidencing a religious

purpose, Van Orden involved a large monument on the grounds of the state capitol

donated by the Fraternal Order of Eagles in 1961 “to highlight the Commandments’ role

in shaping civic morality.” 545 U.S. at 701 (Breyer, J., concurring). The Eagles paid

the cost of erecting the monument. Id. at 682. Forty years passed before the monument

was challenged. Id.
No. 08-5548 ACLU, et al. v. Grayson County, Kentucky Page 11

The Court did not apply the Lemon test. A plurality found that test was “not

useful in dealing with the sort of passive monument that Texas has erected on its Capitol

grounds.” Id. at 686. Observing that the Ten Commandments have religious

significance, the plurality noted that the Ten Commandments also have “undeniable

historical meaning” and that such displays are common throughout America. Id. at 688,

690. “Simply having religious content or promoting a message consistent with a

religious doctrine does not run afoul of the Establishment Clause.” Id. The plurality

concluded, based on the context, that the Ten Commandments monument did not violate

the Establishment Clause. Id. at 691-92.

Justice Breyer provided the fifth vote. Id. at 698. He noted that “the

Establishment Clause does not compel the government to purge from the public sphere

all that in any way partakes of the religious.” Id. at 699. Like the plurality, Justice

Breyer did not apply the Lemon test. Id. at 700. Instead, he looked to the context of the

display and found that “the circumstances surrounding the display’s placement . . .

suggest that the State itself intended the . . . nonreligious aspects of the tablets’ message

to predominate.” Id. at 701. Justice Breyer emphasized that the monument was donated

by a civic organization and that the monument itself noted that it was donated by the

Eagles. Id. at 701-02. Justice Breyer also found the setting of the monument indicated

a secular purpose. Specifically, he noted that it was placed with many other monuments

that indicated a historical and moral context and that the setting did “not readily lend

itself to meditation or any other religious activity.” Id. at 702. Finally, he emphasized

that forty years had passed, during which time the monument had not been challenged.

Id. at 702.

C

Shortly after McCreary County and Van Orden were decided, this Circuit in

Mercer County v. ACLU, 432 F.3d 624 (6th Cir. 2005), applied their teachings to a

courthouse display identical to this one. As the salient facts in Mercer County are nearly

identical to those presented in this case, Mercer County is highly instructive, if not

controlling. In Mercer County, as here, a private citizen requested permission to hang
No. 08-5548 ACLU, et al. v. Grayson County, Kentucky Page 12

a Foundations Display in the county courthouse. Id. at 626. The county Fiscal Court

approved the display and, again as in this case, a private citizen paid for and hung the

display in the courthouse. Id. The ACLU sought a preliminary injunction, which the

district court denied. Id. at 627. The County moved for summary judgment and

included an affidavit from the Judge Executive that indicated the Fiscal Court had a

secular purpose in posting the display, i.e., recognizing the historical role the documents

played in the formation of our system of law and government. Id.

On appeal, the Sixth Circuit held the Foundations Display did not violate the

Establishment Clause under the analysis set forth in McCreary County. Id. at 631-35.

While the Mercer County display itself, like the instant display, was ostensibly “identical

in all material respects” to the third display in McCreary County, id. at 631, the Sixth

Circuit held that the absence of a history of religious purpose like that which preceded

and tainted the third display in McCreary County was a material difference. Id. at 632.

The Sixth Circuit noted that a private citizen had hung the display; that there was no

public ceremony accompanying the display; that the Judge Executive’s affidavit

explained the facially legitimate secular purpose—a purpose that was explicitly

confirmed by the “context, including the explanatory document and the eight other

objectively historical and secular documents;” and that the challengers of the display had

produced no evidence that the stated purpose was a sham. Id.

The Sixth Circuit then turned to the “effect” prong of the Lemon test and held

that the Foundations Display did not have the effect of endorsing religion because the

Ten Commandments were placed in the context of the other secular documents and there

was no history of past attempts to promote a religious message. Id. at 637-38.

Considering the Ten Commandments in conjunction with “unquestioned civil, legal, and

political influence” of the other documents was deemed to accentuate the historical

rather than the religious significance of the Commandments. Id. Taken as a whole, the

display was held to send the “‘unmistakable message’ of the County’s acknowledgment

of legal history.” Id. at 638.
No. 08-5548 ACLU, et al. v. Grayson County, Kentucky Page 13

With the guidance provided by these three decisions, we turn to the Foundations

Display at issue here.

V

We first examine the purpose of the Foundations Display. Purpose is determined

from the perspective of an objective observer. McCreary County, 545 U.S. at 862. The

“objective observer” is credited with knowledge of “readily discoverable fact,” including

“the traditional external signs that show up in the ‘text, legislative history, and

implementation of the statute’ or comparable official act.” Id. (quoting Santa Fe, 530

U.S. at 308). The evidence of purpose must be external; it cannot involve “any judicial

psychoanalysis of a drafter’s heart of hearts.” Id.

“Even if the text and official history of a statute express no secular purpose, the

statute should be held to have an improper purpose only if it is beyond purview that

endorsement of religion or a religious belief ‘was and is the law’s reason for existence.’”

Wallace, 472 U.S. at 75 (O’Connor, J., concurring in the judgment). “Thus, a plaintiff

must show that the predominate purpose for a challenged display is religious, although

a totally secular purpose is not required.” ACLU v. Ashbrook, 375 F.3d 484, 491 (6th

Cir. 2004). Indeed, if there is no manifest religious purpose for a display, an

Establishment Clause complaint should fail, even if “savvy officials had disguised their

religious intent so cleverly that the objective observer just missed it.” McCreary County,

545 U.S. at 863.

A

The Grayson County Foundations Display is identical to the third display in

McCreary County and the display in Mercer County. Accordingly, much of the analysis

of the purpose in those two decisions applies with equal force to our evaluation of this

display. That said, we must be alert to distinguishing facts, as an objective assessment

of the purpose behind identical displays may differ based on the different histories of the

displays. McCreary County, 545 U.S. at 866 n.14.
No. 08-5548 ACLU, et al. v. Grayson County, Kentucky Page 14

One of the central concerns in McCreary County and Mercer County was the

history behind the various displays. The Supreme Court examined the history of the

third display in McCreary County and found that the clear history of a religious

purpose—and the absence of any meaningful change in the intention evidenced by that

history—demonstrated that the county had a predominantly religious purpose in

approving the display. Id. at 872; see also Mercer County, 432 F.3d at 632-33. In

Mercer County, there was no such evidence of a religious purpose heritage. Mercer

County, 432 F.3d at 631. Rather, this court found that “the only history the objective

observer would incorporate into this display is the statement of Judge McGinnis that the

purpose of the display is to recognize American legal traditions.” Id. As in Mercer

County, the approval of the display in Grayson County was not attended by a history

evidencing a predominantly religious purpose. There were no earlier displays nor were

there any earlier resolutions indicating an avowedly religious purpose.

The other factors considered in Mercer County also highlight the absence of

evidence of a religious purpose for the Grayson County display. Like the display in

Mercer County, there was little official involvement in the display. It was proposed,

funded, and hung by a private individual. The legitimacy of the County’s claimed

educational purpose is borne out by the very same explanatory document and other

historical documents that supported the asserted secular purpose for the Mercer County

display. The contents and context of the Grayson County Foundations Display are

identical to the contents and context of the display in Mercer County, which were held

to refute the challengers’ assertion of a predominantly religious purpose.

The Plaintiffs in this case, who have the burden of demonstrating that the

Foundations Display violates their rights under the Establishment Clause, have failed to

present evidence sufficient to demonstrate that an objective observer could have

concluded that the County’s asserted secular purpose was a sham. In Mercer County,

in the absence of proof of religious purpose, we deferred to the local government’s stated

secular purpose, concluding that an objective observer would view the Foundations
No. 08-5548 ACLU, et al. v. Grayson County, Kentucky Page 15

6

That the Foundations Display “acknowledg[es]” history does not mean that it is necessarily

historically accurate. The “Explanation Document” in both Mercer County and this case contains a claim

that The Star Spangled Banner “became a rallying cry for the American Patriots during the Revolutionary

War” – a war that had been over for decades before the anthem was written during the War of 1812. More

to the point of this case, we acknowledge that there is ongoing academic debate as to the claim that the

“Ten Commandments provide the moral backbone of the Declaration of Independence and the foundation

of our legal tradition.” See, e.g., Steven K. Green, “Bad History”: The Lure of History in Establishment

Clause Adjudication, 81 NOTRE DAME L.REV. 1717, 1746 (2006) (“[R]egardless of the popularity of this

belief of a unique status, it lacks historical support. There is no evidence that early political and legal

figures saw the Decalogue as singularly (or even significantly) important or influential to American law.”);

Paul Finkelman, The Ten Commandments on the Courthouse Lawn and Elsewhere, 73 FORDHAM L.REV. 1477, 1500-16 (2005) (“[T]he claim that the Ten Commandments . . . are the moral foundation of

American law, does not stand up to careful scrutiny.”). 

Display not as an attempt to establish religion but as an acknowledgment of history.6

For the same reasons, we here defer to Grayson County’s stated secular purpose and hold

that the Fiscal Court in Grayson County has not been shown to have had a predominantly

religious purpose in approving the Foundations Display.

B

Despite the congruity of this display with the display in Mercer County, the

district court concluded that the Grayson County Fiscal Court had a predominantly

religious purpose. The district court attempted to distinguish Mercer County on four

grounds: indications of Shartzer’s purpose in proposing the display, references in the

record to the Ten Commandments, the first unsuccessful motion to approve the display,

and the Fiscal Court’s silence as to purpose in approving the display. We hold that these

additional considerations do not meaningfully distinguish the Grayson County display

from that permitted by the Sixth Circuit in Mercer County.

1. Shartzer’s Purpose

The district court placed a great deal of emphasis on Shartzer’s public comments

in support of the display. The district court relied on the meeting minutes which noted

that Shartzer wanted “the County to place the Ten Commandments in the County

buildings” and that Shartzer suggested that “the Civil Liberties would look more

favorable toward it if they were hanging in a grouping with the other historical

documents.”
No. 08-5548 ACLU, et al. v. Grayson County, Kentucky Page 16

As an initial matter, these comments do not on their face evidence what the

district court called “purely religious reasons.” The minutes do not clearly indicate the

reasons why Shartzer wanted to post the Ten Commandments; instead, they simply

demonstrate that he wanted them posted. Given that the Supreme Court, this Court, and

other circuit courts have held that the Ten Commandments have both religious and

secular significance, see, e.g., Van Orden, 545 U.S. at 690, 701; Mercer County, 432

F.3d at 639; Green v. Haskell County Bd. of Comm’rs, 568 F.3d 784, 798-99 (10th Cir.

2009), the simple desire to post the Ten Commandments cannot, in isolation,

demonstrate religious purpose on the part of those desiring the posting. Where Shartzer

at the Fiscal Court meetings said more than that he desired to post the Ten

Commandments as part of a display of historical documents, moreover, his comments

(i.e. regarding road signs for the right ordering of society) spoke to a secular purpose of

enhancing civic morality rather than an explicitly religious purpose.

Even more importantly, Shartzer was not the decision-maker who approved the

Foundations Display. While courts inquiring into purpose may look to the “public

comments of an enactment’s sponsor,” see, e.g., McCreary County, 545 U.S. at 862;

American Civil Liberties Union of Kentucky v. Garrard County, Kentucky, 517 F. Supp.

2d 925, 342 (E.D. Ky. 2007), ultimately it is the purpose of the government decisionmakers that is most important. See, e.g., Modrovich v. Allegheny County, Pa., 385 F.3d

397, 411 (3d Cir. 2004) (“[O]ur focus is on the motivations of the current County

officials who have power over the decision.”); Green, 568 F.3d at 800 n.10 (“focus is on

the government actor’s conduct rather than the private citizen’s.”). As the Supreme

Court has observed, “the thoughts or sentiments expressed by a government entity that

accepts and displays [a privately donated monument] may be quite different from those

of either its creator or its donor.” Pleasant Grove City, Utah v. Summum, 129 S. Ct.

1125, 1136 (2009). Indeed, even when there is evidence of a private individual’s

religious motivation in promoting a display, the installation of the display will not be

deemed to run afoul of the Establishment Clause unless there are “factual findings that

would enable this Court to conclude that [government] has endorsed [that individual]’s
No. 08-5548 ACLU, et al. v. Grayson County, Kentucky Page 17

particular proselytizing message.” County of Allegheny, 492 U.S. at 621 n.70

(O’Connor, J., concurring).

This is not to say that the purpose of a private donor is never relevant. In Van

Orden, Justice Breyer noted that the Fraternal Order of Eagles had donated the

monument. Justice Breyer explained that “[t]he tablets, as displayed on the monument,

prominently acknowledge that the Eagles donated the display, a factor which, though not

sufficient, thereby further distances the State itself from the religious aspect of the

Commandments’ message.” 545 U.S. at 701-02 (Breyer, J., concurring). Similarly, in

County of Allegheny, the Supreme Court held that a county had a religious purpose in

displaying a creche in part because it had “a sign disclosing its ownership by a Roman

Catholic organization.” 492 U.S. at 600. The Court held that “the sign simply

demonstrates that the government is endorsing the religious message of that

organization, rather than communicating a message of its own.” Id. Private purpose

thus becomes relevant where there is evidence that the government has adopted the

message of the organization donating the display. A sign on the display provides

evidence to that effect.

Here, even assuming that Shartzer had a religious purpose, there is no evidence

in the record that the Fiscal Court as a body adopted Shartzer’s purpose. There was no

sign linking the Foundations Display to Shartzer, and there is no record of the Fiscal

Court either ascribing a religious purpose to Shartzer’s motion or approving of any

religious purpose that Fiscal Court members may have believed Shartzer possessed. The

minutes simply indicate that members of the Fiscal Court expressed interest in and

eventually approved the posting of the Foundations Display. We therefore find the

district court erred in relying on Shartzer’s purpose to conclude that the Fiscal Court had

a predominately religious purpose in accepting the Foundations Display.
No. 08-5548 ACLU, et al. v. Grayson County, Kentucky Page 18

7

The dissent suggests that references to the Ten Commandments as distinct from the other

historical documents indicate that the Ten Commandments were not considered to have historical value,

thus warranting an inference that the purpose of the display was not secular, but religious. This

unsupported inference is directly refuted by the record. The Explanation Document explicitly identifies

the reason for including the Ten Commandments. The Ten Commandments were considered to have

“played a significant role in the foundation of our system of law and government” by providing “the moral

background of the Declaration of Independence and the foundation of our legal tradition.” In the eyes of

the objective observer, presumed to have knowledge of the external signs of purpose, including the

contents of the display, the Explanation Document represents the best evidence, in this case, of the purpose

of the display. Thus, viewing Fiscal Court members’ various references to the Ten Commandments in light

of the display’s explicit statement of purpose, as we must in the shoes of the objective observer, exposes

the unreasonableness of the inference urged by the dissent. 

8

The dissent chides us for ignoring “the way in which the Ten Commandments are viewed,

particularly by religious leaders such as Reverend Shartzer.” Yet, the record is devoid of evidence of how

the Ten Commandments are viewed. Moreover, determining how the Ten Commandments, viewed in a

vacuum, are perceived – by religious leaders or anyone else – plays no legitimate role in our analysis. Our

task, instead, is to determine whether the purpose of the display, viewed from the perspective of the

objective observer with knowledge of readily discoverable external facts (e.g., contents, context and

approval history), is shown to be predominantly religious. In our opinion, the contents of the display

(including the Explanation Document) and the context of the display (displaying the Ten Commandments

among eight other equally-sized historical documents in a county courthouse) clearly evidence legitimate

secular purposes (i.e., historical and educational), and the approval history is simply ambiguous. 

2. References to the Ten Commandments

The district court also erroneously inferred a religious purpose simply from

references to the Ten Commandments as “the Ten Commandments” in the meeting

minutes. Religious words and religious descriptions are not forbidden by the

Establishment Clause. Indeed, the Fifth Circuit has found that references to avowedly

religious acts such as “prayer” do not, by themselves, indicate a religious purpose. Croft

v. Governor of Texas, 562 F.3d 735, 740-41 (5th Cir. 2009). While some Fiscal Court

members at times distinguished the Ten Commandments from the eight other items in

the display, which they termed “the Historical Documents” (as in the September 28,

2001 order that the display be posted), simple reference to the Ten Commandments as

“the Ten Commandments” cannot, in isolation, prove that a particular speaker, much less

the Fiscal Court as a body, had a religious purpose.7 At most, the comments in the

record suggest a desire to post the Ten Commandments among eight other equally-sized

historical documents, not the reason why the Fiscal Court members wanted the Ten

Commandments included. As such, the references to the Ten Commandments, viewed

in the light most favorable to the County, do not provide evidence of a predominantly

religious purpose.8
No. 08-5548 ACLU, et al. v. Grayson County, Kentucky Page 19

3. The First Motion

The district court also relied on the first motion to approve the Foundations

Display to support its finding of a predominantly religious purpose. The minutes

indicate that Magistrate Hornback made a “motion to place the Ten Commandments in

the buildings” and that the motion “died for lack of a second.” The district court found

that Magistrate Hornback’s motion “demonstrates the understanding and true intent of

the Fiscal Court members.” The motion does nothing of the sort. As discussed above,

references to the Ten Commandments are not themselves impermissible. Further, even

if the motion to post the Ten Commandments without mention of the other documents

were deemed to evidence a religious purpose, it is plainly nonsensical to view a motion

by one person—a motion that failed for lack of even a second—as demonstrating that

it was the will of the Fiscal Court to approve the motion that failed. Quite to the

contrary, the fact that Hornback’s motion failed and the later motion to post the entire

Foundations Display was approved actually negates the suggestion of a religious purpose

and corroborates the Fiscal Court’s asserted secular purpose. The failure of this motion

is analogous to the evidence of “repeal or repudiation” sought but not found in

McCreary Country, as the Court disallowed the counties’ third display. Indeed, the

Fiscal Court’s focus on the second motion highlights the care taken by the Fiscal Court

to promote its asserted secular purpose without impermissibly endorsing religion.

Accordingly, we conclude that the district court erred in inferring a religious purpose

from Hornback’s motion.

4. The Fiscal Court’s Silence

Many of the opinions involving the purpose prong of the Lemon test involve

explicit statements of purpose. Relatively rare is the case in which the record is

substantially silent as to the purpose of the government action. The district court

considered this to be one of those rare cases. Indeed, apart from the display itself—the

contents and context of which we have already concluded, based on the analysis in

Mercer County, demonstrate a predominantly secular purpose—there is little evidence

indicating why the Fiscal Court approved the hanging, in the county courthouse, of a
No. 08-5548 ACLU, et al. v. Grayson County, Kentucky Page 20

display entitled “Foundations of American Law and Government Display.” Ostensibly

ignoring the manifest contents and context of the display itself, the district court

interpreted this silence to mean that the Fiscal Court never considered a secular purpose.

It therefore inferred that the Fiscal Court’s original silence on purpose was indicative

that its later articulation of a secular purpose was a sham.

The district court’s inference of an illicit motive misconceives the nature of the

purpose inquiry and the judicial role. The Supreme Court has made clear that courts

must proceed with caution in attributing an unconstitutional purpose to a government

entity. It has noted its “reluctance to attribute unconstitutional motives to the states,

particularly when a plausible secular purpose for the state’s program may be discerned

from the face of the statute.” Mueller v. Allen, 463 U.S. 388, 394-95 (1983). Indeed, “a

finding of impermissible purpose should be rare.” Mercer County, 432 F.3d at 630.

One form this reluctance takes is deference to the government’s stated reasons.

McCreary County, 545 U.S. at 864; Santa Fe Independent Sch. Dist. v. Doe, 530 U.S.

290, 308 (“When a governmental entity professes a secular purpose for an arguably

religious policy, the government’s characterization is, of course, entitled to some

deference.”). In order for this particular form of deference to apply, the reasons should

be clear before litigation begins. The government receives deference if it “expresses a

plausible secular purpose . . . in either the text or the legislative history.” Wallace v.

Jaffree, 472 U.S. 38, 74 (1985). In McCreary County, the Court dismissed a county’s

statement of secular purpose after litigation began, noting that “[t]hese new statements

of purpose were presented only as a litigating position” and that they were inconsistent

with “the extraordinary resolutions . . . passed just months earlier” that indicated a clear

religious purpose. 545 U.S. at 871. This does not, of course, preclude a government

body from offering reasons after litigation begins. See, e.g., King v. Richmond County,

Ga., 331 F.3d 1271, 1277 (11th Cir. 2003). It simply limits the deference those reasons

receive.

Indeed, though the County would be entitled to less deference for reasons

asserted only during litigation that are inconsistent with its pre-litigation position, the
No. 08-5548 ACLU, et al. v. Grayson County, Kentucky Page 21

9

The dissent insists that the County’s asserted secular purpose is not entitled to deference because

it is inconsistent with statements made by individual Fiscal Court members before the display was

approved. In our opinion, the dissent exaggerates the significance of these rather ambiguous statements

and too casually dismisses as “inconsequential” both the contents and context of the display, which are not

ambiguous and which represent two of the three external signs of purpose that are to guide our analysis.

County’s presently asserted educational purpose is consistent with its pre-litigation

position. The historical and educational purpose of the Foundations Display was made

manifestly apparent to any objective observer through the contents and context of the

display from the date of its initial installation, immediately after the display was

approved and weeks before litigation commenced. The County’s asserted educational

purpose is not inconsistent with the purpose made explicit by the display itself and does

not contradict any prior resolutions passed by the Fiscal Court.9

 Compare McCreary

County, 545 U.S. at 871. Indeed, we have previously found an identical display sends

the “‘unmistakable message’ of the County’s acknowledgment of legal history.” Mercer

County, 432 F.3d at 638. We further found that it “do[es] not have a religious purpose.”

432 F.3d at 634 n.7; see also Books v. Elkhart County, 401 F.3d 857, 866 (7th Cir. 2005)

(finding an essentially identical display did not have a religious purpose). Accordingly,

we find the district court erred in finding that the Fiscal Court’s articulated purpose was

a sham based on inferences drawn from a lack of evidence.

In sum, we find that all four of the district court’s attempts to distinguish this

case from Mercer County were spurious.

VI

Our inquiry into purpose does not end the matter. We must also analyze the

effect prong of the Lemon test. This prong requires us to determine whether 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.” County of Allegheny, 492 U.S. at 597

(citing Lynch, 465 U.S. at 688). Unlike purpose, which “looks to the intended effect of

the display, our inquiry into whether the display endorses religion examines its actual

effect.” Adland, 307 F.3d at 484 (emphasis added). This inquiry, too, uses an objective
No. 08-5548 ACLU, et al. v. Grayson County, Kentucky Page 22

standard. Mercer County, 432 F.3d at 636. We look to “whether an objective observer,

acquainted with the text, legislative history, and implementation of the [display], would

perceive it as a state endorsement” of religion. Santa Fe Indep. Sch. Dist., 530 U.S. at

308 (quoting Wallace, 472 U.S. at 73 (O’Connor, J., concurring in the judgment)). “If

context, history, and the act itself send the ‘unmistakable message’ of endorsing religion,

then the act is unconstitutional.” Mercer County, 432 F.3d at 637.

Context is critical. Lynch, 465 U.S. at 692 (O’Connor, J., concurring in ruling

that display of Christian nativity crèche did not communicate message of endorsement

of Christian beliefs). “[A] typical museum setting, though not neutralizing the religious

content of a religious painting, negates any message of endorsement of that content.”

County of Allegheny, 492 U.S. at 595. In County of Allegheny, the Court therefore

considered where the contested display was placed and what surrounded it. Id. at 598-

600. It also considered the size of the challenged component of a display, an explanatory

document placed next to the display, and whether the message of the display was

religious when viewed as a whole. Id. at 614-16, 619.

The Grayson County Foundations Display was placed in a low-traffic area on the

second floor of the courthouse. Though it is in a courthouse, it is not in the “main” and

“most beautiful part” of the building. Across from the display is a display honoring

veterans that includes two quilts and a photograph. The display itself contains nine

documents having historical meaning and a tenth document that explains the historical

relevance of each document. There is nothing about the setting of the display that would

be viewed as encouraging or lending itself to prayer, meditation or other religious

activity. See Van Orden, 545 U.S. at 702 (Breyer, J., concurring).

In our analysis of the effect of this Foundations Display, we are again guided by

the analysis in Mercer County. In finding that an identical display did not endorse

religion, we quoted with approval language from an opinion by the Seventh Circuit

where a functionally identical display was addressed:

[T]he documents are displayed in a way that does not direct an observer

to focus on any one document. . . . [T]he display includes a framed
No. 08-5548 ACLU, et al. v. Grayson County, Kentucky Page 23

10We acknowledge that the purpose of a private sponsor can be more relevant to the inquiry under

the effect prong of the Lemon test than under the purpose prong. Green, 568 F.3d at 800 n.10. This was

so in Green because the private speaker had expressed his “unalloyed religious motivation” in promoting

a Ten Commandments monument and the county board “in short order agreed to allow him to erect it.”

Id. Here, in contrast, even if Shartzer had such an unalloyed religious motive, the record available to us

does not indicate that Shartzer expressed or that the Fiscal Court approved such a purpose. 

explanation of the historic significance of the documents. The content

and context of the “Foundations” display, considered as a whole, suggest

that the Ten Commandments are included not for their singular religious

import (that is, as a statement of religious imperatives) but, rather, for

their historical contribution to the development of American legal and

political traditions.

By virtue of the texts that are included and the content of the

accompanying explanation, this display tells viewers that the American

founders were inspired by a religious tradition that includes the Ten

Commandments and that those values influenced the development of our

law and government. A public acknowledgment by the government that

the founders were religious people whose faith influenced the creation of

this nation, its laws, and its institutions of government is far different

from saying that the government itself endorses their religion. Only the

latter message is prohibited by the Establishment Clause.

Books, 401 F.3d at 868. We found this analysis persuasive in Mercer County, 432 F.3d

at 637, and we find no reason in the record to depart from it in this case.

The district court acknowledged that Mercer County was directly on point with

regard to the effect prong, but held that the distinguishing circumstances discussed

above—Shartzer’s purpose in proposing the Foundations Display, the references to the

Ten Commandments in the minutes, and the initial motion to post the Ten

Commandments–also demonstrated that the Foundations Display had the effect, in the

eyes of the objective observer, of endorsing religion. For the reasons fully discussed

above, we conclude the district court clearly erred in its assessment of those

circumstances.10

While there is no doubt that the Fiscal Court members could have been more

explicit about their educational goals, we nonetheless find that, taken as a whole, the

Foundations Display endorses an educational message rather than a religious one. See

Mercer County, 432 F.3d at 638.
No. 08-5548 ACLU, et al. v. Grayson County, Kentucky Page 24

VII

The Establishment Clause is not intended to prevent any mention of religion by

government entities. “Simply having religious content or promoting a message

consistent with a religious doctrine does not run afoul of the Establishment Clause.”

Van Orden, 545 U.S. at 690 (plurality opinion). “[T]he Establishment Clause does not

compel the government to purge from the public sphere all that in any way partakes of

the religious.” Id. at 699 (Breyer, J., concurring). The Establishment Clause thus

permits government displays to include religious influences as they honor other elements

of our country’s legal and political history. The courts are obliged to ensure that, in

approving and adopting such displays, government actors do not abandon the neutrality

principle enshrined in the Establishment Clause. In doing so, we look for evidence that

the government acted with a predominantly religious purpose, that the display itself has

the effect of impermissibly endorsing religion, or that the government’s actions lead to

an excessive entanglement of government and religion. Here, the evidence in the record

does not demonstrate that Grayson County acted with an impermissible purpose or that

the inclusion of the Ten Commandments in the Foundations Display has the

impermissible effect of endorsing religion. Plaintiffs have not carried their burden of

overcoming the deference to which the legislative judgment of a subdivision of state

government is ordinarily entitled.

Our dissenting colleague would reach a different conclusion. We respectfully

submit the dissent’s analysis is based not on the finding of persuasive external evidence

that the Fiscal Court acted with a predominantly religious purpose. Rather, it is based

on an inference, drawn from both the perceived dearth of external evidence of a clearly

identified secular purpose and a suspicion that the secular purpose articulated by

Grayson County during litigation is a sham. The inference is that the inclusion of the

Ten Commandments, a document bearing undeniable (albeit ill-defined) religious

significance, in an otherwise acceptable historical display, necessarily signifies a tacit,

predominantly religious purpose.
No. 08-5548 ACLU, et al. v. Grayson County, Kentucky Page 25

In our view, this inference is not only unwarranted by the cognizable record, but

is improperly drawn in derogation of the traditional deference accorded to a state

governmental entity. With reference to “the way in which the Ten Commandments are

viewed,” the dissent appears to treat the inherent religious nature of the Ten

Commandments as necessarily “trumping” their recognized secular and historical

significance. As a consequence, the dissent, in effect, improperly transfers the burden

of proof from challenger to the governmental entity, too casually dismisses manifest

evidence of secular purpose as a sham, and indulges in speculation about Fiscal Court

members’ “heart of hearts,” contrary to McCreary County, 545 U.S. at 862.

The dissent’s conclusion that the Fiscal Court members’s true purpose was

predominantly religious may or may not be erroneous; it is simply not supported by the

record evidence on which the judicial assessment – of what the objective observer would

have understood the purpose behind to display to be – must be made. Indeed, there may

be good reason to believe that religious purpose underlies many of the attempts in recent

years to place copies of the Ten Commandments in public buildings. Nonetheless, while

“the secular purpose required has to be genuine, not a sham, and not merely secondary

to a religious objective,” McCreary County, 545 U.S. at 871, it is those objecting to a

display of the Ten Commandments who bear the burden of producing evidence sufficient

to prove that the governmental entity’s secular purpose is a sham, and that an objective

observer would understand the display to be motivated predominately by religion.

Plaintiffs have not carried their burden in this case.

VIII

Following the precedent set out by the Supreme Court’s decisions in McCreary

County and Van Orden, as well as by our own previous decision in Mercer County, we

hold that the Grayson County Foundations of American Law and Government Display

(with Ten Commandments) does not infringe plaintiffs’ rights under the Establishment

Clause. We REVERSE the judgment of the district court, VACATE its permanent

injunction, and REMAND the case for entry of JUDGMENT in favor of Grayson

County.
No. 08-5548 ACLU, et al. v. Grayson County, Kentucky Page 26

1

Although recently reformulated, see Mercer County, 432 F.3d at 635, this test was originally

enunciated in Lemon v. Kurtzman, 403 U.S. 602, 612-13 (1971), and I will thus refer to this standard as

the Lemon test.

________________

DISSENT

________________

KAREN NELSON MOORE, Circuit Judge, dissenting. Government action

violates the Establishment Clause if (1) “the government acts with the ostensible and

predominant purpose of advancing religion,” McCreary County v. ACLU, 545 U.S. 844,

860 (2005); (2) the action “has the purpose or effect of endorsing religion”; or (3) the

action “foster[s] an excessive governmental entanglement with religion,”1 ACLU v.

Mercer County, 432 F.3d 624, 635 (6th Cir. 2005). Although the majority purports to

apply this test, its application is misguided at best. Because I conclude that the record

evidence in this case, viewed in the light most favorable to the defendant, establishes that

the County had a predominantly religious purpose in hanging the Foundations Display

(“Display”) and that the Display had the purpose or effect of endorsing religion, I

dissent.

I. ANALYSIS

A. The Display’s Predominant Purpose is to Advance Religion

“[P]urpose matters.” McCreary County, 545 U.S. at 866 n.14. “The eyes that

look to purpose” behind government action, “belong to an ‘objective observer,’” id. at

862, a person who is “presumed to be aware of the text, legislative history, and

implementation of the state action.” Mercer County, 432 F.3d at 630 (quotation

omitted). Further, “although a legislature’s stated reasons will generally get deference,

the secular purpose required has to be genuine, not a sham, and not merely secondary

to a religious objective.” McCreary County, 545 U.S. at 864. If a defendant espouses

a purpose in response to litigation, and such purpose contradicts the record evidence, the

newly stated purpose may be rejected. See id. at 871 (rejecting the defendants’ “new

statements of purpose[, which] were presented only as a litigating position,” because
No. 08-5548 ACLU, et al. v. Grayson County, Kentucky Page 27

these statements contradicted the defendants’ pre-litigation religious purpose); cf.

Mercer County, 432 F.3d at 631-32 (noting that this court will not “defer to the

government’s stated purpose . . . ‘where the claim was an apparent sham’” (quoting

McCreary County, 545 U.S. at 865)).

The County’s asserted purpose here—that the Display was posted for educational

or historical reasons—is a sham and should be rejected. The minutes from the

September 18, 2001 Grayson County Fiscal Court (“Fiscal Court”) meeting, which

constitute the type of “legislative history” of which an objective observer would be

aware, reveal the following: (1) Reverend Shartzer, a religious leader, approached the

Fiscal Court and asked “the County to place the Ten Commandments in the County

buildings”; (2) Reverend Shartzer stated that “the Civil Liberties [sic] would look more

favorable [sic] toward [hanging the Ten Commandments] if they were hanging in a

grouping with the other historical documents”; (3) “Judge Logsdon and the Court

members expressed the desire to place them[, the Ten Commandments,] in the County

buildings and asked the County Attorney if he thought they could do so in a way that

would not cause problems for the County”; (4) Magistrate “Damon Hornback made a

motion to place the Ten Commandments in the buildings,” which “died for lack of a

second”; and (5) immediately thereafter Magistrate Sandy Farris made another motion,

which Damon Hornback seconded and which passed by a unanimous vote, that ordered

“[t]he County place the Ten Commandments in the Court House along with the

Historical documents.” Record on Appeal (“ROA”) at 417 (09/18/01 Meeting Minutes)

(emphasis added). On September 28, 2001, the Fiscal Court reaffirmed the September

18 vote that had already approved the Display, ordering that “[t]he following resolution

along with the Historical Documents and the Ten Commandments be placed in a

grouping in the Court House.” ROA at 419 (09/28/01 Meeting Minutes) (emphasis

added). The vote at this second meeting followed an extensive commentary by

Reverend Shartzer about the need for the Display, but the Fiscal Court failed to record

the content of the exchange and there is little record evidence concerning what Reverend

Shartzer said other than his recollection.
No. 08-5548 ACLU, et al. v. Grayson County, Kentucky Page 28

Although the Supreme Court has noted that the Ten Commandments have some

historical value, see Mercer County, 432 F.3d at 634, an objective observer reviewing

these minutes and their context in the light most favorable to the County would rightly

conclude that the Fiscal Court’s predominant purpose in erecting the Display was not

secular. The evidence from these meetings clearly indicates that the predominant

purpose was to post the Ten Commandments as a religious text and that the additional,

“Historical Documents” were added merely to avoid violating the Constitution. Most

notably, throughout the Fiscal Court’s discussion of whether to erect a display, the Ten

Commandments were always treated as separate from and more important than any of

the “Historical Documents” mentioned. Reverend Shartzer, a religious leader,

specifically asked the Fiscal Court to display the Ten Commandments. Magistrates

Hornback and Farris, both government officials, singled out the Ten Commandments as

their primary focus when making their respective motions to place the Display in the

courthouse and clearly considered the “Historical Documents” as distinct from the Ten

Commandments. Indeed, the actual orders that the Fiscal Court passed on September

18 and September 28 both focused on hanging the Ten Commandments and explicitly

distinguished them from the “Historical Documents,” which were mentioned in passing

and only as a way to attempt to avoid constitutional problems.

In addition to treating the Ten Commandments and the “Historical Documents”

as conceptually distinct, the Fiscal Court never mentioned at the first meeting when it

voted to approve the Display that the Display would be educational or showcase

America’s legal history. To the contrary, in fact, the Fiscal Court continually treated the

Ten Commandments as separate from the “Historical Documents,” indicating that the

Fiscal Court did not attribute to the Ten Commandments whatever historical value those

other documents held. Moreover, at no point after the Fiscal Court’s first meeting’s vote

did the Fiscal Court pass a resolution stating or clarifying that the purpose of the Display
No. 08-5548 ACLU, et al. v. Grayson County, Kentucky Page 29

2

The majority inexplicably ignores the Fiscal Court’s statements in concluding that “even

assuming that Shartzer had a religious purpose, there is no evidence in the record that the Fiscal Court as

a body adopted Shartzer’s purpose,” Maj. Op. at 17, and imagines silence where there was none.

3

By acknowledging the religious underpinnings of the Ten Commandments and the religious

manner in which the document is perceived, I do not, as the majority claims, treat the “inherent religious

nature of the Ten Commandments as necessarily ‘trumping’ their recognized secular and historical

significance.” Maj. Op. at 25. Rather, I analyze the Fiscal Court’s actions in context, and refuse to ignore

the fact that the Ten Commandments comprise a religious text and that the document’s religious

significance becomes even more pronounced when it is a religious leader who proposes that they be hung.

was educational, historical, or otherwise secular. Instead, the Fiscal Court members

began mentioning the secular aspects of the Display only after litigation commenced.2

The majority insists that this evidence is insufficient for the plaintiffs to show

that the County had a predominantly religious purpose in erecting the Display because

“the simple desire to post the Ten Commandments cannot, in isolation, demonstrate

religious purpose.” Maj. Op. at 18. This observation ignores the way in which the Ten

Commandments are viewed, particularly by religious leaders such as Reverend Shartzer,

and the explicit and vocal manner in which the Fiscal Court treated them. Regardless

of any historical value attributable to the Ten Commandments, it is undeniable that the

Ten Commandments comprise a religious document. See, e.g., Van Orden v. Perry, 545

U.S. 677, 690 (2005) (plurality) (“Of course, the Ten Commandments are

religious—they were so viewed at their inception and so remain.”). Given this reality,

even though a government entity can post the Ten Commandments for educational or

historical purposes and not run afoul of the Constitution, that does not mean that a desire

to post the Ten Commandments in a constitutionally permissible manner cannot also

evidence a predominantly religious purpose for the display in the eyes of an objective

observer. When a government entity speaks only and continually about posting a

religious document, treats the religious document as separate and distinct from the

history-related documents, and focuses principally on ensuring that the religious

document is posted in a way that does not upset “the Civil Liberties,” an objective

observer would rightly conclude that the predominant purpose behind hanging the

religious document was to support and spread the religious message. Under such

circumstances, the desire to post the religious document establishes the predominant

purpose, even if the government entity never bluntly states that purpose as its rationale.3
No. 08-5548 ACLU, et al. v. Grayson County, Kentucky Page 30

Again, as the Supreme Court has noted, “Of course, the Ten Commandments are religious—they were so

viewed at their inception and so remain.” Van Orden, 545 U.S. at 690. To fail to recognize this fact would

be as egregious as failing to acknowledge that the Ten Commandments can be viewed secularly, which

I do not purport to do.

4

The majority’s treatment of Magistrate Hornback’s first failed motion to place the Ten

Commandments in the courthouse as analogous to “evidence of ‘repeal or repudiation’” that “negates the

suggestion of a religious purpose” and “highlights the care taken by the Fiscal Court to promote its asserted

secular purpose,” Maj. Op. at 19, is unconvincing. Instead, in light of the Fiscal Court’s conversation

concerning the legal challenges mounted against Ten Commandments displays that immediately preceded

the failed motion, the failed motion reflects nothing more than an awareness of the potential legal

ramifications of posting the Ten Commandments in isolation. Furthermore, in order to “negate the

suggestion of a religious purpose,” the actions the Fiscal Court took after that motion must be in

accordance with a secular purpose. They were not. As highlighted above, the second vote still evidenced

that the Fiscal Court’s purpose was to hang the Ten Commandments for its religious value because the

Fiscal Court continued to treat the religious text as separate from the historical texts, which it desired to

hang only as an attempt to insulate the Ten Commandments from legal challenge.

As a result, I believe that the plaintiffs have met their burden to show an Establishment

Clause violation: The predominant purpose at the time the Fiscal Court voted to approve

the Display was a religious one.4

This conclusion would not forbid government entities from specifically

discussing the Ten Commandments or any other religious document or item, as the

majority implies. If a government entity proposed posting the Ten Commandments for

historical or educational purposes and, in the course of that discussion, referred

specifically to the Ten Commandments, that reference would not necessarily evidence

a religious purpose. In such a case, the record may well establish that, although the

government expressly referenced the Ten Commandments, it did so only as a way to

explain the type of display it envisioned and that, in light of the references to the

historical and educational import of the display and the Ten Commandments’ role

therein, the predominant purpose was secular. No such record evidence exists in the

instant case, however. The Fiscal Court here espoused no purpose other than a desire

to post a religious document, and it is the Fiscal Court’s singular focus on posting the

Ten Commandments for a sectarian reason that establishes a religious purpose.

To further support its conclusion that the Fiscal Court had a secular purpose in

hanging the Display, the majority relies on Reverend Shartzer’s deposition testimony

analogizing the display to “road signs.” Maj. Op. at 16. This reliance is misplaced.

Even assuming that Reverend Shartzer’s testimony correctly summarizes his statements
No. 08-5548 ACLU, et al. v. Grayson County, Kentucky Page 31

during the second Fiscal Court meeting, as we must, this testimony cannot support a

finding of secular purpose. As Reverend Shartzer admitted in his deposition, he did not

make his statements regarding “road signs” until the second meeting, which occurred

after the Fiscal Court originally approved the Display. There is no evidence that the

Fiscal Court voted to reapprove the Display because it had developed a new purpose

sometime between September 18 and September 28; to the contrary, the vote during the

second meeting was a response to the county attorney’s recommendation regarding the

constitutionality of the Display. See ROA at 417 (09/18/01 Meeting Minutes) (noting

that the Fiscal Court ordered that “[t]he County place the Ten Commandments in the

Court House along with the Historical documents of the Declaration of Independence,

Bill of Rights, Mayflower Compact, Star Spangled Banner, National Anthem, Magna

Carta, Explanation Document, and a County Resolution, after County Attorney Tom Goff

has looked at the results of the hearings in other Counties, and if he thinks this can be

done without legal action against the County.” (emphasis added)). The Fiscal Court’s

purpose in erecting the Display was already established at the time Reverend Shartzer

made his statements, and the majority cannot now use these statements to reinterpret the

Fiscal Court’s initial purpose.

I also do not believe that the Explanation Document posted with the Display

“represents the best evidence” of the Display’s purpose simply because the Explanation

Document allegedly identifies the Display’s purpose. Maj. Op. at 18 n.7. And to reach

this conclusion, I do not ignore the presence of the Explanation Document as the

majority contends. See id. Rather, while it is true that the Explanation Document states

that the Ten Commandments have “influenced the formation of Western legal thought”

and “provide the . . . foundation of our legal tradition,” ROA at 420 (Explanation Doc.),

the mere inclusion of the Explanation Document does not, in this case, establish the

Fiscal Court’s primary purpose or automatically insulate its actions. Importantly, the

Fiscal Court neither drafted nor approved the content of the Explanation Document. In

fact, several Fiscal Court members testified that they had not seen, let alone read, the

document prior to its posting. Reverend Shartzer also testified that even he had not seen

the Explanation Document prior to the Fiscal Court meeting where the Display was
No. 08-5548 ACLU, et al. v. Grayson County, Kentucky Page 32

approved because the Document was provided to him later by another pastor in response

to Reverend Shartzer’s inquiry about “what needed to be in the display” to avoid

constitutional problems. ROA at 379-81 (Shartzer Dep.).

Moreover, as outlined previously, at no time during the Fiscal Court’s discussion

of the Display did any member indicate that he or she was authorizing the Display for

reasons even remotely related to those contained within the Explanation Document.

Given this reality, the Explanation Document’s inclusion in the Display is as

inconsequential as the presence of the various “Historical Documents” in establishing

the Fiscal Court’s primary purpose. It simply cannot overcome the Fiscal Court’s

explicit statements. Even viewing the Explanation Document in the light most favorable

to the County, it is nothing more than an post-hoc attempt to obfuscate the true, religious

purpose. In short, at the time the Fiscal Court voted to approve the Display, the

ostensible purpose contained within the yet-to-be-seen Explanation Document was not

the Fiscal Court’s own purpose. Based on the Fiscal Court’s actual statements at the

time it approved the Display, an objective observer would still conclude that the Fiscal

Court’s purpose was predominantly religious, even “in light of the display’s explicit

statement.” Maj. Op. at 18 n.7. Certainly the contents and context of the Display

evidence some secular principles, but in light of the Display’s legislative history, which

expresses religious preference, they do not evidence secular purpose.

Contrary to the majority’s claim, then, Mercer County is vastly different from the

instant appeal. And even though a panel of this court “deferred to the local

government’s stated secular purpose” in Mercer County, Maj. Op. at 15, I believe that

we cannot do so here. It made sense for the Mercer County panel to defer to the

County’s stated secular purpose there because there was no evidence to the contrary.

Mercer County, 432 F.3d at 632 (“Mercer County’s stated purpose was more than a mere

‘litigating position’” because “there is no evidence in this case that the County’s stated

purpose is a sham.”). That is not so with Grayson County. Here, there is evidence in the

form of meeting minutes that the predominant purpose of this Display was not the

educational or historical purpose now espoused or reflected in the Explanation
No. 08-5548 ACLU, et al. v. Grayson County, Kentucky Page 33

Document. Instead, the secular rationale upon which the majority focuses embodies the

type of “litigating position” that the Supreme Court condemned in McCreary County.

See McCreary County, 545 U.S. at 871. And the secular purpose directly contradicts the

clear religious purpose evidenced by the Fiscal Court’s explicit statements in the meeting

minutes and the tenor of the meetings. All of the record evidence supports a finding that

the government entity had a predominantly religious purpose in erecting the Display and

that any other purpose is a sham. Such a conclusion does not require reliance on

erroneous inferences or suspicions gleaned from silence. The record evidence speaks

loudly and requires neither.

It is true that, in terms of content and position within the courthouse, the Display

at issue in the instant appeal is identical to the display that the Mercer County panel

found constitutional. But, contrary to the majority’s assertions, that is where the

similarities end. The majority is wrong to assert that Mercer County is dispositive—the

display in Mercer County had a materially different legislative history than the Display

at issue in this case. Unlike Mercer County, all of the evidence of legislative history in

this case supports a finding that the Fiscal Court acted with a predominantly religious

purpose and went to great lengths to hide that purpose by figuring out what it needed to

hang in addition to the Ten Commandments in order to avoid a constitutional challenge.

To defer to the Fiscal Court’s newly stated secular purpose ignores the statements the

Fiscal Court made when it voted to approve the Display and adopts as legitimate what

the Fiscal Court now feels it needs to say in order to avoid running afoul of the law.

Because the Display here “has a history [of] manifesting sectarian purpose that

the [Mercer County display] lack[ed], it is appropriate that they be treated differently.”

Mercer County, 432 F.3d at 632 (quoting McCreary County, 545 U.S. at 866 n.14) (first

alteration in original). Given the legislative-history evidence of religious purpose, I

believe that this case is more analogous to McCreary County. Accordingly, under the

Supreme Court’s rule in McCreary County, I would hold that the Display violates the

first prong of the Lemon test and, therefore, violates the Establishment Clause.
No. 08-5548 ACLU, et al. v. Grayson County, Kentucky Page 34

B. The Display Endorses Religion

The Display also fails the second prong of the Lemon test. Government action

violates this prong when the action would cause a reasonable person to view the act as

endorsing religion. Mercer County, 432 F.3d at 636. This is an objective standard that,

similar to the objective-observer standard outlined above, requires a court to consider

the perspective of a “reasonable person [who] is deemed aware of the circumstances

under which governmental actions arise, including the legislative history and

implementation.” Id. Moreover, “[c]ontext is crucial to this analysis.” Id. “If context,

history, and the act itself send the ‘unmistakable message’ of endorsing religion, then

the act is unconstitutional.” Id. at 637 (quoting County of Allegheny v. ACLU, 492 U.S.

573, 600 (1989) (plurality opinion)).

In upholding a display identical to the Display at issue here, the Mercer County

panel noted that this court “will not presume endorsement from the mere display of the

Ten Commandments.” Id. at 639. The panel further noted that the display was

constitutional because, on its face, it “sen[t] the ‘unmistakable message’ of the County’s

acknowledgment of legal history,” and that “nothing in the legislative history tend[ed]

to show otherwise.” Id. at 638 (emphasis added). In this case, unlike Mercer County,

there is evidence tending to show that the defendants were, in fact, endorsing religion.

As outlined at length above, the Fiscal Court meeting minutes reflect the desire to post

the Ten Commandments for its religious value, as opposed to erecting an educational or

historical display. Although a reviewing court cannot presume endorsement from the

simple fact that the Ten Commandments were included in the ultimate Display, id. at

639, such a presumption is unnecessary here given that the meeting minutes demonstrate

the Fiscal Court’s primary focus was to post a religious text for its religious value.

Unlike the historical message sent in Mercer County, the posting of an unquestionably

religious document under the circumstances in the instant case sent an “unmistakable

message” of endorsing religion that would lead the reasonable person to conclude that

the Display and the government behind it endorse religion. See id. at 638. Thus, I would
No. 08-5548 ACLU, et al. v. Grayson County, Kentucky Page 35

hold that the Display violates the second prong of the Lemon test as well as the first.

Each violation constitutes a violation of the Establishment Clause.

II. CONCLUSION

The record clearly demonstrates that the County erected the Display with a

predominantly religious purpose and that the Display has the purpose or effect of

endorsing religion. Accordingly, I would AFFIRM the district court’s grant of

summary judgment in favor of the plaintiffs. However, because the majority has seen

fit to imagine that a clear intent to post a religious document only for its religious value

does not evidence a predominantly religious purpose, I must dissent.