IN Civil Liberties v. O'Bannon, Frank

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 injunc-
tion in this case, Representative Steele asked
the President of the Lawrence County Commission-
ers, 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 be-
cause 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 Establish-
ment 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 prac-
tice 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 estab-
lishment of religion, or prohibiting the free
exercise thereof.

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

The Establishment Clause was intended to prohib-
it the establishment of a national church and
also to prohibit the Federal Government from
preferring one religious denomination over oth-
ers. 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 (Rehn-
quist, 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 isola-
tion from all the other parts, much less from
government." Lynch v. Donnelly, 465 U.S. 668, 673
(1984). The Constitution does not "require com-
plete separation of church and state; it affirma-
tively mandates accommodation, not merely toler-
ance, 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 Wal-
lace, 472 U.S. at 110-11 (Rehnquist, J. dissent-
ing) (discussing inconsistencies brought about by
the Supreme Court’s Establishment Clause juris-
prudence). It is possible to pick and choose from
the myriad of case law dealing with the Estab-
lishment 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 Consti-
tutions or in the Bill of Rights do not. Teenag-
ers 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 free-
exercise 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 prac-
tice 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’Ban-
non, 185 F.3d 796, 800 (7th Cir. 1999).

The majority concludes that "[t]he Ten Command-
ments is still an inherently religious text, and
. . . that the State [of Indiana] has not articu-
lated 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 "integrat-
ed 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 Command-
ments 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 lawgiv-
ers, 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 histo-
ry fails to similarly convey a secular message.
I do not understand why the majority reasons that
but four lines on the monument (those four Com-
mandments 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 consti-
tution states three goals: 1) for "justice [to]
be established"; 2) for "public order [to be]
maintained"; and 3) for "liberty [to be] perpetu-
ated". The three goals espoused by the Preamble,
reinforced by the freedoms contained in the Bill
of Rights, clearly serve to secularize the monu-
ment, 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. Respect-
fully, 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 pres-
ents 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 cul-
ture.

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 Com-
mandments "stood on the Statehouse lawn as a
reminder of some of our nation’s core values . .
. [and that] [s]oon those words will stand along-
side the abiding principals of our form of gov-
ernment, 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 "articula-
tion[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 mo-
tives to the States, particularly when a plausi-
ble 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 well-
reasoned 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 pro-
posed 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 justi-
fication for the majority’s refusal to give
credit to the state’s articulated purpose. See,
e.g., American Jewish Congress v. City of Chica-
go, 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 dis-
play 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 testimo-
ny offered during litigation as to Indiana’s
purpose for giving employees a Good Friday holi-
day).

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 reli-
gion. 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 toler-
ate, 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 reli-
gion, [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 vio-
lates 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 accompa-
nied 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 reli-
gious symbol was directly linked to a governmen-
tal symbol--an American Eagle gripping the na-
tional 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 alleg-
edly flow from the monument at issue. The pro-
posed monument would share the Statehouse lawn
with twelve other monuments--all wholly secular
in nature, thereby emphasizing the secular as-
pects 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 Indi-
ana’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 reli-
gious 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 monu-
ment, 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 effec-
tively and persuasively does away with any con-
ceivable 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 monu-
ment is not given a special place on the State-
house lawn any more than any of the other memori-
al 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 per-
ceived 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 satis-
fies 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 con-
trary 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, pro-
claimed, 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 reli-
gion and virtue . . . and to grant all mankind a
degree of temporal prosperity as He alone knows
best." George Washington, Proclamation: A Nation-
al Thanksgiving (reprinted in 5 Founders’ Consti-
tution 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 Alle-
giance. See Lynch, 465 U.S. at 674-75. Our cur-
rency bears the motto "In God We Trust." "Because
of their history and ubiquity, those practices
are not understood as conveying government ap-
proval 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 histo-
ry 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 Constitu-
tion, 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 na-
tion’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 for-
bidden 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 prelimi-
nary 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 reli-
gious 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 inter-
net (often sent unsolicited) and religious prose-
lytizers 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 in-
cluding the opening of a Congressional session or
the opening of this court with a prayer; similar-
ly, how can one justify the religious references
as found in innumerable public documents, includ-
ing 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 (writ-
ing about the intersection of the Establishment
Clause and Free Exercise Clause).