Staley v. Harris County TX

United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
August 15, 2006
FOR THE FIFTH CIRCUIT
_____________________ Charles R. Fulbruge III
Clerk
No. 04-20667
_____________________

KAY STALEY,

Plaintiff - Appellee,

versus

HARRIS COUNTY, TEXAS,

Defendant - Appellant.

__________________________________________________________________

Appeals from the United States District Court
for the Southern District of Texas
USDC No. 4:03-CV-3411
_________________________________________________________________

Before JOLLY, HIGGINBOTHAM, and SMITH, Circuit Judges.

E. GRADY JOLLY, Circuit Judge:

This appeal raises questions about the constitutionality of a

monument, dedicated to a local citizen, located on the grounds of

the Harris County Civil Courthouse. The rub is that the monument

contains an open Bible. The Plaintiff, Kay Staley, an atheist,

argues that the monument violates the Establishment Clause, because

its primary purpose and effect are religious. Harris County argues

that its purpose and effect are secular –- to memorialize the life

of a worthy citizen whose contributions to the community reflect

his Christian principles. We hold that although the monument at

one time may have passed constitutional scrutiny, its recent

history would force an objective observer to conclude that it is a
religious symbol of a particular faith, located on public grounds

–- public grounds that may not reflect preference in matters of

religion under the Establishment Clause of the First Amendment of

the United States Constitution as interpreted and applied by modern

day jurisprudence. We therefore affirm the district court’s

judgment.

I

The Courthouse was built in 1910 and is owned and operated by

Harris County, Texas, a political subdivision of the State of

Texas.1 The Courthouse occupies the center of an entire city block

in an area of downtown Houston that contains many other county

government buildings. Although it originally housed all county and

state courts and county government offices, the Courthouse is

currently designated as a Civil Courthouse, housing eighteen

courts, plus the county and district clerks’ offices.

In 1953, the Star of Hope Mission (“Star of Hope”), a local

Christian charity that provides food and shelter to indigents,

decided to build a memorial to William S. Mosher (“Mosher”), a

prominent Houston businessman and philanthropist who had been a

long-time, active supporter of Star of Hope before his death in

1948. Carloss Morris (“Morris”), the president of the Star of Hope

Mission in 1953, approached the Harris County Commissioners Court

and secured permission to erect a memorial to Mosher on the

1
This recitation of the facts is taken largely from the
district court’s opinion.

2
Courthouse property. Morris testified that Star of Hope selected

a location in front of the Courthouse because of the permanence and

prominence of its location.

Star of Hope designed and paid for the Mosher monument. It

was erected in 1956 in a plaza twenty-one feet from the main

entrance to the Courthouse. The monument measures two feet, six

inches by three feet, and is four feet, five inches high. Engraved

on the front surface of the monument, and occupying most of the

front surface’s area, is the following inscription:

STAR OF HOPE
MISSION
ERECTED
IN LOVING MEMORY
OF
HUSBAND AND FATHER

WILLIAM S. MOSHER

A.D. 1956

The top part of the monument is a glass-topped display case that is

sloped towards the Courthouse entrance. Star of Hope placed an

open Bible in the glass display case to memorialize Mosher’s

Christian faith, although the monument contains no written

explanation for the presence of the Bible.2 The sloping top of the

2
Morris testified that one of Star of Hope’s purposes for
including the open Bible in the display was to convey to the public
that Mosher was “a godly man” who had helped others, thus the Bible
in the display case was intended to represent Mosher’s
Christianity. Morris also testified that the presence of the Bible
conveys to people that this is a Christian government.

3
monument has the appearance of a lectern. The display case does

not contain any other items. The monument was dedicated in 1956 in

a public ceremony, which included Christian prayers.

Because the monument faces the main entrance to the

Courthouse, it is readily visible to attorneys, litigants, jurors,

witnesses, and other visitors to the Courthouse. However, a

passerby would have to walk up to the monument to observe that it

contains a Bible and would have to stand in front of it to read the

Bible. The open Bible as displayed measures twelve by sixteen

inches. The area in which the monument is located contains two

wall plaques and two free-standing historical markers. Neither the

plaques nor the historical markers contain any religious message.

No other open books are displayed in or near the Courthouse. Other

monuments, markers, and plaques are present in and near other

county buildings, but none of them contain a religious message.

Star of Hope maintained the monument from 1956 to 1995. The

monument was vandalized several times and the Bible stolen. Star

of Hope replaced it each time. In 1988, atheists complained about

the Bible to the Harris County Commissioners Court and asked that

it be removed. Although the evidence on this point is not entirely

clear, it appears that Star of Hope decided either to remove the

Bible or not to replace it again, rather than face potentially

costly litigation. From 1988 to 1995, the top of the monument

remained open and empty, and it was often used as a trash bin.

4
 This state desuetude ended in 1995, when John Devine was

elected as a state district judge. Judge Devine campaigned on a

platform of putting Christianity back into government. As a judge,

he initially maintained his office in a county building near the

Courthouse, and later moved to the Courthouse. His official court

reporter was Karen Friend. In 1995, Judge Devine and Friend

initiated a project to solicit private donations to refurbish the

monument, to restore a Bible to the display case, and to add neon

lighting to the display case. Judge Devine obtained approval from

Harris County, and made improvements to the monument, including the

new Bible and a red neon light outlining the Bible. Harris County,

however, did not pay for any of the improvements. A ceremony was

held on the Courthouse grounds in November 1995 to commemorate the

refurbishing of the monument and the replacement of the Bible. A

number of Christian ministers led prayers at the rededication

ceremony. Spectators and participants sang “The Battle Hymn of the

Republic”.

In 1996, and again in 1998, Friend paid for repairs to the

lights in the display case and to the display case to protect the

Bible from moisture. Since 1995, Harris County has paid for

electricity at the cost of $93.16 per year to illuminate the neon

lights that were installed in 1995. For a few years after the

monument was refurbished, Friend periodically turned the pages of

the Bible to selected passages. Since 1997, Star of Hope has

maintained the monument and turned the pages of the Bible.

5
Although Harris County does not maintain the monument, it retains

the authority to move or alter it.

Staley is a resident and taxpayer of Harris County. Staley,

an attorney, passes the monument going to and from the Courthouse

in the course of her occupation. She testified that she is

offended by the Bible display in the monument because it advances

Christianity and it sends a message to her and to non-Christians

that, because they do not share the Christian faith, they are not

full members of the Houston political community.

After Staley filed suit asking that Harris County be ordered

to remove the Bible display, supporters of the Bible display held

a large rally on September 4, 2003, in the Courthouse plaza next to

the monument. Several hundred rally participants prayed and

stressed that the Bible was a foundation of the Christian faith.3

County Judge Robert Eckels, Judge Devine, and Harris County

Attorney Mike Stafford spoke at the rally and participated in the

3
News footage of the rally, in which the monument is
referred to as the “Bible monument,” contains one woman stating
that she is ready to die for this, because it is the “essence of
Christianity.” Further, a granddaughter of Mosher stated that this
was more than a battle over a monument, but was a “real battle of
good and evil.”

6
prayers led by Christian ministers.4 Eckels and Stafford stated

that the County would strongly oppose the lawsuit.5

II

On August 25, 2003, Staley filed suit in the United States

District Court for the Southern District of Texas, requesting a

temporary restraining order, preliminary injunction, and permanent

injunction against Harris County to remove the Bible from the

display case, as well as requesting attorney’s fees. On August 10,

2004, the district court entered a final judgment in favor of

Staley, ordering the Bible removed from the monument, as well as

ordering Harris County to pay Staley $40,586 in attorney’s fees and

expenses. The district court reasoned that the purpose and the

effect of the Bible in the monument casing were religious, thus the

presence of the Bible violated the Establishment Clause. Harris

County timely appeals the district court’s decision.

III

Harris County maintains that the district court erred in its

determination that the monument violates the Establishment Clause.

First, Harris County argues that the district court erred in

focusing on the Bible as a separate object apart from the Mosher

4
In the 2004 bench trial, Eckels testified that Mosher’s
death was “within the last few years.” Judge Devine testified that
he was not sure when Mosher died, but guessed 1955. Judge Devine
also testified as to a nebulous understanding of what Mosher did.
5
We think this event should have little weight in
determining the purpose of the monument since it was largely
invited by the lawsuit and was an expected response by adversaries.

7
memorial in which it is housed. Second, Harris County asserts that

the district court erred in finding that the monument had a

religious purpose. The county maintains that the purpose of the

monument is to honor Mosher and the life that he led. Third,

Harris County contends that the district court erred in finding

that the monument had a religious effect. It insists that, due to

the monument’s nonreligious inscription memorializing Mr. Mosher,

the reasonable observer would recognize that Star of Hope erected

the monument as a private expression and that Harris County did not

endorse the included Bible. We need not address Harris County’s

first and third arguments because we find that the monument as a

whole has a predominantly religious purpose, thus running afoul of

the Establishment Clause.

IV

A

This Court reviews the district court’s grant of a permanent

injunction under the abuse of discretion standard. Peaches Entm’t

Corp. v. Entm’t Repertoire Assocs., Inc., 62 F.3d 690, 693 (5th

Cir. 1995). We review findings of fact for clear error and

conclusions of law de novo. Id. The district court’s conclusions

of constitutional law are reviewed de novo. Peyote Way Church of

God, Inc. v. Thornburgh, 922 F.2d 1210, 1213 (5th Cir. 1991).

To decide the case before us, we see little need to conduct an

exhaustive and analytical survey of Establishment Clause

jurisprudence over the past fifty, or even the past five, years.

8
The outcome of this case is foretold by the two most recent cases

handed down by the Supreme Court in this area of the law, each case

dealing with monuments on public grounds, and neither case decided

when the district court ruled on this case.6 See McCreary County,

Ky. v. ACLU of Ky., –- U.S. –-, 125 S. Ct. 2722 (2005); Van Orden

v. Perry, –- U.S. –-, 125 S. Ct. 2854 (2005).

In McCreary County, the Court held that two counties’ actions

of posting the Ten Commandments in their respective courthouses

violated the Establishment Clause. The counties each put up large,

gold-framed copies of the Ten Commandments in their respective

courthouses. McCreary County, 125 S. Ct. at 2728. In McCreary

6
Each of these opinions suggests a constitutional
determination on the basis of the conclusion of an “objective
observer,” and McCreary County involves the “purpose” test of Lemon
v. Kurtzman, 403 U.S. 602 (1971). We recognize the criticisms of
Lemon noted by Justice Scalia, and in particular his criticisms of
the “objective observer” analysis for determining the purpose of
the monument. See McCreary County, Ky. v. ACLU of Ky., –- U.S. –-,
125 S. Ct. 2722, 2757 (2005) (Scalia, J., dissenting).
Nevertheless, this reasoning is the lodestar illuminating the
pathway through the majority opinion in McCreary County, as well as
the theme implicit in Justice Breyer’s concurrence in Van Orden.
Neither leaves any doubt that if the objective observer should
conclude from appearances and historic knowledge that the state is
demonstrating a religious preference, the Establishment Clause is
violated.

We do not argue that our analysis, following the Supreme
Court’s guide, represents the most scholarly, historical, or
convincing method of explaining and applying the Establishment
Clause. Nevertheless, the “objective observer” analysis is both
the simple and Supreme Court-approved method of deciding this case:
A monument attacked under the Establishment Clause will not pass
constitutional scrutiny if the objective observer concludes that
the purpose or the effect of the monument advances a religious
message demonstrating sectarian preferences.

9
County, the county legislative body issued an order requiring the

display to be placed in a very high traffic area, and so it was.

Id. In Pulaski County, a ceremony was held at the hanging of the

display, which included numerous religious references and a pastor

in attendance. Id. In both counties, the display was plainly

visible to courthouse visitors. Id. The ACLU sued the counties,

and within a month of the lawsuit’s filing, “and before the

[d]istrict [c]ourt had responded to the request for injunction, the

legislative body of each [c]ounty authorized a second, expanded

display, by nearly identical resolutions reciting that the Ten

Commandments are the ‘precedent legal code upon which [Kentucky

codified law is] founded,’ and stating several grounds for taking

that position.” Id. at 2729. The expanded displays included the

Ten Commandments, as well as eight other documents in smaller

frames, all of which had a religious theme or highlighted a

religious element. Id. The district court subsequently entered a

preliminary injunction ordering these second displays removed,

determining that they violated the Establishment Clause. Id. at

2730. The counties “then installed another display in each

courthouse, the third within a year. No new resolution authorized

this one, nor did the [c]ounties repeal the resolutions that

preceded the second.” Id. at 2730. The third display contained

nine equally-sized framed documents, including a longer version of

the Ten Commandments, along with eight other historical and legal

documents, some of which contained religious references. Id. at

10
2730-31. Each document was posted with a statement regarding its

historical and legal significance. Id. at 2731. The counties

explained that the reasons for the display included “desires ‘to

demonstrate that the Ten Commandments were part of the foundation

of American Law and Government’ and ‘to educate the citizens of the

county regarding some of the documents that played a significant

role in the foundation of our system of law and government.’” Id.

The case wound its way to the Supreme Court. Once there, the

Court forbade the courthouse displays and, in doing so, refined the

purpose prong of the Lemon test. Id. at 2732-37; see also ACLU of

Ky. v. Mercer County, Ky., 432 F.3d 624, 630-32, 635-36 (6th Cir.

2005); Skoros v. City of New York, 437 F.3d 1, 17 (2d Cir. 2006).

The Court noted that “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, 125 S. Ct. at 2735. In the

examination of purpose, “[t]he eyes that look to purpose belong to

an objective observer, one who takes account of the traditional

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

implementation of the statute or comparable official act.” Id. at

2734 (internal quotations omitted). This reasonable observer has

a reasonable memory, and knows the history and context of the

government’s actions. Id. at 2737. Furthermore, “purpose needs to

be taken seriously under the Establishment Clause and needs to be

understood in light of context.” Id. at 2741.

11
 The Court determined that it must “look to the record of

evidence showing the progression leading up to the third display of

the Commandments.” Id. at 2738. The Court noted that the Ten

Commandments are “a central point of reference in the religious and

moral history of Jews and Christians[,]” and that the religious

message of the Ten Commandments “is hard to avoid in the absence of

a context plausibly suggesting a message going beyond an excuse to

promote the religious point of view.” Id. The Court noted that

the first display, consisting of only the Ten Commandments, did

nothing to counter the sectarian implication, and further observed

that the Pulaski County ceremony was attended by the county

executive’s pastor, who testified to the certainty of God’s

existence. Id. The Court remarked that “[t]he reasonable observer

could only think that the [c]ounties meant to emphasize and

celebrate the Commandments’ religious message.” Id. As to the

first displays, the Court concluded that “the original text [of the

Commandments] viewed in its entirety is an unmistakably religious

statement dealing with religious obligations and with morality

subject to religious sanction[,]” thus “[w]hen the government

initiates an effort to place this statement alone in public view,

a religious object is unmistakable.” Id. at 2739.

As to the second display, the Court observed that the other

documents displayed contained the sole common element of

highlighted references to God, and that the display’s focus was on

religious passages, thus demonstrating that the Ten Commandments

12
were posted because of the sectarian content. Id. Noting that the

counties did not attempt to defend their objective behind the

second display, but instead described it as “dead and buried,” the

Court stated that the “refusal to defend the second display is

understandable, but the reasonable observer could not forget it.”

Id.

Moving on to an examination of the third display, the Court

noted that the new statements of purpose attending the display

“were presented only as a litigating position, there being no

further authorizing action by the [c]ounties’ governing boards[,]”

that the resolutions for the second display were not repealed, and

that more of the purely religious language of the Ten Commandments

was quoted than was in the first two displays. Id. at 2740.

According to the Court, “[n]o reasonable observer could swallow the

claim that the [c]ounties had cast off the objective so

unmistakable in the earlier displays.” Id. The Court also

reasoned that the other posted material did not “suggest a clear

theme that might prevail over evidence of the continuing religious

object[,]” as several important historical documents, such as the

original Constitution and the Fourteenth Amendment were absent,

while documents such as patriotic anthems and portions of the Magna

Carta were displayed. Id. The Court found that this indicated

that the reasonable observer “would probably suspect that the

[c]ounties were simply reaching for any way to keep a religious

document on the walls of courthouses constitutionally required to

13
embody religious neutrality.” Id. at 2741. Thus, the Court, in

upholding the district court’s preliminary injunction, stated that

“an implausible claim that governmental purpose has changed should

not carry the day in a court of law any more than in a head with

common sense.” Id. However, the Court qualified the holding,

stating that it did “not decide that the [c]ounties’ past actions

forever taint any effort on their part to deal with the subject

matter.” Id. Reading the majority opinion in its entirety and

attempting to place its observations and holdings in context, we

must conclude that it does not bring good news for the defendants

in this case.

We now turn to review Van Orden, a case with a more favorable

outcome for the defendants. There, a plurality of the Court, in

upholding the constitutionality of a Ten Commandments monument on

the grounds of the Texas State Capitol, found the Lemon test not

useful in dealing with the sort of passive monument at issue in

that case, and instead looked to the nature of the monument and our

Nation’s history.7 125 S. Ct. at 2861. The monument in Van Orden

7
The plurality examined the “two directions” in which cases
point in applying the Establishment Clause. Van Orden, 125 S. Ct.
at 2859. “One face looks toward the strong role played by religion
and religious tradition throughout our Nation’s history.” Id.
“The other face looks toward the principle that government
intervention in religious matters can itself endanger religious
freedom.” Id. Both faces should be respected. Id. Noting the
longstanding role of the Ten Commandments in the heritage of our
country, id. at 2862, and the passive nature of the monument, id.
at 2864, the plurality concluded that the monument did not violate
the Establishment Clause. Id. at 2864.

14
was located on the twenty-two acres surrounding the Texas State

Capitol, an area that contained seventeen monuments and twenty-one

historical markers, the presence of which commemorated the

“‘people, ideals, and events that compose Texan identity.’” Id. at

2858. The monument’s primary content consisted of the text of the

Ten Commandments, and it also included many smaller symbols, such

as the Star of David, and Greek letters representing Christ. Id.

The monument bore a prominent inscription that acknowledged that

the monument was donated by the Fraternal Order of Eagles, a

private social, civic, and patriotic organization. Id. The Eagles

“sought to highlight the Commandments’ role in shaping civic

morality as part of that organization’s efforts to combat juvenile

delinquency.” Id. at 2870 (Breyer, J., concurring). In deciding

the text that would be displayed, the Eagles consulted “with a

committee composed of members of several faiths in order to find a

nonsectarian text.” Id. (Breyer, J., concurring). The location of

the monument was selected based on the recommendation of the state

organization that was responsible for maintaining the Capitol

grounds, and the dedication of the monument was presided over by

two state legislators, there being no indication of religious-type

ceremonies attending this dedication. Id. at 2858. The monument

stood for approximately forty years without legal challenge. Id.

at 2870 (Breyer, J., concurring).

15
 In his concurring opinion agreeing that the monument did not

violate the Establishment Clause,8 Justice Breyer determined that

“no single mechanical formula [] can accurately draw the

constitutional line in every case.” Id. at 2868, 2869 (Breyer, J.,

concurring) (“While the Court’s prior tests provide useful

guideposts ... no exact formula can dictate a resolution to such

fact-intensive cases.” (internal citations omitted)). He found

that in borderline cases, there is “no test-related substitute for

the exercise of legal judgment[,]” taking into account the context

and consequences in light of the underlying purposes of the

religion clauses.9 Id. at 2869 (Breyer, J., concurring). “[T]o

determine the message that the text here conveys, we must examine

how the text is used. And that inquiry requires us to consider the

context of the display.” Id. (Breyer, J., concurring).

In examining the context of the display to determine the

predominant message it conveyed, Justice Breyer looked to several

different factors, including the circumstances surrounding the

8
Justice Breyer’s concurrence in Van Orden is the
controlling opinion from which we must draw in this case. See
Marks v. United States, 430 U.S. 188, 193 (1977) (“When a
fragmented Court decides a case and no single rationale explaining
the result enjoys the assent of five Justices, the holding of the
Court may be viewed as that position taken by those Members who
concurred in the judgments on the narrowest grounds.” (internal
quotations omitted)).
9
However, Justice Breyer did note that he believed that the
monument might satisfy more formal Establishment Clause tests, as
it served a mixed but primarily nonreligious purpose. Van Orden,
125 S. Ct. at 2871 (Breyer, J., concurring).

16
display’s placement on state grounds, the display’s physical

setting, and the amount of time the display stood without

challenge. Id. at 2870 (Breyer, J., concurring). Regarding the

circumstances surrounding the display’s placement, Justice Breyer

found it noteworthy that the Eagles sought to highlight the role of

the Ten Commandments in shaping civic morality because of the

Eagles’ efforts combating juvenile delinquency, that the Eagles’

attempted to find a nonsectarian text to display, and that the

monument acknowledged that it was donated by the Eagles. Id. at

2870 (Breyer, J., concurring). He determined that these facts

emphasized the Eagles’ ethics-based, secular motive and distanced

the State from the religious aspect of the monument’s message. Id.

(Breyer, J., concurring). Justice Breyer observed that the

monument’s setting did not lend itself readily to religious

activity, but that it did “provide a context of history and moral

ideals.” Id. (Breyer, J., concurring). Thus, he reasoned that

“the context suggests that the State intended the display’s moral

message–-an illustrative message reflecting the historical ‘ideals’

of Texans–-to predominate.” Id. (Breyer, J., concurring). Justice

Breyer further emphasized that the forty years that had passed

without legal objection to the monument strongly suggested that

most individuals “considered the religious aspect of the tablets’

message as part of what is a broader moral and historical message

reflective of cultural heritage.” Id. at 2870-71 (Breyer, J.,

concurring).

17
 Justice Breyer distinguished Van Orden from McCreary County,

observing that in McCreary County the history of the displays

“demonstrate[d] the substantially religious objectives of those who

mounted them, and the effect of this readily apparent objective

upon those who view them.” Id. at 2871 (Breyer, J., concurring).

He stated that “a more contemporary state effort to focus attention

upon a religious text is certainly likely to prove divisive in a

way that this longstanding, pre-existing monument has not.” Id.

(Breyer, J., concurring). He concluded that in finding the

monument constitutional, he relied “less upon a literal application

of any particular test than upon consideration of the basic

purposes of the First Amendment’s Religion Clauses themselves[,]”

specifically, avoiding religiously based divisiveness. Id.

(Breyer, J., concurring). Again focusing on the forty years the

monument went uncontested, Justice Breyer noted that “as a

practical matter of degree this display is unlikely to prove

divisive. And this matter of degree is ... critical in a

borderline case such as this one.” Id. (Breyer, J., concurring).

He concluded that “where the Establishment Clause is at issue, we

must distinguish between real threat and mere shadow. Here, we

have only the shadow.” Id. (Breyer, J., concurring) (internal

citation and quotations omitted).

This Court has stated that the determination of whether a

display has the effect of endorsing religion centers around a fair

18
understanding of the purpose of the display as may be held by

viewers. Van Orden v. Perry, 351 F.3d 173, 177 (5th Cir. 2003),

aff’d –- U.S. –-, 125 S. Ct. 2854 (2005). The viewpoint to be

examined is that of a reasonable observer, “not of the uniformed,

the casual passerby, the heckler, or the reaction of a single

individual.” Van Orden, 351 F.3d at 177-78. This Court has stated

that “[t]he guiding principle is government neutrality toward

religion in the sense that a state cannot favor religion over non-

religion or one religion over another[,]” thus the “proper

application of First Amendment principles demands a sense of

proportion and [the] inquiry is fact-sensitive.” Id. at 178.

B

We now turn to an examination of the Mosher monument’s

purpose, focusing on the viewpoint of the objective observer, a

person who is “familiar with the history of the government’s

actions” and the context in which those actions arose, and “who

takes account of the traditional external signs that show up in the

text, legislative history, and implementation” of the government’s

act. McCreary County, 125 S. Ct. at 2734-35, 2737 (internal

quotations omitted). McCreary County makes clear that the entire

history surrounding the monument is relevant –- a religious purpose

cannot be hidden one way or the other. An original religious

purpose may not be concealed by later acts, nor may a newfound

religious purpose be shielded by reference to an original purpose.

In conducting our analysis, we note, as the Court in McCreary

19
County noted regarding the Ten Commandments, that the Bible is a

central point of reference in the religious history of Christians.

See id. at 2738.

First, we examine the purpose of the monument in 1956, when it

was first erected. The evidence is clear and indisputable that

Star of Hope erected the monument to honor the life and

contributions of Mosher. The Bible was included to represent that

Mosher was a Christian, Christianity being an important part of the

life being honored. The reasonable observer, cognizant of the

history and context of the monument, would know about Mosher, his

contributions to Star of Hope, and the importance of Christianity

in his life. Thus, although some religious expression and

religious values seem to have been behind the erection of the

monument, it does not betray sound reasoning to conclude that, from

the viewpoint of the objective observer, the primary purpose of the

monument originally was to honor the life and contributions of a

generous, compassionate, and well-respected citizen whose life

reflected the Christian values that inspired his contributions to

the community. See Van Orden, 125 S. Ct. at 2869-70 (Breyer, J.,

concurring) (noting that constitutional religious texts may convey

both religious and secular messages). It is certainly true that

Christian prayers were included in the dedication ceremony.

Nevertheless, the fact that the monument, with the Bible, stood

without complaint for thirty-two years, supports the notion that

the original purpose was not objectively seen as predominantly

20
religious. See Van Orden, 125 S. Ct. at 2870-71 (Breyer, J.,

concurring) (the significant length of time during which the

monument stood without objection “suggest[s] more strongly than can

any set of formulaic tests that few individuals, whatever their

system of beliefs, are likely to have understood the monument as

amounting, in any significantly detrimental way, to a government

effort to favor” or promote religion).

Another phase of the monument’s life began in 1988 with the

removal of the Bible from the monument; then there was the absence

of any Bible and the neglect of the monument for seven years. In

1995 there began the final phase with the refurbishment of the

monument. Now this is the point at which the monument begins to

morph into a religious symbol, an occurrence that would have been

fully noticed by the objective observer.

As we have noted, the monument had been abandoned for seven

years when the Bible was replaced in 1995, and the circumstances

attending the replacement indicate an almost exclusively religious

purpose for the restoration of the monument. First, the

refurbishment of the monument was sparked by Judge Devine shortly

after he premised his political campaign on putting Christianity

back in government. Neither Judge Devine nor Friend had any

relationship with Mosher, Mosher’s family, or Star of Hope. Any

suggestion that the primary concern, or even one significant

concern, of Devine and Friend was to honor Mosher is factually

baseless. Second, the “refurbishment” of the monument did more

21
than simply restore the monument to its original form –- the

monument was in fact altered, and in ways that are significant to

this case. A red neon light surrounding the Bible was added to the

monument, highlighting and illuminating the religious portion of

the monument, where there had been no such previous focus or

emphasis on the Bible. Furthermore, the refurbishment decisions

were not made by anyone in a museum curator-type position, but

instead all decisions appear to have been made by Friend and/or

Judge Devine, whose motivations and interests seem to have been

purely religious. Third, the rededication ceremony, which Harris

County officials attended, featured several Christian ministers

leading prayers. See McCreary County, 125 S. Ct. at 2738 (noting

that the presence of a pastor who testified about the certainty of

the existence of God was a factor tending to show that the

reasonable observer would think that the county was emphasizing and

celebrating the religious message of the display); cf. Van Orden,

351 F.3d at 179-80, 181 (no indication of any religious aspect in

original dedication ceremony and no indication of any ceremony

attending reinstallation).

It is likewise noteworthy that the length of time between the

refurbishment of the monument and the legal objection to it is

relatively short, hardly spanning generations as did the time

period emphasized by Justice Breyer in Van Orden. Furthermore, the

1995 refurbishment is “a more contemporary state effort to focus

22
attention upon a religious text” that is more likely to prove

divisive. Van Orden, 125 S. Ct. at 2871 (Breyer, J., concurring).10

Based on these events, the reasonable observer would conclude

that the monument, with the Bible outlined in red neon lighting,

had evolved into a predominantly religious symbol. In examining

the distinct third phase of the monument, the objective observer

would note the primarily religious purpose attached to the

monument. Taking into account Judge Devine’s political platform,

the lack of connections between the refurbishers of the monument

and Mosher or Star of Hope, the religious ceremonies attending the

refurbishment, and the addition of a red neon light drawing added

attention to the religious portion of the monument, an objective

observer would conclude that the monument in its new phase of life

had come to have a predominantly religious purpose. This observer

would conclude that Judge Devine and his allies essentially had

10
The plaintiff argues that the 2003 rally in support of the
monument, occurring after the lawsuit was filed seeking to remove
the Bible, demonstrates that the monument has a primary religious
purpose. The rally, where Harris County officials attended and
spoke, focused almost solely on the display of the Bible. Little
was said about Mosher or the monument itself, but the speeches
focused on defending the Bible as part of the monument and on the
lawsuit that had been filed seeking its removal.

The rally occurred after the lawsuit was filed and adversarial
relationships had been established. We therefore find little
relevance to this post-litigation conduct, which is influenced by
the litigation as opposed to underlying the purpose of the
monument. Litigating posturing is suspect in determining the
purpose of a monument. See McCreary County, 125 S. Ct. at 2740-41.

23
commandeered the monument for religious purposes, and that the

primary purpose of the monument had now become religious.

Because the objective observer would conclude that the current

purpose of the monument has evolved into, and presently

constitutes, a religious symbol, the Mosher monument containing a

Bible violates the Establishment Clause. For the foregoing

reasons, the judgment of the district court is

AFFIRMED.

24
JERRY E. SMITH, Circuit Judge, dissenting:

The panel majority exhibits an appalling hostility to any hint of religion in public spaces.

Moreover, it does so by means of a misguided attempt to apply the Supreme Court’s recent opinions

in McCreary1 and Van Orden.2 The result is to enable a candidate for political office to alter the

character and constitutionality of a longstanding, privately-owned memorial merely by invoking

religion and making benign alterations to the monument’s appearance. The majority bases its in-

dictment of the Mosher memorial not on any legislative resolution or official statement made at its

dedication, but instead on the bare interpretation of its purpose by state judge John Devine nearly

forty years into its existence.

This formerly unknown principle of constitutional lawSSwhich perhaps should be crowned

the “Principle of Devine Intervention”SShas serious doctrinal and practical consequences. First, it

justifies the removal of a monument having a predominantly secular purpose, see McCreary, 125 S.

Ct. at 2733, as long as any religious purpose arises during the course of the monument’s multi-decade

lifetime. Second, it places in particular jeopardy those monuments that are most deserving of judicial

protection because they have “stood apparently uncontested for . . . generations” and are “unlikely

to prove divisive” in the future. Van Orden, 125 S. Ct. at 2871 (Breyer, J., concurring). Because

this result and reasoning reflect a fundamental misunderstanding of McCreary and Van Orden,

I respectfully dissent.

1
McCreary County, Ky. v. ACLU, 125 S. Ct. 2722 (2005).
2
Van Orden v. Perry, 125 S. Ct. 2854 (2005).

25
 I.

The panel majority opines that this is not the occasion to develop and apply the most

“scholarly, historical, or convincing” approach to Establishment Clause jurisprudence. Irrespective

of whether the majority is correct in that assertion, this case does present the occasion, for the first

time in this circuit, to integrate McCreary and Van Orden into as coherent a framework as possible.

Despite its desire to appear conflicted over the merits of the “objective observer” test, the majority

proceeds to create an observer whose memory is short and whose antipathy to religion lacks any

semblance of objectivity. Nothing in McCreary or Van Orden requires us to exercise the power of

judicial review in such a censorial manner.

A.

The Lemon test remains the benchmark for reviewing the constitutionality of a monument on

public property.3 The purpose prong of that test, as modified by McCreary, 125 S. Ct. at 2733,4

3
Though four Justices concluded that the Lemon test was “not
useful” for evaluating a passive monument on government property,
Van Orden, 125 S. Ct. at 2861, and a fifth Justice relied “less
upon a literal application of any particular test than upon
consideration of the basic purposes of the First Amendment’s
Religion Clauses themselves,” id. at 2871 (Breyer, J., concurring),
the McCreary majority opinion assumed the continuing vitality of
Lemon in its analysis of the purpose of the Kentucky counties’
displays. See McCreary, 125 S. Ct. at 2732-33.
4
I agree with Justice Scalia’s observation in dissent in
McCreary that the Court introduced a “heightened requirement that
the secular purpose ‘predominate’ over any purpose to advance
religion.” McCreary, 125 S. Ct. at 2757 (Scalia, J., dissenting).
Previously, Lemon required only that the government offer a non-
sham secular purpose, whether it predominated or not. See id. at
2757-58 (Scalia, J., dissenting) (collecting sources).

26
prohibits government from acting with the “ostensible and predominant purpose of advancing

religion.” The Court held that we may consider the evolution of a monument when evaluating its

purpose, id. at 2728, but emphatically rejected the counties’ position that purpose should derive

solely from the most recent action taken with respect to a particular display:

[T]he world is not made brand new every morning, and the Counties are simply
asking us to ignore perfectly probative evidence; they want an absentminded objective
observer, not one presumed to be familiar with the history of the government’s
actions and competent to learn what history has to show.

Id. at 2736-37. The objective observer is not easily persuaded that a newly-articulated purpose

should displace a well-settled, original purpose, because “reasonable observers have reasonable

memories,” id. at 2737, and “[n]o reasonable observer could swallow the claim that the Counties had

cast off the objective so unmistakable in the earlier displays.” Id. at 2740.

In Van Orden, Justice Breyer, in the controlling opinion, considered the “basic purposes” of

the religion clausesSSin his view, preservation of religious liberty and tolerance, the prevention of

social conflict that results from religious strife, and the separation of church and stateSSin discerning

the effect of a monument on the community. See Van Orden, 125 S. Ct. at 2868, 2871 (Breyer, J.,

concurring). Justice Breyer examined the circumstances surrounding the placement of the Ten Com-

mandments on the state capitol grounds and the physical setting of the monument and concluded that

the state intended a moral, non-religious message to predominate. See id. at 2870 (Breyer, J.,

concurring).

Moreover, in Van Orden the fact that the monument had survived forty years without legal

challenge was determinative:

[T]hose 40 years suggest more strongly than can any set of formulaic tests that few
individuals, whatever their system of beliefs, are likely to have understood the monu-
ment as amounting, in any significantly detrimental way, to a government effort to

27
 favor a particular religious sect, primarily to promote religion over nonreligion, to en-
gage in any religious practice, to compel any religious practice, or to work deterrence
of any religious belief.

Id. (Breyer, J., concurring) (internal quotations omitted). It follows that judicial removal of a long-

standing monument would “lead the law to exhibit a hostility toward religion that has no place in our

Establishment Clause traditions . . . [and] could thereby create the very kind of religiously based

divisiveness that the Establishment Clause seeks to avoid.” Id. at 2871 (Breyer, J., concurring).

The net effect of McCreary’s predominance standard and Van Orden’s emphasis on the lon-

gevity of the challenged display is to create a presumption that secular monuments of early prov-

enance are constitutional, even if they contain subordinate religious elements.5 If a monument lacks

a “sectarian heritage,” McCreary, 125 S. Ct. at 2737 n.14, the “objective observer” will be unmoved

by an outlier’s insistence that the monument was, in fact, intended to promote religion.

The collective wisdom of the community over an extended period of time provides more

reliable evidence of the purpose of a public display than do the musings of “the uninformed, the casual

passerby, the heckler, or the reaction of a single individual.” Van Orden, 351 F.3d at 178. The

appearance of religious themes in time-honored monuments, like the invocation of God in legislative

session, at court arguments, or on our currency, is permissible official recognition of the place occu-

pied by religion in the tapestry of our national culture.6

5
See Van Orden, 125 S. Ct. at 2871 (comparing the long,
peaceful history of the Texas monument with the “short (and stormy)
history” of the Kentucky displays).
6
See Van Orden, 125 S. Ct. at 2869 (Breyer, J., concurring)
(noting the Establishment Clause’s tolerance of “the prayers that
open legislative meetings . . . certain references to, and
invocations of, the Deity in the public words of public officials;
the public references to God on coins, decrees, and buildings;
[and] the attention paid to the religious objectives of certain

28
 B.

Although the panel majority likely agrees with much of this analysis, it ultimately undermines

the holdings of McCreary and Van Orden with two analytically dubious maneuvers that make its

result possible. First, the majority asserts (without citation) that “a religious purpose cannot be

hidden one way or the other” and is invalidating whether it arises early or late in a monument’s

history. This is demonstrably false. Implicit in the notion that the state may not act with the predom-

inant purpose of advancing religion is that it may act with the secondary purpose of advancing it.

A religious purpose appearing for the first time nearly forty years after the foundation of a

monument can hardly classify as “predominant.” McCreary lends no support to the proposition that

a newfound religious purpose automatically supersedes an original secular one. In McCreary the

Court explicitly rejects that formulation:

If someone in the government hides religious motive so well that the objective ob-
server, acquainted with the [history and implementation of the government’s action]
cannot see it, then without something more the government does not make a divisive
announcement that in itself amounts to taking religious sides . . . . [I]t suffices to wait
and see whether such government action turns out to have (as it may even be likely
to have) the illegitimate effect of advancing religion.

holidays, including Thanksgiving”); Marsh v. Chambers, 463 U.S.
783, 792 (1983) (holding that prayer opening a legislative session
is “simply a tolerable acknowledgment of beliefs widely held among
the people of this country”).

29
McCreary, 125 S. Ct. at 2735 (emphasis added).7 That is, if a monument has had a primarily secular

history, the purpose inquiry ordinarily comes to an end; it suffices to see whether the monument

“create[s] the . . . kind of religiously based divisiveness that the Establishment Clause seeks to avoid.”

Van Orden, 125 S. Ct. at 2871 (Breyer, J., concurring).

It is true, of course, that in McCreary the counties offered sectarian purposes for the first two

versions of their Ten Commandments display, then created a third display with a secular purpose

advanced only as a “litigating position.” McCreary, 125 S. Ct. at 2740. Surely, however, a different

sequence of purposes (secular to religious) is not itself fatal, as long as secular purpose predominates

over the course of the monument’s existence.

Perhaps aware of the obstacle posed by the predominance test to its rush to drive religious

mention from public view, the panel majority proceeds to commit a more grievous error: It con-

veniently partitions the monument’s lifetime into three distinct time periods and finds that it is un-

constitutional because religious purpose predominates during the third period. Doubtless, the

McCreary Court analyzed the Kentucky monuments by considering three phases of their evolution,

but it took all three phases into account when holding that religious purpose predominated. See id.

7
Furthermore, as already noted, see supra part I.A., supra,
the opinion in McCreary is replete with language indicating that
the objective observer does not forget the purpose underlying
previous iterations of the same display. See, e.g., McCreary, 125
S. Ct. at 2737 n.14 (stating that “it will matter to objective ob-
servers whether posting the Commandments follows on the heels of
displays motivated by sectarianism, or whether it lacks a history
demonstrating that purpose”); id. at 2739 (stating that though the
counties attempted to describe as “dead and buried” the sectarian
purpose underlying a previous version of the display, “the rea-
sonable observer could not forget it”).

30
This is only sensible, because religious purpose will always predominate if one restricts the search for

purpose to the most suspect period of the monument’s history.

Likewise, if the McCreary Court had focused only on the third version of the Kentucky

displays, it might have decided that case differently, because the state had recently offered legitimate

secular purposes for its actions, such as educating the public about foundational documents that have

influenced American law. See id. at 2739 & n.18. Though there may come a point, in the lifetime

of a public display, at which the original purpose is so obscured that more recent statements of

purpose take precedence, the predominance test exercises an inertial effect, presuming the centrality

of the original purpose, unless there is compelling contrary evidence.

C.

That evidence is lacking here. The panel majority ably explains why the Mosher memorial

passed constitutional muster between 1956 and 1988: It is “clear and indisputable” that the Star of

Hope Mission erected the monument as a tribute to Mosher’s life and beneficence, and it stood for

thirty-two years without legal challenge. See Van Orden, 125 S. Ct. at 2870-71 (Breyer, J., concur-

ring). During the memorial’s “second” stage, between 1988 and 1995, there was no religious aspect

to the monument at all, because the Bible was voluntarily removed (or never replaced) by the Star

of Hope after a challenge by a local atheist group.8 It is only during the “distinct third phase,” when

Judge Devine restored and rededicated the monument, that the majority somehow ferrets out a

“primarily religious purpose.”

8
Cf. Van Orden, 351 F.3d at 181 (noting that the Ten
Commandments were temporarily removed in 1993 during a Capitol
construction project).

31
 If the majority is correct that Judge Devine and his cohorts attempted to “commandeer[] the

monument for religious purposes” long after it was installed as a private memorial, this is precisely

the result that McCreary prohibits. Use of the monument as an instrument of a state judge’s political

campaign should no more affect the reasonable observer’s evaluation of its predominant purpose than

should the litigating position adopted by the Kentucky counties to defend the third version of their

courthouse displays. See McCreary, 125 S. Ct. at 2740. Rather, the reasonable observer, placing

the rededication ceremony in the context of the long history of the Mosher memorial, surely would

conclude that the predominant purpose of the Mosher memorial in 1995 remained the same as it was

in 1956: to honor the life of a Houston businessman and Christian philanthropist.

II.

Even assuming the validity of the panel majority’s partitioning strategy for discerning gov-

ernment purpose, it gravely errs in the application of its premises to the post-1995 history of the

monument. Though the majority describes as “factually baseless” the claim that Judge Devine re-

stored the monument primarily to honor Mosher, that claim is amply supported by the record.

Devine testified that he learned about Mosher in the early nineties when he first saw the

memorial before becoming a judge. He has since spoken with surviving members of the Mosher

family and personally knows Carloss Morris, one of the founding members of the Star of Hope

Mission. His court reporter, Karen Friend, invited the Mosher family to the rededication. What first

attracted Judge Devine to the monument was its “state of disrepair,” and he vowed “to restore that

monument to its old glory.”

32
 If county officials can constitutionally allow a private group to erect a permanent memorial

on public property, then surely a state official who works in county buildings may later take notice

of the memorial’s decrepit condition and seek to repair it, even if the person honored is long dead.

We have never before rejected an admittedly secular purpose as a sham merely because the state

actor, while still a candidate for office, ran on a general platform of putting Christianity back into

government.9 Rather, we have consistently recognized that “a purpose is no less secular simply be-

cause it is infused with a religious element.”10

The panel majority also fails to explain how the presence of Christian ministers at the re-

dedication ceremony, and the lack of involvement of a museum curator, distinguish the 1995 mem-

orial from its 1956 predecessor. The record reflects that ministers attended the original ceremony

and that the gatherers said prayers, neither of which fact suffices to negate a finding of predominant

9
When asked to explain his platform at trial, Judge Devine
replied, “I try to live my life according to Christian values. And
if that comes out in my service to the community, then I’m pleased
about that.” The desire to execute the duties of one’s office
according to personal Christian values hardly amounts to an intent
to unify church and state. It is, instead, a constitutionally-
protected use of another part of the First Amendment, the often-
overlooked Free Exercise Clause.
10
Freiler v. Tangipahoa Parish Bd. of Educ., 185 F.3d 337,
345-46 (5th Cir. 1999) (finding that mandatory disclaimer before
teaching theory of evolution furthered the secular purposes of
acknowledging alternative theories of the origin of life and
reducing friction between parents and children on the subject); see
also Doe by Doe v. Beaumont Indep. Sch. Dist., 240 F.3d 462, 468
(5th Cir. 2001) (en banc) (deciding that a school program
permitting clerical volunteers to counsel students advanced secular
purpose of “provid[ing] dialogue between the clergy and students
regarding civic values and morality”).

33
secular purpose, because prayer is an entirely appropriate component of a ceremony held in memory

of the deceased.11

Nor did a museum curator participate in the monument’s installation, a fact that is unsur-

prising given that no decision with respect to its installation or refurbishment required the judgment

of a professional curator.12 Although the analogy of a “museum setting” can be helpful in resolving

cases of this nature, “[w]e need not accept the State’s museum analogy in full measure” to find that

the context of a display does not amount to an endorsement of religion.13 Because the primary

secular purpose is honoring a member of the community, rather than presenting a thematic collection

of historic or artistic artifacts, the absence of a curator is not especially probative. At any rate, neither

of these facts supports the panel majority’s conclusion that the Mosher memorial somehow

“morph[ed] into a religious symbol” between 1956 and 1995.

Additionally, in conducting its truncated purpose analysis the majority wholly ignores the fact

that the monument entered a distinct fourth stage of its existence in 1997, when control over its

operation and maintenance was returned to the Star of Hope Mission, whose members are intimately

acquainted with its original purpose and with Mosher’s life. The fact that the Mission controlled the

monument for six additional years between the end of Judge Devine’s supervision and the filing of

this suit highlights the brevity of the time period that has given offense to the panel majoritySSa scant

two out of forty-seven years. The majority’s hypothetical observer, so attentive to the sea-change

11
See infra part III (noting that the dedication of the
Washington Monument included a prayer in President Washington’s
honor).
12
Cf. Van Orden v. Perry, 351 F.3d 173, 180-81 (5th Cir.
2003), aff’d, 125 S. Ct. 2854 (2005).
13
Id. at 181.

34
in the monument’s purpose supposedly wrought by the 1995 rededication, certainly would not have

missed the fact that the original donors resumed possession two years later, thus removing any

conjured constitutional infirmity.

III.

Finally, we must consider whether the appearance, setting, and alteration of this particular

display would cause religious purpose to predominate or to have the impermissible effect of advanc-

ing religion. The Star of Hope Mission, a private charitable organization dedicated to meeting the

needs of Houston’s homeless population, conceived the monument as a memorial to Mosher, a

considerable donor and supporter.14 Critical to this monument’s probable effect on the publicSSand

the likely reason why it survived so long unchallengedSSis its status as a memorial. Reflection on

the sacred often accompanies the solemn remembrance of those who have departed this life.

One need look no further than the National Mall to find examples of famous memorials fea-

turing inspiring religious invocations. The Jefferson Memorial contains several inscriptions with

references to God, such as the statement that “God who gave us life gave us liberty. Can the liberties

of a nation be secure when we have removed a conviction that these liberties are the gift of God?”

The Lincoln Memorial contains inscriptions of the texts of President Lincoln’s Second Inaugural

Address and the Emancipation Proclamation, both of which reference God. At the dedication of the

Washington Monument, a minister led the assembled crowd in prayer, which included this passage:

“And now, O Lord of all power and majesty, we humbly beseech Thee to let the wing of Thy pro-

14
See Van Orden, 125 S. Ct. at 2870 (Breyer, J., concurring)
(noting that the donor of the Texas Capitol monument, the Fraternal
Order of Eagles, is a private civic organization).

35
tection be ever outspread over the land of Washington!”15 A Bible is in the cornerstone of the obe-

lisk, at least two interior memorial stones feature Bible passages (including one with an open Bible

in bas-relief), and the apex of the east face bears the inscription Laus Deo, or “Praise be to God.”

These monuments, which are indisputably constitutional, instruct that official use of religious sym-

bolism is constitutionally appropriate in memoriam.

The Mosher memorial is merely one of several honorific markers located on or near the

grounds of the courthouse, including two wall plaques commemorating previous county commis-

sioners and a memorial to Walter Quebedeaux, a public servant and environmental activist. Although

the Mosher memorial is the only one with religious content, the text is unthreatening to a non-

adherent, because it is invisible to any observer who does not consciously decide to stand in front of

the structure and look into the display.

Furthermore, unlike the counties in McCreary (and the Eagles in Van Orden, for that matter),

the Star of Hope Mission never intended to emphasize any particular religious text in displaying the

Bible: An important fact in this regard, to which the majority ascribes no significance, is that the

Mission’s members periodically turn the pages to preserve the physical integrity of the book. Instead

of promoting a particular religious passage, the Mission intended the dedication to Mosher on the

base of the monument to predominate, as shown by the fact that that dedication is both permanent

and visible at a distance.16 The objective observer can only conclude that the discreetness of the Bible

15
S. Doc. No. 57-224, at 131, 134 (1903).
16
Cf. McCreary, 125 S. Ct. at 2728 (observing that the Ten
Commandments display is “readily visible to . . . county citizens
who use the courthouse to conduct their civic business”) (internal
quotations omitted); Stone v. Graham, 449 U.S. 39, 42 (1980)
(opining that the only purpose of posting of Ten Commandments on
classroom walls was “to induce the schoolchildren to read, meditate

36
both accommodates the Star of Hope’s desire to include a symbol of Mosher’s Christian faith in his

memorial and respects the prerogative of the “[p]assersby who disagree with the message conveyed

by these displays . . . to ignore them, or even to turn their backs, just as they are free to do when they

disagree with any other form of government speech.” County of Allegheny v. ACLU, 492 U.S. 573,

644 (1989) (Kennedy, J., concurring).

It remains to discuss the risible suggestion that we should attach significance to the apparently

grave constitutional transgression that the current incarnation of the monument, unlike the original,

contains a red neon light within the Bible display case. Karen Friend, who was closely involved with

the restoration effort, testified that the light was originally installed to prevent the accumulation of

moisture, an assertion supported by the fact that additional lights (not visible to the public) were later

included in the base of the monument to dry the book from underneath, when moisture continued to

be a problem.

Even if the light were installed primarily to illuminate the Bible, this is no cause for concern,

for many public areas and displays are lit so that they may remain visible at night. Apparently wedded

to the inaccurate notion that this light is particularly bright so as to attract attention (despite that a

casual examination of the memorial reveals otherwise), the panel majority also somehow forgets that

at oral argument, counsel for the plaintiff importantly conceded that a hypothetical identical Biblical

monument, dedicated to the Reverend Martin Luther King, Jr., and obviously emphasizing the re-

ligious aspects of his life and service, would pass constitutional muster if it lacked a sectarian history.

upon, perhaps to venerate and obey, the Commandments”).

37
 The identity of the honoree, however, is a distinction without a difference. If a county could

choose to honor a prominent spiritual and civil rights leader with a monument highlighting the Bible

as a sign of his faith, there is no reason why they could not similarly honor a layman whose faith

inspired a lifetime of philanthropy.

IV.

The panel majority does not, because it cannot, “decide that the Count[y’s] past actions for-

ever taint any effort on [its] part to deal with the subject matter.” McCreary, 125 S. Ct. at 2741. On

the basis of the majority opinion, as a matter of logic, the Star of Hope Mission would be within its

rights to rededicate the monument at some future date (five years later, or ten?) and restore its pre-

dominantly secular character, free from the influence of Judge Devine. I have no illusions, however,

that the “objective observer,” as formulated by this court, would be as quick to forget the religious

exhortations of Judge Devine as it today ignores the charitable contributions of William Mosher to

the Houston community that memorialized him.

In a single misguided sentence, the majority reveals that what it seeks is not the predominant

purpose of a display but the systematic exclusion of religion from the public sphere: “An original

religious purpose may not be concealed by later acts, nor may a newfound religious purpose be

shielded by reference to an original purpose.” Bound by this premise, future panels of this court need

not engage in the delicate task of deciding whether the record before us reveals, on balance, a

governmental purpose to advance or inhibit religion. Rather, we may discharge our judicial duties

merely by citing the above language, enjoining a private memorial whenever or wherever religious

sentiment appears in the course of its existence over decades or even centuries.

38
 This approach, however, inaccurately reflects the balance struck by the Court in McCreary

and Van Orden between government neutrality and respect for the religious traditions of the United

States and the American People. Accordingly, I respectfully dissent.

39