dissenting from the denial of rehearing en banc.
Respectfully, I believe we should have reheard this case for at least three reasons. First, by applying the Lemon test to a Ten Commandments display after Van Orden, the panel’s analysis conflicts with the views of several of our sister circuits. Second, by then focusing on the perceptions of an unreasonable and mistake-prone observer, the panel’s analysis conflicts with the Supreme Court’s explana*1244tion of Lemon’s endorsement test and our sister circuits’ application of it. Finally, by making us apparently the first court of appeals since Van Orden to strike down an inclusive display of the Ten Commandments, the panel opinion mistakes the Supreme Court’s clear message that displays of the decalogue alongside other markers of our nation’s legal and cultural history do not threaten an establishment of religion.
1
In Lemon v. Kurtzman, 403 U.S. 602, 91 S.Ct. 2105, 29 L.Ed.2d 745 (1971), the Supreme Court announced a tripartite test for deciding Establishment Clause disputes. Since then, Lemon has been criticized by many members of the Court,1 and a variety of legal scholars.2 The resulting confusion about whether and to what extent Lemon continues to control Establishment Clause analysis was exacerbated by a pair of cases handed down the same day several years ago — McCreary County, Kentucky v. American Civil Liberties Union of Kentucky, 545 U.S. 844, 125 S.Ct. 2722, 162 L.Ed.2d 729 (2005), and Van Orden v. Perry, 545 U.S. 677, 125 S.Ct. 2854, 162 L.Ed.2d 607 (2005). In the former case, the Court held that local government officials in Kentucky erected their display with the undeniable purpose of advancing religion, in apparent violation of the first part of Lemon’s multi-pronged test, see McCreary, 545 U.S. at 860-63, 125 S.Ct. 2722, and then engaged in various shenanigans designed to obscure that fact, see id. at 855-57, 866, 125 S.Ct. 2722. By contrast, in the latter case, Justice Breyer’s controlling concurrence upheld a display on the grounds of the Texas State Capitol because he concluded the monument in that case advanced the secular purpose of illustrating the ideals of Texans. See Van Orden, 545 U.S. at 702 (Breyer, J., concurring in the judgment). Neither the plurality nor Justice Breyer relied on Lemon to uphold the monument in Van Orden; indeed, they seemed to eschew it. See id. at 686, 125 S.Ct. 2854 (plurality op.) (“Whatever may be the fate of the Lemon test in the larger scheme of Establishment Clause jurisprudence, we think it not useful in dealing with the sort of passive monument that Texas has erected on its Capitol grounds.”); id. at 700, *1245125 S.Ct. 2854 (Breyer, J., concurring in the judgment) (“I see no test-related substitute for the exercise of legal judgment.”).
McCreary and Van Orden’s mixed messages have left the circuits divided over whether Lemon continues to control the Establishment Clause analysis of public displays. Shortly after McCreary and Van Orden, we held that Lemon continues to govern this domain, O’Connor v. Washburn University, 416 F.3d 1216, 1224 (10th Cir.2005), and the panel in this case understandably felt obliged to follow O’Connor’s course. See also Staley v. Harris County, Texas, 461 F.3d 504, 508 n. 6 (5th Cir.2006); Skoros v. City of New York, 437 F.3d 1, 17 (2d Cir.2006); American Civil Liberties Union of Kentucky v. Mercer County, Kentucky, 432 F.3d 624, 636 (6th Cir.2005).
But as time has marched on, a number of other circuits giving careful consideration to Van Orden and McCreary have come to a different view. These circuits have held that the “legal judgment” test Justice Breyer discussed in his Van Orden concurrence supplants Lemon at least in some areas. For example, the Ninth Circuit has held that Van Orden “carv[es] out an exception” from Lemon for displays of the decalogue. Card v. City of Everett, 520 F.3d 1009, 1018 (9th Cir.2008). And the en banc Eighth Circuit, “[tjaking [its] cue from Chief Justice Rehnquist’s opinion for the Court and Justice Breyer’s concurring opinion in Van Orden ” has said that it will “not apply the Lemon test” to passive displays of the Ten Commandments. ACLU Nebraska Foundation v. City of Plattsmouth, Nebraska, 419 F.3d 772, 778 n. 8 (8th Cir.2005) (en banc). The Fourth Circuit has reached much the same conclusion, jettisoning Lemon in a case concerning the voluntary recitation of the Pledge of Allegiance in public schools. Myers v. Loudoun County Public Schs., 418 F.3d 395, 402 (4th Cir.2005).
We should have reheard this case to reconsider O’Connor in light of these more recent developments in our sister circuits. This is not to fault O’Connor or the panel: intermediate appellate judges seeking to identify the rule of law that governs Establishment Clause challenges to public monuments surely have their hands full after McCreary and Van Orden. At the same time, our sister circuits have offered us much new learning since O’Connor and we should have taken this opportunity at least to consider it. By failing to rehear this case en banc, we decline the opportunity to begin aligning the circuits ourselves; as a result, at least until our superiors speak, we leave the state of the law “in Establishment Clause purgatory.” Mercer, 432 F.3d at 636.
2
Even if Lemon’s test does control, the panel’s opinion misconstrues it in a manner that yields another split between us and our sister courts. Until today, the premise of Lemon’s endorsement test was that the reasonable observer, through whose eyes an alleged endorsement is evaluated, was someone who got things right. A cousin of the “reasonable man” of tort law, the reasonable observer sees things as they really are. He is not the sort of person “ ‘who might occasionally do unreasonable things,’ but is ‘rather a personification of a community ideal of reasonable behavior, determined by the [collective] social judgment.’ ” Capitol Square Review and Advisory Bd. v. Pinette, 515 U.S. 753, 779-80, 115 S.Ct. 2440, 132 L.Ed.2d 650 (1995) (O’Connor, J., concurring) (alteration in original) (quoting W. Page Keeton et al., Prosser & Keeton on Law of Torts 175 (5th ed.1984)). He focuses on “the ‘objective’ meaning of the *1246[government’s] statement in the community,” informed by the “history and context of the community and forum in which the religious display appears,” as well as the “the general history of the place in which the [religious message] is displayed.” Id. at 779-81, 115 S.Ct. 2440 (first alteration in original) (internal quotations omitted).
Employing such a reasonable person, our sister circuits that have applied Lemon to public displays similar to Haskell County’s have upheld them. In Mercer, the Sixth Circuit sustained a display that included the Ten Commandments, the Bill of Rights, the Declaration of Independence, the Mayflower Compact, Magna Carta, the Star-Spangled Banner, the motto “In God We Trust,” the Preamble to the Kentucky Constitution, and Lady Justice. Mercer, 432 F.3d at 626. The court found that these items together conveyed the “unmistakable message of the County’s acknowledgment of legal history.” Id. at 638 (internal quotation omitted). Similarly, just before McCreary and Van Orden were decided, the Seventh Circuit upheld a nearly identical display in Indiana, finding that, in such a context, the Ten Commandments were celebrated “for their historical contribution to the development of American legal and political traditions.” Books v. Elkhart County, 401 F.3d 857, 868 (7th Cir.2005).
The panel in our case reached the opposite conclusion because its observer is not the reasonable observer of Justice O’Con-nor’s description, but rather an admittedly treasonable one. He just gets things wrong. For example, while the reasonable observer’s job under Lemon’s second prong is to evaluate the monument’s “objective meaning of the [government’s] statement in the community,” our observer spends most of his time doing something entirely different — speculating about whether the government might have secretly shared the private intent of the monument’s donor. (And does so even after the panel holds that the display does not offend Lemon’s first, purpose prong. Panel Op. at 25.)
Not only does our observer do the wrong job, he does it poorly. One of his chief skills, at least according to Justice O’Connor, is the ability to distinguish between private and governmental speech. See Pinette, 515 U.S. at 782, 115 S.Ct. 2440 (O’Connor, J., concurring) (“The reasonable observer would recognize the distinction between speech the government supports and speech that it merely allows in a place that traditionally has been open to a range of private speakers accompanied, if necessary, by an appropriate disclaimer.”). Our observer is able to keep this distinction in mind for awhile: when it comes to the donor himself, our observer recognizes that Mr. Bush’s comments do not represent the government’s views. But he promptly forgets the distinction when he reads in the newspapers that a single county commissioner has made religious remarks, all phrased in the first person. As the panel opinion acknowledges, these statements were made in the commissioner’s private capacity, and he was under no obligation to censor his personal views. Panel Op. at 34. Nevertheless, our observer erroneously attributes these remarks to the county government. Id. at 34-35.
Why does the panel’s reasonable observer make such mistakes of law? It is because, the panel tells us, our observer is from a small town, where such errors cannot be helped. Even though — in contrast to denizens of Austin, Texas or Denver, Colorado — -he probably knows his local government officials as friends and not as magistrates, the panel’s small-town observer is somehow less likely to know when the official in question is speaking his own mind rather than giving an official address. *1247The panel offers no authority or evidence in support of its sociological conjecture, yet uses it to overrule the district court’s contrary factual finding.3
Next, our observer considers the speech of a different commissioner at the monument’s unveiling, looking again for some untoward governmental purpose. This commissioner says nothing religious. Still, our observer leaps to the conclusion that, because the commissioner did not specifically disclaim any religious motivation, he must have shared the private donor’s religious purposes. Panel Op. at 35. This even though the commissioner never endorsed the private donor’s religious statements. And even though the county’s display itself supplied an indication of its secular meaning by including the decalogue not just in a larger display celebrating cultural and historical influences but also on a stone bearing an inscription of another important piece of our legal tradition, the Mayflower Compact.
Mistake piles on mistake as our observer suspects that the government harbors some nefarious intent because it refused to raze the monument when this lawsuit was threatened. Hearing that some lawyers have presented some “clearly voiced Establishment Clause concerns,” Panel Op. at 36-37, our observer does not pause to evaluate whether these concerns are meritorious, or wait for the resolution of the litigation. Instead, he assumes that when local governments say they intend to defend a lawsuit and leave the monument standing unless ordered to do otherwise, that indicates an endorsement of religion.
Finally, our observer is something of an art critic. He complains that the Haskell County’s courthouse lawn display does not have “a unifying, cohesive secular theme,” resemble a “unified exhibit in a ‘typical museum setting,’ ” or at least appear to be “associated with intellectual experimentation.” Panel Op. at 40-41 & n. 16. But here, too, our observer is mistaken. The display does have a unifying theme: it memorializes and celebrates people and ideals important to Haskell County. Our observer’s real problem seems to be with the lack of any central planning behind the courthouse display. He would have felt better if someone in county government had sat down and made a list of those things important to people in Haskell County, and then commissioned thematically consistent monuments reflecting the items on the list. Haskell County’s mistake was to leave it up to the people of the county to determine the content of its “melange,” Panel Op. at 39, by allowing them to donate monuments of their choosing.
One can’t help but ask whether other familiar public memorials would fail our observer’s aesthetic standards. What is, say, the unifying theme behind the Congress’s collection of monuments in Statuary Hall, which includes likenesses of George Washington (Virginia), Brigham Young (Utah), and Father Junípero Serra (California)? It is only that the Congress has invited the States to donate two monuments of their choosing. These individuals, some of whom were religious figures, are commemorated only because they are *1248important to the people of the States; the lack of any other unifying theme hardly renders it difficult to understand the secular importance of the latter two men.
Exactly the same should hold true here. Rather than focusing on the aesthetic qualities of Haskell County’s display, it should be enough that there is no indication that county officials had any sort of policy by which they discriminated among proposed monuments based on the message they communicate. The history of the courthouse lawn suggests the county approved most any donated monument that had some connection to the history and people of Haskell County. If the class of 1955 wanted to donate a bench, so be it; as Judge Kelly indicates, it doesn’t mean the county dislikes the class of 1956. If the Choctaw Nation wanted a commemorative monument, so be it; there’s no indication other Indian nations can’t also donate one. And if a group wanted a monument with the decalogue and Mayflower Compact, the natural inference is that county government thought, “so be it.”
What the majority calls “the very significant magnitude of the evidence indicating an impermissible endorsement,” Panel Op. 47, consists of the facts I have just recounted: the private donor’s intent, the statements of a single commissioner in his concededly private capacity, the county’s refusal to buckle to litigation pressure, and the county’s perceived lack of artistic taste. None of this, of course, is evidence that the Constitution was violated. But to our observer, apparently it can be mistaken for such evidence. And the only thing keeping the veil over our observer’s eyes is the novel view that in “the context of the small community of Haskell County,” reasonable observers make unreasonable mistakes. Panel Op. at 47, see also id. at 32, 35. The result is not simply a misapplication of the reasonable observer test: it is a rewriting of that test in a manner inconsistent with our sister circuits’ application of it.
Whatever test we are supposed to apply, or the number of its prongs, the Supreme Court’s central message in McCreary and Van Orden was that public displays focusing on the ideals and history of a locality do not run afoul of the Establishment Clause just because they include the Ten Commandments. The panel’s decision denies the precedential force of this holding and makes us the first circuit court since McCreary and Van Orden to strike down such an inclusive display.
While problems may arise when the Ten Commandments are displayed alone, or as part of a patent attempt to advance a religious message, McCreary, 545 U.S. at 867, 125 S.Ct. 2722; Stone v. Graham, 449 U.S. 39, 101 S.Ct. 192, 66 L.Ed.2d 199 (1980) (per curiam), the Supreme Court has made clear that the decalogue’s influence isn’t just religious. In inclusive displays on places like courthouse lawns, the Ten Commandments can convey a “secular moral message” about the primacy and authority of law, as well as the “history and moral ideals” of our society and legal tradition. Van Orden, 545 U.S. at 701-02, 125 S.Ct. 2854 (Breyer, J., concurring in the judgment). Neither is this surprising. Though their influence may be indirect, it is “undeniable” that “the Ten Commandments have had a significant impact on the development of secular legal codes of the Western World.” Stone, 449 U.S. at 45, 101 S.Ct. 192 (Rehnquist, J., dissenting); see also Edwards v. Aguillard, 482 U.S. 578, 594, 107 S.Ct. 2573, 96 L.Ed.2d 510 (1987) (rejecting the suggestion that “the Ten Commandments played an exclusively religious role in the history of Western Civilization”); State v. Freedom From Religion Foundation, Inc., 898 P.2d 1013, 1024 (Colo.1995) (noting that “at least to the extent that the Commandments estab*1249lished ethical or moral principles, they were expressions of universal standards” of conduct later embodied in law). And quite apart from their content, Moses’ tablets have become an archetypal symbol for law itself, what other courts have called “a secular symbol for the rule of law.” King v. Richmond County, Georgia, 331 F.3d 1271, 1277 (11th Cir.2003).4
For just such reasons, we are long accustomed to seeing the decalogue — sometimes alongside the Mayflower Compact, the Magna Carta, or the Declaration of Independence — in and around courthouses and other public buildings associated with the administration of law. The Ten Commandments appear in displays at the State Capitol and in front of a city hall in Colorado, in front of a Kansas municipal building, before a county courthouse in New Mexico, and in public parks in Utah and Wyoming — just to mention some examples in our own circuit. Our Nation’s capital practically abounds with the Commandments: at the Library of Congress, outside the (relatively new) Ronald Reagan International Trade Building, at the National Archives, inside and outside the Supreme Court building and even on its doors. See generally Van Orden, 545 U.S. at 688-89, 125 S.Ct. 2854 (plurality opinion) (providing examples). The upshot of McCreary and Van Orden is that this reality does not violate the First Amendment.
While I would prefer to rehear this case to determine whether and how Lemon applies, the fact remains that regardless of all this the panel’s opinion is simply inconsistent with the most analogous decision of the Supreme Court. Even if we can’t be sure anymore what legal rule controls Establishment Clause analysis in these cases, we should all be able to agree at least that cases like Van Orden should come out like Van Orden. If this seems facile, that’s because it is. But the most elemental dictate of legal reasoning always has been and remains: like eases should be treated alike. Whatever else might be said, if an inclusive display where the decalogue makes an appearance was acceptable to the Supreme Court in Van Orden, similar displays should be acceptable to us.
I respectfully dissent from the denial of rehearing en banc.
. See, e.g., McCreary County, Kentucky v. American Civil Liberties Union of Kentucky, 545 U.S. 844, 890, 125 S.Ct 2722, 162 L.Ed.2d 729 (2005) (Scalia, J., dissenting) (collecting criticisms of Lemon by various members of the Court); Van Orden v. Perry, 545 U.S. 677, 697, 125 S.Ct. 2854, 162 L.Ed.2d 607 (2005) (Thomas, J., dissenting); County of Allegheny v. American Civil Liberties Union, Greater Pittsburgh Chapter, 492 U.S. 573, 655-56, 109 S.Ct. 3086, 106 L.Ed.2d 472 (1989) (Kennedy, J., concurring in judgment in part and dissenting in part); Corporation of Presiding Bishop of Church of Jesus Christ of Latter-day Saints v. Amos, 483 U.S. 327, 346-49, 107 S.Ct 2862, 97 L.Ed.2d 273 (1987) (O'Connor, J., concurring in the judgment); Wallace v. Jaffree, 472 U.S. 38, 112, 105 S.Ct. 2479, 86 L.Ed.2d 29 (1985) (Rehnquist, J., dissenting); Committee for Public Ed. and Religious Liberty v. Regan, 444 U.S. 646, 671, 100 S.Ct. 840, 63 L.Ed.2d 94 (1980) (Stevens, J., dissenting).
. See, e.g., Gerard V. Bradley, Protecting Religious Liberty: Judicial and Legislative Responsibilities, 42 DePaul L.Rev. 253, 261 (1992); Richard W. Garnett, Religion, Division, and the First Amendment, 94 Geo. L.J. 1667 (2006); Douglas Laycock, Towards a General Theory of the Religion Clauses: The Case of Church Labor Relations and the Right to Church Autonomy, 81 Colum. L.Rev. 1373, 1380-88 (1981); Michael W. McConnell, Religious Freedom at a Crossroads, 59 U. Chi. L.Rev. 115, 118-20 (1992) (noting the inconsistencies of the "aptly named 'Lemon ’ test"); Michael Stokes Paulsen, Lemon Is Dead, 43 Case W. Res. L.Rev. 795 (1993); Kenneth F. Ripple, The Entanglement Test of the Religion Clauses — A Ten Year Assessment, 27 U.C.L.A. L.Rev. 1195, 1216-24 (1979); Gary J. Simson, The Establishment Clause in the Supreme Court: Rethinking The Court's Approach, 72 Cornell L.Rev. 905 (1987).
. Like the district court, I would have thought that, if anything, Haskell County's size cuts in the opposite direction. I would have expected that, in small communities, people may already know a public official’s private opinions and often realize their friends and acquaintances are speaking for themselves (“There goes Johnny again spouting off....”). By contrast, if a city councilman in New York is quoted in the local paper, the only thing most readers are likely to know about her is that she is a government official. At the very least, I see no reason based in law or the record to prefer the one or the other guess about the import of Haskell County’s size to the reasonable observer’s perception about a single commissioner’s two brief statements to the media.
. Each House of Congress apparently agrees, having passed concurrent resolutions in 1997 affirming that “the Ten Commandments have had a significant impact on the development of the fundamental legal principles of Western Civilization”; that they "set forth a code of moral conduct, observance of which is universally acknowledged to promote respect for our system of laws and the good of society”; and that they "are a declaration of fundamental principles that are the cornerstone of a fair and just society.” Brief of the United States as Amicus Curiae Supporting Respondents at 9, Van Orden v. Perry, 545 U.S. 677, 125 S.Ct. 2854, 162 L.Ed.2d 607 (citing S. Con. Res. 13, 105th Cong., 1st Sess. (1997); H.R. Con. Res. 31, 105th Cong., 1st Sess. (1997)). As President John Quincy Adams put it, "[t]he law given from Sinai was a civil and municipal as well as a moral and religious code; it contained many statutes ... of universal application — laws essential to the existence of men in society, and most of which have been enacted by every nation which ever professed any code of laws.” Id. (quoting Letters of John Quincy Adams, to His Son, on the Bible and its Teachings 61 (James M. Alden ed., 1850)). Even in Stone, while invalidating a state law requiring that the Ten Commandments be posted by themselves in public school classrooms, the Court took pains to emphasize that they may be "integrated into ... the school curriculum ... in an appropriate study of history, civilization, ethics, comparative religion, or the like.” Stone, 449 U.S. at 42, 101 S.Ct. 192.