RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit Rule 206
File Name: 10a0136p.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
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X
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AMERICAN CIVIL LIBERTIES UNION OF
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KENTUCKY, RAYMOND HARPER, and ED
MEREDITH, -
Plaintiffs-Appellees, -
No. 08-5548
,
>
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v.
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GRAYSON COUNTY, KENTUCKY,
Defendant-Appellant. N
Filed: May 14, 2010
*
Before: MOORE and McKEAGUE, Circuit Judges; FORESTER, District Judge.
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ORDER DENYING
PANEL REHEARING
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On January 14, 2010, the court issued its opinion reversing the district court’s
award of summary judgment in favor of plaintiffs and directing entry of judgment in
favor of Grayson County. Now before the court are plaintiffs’ petition for panel
rehearing and plaintiffs’ objections to Grayson County’s bill of costs.
I
In the petition for rehearing, plaintiffs do not challenge our reversal of the district
court’s award of summary judgment in their favor, but ask us to reconsider and amend
the opinion insofar as it directs entry of judgment in favor of Grayson County. Plaintiffs
contend there is a genuine issue of material fact that precludes award of summary
judgment to Grayson County. They ask us to remand the case to the district court for
*
The Honorable Karl S. Forester, Senior United States District Judge for the Eastern District of
Kentucky, sitting by designation.
1
No. 08-5548 ACLU, et al. v. Grayson County, Kentucky Page 2
further proceedings. In support, they rely on the affidavit of plaintiff Raymond Harper,
describing a statement made by Judge Executive Gary Logsdon in May 2002, when the
Ten Commandments document was, pursuant to the district court’s preliminary
injunction, removed from the Foundations of American Law and Government Display.
Specifically, Harper recalls Logsdon having asked those present to divide themselves
into two groups: those “for” and those “against the Ten Commandments.” Logsdon
denies having made such a statement and his denial is said to pose a genuine issue of
material fact that should forestall award of summary judgment to Grayson County.1
Even accepting that Logsdon made the reported statement, and accepting that the
statement by a single Fiscal Court member, made in conjunction with removal of the Ten
Commandments some seven months after the display was installed, may be relevant to
show the purpose of the display, the statement does not pose a genuine issue of material
fact.2 Contrary to plaintiffs’ argument, Logsdon’s statement simply bears no indication
of religious purpose. The reported statement, on its face, says nothing of a purpose to
advance religion. As explained in our opinion, because the Ten Commandments have
both religious and secular significance, merely referring to or expressing support for the
Ten Commandments as “the Ten Commandments” does not evidence the sort of
“manifest religious purpose” that runs afoul of the Establishment Clause.
1
Despite the fact that we are faced only with the motion for panel rehearing actually filed by
Plaintiffs, the Dissent looks far beyond any of the arguments made or the documents cited in the brief
before us. The question we address here is solely whether the statement allegedly made by Logsdon, as
described in Harper’s affidavit, creates a genuine disputed issue of material fact that would render the grant
of Grayson County’s motion for summary judgment inappropriate.
2
The Dissent suggests incorrectly that we have failed to conduct the proper analysis. To the
contrary, faced with an extensive and largely unchallenged record of the events surrounding Grayson
County’s decision to mount its Historical Display, we concluded that – even drawing all reasonable
inferences in favor of the respective non-moving parties – the Plaintiffs were not entitled to summary
judgment, and Grayson County was. When faced with competing motions for summary judgment, we
clearly have the authority to direct “an order of summary judgment to a party appealing the grant of the
same to an adversary.” Trustees of Michigan Laborer’s Health Care Fund v. Gibbons, 209 F.3d 587, 595
n.5 (6th Cir. 2000). Plaintiffs argue, however, that we failed to consider the statement Logsdon allegedly
made when removing the Ten Commandments from the display. Having concluded that we made no
mistake and that we appropriately considered whether the County was entitled to summary judgment, we
now conclude that our finding that the County was so entitled is not affected by the statement allegedly
made by Logsdon.
No. 08-5548 ACLU, et al. v. Grayson County, Kentucky Page 3
Plaintiffs argue that “the express pronouncement of sectarian-based support from
the County Judge Executive . . . is indicative of an official religious purpose” – but do
not explain how dividing bystanders up according to whether they are “for” or “against”
a document with both secular and religious significance necessarily demonstrates
“sectarian-based support.”3 Nor do the Plaintiffs identify how the statement, made as
the document was removed, could be reasonably construed by the objective observer as
evidencing an endorsement of religion, other than by arguing that it is “indicative” of
religious purpose and effect in the posting of the display. Even though there is a genuine
dispute as to whether Logsdon made the statement, the dispute is immaterial because
even assuming Logsdon made the statement, it does not materially assist plaintiffs in
carrying their burden of demonstrating that the purpose or effect of the display is
predominantly religious. It does not alter the analysis in the panel’s original decision
and does not warrant rehearing or modification of our opinion. Accordingly, the petition
for panel rehearing is DENIED.
II
The Dissent devotes significant space to consideration of various newspaper
accounts of the ceremony during which the County rehung the Ten Commandments
following our decision. Whether Grayson County’s legislators made the statements
reported in these articles, and whether these statements represent a violation of the
3
The Dissent asserts that, in his statement, Logsdon “specifically demanded that those individuals
in attendance state their religious affiliations or whether they stood with [his] clear preference that the Ten
Commandments remain in place.” Nowhere, however, in any of the documents cited by Plaintiffs – or by
the Dissent – is there any indication that Logsdon demanded that anyone state a religious affiliation. It
simply did not happen, and suggesting that it did is deeply misleading. Asking whether an individual,
faced with a decision by a federal court ordering a county to remove a copy of the Ten Commandments
from a larger display, is “for” or “against” the Ten Commandments is not the same thing as asking whether
that same individual is or is not a Christian, or a Jew, or a Buddhist, or even an atheist. The Dissent points
out, citing the plurality in Van Orden v. Perry, 545 U.S. 677, 690 (2005), that the Ten Commandments are
certainly religious – and so, presumably, that Logsdon’s statement that bystanders must array themselves
for or against the document constitutes a demand that bystanders declare some religious affiliation. The
Van Orden plurality explained in the same paragraph, however, that the Ten Commandments also have
“an undeniable historical meaning” – and so Logsdon’s comment, on its face, does not demand a religious
response. Id. As the Van Orden plurality concluded, “[s]imply having religious content or promoting a
message consistent with a religious doctrine does not run afoul of the Establishment Clause.” Id.
The Dissent also makes much of the fact that Chester Shartzer, a private citizen whom the Dissent
characterizes as a “religious official,” was present while the Ten Commandments document was being
removed from the courthouse display. The notion that Shartzer, by virtue of his occupation and presence,
tainted the County’s official actions with an aura of religiosity is adequately addressed in our original
majority opinion.
No. 08-5548 ACLU, et al. v. Grayson County, Kentucky Page 4
Establishment Clause, is, if anything, a matter to be presented before a district court as
part of a different case. These questions are not, however, relevant to this case as it
appears before us now. At the time we issued our opinion, the rehanging ceremony had
necessarily not yet happened; indeed, the ceremony did not take place until well after the
district court initially granted Plaintiffs’ motion for summary judgment and even after
we reversed and ordered the district court instead to grant Grayson County’s motion for
summary judgment. It is not clear how any event that occurred following the grant of
summary judgment – or how any comments that do not refer to the past – could
demonstrate that a court erred in granting summary judgment on the basis of the
evidence before it; presumably, that is why neither side even mentioned these events in
the briefs addressing panel rehearing. The Dissent, moreover, explicitly “recognize[s]
that [these articles] are not competent evidence upon which to base a conclusion that the
majority erred in granting judgment in favor of the County.” (Dissent at 11.) Aside
from the fact that these articles are neither admissible nor legally relevant, we are
seriously concerned with the Dissent’s reference to and reliance on quotations from these
articles, which are not part of any record, in a published opinion. These articles are not
verified or supported by any affidavit or any deposition, and do not constitute legal
evidence. In short, they are simply hearsay, and to rely in any way on what these
articles say various Grayson County legislators said is both incorrect and inappropriate.
III
Grayson County has filed a bill of costs, seeking recovery of its $455.00
appellate filing fee. Plaintiffs object. They ask us to exercise our discretion under Fed.
R. App. P. 39 to deny costs because they proceeded in good faith and their claim
presented close and difficult questions of constitutional interpretation involving
important civil liberties. We agree. Plaintiffs’ objection to Grayson County’s bill of
costs is SUSTAINED. The parties on both sides shall bear their own costs.
No. 08-5548 ACLU, et al. v. Grayson County, Kentucky Page 5
KAREN NELSON MOORE, Circuit Judge, dissenting. The ACLU argues that
the panel majority in ACLU v. Grayson County, Ky., 591 F.3d 837 (6th Cir. 2010),
improperly directed the district court to enter judgment in favor of Grayson County
despite the fact that questions of material fact still remained as to whether the County
had a predominantly religious purpose in erecting the Foundations Display (“Display”).
Although I stand steadfast in my conviction “that the County erected the Display with
a predominantly religious purpose and that the Display has the purpose or effect of
endorsing religion” in violation of the Establishment Clause, id. at 863 (Moore, J.,
dissenting), there remains, at the very least, a question of material fact that precludes the
entry of judgment in favor of the County. For the following reasons, I would grant the
ACLU’s petition for panel rehearing and must dissent.
As the ACLU observes, the fact that both parties moved for summary judgment
did not automatically submit the case to us for a plenary decision on the merits. Parks
v. LaFace Records, 329 F.3d 437, 444–45 (6th Cir. 2003); B.F. Goodrich Co. v. U.S.
Filter Corp., 245 F.3d 587, 592 (6th Cir. 2001). Instead, because we were effectively
ruling on cross-motions for summary judgment, the panel majority was obligated to
“‘evaluate each party’s motion on its own merits, taking care in each instance to draw
all reasonable inferences against the party whose motion [was] under consideration.’”
B.F. Goodrich, 245 F.3d at 592 (quoting Taft Broad. Co. v. United States, 929 F.2d 240,
248 (6th Cir. 1991)); see also 10A CHARLES A. WRIGHT, ARTHUR R. MILLER, & MARY
KAY KANE, FEDERAL PRACTICE AND PROCEDURE, § 2720, at 354 (3d ed. 1998) (noting
that the common practice when reversing a district court’s grant of summary judgment
is for the reviewing court to “reverse and remand the case for the trial court to make
further rulings on the basis of the reviewing court’s opinion”). This is something that
the majority plainly did not do.
Conducting the proper analysis and viewing the facts in the light most favorable
to the ACLU, I believe that the ACLU has raised a genuine issue of material fact
sufficient to merit the vacation of the panel majority’s original judgment and require a
remand. Looking first to those facts not discussed in the original panel opinion, the most
No. 08-5548 ACLU, et al. v. Grayson County, Kentucky Page 6
striking evidence that calls into question the County’s purpose is Fiscal Court Judge
Executive Gary Logsdon’s behavior at the Ten Commandments’ removal ceremony.
According to an affidavit submitted in support of the ACLU’s motion for summary
judgment and Reverend Shartzer’s deposition testimony, Judge Logsdon planned and
presided over a ceremony during which the Ten Commandments were removed from the
Display. Dist. Ct. Docket (“Doc.”) 48-2 (Harper Aff., Pl. Mot. for Summ. J. at 2);
Record on Appeal (“ROA”) at 395 (Shartzer Dep.). In addition to Judge Logsdon and
Reverend Shartzer, a “couple of fiscal court magistrates” and some other individuals
were in attendance. ROA at 395 (Shartzer Dep.). At that event, the Ten Commandments
were removed and delivered to Reverend Shartzer, who promised the individuals present
at the ceremony that he would safeguard the document until the County was permitted
to rehang it. Id. at 396.
Judge Logsdon then proceeded to “deliver several remarks to those in
attendance,” Doc. 48-2 Harper Aff., Pl. Mot. for Summ. J. at 2), which included a
statement that “he would [have] like[d] for them [the Ten Commandments] to have
stayed up.” ROA at 396 (Shartzer Dep.). Following his remarks, Judge Logsdon
required everyone “in attendance to divide on either side on an imaginary line depending
upon whether the individuals were for or against the Ten Commandments.” Doc. 48-2
(Harper Aff., Pl. Mot. for Summ. J. at 2). Reverend Shartzer testified that Judge
Logsdon said “something to the effect” that those in attendance must “[s]tand with us
on this issue.’” ROA at 397–98 (Shartzer Dep. (quoting Judge Logsdon)). Judge
Logsdon then specifically requested that a local reporter in attendance state his
preference for, or stance on, the Ten Commandments. When the reporter responded that
“he was neutral, Judge Executive Logsdon announced to those in attendance that [the
reporter] . . . was ‘against the Ten Commandments.’” Doc. 48-2 (Harper Aff., Pl. Mot.
for Summ. J. at 2–3); ROA at 399 (Shartzer Dep.).
I believe that this evidence raises a genuine issue of material fact as to whether
the County’s purpose in erecting the Display was predominantly religious, and the
majority’s judgment in favor of the County was not proper. Not only were a public
No. 08-5548 ACLU, et al. v. Grayson County, Kentucky Page 7
official and a religious official actively involved in conducting a ceremony where the
Ten Commandments were removed begrudgingly and in response to a court order that
the Display violated the Establishment Clause, but the public official also specifically
demanded that those individuals in attendance state their religious affiliation or whether
they agreed with the public official’s clear preference that the Ten Commandments
remain in place. The public official then chastised an individual who desired to remain
unaffiliated for not supporting the Ten Commandments and deemed that individual to
be against the religious text. See McCreary County v. ACLU, 545 U.S. 844, 866 n.14
(2005) (condemning those displays that “demonstrat[e] a preference for one group of
religious believers as against another”). Viewing these facts in the light most favorable
to the ACLU, I believe that, at a minimum, a material question of fact remains as to
whether an objective observer could rightly conclude that the County had a
predominantly religious purpose in enacting the Display. Cf. id. at 851 (concluding that
a similar Display violated the Establishment Clause and noting that a county’s judge
executive not only attended the ceremony hanging the Ten Commandments accompanied
by his pastor, but that, like here, that official delivered remarks).
The majority’s assertion that Judge Logsdon’s requirement that the individuals
at the ceremony state whether they were for or against the Ten Commandments “simply
bears no indication of religious purpose,” Maj. Op. at 2, is unsupportable. This
conclusion completely ignores the fact that Judge Logsdon made more than this one
statement, ignores the context within which Judge Logsdon made his statements, and
ignores the meaning that an objective observer would ascribe to Judge Logsdon’s
remarks. Judge Logsdon’s actions cannot be divorced from the fact that the ceremony
was held to lament the removal of the Ten Commandments following a decision that the
Display evidenced a predominantly religious purpose. Moreover, Judge Logsdon did
not ask whether the attendees were “for or against” the Display as a whole, but he
instead demanded that those in attendance state their preference for an undeniably
religious text, the Ten Commandments. See Van Orden v. Perry, 545 U.S. 677, 690
(2005) (plurality) (“Of course, the Ten Commandments are religious—they were so
No. 08-5548 ACLU, et al. v. Grayson County, Kentucky Page 8
viewed at their inception and so remain.”). This requirement cannot be viewed as
mandating anything other than that those in attendance state their religious allegiances.1
And if there were any question about his religious purpose, Judge Logsdon went
even further by chastising an individual who refused to express his religious position by
proclaiming that the individual’s wish for neutrality was a declaration that he was
against the Ten Commandments. If Judge Logsdon’s statements bore no indication of
religious preference, then a statement of neutrality would not have been so readily
interpreted as an expression of disfavor or disapproval of the Ten Commandments. The
majority ignores this evidence, but viewing all the evidence in the light most favorable
to the ACLU, as we must, I have no doubt that Judge Logsdon’s statements and actions
evince religious support. At the very least, however, the evidence is sufficient to raise
a genuine issue of material fact as to the County’s purpose in erecting the Display.
The majority further claims that Judge Logsdon’s actions are immaterial because
they occurred after the Fiscal Court installed the Display. But the moment in time that
is the most probative as to the Fiscal Court’s intent in authorizing the Display was not
the Display’s installation but rather its approval. Thus, although the ceremony at issue
may be removed temporally from the Fiscal Court’s approval of the Display, so are
several key pieces of evidence upon which the majority initially relied in determining
that the County had no predominantly religious purpose in enacting the Display. For
example, in the original panel opinion, the majority relied heavily on Reverend
Shartzer’s deposition testimony that analogized the Display to “road signs,” but as I
highlighted in dissent, Reverend Shartzer “did not make his statements . . . until the
1
The majority asserts that “[n]owhere . . . in any of the documents . . . is there any indication that
Logsdon demanded that anyone state a religious affiliation.” Maj. Op. at 3 n.3. Looking at the evidence
recounted above in the light most favorable to the ACLU, however, I vehemently disagree. Requiring that
an individual express whether he or she is for or against the Ten Commandments in the context recounted
above is precisely akin to asking an individual to state a religious preference. Again, it is notable that
Judge Logsdon did not ask those in attendance to state whether they were for or against the Display—just
the religious document contained therein. And contrary to the majority’s assertion, the Supreme Court’s
statement in Van Orden that the Ten Commandments “also have ‘an undeniable historical meaning’” does
not defeat the conclusion that requiring an individual to state whether he or she is for or against the Ten
Commandments harbors religious significance. Maj. Op. at 3 n.3 (quoting Van Orden, 545 U.S. at 690).
In fact, if there are two manners in which an individual could view the Ten Commandments—one religious
and one historical—then viewing the evidence in the light most favorable to the ACLU, as we must, the
religious one governs.
No. 08-5548 ACLU, et al. v. Grayson County, Kentucky Page 9
second meeting, which occurred after the Fiscal Court originally approved the Display.”
Grayson County, 591 F.3d at 860 (Moore, J., dissenting).
The majority’s sudden about-face as to the probative nature of post-approval
evidence is even more inexplicable in light of emphasis that the majority placed on the
Display’s Explanation Document in the original panel opinion. We must remember that
not one of the Fiscal Court members had viewed this document at the time they approved
the Display. See id. at 861. Thus, to the extent that the panel majority was willing to
consider the Explanation Document as “the best evidence,” id. at 851 n.7 (majority
opinion), of a non-religious purpose when viewing the evidence in the light most
favorable to the County, so too must the panel majority consider other post-approval
objective evidence when viewing the evidence in the light most favorable to the ACLU.
But the ACLU is not even required to rely solely upon Judge Logsdon’s behavior
at the removal ceremony in order to merit vacation of the judgment in favor of the
County. For the County to merit summary judgment in its favor, it must “be willing to
concede the most favorable view of the facts to the” ACLU, Phelps v. Coy, 286 F.3d
295, 298 (6th Cir. 2002). This concession extends to all of the facts, including those
highlighted at length in the panel’s original opinions:
The minutes from the September 18, 2001 Grayson County Fiscal Court
(“Fiscal Court”) meeting, which constitute the type of “legislative
history” of which an objective observer would be aware, reveal the
following: (1) Reverend Shartzer, a religious leader, approached the
Fiscal Court and asked “the County to place the Ten Commandments in
the County buildings”; (2) Reverend Shartzer stated that “the Civil
Liberties [sic] would look more favorable [sic] toward [hanging the Ten
Commandments] if they were hanging in a grouping with the other
historical documents”; (3) “Judge Logsdon and the Court members
expressed the desire to place them[, the Ten Commandments,] in the
County buildings and asked the County Attorney if he thought they could
do so in a way that would not cause problems for the County”;
(4) Magistrate “Damon Hornback made a motion to place the Ten
Commandments in the buildings,” which “died for lack of a second”; and
(5) immediately thereafter Magistrate Sandy Farris made another motion,
which Damon Hornback seconded and which passed by a unanimous
vote, that ordered “[t]he County place the Ten Commandments in the
Court House along with the Historical documents.” Record on Appeal
No. 08-5548 ACLU, et al. v. Grayson County, Kentucky Page 10
(“ROA”) at 417 (09/18/01 Meeting Minutes) (emphasis added). On
September 28, 2001, the Fiscal Court reaffirmed the September 18 vote
that had already approved the Display, ordering that “[t]he following
resolution along with the Historical Documents and the Ten
Commandments be placed in a grouping in the Court House.” ROA at
419 (09/28/01 Meeting Minutes) (emphasis added) . . . [T]he Fiscal Court
never mentioned at the first meeting when it voted to approve the Display
that the Display would be educational or showcase America’s legal
history.
Grayson County, 591 F.3d at 857–58 (Moore, J., dissenting).2
I believe that the facts recounted in the original panel opinions (which now must
be viewed in the light most favorable to the ACLU) plainly raise a question of material
fact sufficient to preclude the entry of summary judgment in the County’s favor. This
is not a case where “the facts are uncontroverted[] and the proper disposition is clear.”
Garner v. Memphis Police Dep’t, 8 F.3d 358, 366 (6th Cir. 1993); cf. Trustees of Mich.
Laborers’ Health Care Fund v. Gibbons, 209 F.3d 587, 595 (6th Cir. 2000) (discussing
when directing “the district court to order summary judgment is appropriate”). The
County’s actions surrounding the Display as a whole make it “possible to draw
inferences in either direction,” and it is the law of this Circuit that in such instances, a
remand is required. B.F. Goodrich, 245 F.3d at 592. In fact, in the original panel
decision, the majority conceded that, “[i]n [its] opinion, . . . the approval history [of the
Display] is simply ambiguous.” Grayson County, 591 F.3d at 852 n.8 (emphasis added).
The Supreme Court has emphasized that its “precedents sensibly forbid an observer to
turn a blind eye to the context in which the policy arose,” McCreary County, 545 U.S.
at 866 (internal quotation marks and alteration omitted), yet by refusing to view the
2
The majority claims that the issue before the panel on the ACLU’s petition for rehearing “is
solely whether the statement allegedly made by Logsdon, as described in Harper’s affidavit, creates a
genuine disputed issue of material fact” and criticizes the mention of additional record evidence. Maj. Op.
at 2 n.1. Despite the majority’s framing of the issue, however, the ACLU challenges more than the panel’s
failure to consider that once piece of evidence, and the majority’s failure to recognize the larger legal
question that the petition raises is in error. The ACLU explicitly argues that the panel majority improperly
entered judgment in favor of the County “without construing the disputed facts and reasonable inferences
in Plaintiffs’ favor.” Pl. Pet. Panel Rehr’g at 4. Although the ACLU notes specifically the panel’s failure
to consider Judge Logsdon’s statement, the larger-looming legal error that the petition raises, and which
is supported by the case law that the ACLU cites, is that the panel failed to draw all reasonable inferences
from the totality of the evidence in favor of the ACLU before entering judgment for the County. The
majority’s construction of the petition is simply too narrow.
No. 08-5548 ACLU, et al. v. Grayson County, Kentucky Page 11
“ambiguous” evidence of the “approval history” in the light most favorable to the
ACLU, the majority does precisely what the Supreme Court prohibits. See also ACLU
v. Mercer County, 432 F.3d 624, 630 (6th Cir. 2005) (requiring the analysis of purpose
to include consideration of “the text, legislative history, and implementation of the state
action” (internal quotation marks omitted)).
Judgment for the County on this record was improper. Based on the evidence
recounted above concerning the Ten Commandments removal ceremony and the
evidence outlined extensively in the original panel opinions, see generally Grayson
County, 591 F.3d 837, the ACLU has raised a genuine issue of material fact as to
whether the County’s purpose in approving the Display was predominantly religious.
Upon the majority’s conclusion that the district court erred in granting summary
judgment in favor of the ACLU, the proper course of action for the majority would have
been for the panel to view the evidence in the light most favorable to the ACLU,
including all of the disputed evidence, and remand the case to the district court. I
therefore respectfully dissent.
As a final note, I am compelled to highlight the recent newspaper accounts of the
ceremony during which the County rehung the Ten Commandments at the Grayson
County courthouse. Although I recognize that they are not competent evidence upon
which to base a conclusion that the majority erred in granting judgment in favor of the
County, these manifestations do serve to confirm what the evidence before the district
court showed—the Fiscal Court had a predominantly religious motivation when it
approved the Display in 2001.
Assuming the same role that he occupied at the removal ceremony outlined
above, Judge Logsdon both planned and led the rehanging ceremony. See Bill Estep,
Appeals Court Reverses Grayson Ten Commandments Decision, Lexington Herald-
Leader, Jan. 15, 2010, http://www.kentucky.com/2010/01/15/1095997/appeals-court-
reverses-grayson.html; Ben Sheroan, Grayson County Returns Commandments to
Courthouse, News Enterprise, Jan. 19, 2010, http://www.thenewsenterprise.com/cgi-
bin/c2.cgi?053+article+News.Local+20100118145947053053026. The ceremony was
No. 08-5548 ACLU, et al. v. Grayson County, Kentucky Page 12
conducted “[a]mid anthems, hymns, and plenty of ‘amens,’” and several local pastors
were invited to speak. Linda B. Blackford, Crowd Praises the Return of 10
Commandments, Lexington Herald-Leader, Jan. 19, 2010,
http://www.heraldleaderphoto.com/2010/01/19/crowd-praises-the-return-of-10-
commandments. Perhaps the most revelatory moments of the rehanging ceremony,
however, involved the explicit statements of the Fiscal Court members themselves,
which clearly belie any claim that the purpose of the Display was something other than
religious:
• “We’re just overwhelmed and thank the Lord,” Logsdon said
. . . , “It gives you great hope of a moral country.” Estep, supra.
• “If we don’t get something back for Christian people to believe
in, what kind of shape will our country be in?,” [Magistrate
Presto Gary asked], “But we had faith and kept praying.”
Blackford, supra.
• “[The Ten Commandments are] something good for everybody
to live by,” added fellow magistrate Jason Dennis. Id.
• “Grayson County along with our country was started on Christian
values, said [C]ounty magistrate Harold Johnson. “This is a step
forward to get Christianity back.” Brett Barrouquere, Ky. County
Reposts Ten Commandments: Grayson County Officials Praise
God After Winning Court Ruling, Associated Press, Jan. 18,
2010, at 2 (on file with the Clerk’s Office for the U.S. Court of
Appeals for the Sixth Circuit).
See also Daniel Kemp, Ten Commandments Back on Courthouse
Walls in Grayson C o u n t y, ABC News 13, Jan. 18, 2010,
http://www.wbko.com/news/headlines/81999242.html; Editorial, It Really Is Just
About Religion, Lexington Herald-Leader, Jan. 21, 2010 (on file with the Clerk’s Office
for the U.S. Court of Appeals for the Sixth Circuit).
Since September 18, 2001, when the Fiscal Court first voted to approve the
Display, the residents of Grayson County have been aware that the County has
“demonstrat[ed] a preference for one group of religious believers as against another.”
McCreary County, 545 U.S. at 866 n.14. Now there is certainly no mistake that “the
No. 08-5548 ACLU, et al. v. Grayson County, Kentucky Page 13
government is taking sides.” Id. This precisely the type of government action that the
Establishment Clause was meant to prohibit.
For all the reasons that I have discussed, I would grant panel rehearing.
ENTERED BY ORDER OF THE COURT
/s/ Leonard Green
___________________________________
Clerk