Green v. Haskell County ( 2009 )


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  •                                                               FILED
    United States Court of Appeals
    Tenth Circuit
    June 8, 2009
    PUBLISH           Elisabeth A. Shumaker
    Clerk of Court
    UNITED STATES COURT OF APPEALS
    TENTH CIRCUIT
    JAMES W. GREEN, an individual;
    AMERICAN CIVIL LIBERTIES
    UNION OF OKLAHOMA, a
    non-profit corporation,
    Plaintiffs - Appellants,
    v.                                              No. 06-7098
    HASKELL COUNTY BOARD OF
    COMMISSIONERS, also known as
    Board of County Commissioners of
    Haskell County, Oklahoma; KENNY
    SHORT, in his official capacity as
    Chairman of the Haskell County Board
    of Commissioners,
    Defendants - Appellees,
    MAINSTREAM BAPTIST
    NETWORK; OKLAHOMA
    MAINSTREAM BAPTISTS;
    AMERICANS UNITED FOR
    SEPARATION OF CHURCH AND
    STATE; AMERICAN CENTER FOR
    LAW AND JUSTICE; THE
    NATIONAL LEGAL FOUNDATION;
    AMERICAN LEGION # 182; and
    FOUNDATION FOR MORAL LAW,
    Amici Curiae.
    Appeal from the United States District Court
    for the Eastern District of Oklahoma
    (D.C. No. 05-CV-406-RAW)
    Daniel Mach, American Civil Liberties Union Foundation, Washington, D.C.
    (Lane Dilg, American Civil Liberties Union Foundation, Washington, D.C.;
    Micheal Salem, Salem Law Offices, Norman, Oklahoma; Tina L. Izadi, American
    Civil Liberties Union of Oklahoma Foundation, Oklahoma City, Oklahoma, with
    him on the briefs), for Plaintiffs-Appellants.
    Kevin H. Theriot (Joel L. Oster, with him on the brief), Alliance Defense Fund,
    Leawood, Kansas, for Defendants-Appellees.
    Harry F. Tepker, University of Oklahoma Law Center, Norman, Oklahoma, filed
    an amicus curiae brief for Mainstream Baptist Network and Oklahoma
    Mainstream Baptists in support of Plaintiffs-Appellants.
    Ayesha N. Khan, Richard B. Katskee, and Heather L. Weaver, Americans United
    for Separation of Church and State, Washington, D.C., filed an amicus curiae
    brief for Americans United for Separation of Church and State in support of
    Plaintiffs-Appellants.
    Jay Alan Sekulow, American Center for Law & Justice, Washington, D.C.;
    Francis J. Manion and Geoffrey R. Surtees, American Center for Law & Justice,
    New Hope, Kentucky, filed an amicus curiae brief for American Center for Law
    and Justice in support of Defendants-Appellees.
    Philip B. Onderdonk Jr., The American Legion, Indianapolis, Indiana; Kelly J.
    Shackelford and Hiram S. Sasser III, Liberty Legal Institute, Plano, Texas, filed
    an amicus curiae brief for The American Legion # 182 in support of Defendants-
    Appellees.
    Steven W. Fitschen and Barry C. Hodge, Virginia Beach, Virginia, filed an
    amicus curiae brief for The National Legal Foundation in support of Defendants-
    Appellees.
    Roy S. Moore, Gregory M. Jones, and Benjamin D. DuPré, Foundation for Moral
    Law, Montgomery, Alabama, filed an amicus curiae brief for Foundation for
    Moral Law in support of Defendants-Appellees.
    -2-
    Before HARTZ, O’BRIEN, and HOLMES, Circuit Judges.
    HOLMES, Circuit Judge.
    Defendant-Appellee Haskell County Board of Commissioners approved a
    constituent’s request to erect a monument displaying the Ten Commandments
    (hereinafter the “Monument”) on the lawn of the county courthouse in Stigler,
    Oklahoma. Plaintiffs-Appellants James Green, a Haskell County resident, and the
    American Civil Liberties Union (“ACLU”) of Oklahoma filed suit against the
    Haskell County Board of Commissioners and Kenny Short, in his official capacity
    as chairman of that board, (collectively “the Board”) under 42 U.S.C. § 1983,
    alleging a violation of the Establishment Clause of the First Amendment. After a
    bench trial, the district court ruled in favor of the Board, finding no constitutional
    violation in the Monument’s placement on the courthouse lawn.
    Exercising our jurisdiction under 28 U.S.C. § 1291, 1 we hold that, under the
    1
    The National Legal Foundation, as amicus curiae, challenges our
    jurisdiction, arguing that 42 U.S.C. § 1983 is not a proper vehicle to address
    Establishment Clause violations. Because we are required to ascertain our
    jurisdiction, we may consider jurisdictional arguments raised by amici. See Wyo.
    Farm Bureau Fed’n v. Babbitt, 
    199 F.3d 1224
    , 1230 n.2 (10th Cir. 2000). The
    National Legal Foundation argues that an Establishment Clause violation is not a
    “deprivation of any rights, privileges, or immunities secured by the Constitution
    and laws” for which § 1983 provides redress. 42 U.S.C. § 1983; Nat’l Legal
    Found. Amicus Br. at 11. It argues that § 1983 was enacted to vindicate civil
    rights and that the statute’s history, grounded in the history of similar language in
    (continued...)
    -3-
    unique circumstances presented here, the Establishment Clause was violated
    because the reasonable observer would view the Monument as having the
    impermissible principal or primary effect of endorsing religion. Accordingly, we
    REVERSE the district court’s order.
    1
    (...continued)
    the Fourteenth Amendment, demonstrates that “freedom from establishment” was
    not intended to be treated as such a “right” or one of the Fourteenth Amendment
    “privileges or immunities” privately enforceable under § 1983. Nat’l Legal
    Found. Amicus Br. at 6-10.
    The Establishment Clause protects religious liberty no less than the Free
    Exercise Clause does. See Santa Fe Indep. Sch. Dist. v. Doe, 
    530 U.S. 290
    , 313
    (2000) (declaring that “the common purpose of the Religion Clauses ‘is to secure
    religious liberty’” (quoting Engel v. Vitale, 
    370 U.S. 421
    , 430 (1962))); Michael
    W. McConnell, Accommodation of Religion, 1985 Sup. Ct. Rev. 1, 1 (observing
    that “religious liberty is the central value and animating purpose of the Religion
    Clauses”). The Supreme Court’s application of the Establishment Clause to the
    states through the Fourteenth Amendment implicitly determined that individual
    rights were at stake. See Cantwell v. Connecticut, 
    310 U.S. 296
    , 303 (1940)
    (noting that “[t]he fundamental concept of liberty embodied in [the Fourteenth]
    Amendment embraces the liberties guaranteed by the First Amendment,” making
    “the legislatures of the states as incompetent as Congress to enact” laws
    “respecting an establishment of religion or prohibiting the free exercise thereof”);
    see also Everson v. Bd. of Educ., 
    330 U.S. 1
    , 15 (1947) (giving “the same
    application and broad interpretation to the ‘establishment of religion’ clause” as
    Cantwell had applied to the Free Exercise Clause). And the Supreme Court has
    rejected the notion that § 1983’s scope is limited to civil rights or equal
    protection laws. Maine v. Thiboutot, 
    448 U.S. 1
    , 6-8 (1980) (interpreting the “and
    laws” portion of § 1983’s grant of jurisdiction). In that light, it is unsurprising
    that both the Supreme Court and this court repeatedly have, without comment,
    decided § 1983 actions alleging Establishment Clause violations. See, e.g.,
    McCreary County, Ky. v. Am. Civil Liberties Union of Ky., 
    545 U.S. 844
    , 852
    (2005); Van Orden v. Perry, 
    545 U.S. 677
    , 682 (2005); Lamb’s Chapel v. Ctr.
    Moriches Union Free Sch. Dist., 
    508 U.S. 384
    , 389 (1993); Marsh v. Chambers,
    
    463 U.S. 783
    , 785 (1983); O’Connor v. Washburn Univ., 
    416 F.3d 1216
    , 1220
    (10th Cir. 2005). In sum, we have no basis to doubt our jurisdiction.
    -4-
    I. BACKGROUND 2
    Haskell County has a population of about 15,000 people. Approximately
    2500 people live in the county seat, Stigler. The Haskell County courthouse is
    located in Stigler. It sits in the middle of approximately one square block of
    county property. The courthouse contains the courts, the offices of numerous
    government officials, and county offices where citizens can perform a variety of
    activities such as voting, paying taxes, and accessing public records.
    The Haskell County Historical Society occupies a log cabin in the northeast
    corner of the property. Outside of the courthouse are monuments of various sorts,
    most of which were paid for and erected by private citizens. One sidewalk
    contains personal message bricks. Two benches are dedicated to and inscribed by
    the Classes of 1954 and 1955, respectively. The largest monument—honoring
    Haskell County citizens who died in World Wars I and II—sits in the middle of
    the lawn. In front of it are smaller monuments honoring those killed in action in
    Vietnam and Korea. A small rose garden with a birdbath sits behind the World
    Wars monument. A monument honoring the Choctaw Nation and a monument
    honoring all unmarked graves in Haskell County also are situated on the
    courthouse lawn.
    At issue is a recent addition to the lawn—a block of stone that is
    2
    Our recitation of the facts relies largely on the district court’s factual
    findings in its opinion issued after the bench trial. See Green v. Bd. of County
    Comm’rs of County of Haskell, 
    450 F. Supp. 2d 1273
    (E.D. Okla. 2006).
    -5-
    approximately eight feet tall and three feet wide, with the Ten Commandments
    inscribed on one side and the Mayflower Compact on the other. Photographs of
    the two sides of the Monument are appended to this opinion as Appendix A (Ten
    Commandments) and Appendix B (Mayflower Compact). The side facing the
    street reads:
    The Ten Commandments
    I    Thou    shalt have no other gods before me.
    II   Thou    shalt not make unto thee any graven image.
    III  Thou    shalt not take the name of the Lord thy God in
    vain.
    IV   Thou    shalt   remember the sabbath day and keep it holy.
    V    Thou    shalt   honor thy father and mother.
    VI   Thou    shalt   not kill.
    VII Thou     shalt   not commit adultry. [sic]
    VIII Thou    shalt   not steal.
    IX   Thou    shalt   not bear false witness against thy neighbor.
    X    Thou    shalt   not covet thy neighbor’s house.
    
    Exodus 20 Ohio App. at 1569
    .
    The opposite side of the Monument reads, in all capital letters:
    The Mayflower Compact
    November 11, 1620
    In the name of God, Amen.
    We whose names are underwritten, the loyal subjects of our
    dread sovereign Lord, King James by the grace of God, of
    Great Britain, France and Ireland king, defender of the faith,
    ect. [sic], having undertaken, for the glory of God, and
    advancement of the Christian faith, and honor of our king and
    country, a voyage to plant the first colony in the Northern
    -6-
    parts of Virginia, do by these presents solemnly and mutually
    in the presence of God, and one of another, covenant and
    combine ourselves together into a civil body politic, for our
    better ordering and preservation and furtherance of the ends
    aforesaid; and by virtue hereof to enact, constitute, and frame
    such just and equal laws, ordinances, acts, constitutions, and
    offices, from time to time, as shall be thought most meet and
    convenient for the general good of the colony, unto which we
    promise all due submission and obedience.
    In witness whereof we have hereunder subscribed our names at
    Cape-Cod the 11 of November, in the year of the reign of our
    sovereign lord, King James, of England, France, and Ireland
    the eighteenth, and of Scotland the fifty-fourth. Anno Domini
    1620.
    App. at 1566. At the base of the Monument is a notation added after the start of
    this litigation: “Erected by Citizens of Haskell County.” App. at 1085; see 
    Green, 450 F. Supp. 2d at 1277-78
    .
    The Monument’s saga began when Michael Bush, a local citizen who is
    employed as a construction worker and part-time minister, appeared at a regularly
    scheduled Board meeting to seek approval for placing a Ten Commandments
    monument on the courthouse lawn. At that time, the Board consisted of three
    commissioners. After a brief discussion, they approved Mr. Bush’s request. The
    relevant portion of the meeting’s minutes reads: “The Board met with Mike Bush
    to discuss getting a monument with the 10 Commandments on it to put on the
    courthouse lawn. The Board agreed that Mike could go ahead and have the
    monument made and Mike is taking care of all the expense.” App. at 1388.
    Mr. Bush recalled telling the Board that “the Lord had burdened [his]
    -7-
    heart” to create the Monument and that he would be responsible for raising the
    funds and getting the Monument. App. at 1013. He did not present the Board
    with any diagram of his proposal, although he did describe its proposed size and
    that it would depict the Ten Commandments. Mr. Bush did not recall being asked
    any questions before the Board approved his request. One of the commissioners
    recalled discussing the historical aspects of the Monument with the other
    commissioners but could not recall any more specific contents of that discussion.
    Either prior to or shortly after the vote, the Board consulted with the County’s
    attorney, who informed them that a decision to approve the Monument could
    result in a few legal “bumps.” App. at 516, 1148.
    After receiving approval from the Board, Mr. Bush raised the necessary
    funds through religious groups in the community. With the assistance of a friend,
    Mr. Bush decided on the wording of the Ten Commandments to appear on the
    Monument, condensing and paraphrasing from the King James Version of the
    Bible. 3 At some point in the process of designing the Monument, Mr. Bush
    3
    In our subsequent legal analysis, we place no significance on the
    fact—suggested by the district court, 
    Green, 450 F. Supp. 2d at 1277-78
    &
    n.7—that this may be “a butchered paraphrase” of the King James Version. 
    Id. at 1278.
    Along with numerous other considerations, we focus on the Monument’s
    text (irrespective of its biblical pedigree) and its likely effect on a reasonable
    observer. According to Mr. Green, the particular version of the Ten
    Commandments inscribed on the Monument is “uniquely Christian” and “contains
    expressly sectarian and religious commands, such as observing the Sabbath, not
    worshiping idols, believing in a deity, and not taking a deity’s name in vain.”
    App. at 22. Mr. Green apparently seeks to draw a beneficial contrast with
    (continued...)
    -8-
    decided to include the Mayflower Compact as well. As it relates to the Ten
    Commandments, the Board did not review or approve Mr. Bush’s design of the
    Monument or the version of the Ten Commandments that he selected to be
    inscribed on it. With regard to the Mayflower Compact, the Board apparently was
    not apprised of Mr. Bush’s plan to add it to the Monument and did not authorize
    him to do so. 4
    The Board, however, did select the location for the monument—in line with
    several of the other monuments on the lawn, approximately twenty-five feet away
    from Highway 9 (the main thoroughfare through town, which runs in front of the
    courthouse), five feet over from the unmarked graves monument, and fifty feet
    from the World Wars monument in the center of the lawn. The location does not
    3
    (...continued)
    monuments found in other Ten Commandments cases that purport to depict a
    more interfaith version of the Ten Commandments. See ACLU Neb. Found. v. City
    of Plattsmouth, Neb., 
    419 F.3d 772
    , 774 n.2 (8th Cir. 2005) (en banc) (“The
    monument lists eleven commands ostensibly to serve as an amalgamation of the
    Jewish, Protestant, and Catholic versions of the Ten Commandments.”); Books v.
    City of Elkhart, Ind., 
    235 F.3d 292
    , 294 (7th Cir. 2000) ( “[R]epresentatives of
    Judaism, Protestantism, and Catholicism developed what the individuals involved
    believed to be a nonsectarian version of the Ten Commandments because it could
    not be identified with any one religious group.”). However, we offer no view
    concerning the validity of Mr. Green’s characterization of the version of the Ten
    Commandments inscribed on the Monument. In our view, this factor is not a
    material consideration in our disposition under the facts of this case.
    4
    Although the district court found that the record was “irredeemably
    ambiguous” concerning whether the Board knew about or approved the addition
    of the Compact, the court ultimately was “not convinced” that the Board “ever
    officially approved the addition of the Compact.” 
    Green, 450 F. Supp. 2d at 1291
    n.30.
    -9-
    appear to be “a clearly high traffic area” and not “the most frequented route taken
    to the courthouse by citizens going there to undertake business.” Green, 450 F.
    Supp. 2d at 1294. A sketch of the courthouse lawn that sheds some light on the
    Monument’s location and its spatial relationship with the other monuments is
    appended to this opinion as Appendix C. See 
    id. at 1277
    n.6 (describing the
    sketch and noting that “a not-to-scale diagram showing the approximate location
    of the monuments on the lawn was helpful and was admitted” into evidence).
    On November 5, 2004, the Monument actually was placed on the lawn. It
    remained covered until a dedication ceremony was held on Sunday, November 7.
    This ceremony was organized by Mr. Bush, who informed the churches that had
    participated in the fundraising effort for the Monument that it would be taking
    place. One to two hundred people, including two of the three commissioners,
    attended the ceremony, and seventeen churches were represented. The ceremony,
    which lasted for about one hour, opened with a prayer and included remarks by
    local pastors. Mr. Bush also explained how the Monument came to be on the
    courthouse lawn. Although Mr. Bush recalled that the commissioners also said a
    few words, neither commissioner recalls doing anything other than attending the
    ceremony.
    For several months following its unveiling, the Monument attracted
    significant media attention. Photographs of commissioners posing near the Ten
    Commandments appeared in newspapers distributed in Haskell County. In some
    - 10 -
    of the photographs, two of the three commissioners were present. And, in at least
    one photograph, all three were present. That photograph (featuring all three
    commissioners) was introduced into evidence and is appended to this opinion as
    Appendix D. At least two of the commissioners expressed a recognition that they
    were asked by the media to participate in the photographs because of their status
    as commissioners.
    The media also quoted the commissioners making statements about the
    Monument. In November 2004, one commissioner, referring to the Ten
    Commandments, stated: “That’s what we’re trying to live by, that right there . . . .
    The good Lord died for me. I can stand for him, and I’m going to. . . . I’m a
    Christian and I believe in this. I think it’s a benefit to the community.” App. at
    455. Around the same time, that commissioner (in substance) told another media
    outlet: “God died for me and you, and I’m going to stand up for him.” App. at
    458-59.
    Mr. Green and the ACLU of Oklahoma filed suit on October 6, 2005,
    alleging that the display of the Ten Commandments on the courthouse lawn
    violated the Establishment Clause. They sought a declaration that the Ten
    Commandments display was unconstitutional and also “prospective injunctive
    relief, requiring Defendants to remove the large religious monument from the
    lawn of the Haskell County Courthouse.” App. at 16-17. They did not assert a
    claim for monetary relief.
    - 11 -
    Mr. Green stated that he was offended by what he perceived as the
    Monument’s mandates because he does “not feel that [he] should be told [he is]
    bound by them,” as they did not come through the democratic process, and
    because he “subscribe[s] to the later teachings of Jesus” and rejects this text from
    “a period of harsh, almost terroristic origins.” App. at 946. He was concerned by
    the commissioners’ statements about the Monument because “they seemed to be
    strongly supporting the religious aspects of the monument as a body,” and he
    fears that he will be “treated differently and more harshly” because he does not
    “subscribe to a particular faith that is represented by this monument.” App. at
    938-39, 951. He said that he cannot avoid the Monument when he conducts his
    business at the courthouse.
    Following the initiation of this lawsuit, Mr. Bush organized a rally and
    circulated a petition to support the Monument. To advertise the rally, posters
    encouraged community members to “Support the Ten Commandments Monument”
    and depicted a young girl praying before an American flag with the caption “One
    Nation Under God.” App. at 1409, 1534. One such poster was placed on the
    front door of the courthouse. The rally was held on the courthouse lawn on
    November 19, 2005, and attended by approximately three to four hundred people.
    There were a number of speakers at the rally, including local pastors and a U.S.
    Senator. One commissioner acknowledged saying at the rally, in effect, “I’ll
    stand up in front of that monument and if you bring a bulldozer up here you’ll
    - 12 -
    have to push me down with it.” App. at 1405, 1186; see also Green, 
    450 F. Supp. 2d
    at 1280 (noting that “[n]o recording exists” of the commissioner’s statement
    but he “was reported to have said something like” the bulldozer comment).
    Furthermore, on May 6, 2006, the Board enacted a policy that prohibited Haskell
    County from denying placement of a display on the courthouse lawn based on
    viewpoint.
    The district court held a two-day bench trial in May 2006. After reviewing
    the evidence presented and visiting the Haskell County Courthouse to view the
    Monument, the district court found in favor of the defendants. This appeal
    followed.
    II. DISCUSSION
    A. Standing
    “Because it involves the court’s power to entertain the suit, constitutional
    standing is a threshold issue in every case before a federal court.” 
    O’Connor, 416 F.3d at 1222
    . We review the question of whether a plaintiff has constitutional
    standing de novo. United States v. $148,840 in U.S. Currency, 
    521 F.3d 1268
    ,
    1273 (10th Cir. 2008). “[T]he irreducible constitutional minimum of standing
    contains three elements.” Lujan v. Defenders of Wildlife, 
    504 U.S. 555
    , 560
    (1992). First, the plaintiff must have suffered a concrete, actual “injury in fact.”
    
    Id. Second, there
    must be a causal connection between the injury and the conduct
    at issue. 
    Id. Third, it
    must be likely that a favorable decision will redress the
    - 13 -
    plaintiff’s injury. 
    Id. at 561.
    Mr. Green meets all three requirements. 5
    In the context of alleged Establishment Clause violations, a plaintiff may
    establish non-economic injury if “‘directly affected by the laws and practices
    against which their complaints are directed.’” 
    O’Connor, 416 F.3d at 1222
    -23
    (quoting Valley Forge Christian Coll. v. Ams. United for Separation of Church &
    State, Inc., 
    454 U.S. 464
    , 486 n.22 (1982)). Although “the psychological
    consequence presumably produced by observation of conduct with which one
    disagrees” is not a sufficient injury in fact, Valley 
    Forge, 454 U.S. at 485
    , we
    have held that “[a]llegations of personal contact with a state-sponsored image
    suffice to demonstrate this kind of direct injury.” 
    O’Connor, 416 F.3d at 1223
    (citing Foremaster v. City of St. George, 
    882 F.2d 1485
    , 1490-91 (10th Cir.
    5
    The district court determined that the ACLU of Oklahoma lacked
    standing for failure to allege all the elements required of an associational
    plaintiff. Green, 
    450 F. Supp. 2d
    at 1286 (citing Hunt v. Wash. State Apple
    Adver. Comm’n, 
    432 U.S. 333
    , 343 (1977)). Plaintiffs-Appellants do not
    challenge this conclusion in any substantial fashion, only noting in a footnote that
    “although it is unnecessary for this appeal, the ACLU of Oklahoma also has
    constitutional standing to challenge the display,” and arguing that we should take
    judicial notice of the organization’s readily identifiable mission. Aplt. Opening
    Br. at 22 n.7. Because we conclude that Mr. Green has standing, we agree that it
    is unnecessary to address the ACLU of Oklahoma’s standing. However, to the
    extent that Plaintiffs-Appellants intended to challenge the district court’s
    exclusion of the ACLU of Oklahoma, their argument is inadequately raised for
    appellate review, and we will not address it. See United States v. Hardman, 
    297 F.3d 1116
    , 1131 (10th Cir. 2002) (en banc) (“Arguments raised in a perfunctory
    manner, such as in a footnote, are waived.”). Furthermore, as the party invoking
    federal jurisdiction, the ACLU of Oklahoma must do more than describe its
    objection to the district court’s determination; to carry its burden, it must
    establish each element of standing. 
    Lujan, 504 U.S. at 561
    . Thus, we review
    only the Board’s challenge to Mr. Green’s standing.
    - 14 -
    1989)); Weinbaum v. City of Las Cruces, N.M., 
    541 F.3d 1017
    , 1028 (10th Cir.
    2008) (restating O’Connor’s rule that in Establishment Clause cases, such
    allegations of personal contact are sufficient to demonstrate direct injury); see
    also Vasquez v. L.A. County, 
    487 F.3d 1246
    , 1252 (9th Cir. 2007) (“We note that
    the majority of other circuits that have considered the issue have held spiritual
    harm resulting from one’s direct contact with an offensive religious (or anti-
    religious) symbol to be a sufficient basis to confer Article III standing.”).
    In O’Connor, plaintiffs had to walk past the offensive statue “almost every
    week” or alter their routes across campus. 
    O’Connor, 416 F.3d at 1223
    . In
    Weinbaum, the plaintiffs alleged that they had direct contact with the cross
    symbol that the city used as its seal, in that it was conspicuously displayed on city
    property. 
    Weinbaum, 541 F.3d at 1028
    . In Foremaster, plaintiff alleged that he
    was “confronted by the [offending city] logo on a daily basis.” 
    Foremaster, 882 F.2d at 1491
    . Mr. Green testified that he visits the Haskell County Historical
    Society on a weekly basis and that business occasionally takes him to the
    courthouse. Further, Mr. Green testified that whenever he visits the courthouse
    square for either purpose, he cannot avoid the Monument. We conclude that Mr.
    Green’s statements are sufficient to establish that he is being “frequently brought
    into direct and unwelcome contact with” the structure allegedly giving rise to the
    Establishment Clause violation (i.e., the Monument). 
    O’Connor, 416 F.3d at 1223
    . Thus, Mr. Green meets the injury-in-fact requirement of standing.
    - 15 -
    The second element of constitutional standing, a causal connection, is not
    disputed and is easily met here: Mr. Green’s Establishment Clause claim is based
    on the Board’s approval of and support for the Monument that allegedly caused
    his injury. Turning to the third element, the Board argues that Mr. Green’s injury
    cannot be redressed by a favorable decision because his argument should be
    construed as primarily evidencing an opposition to the comments that certain
    commissioners made regarding the Monument, not the Monument itself, and that
    Mr. Green has not sought damages or an injunction restricting such statements by
    the commissioners.
    This argument must fail. While the district court did note that there were
    inconsistencies in Mr. Green’s testimony as to whether he was more offended by
    the Monument itself or by commissioners’ statements about the Monument,
    Green, 
    450 F. Supp. 2d
    at 1282, from the outset of the lawsuit Mr. Green has
    challenged the Monument, and his alleged injury in that regard is redressable.
    While Mr. Green might not have a remediable injury if he were objecting to the
    past comments of commissioners in isolation, it is the Monument itself that gave
    rise to his Establishment Clause challenge, and Mr. Green primarily referred to
    the comments because they (allegedly) indicate governmental endorsement of
    religion through the Monument. The court-ordered removal of the Monument that
    Mr. Green seeks would redress his injury. Accordingly, we conclude that Mr.
    Green has standing to bring his claim.
    - 16 -
    B. Mootness
    Like standing, mootness is a threshold inquiry. Navani v. Shahani, 
    496 F.3d 1121
    , 1127 (10th Cir. 2007), cert. denied, 
    128 S. Ct. 1232
    (2008); see
    Citizens for Responsible Gov’t State Political Action Comm. v. Davidson, 
    236 F.3d 1174
    , 1182 (10th Cir. 2000) (noting that “the court must determine whether
    a case is moot before proceeding to the merits”). “A case or controversy must
    remain alive throughout the litigation, including on appellate review.” 
    Navani, 496 F.3d at 1127
    . “If, during the pendency of the case, circumstances change
    such that the plaintiff’s legally cognizable interest in a case is extinguished, the
    case is moot, and dismissal may be required.” Kan. Judicial Review v. Stout, 
    562 F.3d 1240
    , 1245 (10th Cir. 2009). The Board argues that its new policy that
    prohibits Haskell County from denying placement of a display on the courthouse
    lawn based on viewpoint constitutes just such a circumstance, rendering this case
    moot.
    “In deciding whether a case is moot, ‘[t]he crucial question is whether
    granting a present determination of the issues offered . . . will have some effect in
    the real world.’” 
    Id. at 1246
    (alteration in original) (quoting 
    Davidson, 236 F.3d at 1182
    ); see Phelps v. Hamilton, 
    122 F.3d 885
    , 891 (10th Cir. 1997) (noting that
    the “inability to grant effective relief renders” an issue moot). To the extent that
    the Board characterizes this case as merely a challenge to the unwritten policy
    regarding placement of displays on the courthouse lawn, the assertion is belied by
    - 17 -
    the very portion of the complaint that they cite. It charges that the Board’s “‘acts,
    practices, and policies constitute an impermissible endorsement.’” Aplee. Br. at
    25 (quoting App. at 25). The Board’s implementation of its May 2006 policy
    does not alter the previous actions of the Board; nor does it change the Board’s
    alleged endorsement of religion through the Monument. Mr. Green has sought a
    declaration that Board’s actions resulting in the erection of the Ten
    Commandments display were unconstitutional. See App. at 731 (amended pretrial
    order noting that plaintiffs “seek declaratory relief that the Ten Commandments
    Monument and its placement on Haskell County Courthouse law violates the
    Establishment Clause”).
    Moreover, insofar as the Board’s mootness assertion rests on the ground
    that, regardless of the outcome of this case, its 2006 written policy would oblige
    it to accept an identical monument for display, the assertion is untenable. The
    possibility that a future monument installed under different circumstances might
    pass constitutional muster does not moot the present case. We are unable to
    decide that hypothetical case on the facts before us. See 
    O’Connor, 416 F.3d at 1222
    (“Although it is conceivable that the university could bring some other
    religiously themed statue onto campus as part of a future sculpture exhibition, this
    court cannot resolve the constitutionality of a hypothetical future statue given that
    Establishment Clause questions are heavily dependent on the specific context and
    content of the display.”). The Monument remains on the courthouse lawn; at
    - 18 -
    bottom, Mr. Green’s lawsuit seeks its removal. Therefore, Mr. Green has a
    legally cognizable interest in this litigation’s outcome. For the foregoing reasons,
    then, we conclude that this case presents a live case or controversy and is not
    moot.
    C. Establishment Clause Claim
    1. Standard of Review
    Ordinarily, we “review the district court’s factual findings, made after a
    bench trial, for clear error[,] and its legal conclusions de novo.” Orient Mineral
    Co. v. Bank of China, 
    506 F.3d 980
    , 1001 (10th Cir. 2007), cert. denied, 128 S.
    Ct. 2872 (2008); see also Fed. R. Civ. P. 52(a)(6). 6 However, in a First
    Amendment case, we have an “obligation to make an independent examination of
    the whole record.” Snyder v. Murray City Corp., 
    159 F.3d 1227
    , 1230 n.7 (10th
    Cir. 1998) (en banc) (internal quotation marks omitted) (citing Bose Corp. v.
    Consumers Union of U.S., Inc., 
    466 U.S. 485
    , 499 (1984)); 
    Weinbaum, 541 F.3d at 1029
    . “We review de novo a ‘district court’s finding of constitutional fact’ and
    its ‘ultimate conclusions’ regarding a First Amendment challenge.” 7 Weinbaum,
    6
    Rule 52(a)(6) provides: “Findings of fact, whether based on oral or
    other evidence, must not be set aside unless clearly erroneous, and the reviewing
    court must give due regard to the trial court’s opportunity to judge the witnesses’
    credibility.”
    7
    In Bose, the Supreme Court concluded that “the strictures of Federal
    Rule of Civil Procedure 52(a) did not apply to a district court’s conclusion that an
    alleged libeler had ‘actual malice’ because the determination was a ‘First
    (continued...)
    - 19 
    - 541 F.3d at 1029
    (quoting Fleming v. Jefferson County Sch. Dist. R-1, 
    298 F.3d 918
    , 922 (10th Cir. 2002)). More specifically, in Establishment Clause cases, we
    consider “a district court’s findings on each part of the Lemon test” to be
    “constitutional facts.” Robinson v. City of Edmond, 
    68 F.3d 1226
    , 1230 n.7 (10th
    Cir. 1995) (applying the test derived from Lemon v. Kurtzman, 
    403 U.S. 602
    (1971)). We must still give “due regard,” however, to the trial judge’s
    opportunity to observe the demeanor of witnesses. 
    Bose, 466 U.S. at 499-500
    ,
    514.
    Furthermore, our searching review of the record with regard to
    “constitutional facts” does not alter our ordinary clearly-erroneous review of the
    district court’s other factual findings. See 
    id. at 514
    n.31 (“The independent
    review function is not equivalent to a ‘de novo’ review of the ultimate judgment
    itself, in which a reviewing court makes an original appraisal of all the evidence
    to decide whether or not it believes that judgment should be entered for
    plaintiff.”). “[T]he special Bose rule applies only to ‘constitutional facts’ and not
    to the basic historical facts upon which the claim is grounded, which are subject
    to the usual ‘clearly erroneous’ standard of review.” 
    Friday, 525 F.3d at 950
    (applying Bose to a Free Exercise Clause claim). While it may be difficult at
    7
    (...continued)
    Amendment question[] of constitutional fact.’” United States v. Friday, 
    525 F.3d 938
    , 949 (10th Cir. 2008) (quoting 
    Bose, 466 U.S. at 508
    n.27), cert. denied, 
    129 S. Ct. 1312
    (2009); see generally Henry P. Monaghan, Constitutional Fact
    Review, 85 Colum. L. Rev. 229 (1985).
    - 20 -
    times to distinguish historical facts from constitutional facts, we will give
    deference to the district court’s ordinary factual findings and more closely review
    its conclusions about “purpose,” “effect,” and “entanglement.”
    2. The Lemon Test
    The Religion Clauses of the First Amendment provide that “Congress shall
    make no law respecting an establishment of religion, or prohibiting the free
    exercise thereof.” U.S. Const. amend. I. Like other provisions of the First
    Amendment, they are applied to the states under the Fourteenth Amendment.
    
    Cantwell, 310 U.S. at 303
    . “Despite scattered signals to the contrary, the
    touchstone for Establishment Clause analysis remains the tripartite test set out in
    Lemon.” 
    Weinbaum, 541 F.3d at 1030
    (footnote omitted); see Utah Gospel
    Mission v. Salt Lake City Corp., 
    425 F.3d 1249
    , 1258-59 (10th Cir. 2005) (noting
    that we deem the Lemon test to be the “traditional standard” for evaluating
    Establishment Clause claims). Under that test, to avoid an Establishment Clause
    violation, the challenged government action (1) must have a secular legislative
    purpose, (2) must have a principal or primary effect that neither advances nor
    inhibits religion, and (3) must not foster an excessive government entanglement
    with religion. Utah Gospel 
    Mission, 425 F.3d at 1259
    (citing 
    Lemon, 403 U.S. at 612-13
    ).
    Justice O’Connor’s concurring opinion in Lynch v. Donnelly, 
    465 U.S. 668
    ,
    687-94 (1984) (O’Connor, J., concurring), offered “a refined version of the
    - 21 -
    Lemon test” implicating its purpose and effect elements that has been repeatedly
    used in this circuit. 
    O’Connor, 416 F.3d at 1224
    (“In examining challenges to
    government action under the Establishment Clause, this circuit has interpreted the
    purpose and effect prongs of Lemon in light of Justice O’Connor’s endorsement
    test.”); see 
    Weinbaum, 541 F.3d at 1030
    ; Bauchman ex rel. Bauchman v. W. High
    Sch., 
    132 F.3d 542
    , 551 (10th Cir. 1997). This “endorsement test” holds that “the
    government impermissibly endorses religion if its conduct has either (1) the
    purpose or (2) the effect of conveying a message that religion or a particular
    religious belief is favored or preferred.” 
    Bauchman, 132 F.3d at 551
    (internal
    quotation marks omitted).
    We are obliged here to apply the Lemon test, with Justice O’Connor’s
    endorsement patina. See 
    Weinbaum, 541 F.3d at 1030
    (noting our obligation to
    apply the “hybrid Lemon/endorsement test”); 
    O’Connor, 416 F.3d at 1224
    (“This
    court will therefore continue to apply the Lemon test as modified by Justice
    O’Connor’s endorsement test, while remaining mindful that there is ‘no test-
    related substitute for the exercise of legal judgment.’” (quoting Van 
    Orden, 545 U.S. at 700
    (Breyer, J., concurring)). 8 A governmental action violates the
    8
    A plurality of the Supreme Court has (a) concluded that the Lemon
    test is “not useful in dealing with the sort of passive [Ten Commandments]
    monument that Texas has erected on its Capitol grounds,” (b) disregarded the
    endorsement test, and (c) instead employed an analysis “driven both by the nature
    of the monument and by our Nation’s history.” Van 
    Orden, 545 U.S. at 686
    (plurality opinion). Justice Breyer concurred in the judgment, noting that “the
    (continued...)
    - 22 -
    (...continued)
    Court has found no single mechanical formula that can accurately draw the
    constitutional line in every case” and declaring that in borderline cases there is
    “no test-related substitute for the exercise of legal judgment.” 
    Id. at 699-700
    (Breyer, J., concurring). In Weinbaum, we observed that certain Supreme Court
    Justices have “harshly criticized” the Lemon test. 
    Weinbaum, 541 F.3d at 1030
    n.14. However, we ultimately concluded that we are still obliged to apply Lemon,
    as refined by Justice O’Connor’s endorsement test: “[T]he Lemon test clings to
    life because the Supreme Court, in the series of splintered Establishment Clause
    cases since Lemon, has never explicitly overruled the case. While the Supreme
    Court may be free to ignore Lemon, this court is not.” 
    Id. (citation omitted);
    see
    also Edith Brown Clement, Public Displays of Affection . . . For God: Religious
    Monuments After McCreary and Van Orden, 32 Harv. J.L. & Pub. Pol’y 231, 246
    (2009) [hereinafter Clement, Public Displays] (“Most courts of appeals have
    concluded that the Lemon tripartite test of purpose, effect, and entanglement still
    stands after Van Orden, yet this conclusion has not come without a struggle.”).
    Therefore, we cannot do as the Board wishes, see Aplee. Br. at 38, 45-46 n.21,
    and be guided in our analysis by the Van Orden plurality’s disregard of the Lemon
    test.
    The Board also has argued that Establishment Clause jurisprudence should
    not apply here at all and that this case should be analyzed under the legal
    framework of the Free Exercise Clause. “The Free Speech Clause restricts
    government regulation of private speech; it does not regulate government
    speech.” Pleasant Grove City, Utah v. Summum, 
    129 S. Ct. 1125
    , 1131 (2009)
    (emphasis added). As a logical and necessary support for its argument, the Board
    thus maintains that the Monument should be viewed as private speech rather than
    government speech. The Supreme Court’s recent Pleasant Grove decision,
    however, forecloses this argument. There, the Court held that “[p]ermanent
    monuments displayed on public property typically represent government speech”
    and, therefore, Free Exercise Clause jurisprudence is inapposite. 
    Id. at 1132.
    The
    Board notes that the Supreme Court did not say that all permanent monuments
    constitute government speech—just that they typically do—and that the Board has
    intentionally opened a limited public forum for monuments on the courthouse
    lawn. We are hard-pressed to view the circumstances here as resembling the
    “limited circumstances in which the forum doctrine might properly be applied to a
    permanent monument,” as described by the Pleasant Grove Court. 
    Id. at 1138
    (noting that such “limited circumstances” might be present, “for example, if a
    town created a monument on which all of its residents (or all those meeting some
    (continued...)
    - 23 -
    Establishment Clause if it fails to satisfy any of three prongs of the Lemon test.
    See Utah Gospel 
    Mission, 425 F.3d at 1259
    (“Thus, to succeed, Plaintiffs must
    allege facts which suggest a violation of any part of the [Lemon] analysis.”
    (emphasis added)); 
    Bauchman, 132 F.3d at 551
    (noting that governmental action
    does not run afoul of the Establishment Clause “so long as” it satisfies all three
    prongs of the Lemon test); see also 
    O’Connor, 416 F.3d at 1224
    (relying on
    Bauchman in noting the need for the challenged governmental action to satisfy all
    three Lemon prongs).
    Mr. Green’s arguments do not implicate the third prong of the Lemon test.
    That is, Mr. Green does not contend on appeal that the Board’s conduct in relation
    to the Ten Commandments display fosters an excessive government entanglement
    with religion. He does argue, however, that the Board’s conduct in connection
    with the Ten Commandments display fails to satisfy Lemon’s first and second
    prongs. For the reasons stated below, we ultimately conclude that the Board’s
    (...continued)
    other criterion) could place the name of a person to be honored or some other
    private message”). This is simply not one of those “situations in which it is
    difficult to tell whether a government entity is speaking on its own behalf or is
    providing a forum for private speech.” 
    Id. at 1132.
    However, as the Court noted:
    “This does not mean that there are no restraints on government speech. For
    example, government speech must comport with the Establishment Clause.” 
    Id. at 1131-32;
    see 
    id. at 1139
    (Stevens, J., concurring) (“For even if the Free Speech
    Clause neither restricts nor protects government speech, government speakers are
    bound by the Constitution’s other proscriptions, including those supplied by the
    Establishment and Equal Protection Clauses.”). And it is the propriety of the
    Board’s action under the Establishment Clause that is properly before us here.
    - 24 -
    action does violate the Establishment Clause with respect to the second prong. In
    other words, we conclude that the principal or primary effect of the Board’s
    action is to endorse religion or a particular form of religion. Accordingly, we
    need not (and do not) opine on whether the Board’s action satisfies the first
    Lemon prong (i.e., whether the Board’s purpose was secular).
    3. Application
    i. The Monument Is Not Presumptively Unconstitutional
    “Establishment Clause cases are predominantly fact-driven . . . .”
    
    Weinbaum, 541 F.3d at 1022
    . We reject at the outset Mr. Green’s argument that
    “[g]overnmental [d]isplays of the [t]ext of the Ten Commandments [a]re
    [p]resumptively [u]nconstitutional.” Aplt. Opening Br. at 24. In Stone v.
    Graham, 
    449 U.S. 39
    , 41 (1980), the Supreme Court observed that “[t]he pre-
    eminent purpose for posting the Ten Commandments on schoolroom walls is
    plainly religious in nature.” In McCreary, the Court construed that language to
    mean that isolated exhibition in public school classrooms “could presumptively be
    understood as meant to advance religion.” 
    McCreary, 545 U.S. at 867
    . However,
    McCreary did not adopt a general presumption outside of that school context:
    Specifically, it noted that “Stone did not purport to decide the constitutionality of
    every possible way the Commandments might be set out by the government, and
    under the Establishment Clause detail is key.” Id.; see also Van 
    Orden, 545 U.S. at 690-91
    (construing Stone as an example of “particular[] vigilan[ce] in
    - 25 -
    monitoring compliance with the Establishment Clause in elementary and
    secondary schools” (internal quotation marks omitted)); 
    id. at 703
    (Breyer, J.,
    concurring) (distinguishing Stone on the basis that “given the impressionability of
    the young, government must exercise particular care in separating church and
    state” on the grounds of a public school).
    The Ten Commandments have a secular significance that government may
    acknowledge. See Van 
    Orden, 545 U.S. at 688-89
    (plurality opinion) (providing
    examples showing that “acknowledgments of the role played by the Ten
    Commandments in our Nation’s heritage are common throughout America” and
    observing that the Court’s “opinions, like our building, have recognized the role
    the Decalogue plays in America’s heritage”); 
    id. at 701
    (Breyer, J., concurring)
    (noting that in certain contexts the Commandments can convey “a secular moral
    message . . . about proper standards of social conduct” or a message “about a
    historic relation between those standards and the law”). Like the McCreary
    Court, we are unwilling to presume that the text of the Ten Commandments here
    could not be constitutionally integrated into a governmental display that
    highlights its secular significance. See 
    McCreary, 545 U.S. at 874
    (expressly
    declining to hold that “a sacred text can never be integrated constitutionally into a
    governmental display on the subject of law, or American history”). 9 Accordingly,
    9
    In fact, the closest the McCreary Court came to a presumption
    against a display of the Ten Commandments is its conclusion that “a religious
    (continued...)
    - 26 -
    we reject Mr. Green’s contention that we should deem the Board’s display of the
    Monument as presumptively unconstitutional because the Monument is inscribed
    with the Ten Commandments.
    ii. The Monument’s Effect
    Governments may not “mak[e] adherence to a religion relevant in any way
    to a person’s standing in the political community.” County of Allegheny v. Am.
    Civil Liberties Union Greater Pittsburgh Chapter, 
    492 U.S. 573
    , 594 (1989)
    (quoting 
    Lynch, 465 U.S. at 687
    (O’Connor, J., concurring)). And actions which
    have the effect of communicating governmental endorsement or disapproval,
    “whether intentionally or unintentionally, . . . make religion relevant, in reality or
    public perception, to status in the political community.” 
    Lynch, 465 U.S. at 692
    (O’Connor, J., concurring). In applying the effect prong, we “evaluate whether a
    reasonable observer, aware of the history and context of the community in which
    the conduct occurs, would view the practice as communicating a message of
    government endorsement or disapproval.” 
    Bauchman, 132 F.3d at 551
    -52
    (internal quotation marks omitted). “However, not every governmental activity
    that confers a remote, incidental or indirect benefit upon religion is
    constitutionally invalid.” 
    Id. at 555.
    Rather, it must be established that the
    9
    (...continued)
    object is unmistakable” when “the government initiates an effort to place this
    statement alone in public 
    view.” 545 U.S. at 869
    . Because this case involves
    neither government initiation nor an isolated display, we are on firm footing in
    reviewing this case without adopting a presumption against the Monument.
    - 27 -
    governmental activity has “a princip[al] or primary effect of advancing or
    endorsing religion.” 
    Id. In Weinbaum,
    we noted that application of the effect prong of the Lemon
    test to a particular set of facts “involves an objective inquiry.” See 
    Weinbaum, 541 F.3d at 1031
    ; cf. Borden v. Sch. Dist. of Twp. of E. Brunswick, 
    523 F.3d 153
    ,
    175 (3d Cir. 2008) (viewing the endorsement analysis as constituting a distinct
    Establishment Clause test but noting that “[t]he test does not focus on the
    government’s subjective purpose when behaving in a particular manner, but
    instead focuses on the perceptions of the reasonable observer”), cert. denied, 
    129 S. Ct. 1524
    (2009). We proceeded then to offer a useful summary of the nature of
    the inquiry:
    [T]he “effect” prong looks through the eyes of an objective
    observer who is aware of the purpose, context, and history of
    the symbol. The objective or reasonable observer is kin to the
    fictitious “reasonably prudent person” of tort law. So we
    presume that the court-created “objective observer” is aware of
    information “not limited to the information gleaned simply
    from viewing the challenged display.” If a government symbol
    has long gone unchallenged, there is a suggestion that an
    objective observer would not think that the symbol endorses a
    religious message.
    
    Weinbaum, 541 F.3d at 1031
    (citations and footnote omitted) (quoting Gaylor v.
    United States, 
    74 F.3d 214
    , 217 (10th Cir. 1996); 
    O’Connor, 416 F.3d at 1228
    ).
    In this inquiry, “[u]ndoubtedly, the ‘objective observer’ is presumed to
    know far more than most actual members of a given community.” 
    Id. at 1031
    - 28 -
    n.16. “[R]easonable observers have reasonable memories” and are aware of “the
    context in which the policy arose.” 
    McCreary, 545 U.S. at 866
    (alteration and
    internal quotation marks omitted). However, we do not treat the reasonable
    observer as omniscient. See, e.g., 
    Bauchman, 132 F.3d at 560
    (concluding that
    courts “impart[] such knowledge to the reasonable observer in the broad sense of
    community awareness, not in the sense that a reasonable observer would have
    knowledge of every alleged past constitutional violation of a particular
    defendant”).
    Consistent with the fact-intensive nature of this effect inquiry, “the
    Supreme Court has advised that, in Establishment Clause cases, ‘the inquiry calls
    for line drawing; no fixed, per se rule can be framed.’” 
    Weinbaum, 541 F.3d at 1039
    (quoting 
    Lynch, 465 U.S. at 678
    )). A challenged government action that
    might pass constitutional muster in some settings might be deemed
    “constitutionally suspect in some other American communities or in other
    contexts.” Id.; cf. 
    Borden, 523 F.3d at 158-59
    , 178 (holding that “when viewing
    the acts [i.e., “silent acts of bowing his head during his team’s pre-meal grace and
    taking a knee with his team during a locker-room prayer”] in light of [plaintiff
    coach’s] twenty-three years of prior prayer activities with the East Brunswick
    High School football team during which he organized, participated in, and even
    led prayer activities with his team, a reasonable observer would conclude that
    [plaintiff] was endorsing religion when he engaged in these acts,” but noting that
    - 29 -
    “this conclusion would not be so clear” without these “twenty-three years of prior
    prayer activities”). “Context carries much weight in the Establishment Clause
    calculus.” 
    Weinbaum, 541 F.3d at 1033
    .
    Thus, the reasonable observer in this case would be aware of the nature and
    history of the Haskell County community, the circumstances surrounding the
    Monument’s placement on the courthouse lawn, its precise location on the lawn
    and its spatial relationship to the other courthouse monuments, and also the
    Haskell County community’s response to the Monument. In particular, the
    reasonable observer would be aware of Mr. Bush’s religious motivation for
    seeking the erection of the Monument. After learning of these motivations, the
    Board swiftly approved its erection and allowed the project to go forward, despite
    being aware that there might be adverse legal consequences. 10 And, when those
    10
    To be clear, the focus is on the government actor’s conduct rather
    than the private citizen’s. In connection with Lemon’s purpose prong, this is
    probably most patent. See 
    Weinbaum, 541 F.3d at 1031
    (“[W]e must scrutinize
    the government’s intent; thus, where the challenged conduct is the selection or
    display of artwork, the artist’s inspiration or intent is irrelevant.”); Summum v.
    City of Ogden, 
    297 F.3d 995
    , 1010 (10th Cir. 2002) (“The purpose inquiry,
    however, centers not on the purpose animating the speech of a particular private
    actor . . . but, rather, on the purpose for which the government allows such speech
    on government property.”); cf. 
    Borden, 523 F.3d at 175
    (noting that “[t]he
    [endorsement] test does not focus on the government’s subjective purpose when
    behaving in a particular manner, but instead focuses on the perceptions of the
    reasonable observer”). Therefore, the subjective motivation of Mr. Bush per se,
    in the purpose inquiry, is essentially irrelevant. However, as to the effect prong,
    things are not that simple. Under the effect prong, although the area of concern is
    still the government actor’s conduct—that is, its effect—the analysis must
    undertake a significant inquiry into the surrounding circumstances of which the
    (continued...)
    - 30 -
    adverse legal consequences did in fact materialize in the form of Mr. Green’s
    lawsuit, the Board seemingly did not hesitate to stay the course, electing to
    maintain the Monument without clarifying its purposes in doing so. Further,
    although the Monument ultimately also was inscribed with the Mayflower
    Compact, the Board approved the Monument with the understanding that it would
    be inscribed only with the Ten Commandments.
    Haskell County is a place where “[e]veryone knows each other.” Green,
    
    450 F. Supp. 2d
    at 1274. The Board members were identifiable as Board
    members. Indeed, one commissioner noted that Board members act as county
    officials “24 hours a day, 7 days a week.” App. at 535. Mr. Bush also testified
    that everyone would know the commissioners and they would not have to be
    10
    (...continued)
    reasonable observer would have been aware. And, here, the reasonable observer
    would have been aware of the circumstances under which the Monument came to
    sit on the courthouse lawn, including the fact that Mr. Bush revealed to the Board
    his unalloyed religious motivation in seeking to put the Monument there and that
    the Board in short order agreed to allow him to erect it. The reasonable observer
    would be very unlikely in the effect analysis to give the Board’s agreement
    determinative weight as an endorsement of religion. However, in light of Mr.
    Bush’s expressed views, the reasonable observer could not negate this
    circumstance as one in the totality of circumstances that was consistent with a
    conclusion that the Board’s conduct had the effect of endorsing religion. This is
    something that the reasonable observer would have been more readily able to do
    if Mr. Bush, for example, had voiced a historical or other secular purpose for the
    installation of the Monument. Cf. Van 
    Orden, 545 U.S. at 701
    (Breyer, J.,
    concurring) (noting that, given the Fraternal Order of Eagles’s civic-education
    purposes aimed at fighting juvenile delinquency, “[t]he circumstances
    surrounding the display’s placement on the capitol grounds,” inter alia, “suggest
    that the State itself intended the latter, nonreligious aspects [of the Ten
    Commandments] tablets’ message to predominate”).
    - 31 -
    identified for people to know their position.
    The reasonable observer would know that two of the three commissioners
    attended the unveiling of the Monument, which had been organized by Mr. Bush
    and included remarks by local pastors. See 
    Green, 450 F. Supp. 2d at 1291
    n.30
    (“[E]veryone knows each other[,] and word travels in Haskell County faster than
    the constant airspeed of a European swallow.”). Mr. Bush specifically recalled
    both of the commissioners speaking at the unveiling. Those commissioners posed
    for photographs beside the Monument, which appeared in locally distributed
    newspapers. After this lawsuit began, Mr. Bush organized a religiously themed
    rally to support the Monument, which gathered a crowd of three to four hundred
    people. The same two commissioners attended. One of them spoke briefly in
    support of the monument, and he is reported to have said, “I’ll stand up in front of
    that monument and if you bring a bulldozer up here you’ll have to push me down
    with it.” App. at 1405, 1186; see also Green, 
    450 F. Supp. 2d
    at 1280.
    Numerous quotes from these commissioners appear in news reports,
    ranging from statements reflecting their determination to keep the Monument, see
    App. at 459 (“I won’t say that we won’t take it down, but it will be after the
    fight.”), to statements of religious belief, see, e.g., App. at 455 (“That’s what
    we’re trying to live by, that right there.” “The good Lord died for me. I can
    stand for him. And I’m going to.” “I’m a Christian and I believe in this. I think
    it’s a benefit to the community.”); App. at 458-59 (“God died for me and you, and
    - 32 -
    I’m going to stand up for him.”). We conclude, in the unique factual setting of a
    small community like Haskell County, that the reasonable observer would find
    that these facts tended to strongly reflect a government endorsement of religion.
    In particular, we find support for this conclusion in the public statements of the
    Haskell County commissioners. In none of their statements did the
    commissioners attempt to distinguish between the Board’s position and their own
    beliefs. Several of the commissioners’ statements would naturally be construed
    as having been made on behalf of the Board, including, “I won’t say that we
    won’t take it down, but it will be after the fight,” App. at 459 (emphasis added),
    and “We’re definitely going to leave our monument there until the law tells us to
    take it down.” App. at 1170 (emphasis added). By not distinguishing their
    personal opinions from their official views, the commissioners left the impression
    that a principal or primary reason for the erection and maintenance of the display
    was religious. See, e.g., App. at 458-59 (where one commissioner’s statement
    that “God died for me and you, and I’m going to stand up for him” appeared in
    close proximity to the statement “I won’t say that we won’t take it down, but it
    will be after the fight”).
    Nor did the Board “act[] affirmatively to discourage any mistaken
    impression that private speakers [were] speaking for the Board.” Peck v. Upshur
    County Bd. of Educ., 
    155 F.3d 274
    , 281 (4th Cir. 1998). Such action or inaction
    has been found significant in the Establishment Clause context. Cf. Rosenberger
    - 33 -
    v. Rector & Visitors of Univ. of Va., 
    515 U.S. 819
    , 841 (1995) (holding that
    government neutrality was apparent where “the government ha[d] not fostered or
    encouraged any mistaken impression that” the private speech was the university’s
    own (internal quotation marks omitted)); Capitol Square Review & Advisory Bd.
    v. Pinette, 
    515 U.S. 753
    , 766 (1995) (rejecting the idea that the distinction
    between private and government speech “disappears when the private speech is
    conducted too close to the symbols of government,” “at least where, as here, the
    government has not fostered or encouraged the mistake”); Bd. of Educ. v.
    Mergens ex rel. Mergens, 
    496 U.S. 226
    , 251 (1990) (rejecting the “fear of a
    mistaken inference of endorsement” because the school had the capacity to make
    clear that “its recognition of [a student religious] club is not an endorsement of
    the view of the club’s participants” and to the extent that it did so, “students will
    reasonably understand that the school’s official recognition of the club evinces
    neutrality toward, rather than endorsement of, religious speech”). Furthermore,
    the photographs of commissioners standing beside the Monument—at least one
    depicting all three commissioners—give the impression of the Board’s united
    endorsement of the Monument itself. Indeed, at least two of the commissioners
    expressly recognized that they were asked by the media to participate in the
    photographs because of their status as commissioners.
    Like the Eighth Circuit, we “do not believe elected government officials are
    required to check at the door whatever religious background (or lack of it) they
    - 34 -
    carry with them before they act on rules that are otherwise unobjectionable under
    the controlling Lemon standards.” Clayton ex rel. Clayton v. Place, 
    884 F.2d 376
    ,
    380 (8th Cir. 1989) (refusing to find an action unconstitutional “due only to its
    harmony with the religious preferences of constituents or with the personal
    preferences of the officials taking action”); cf. Van 
    Orden, 545 U.S. at 699
    (Breyer, J., concurring) (“[T]he Establishment Clause does not compel the
    government to purge from the public sphere all that in any way partakes of the
    religious. Such absolutism is . . . inconsistent with our national traditions . . . .”
    (citations omitted)). In a small community like Haskell County, where everyone
    knows everyone, and the commissioners were readily identifiable as such,
    however, we conclude that the reasonable observer would have been left with the
    clear impression—not counteracted by the individual commissioners or the Board
    collectively—that the commissioners were speaking on behalf of the government
    and the government was endorsing the religious message of the Monument. See
    
    McCreary, 545 U.S. at 869
    (“The reasonable observer could only think that the
    [government] meant to emphasize and celebrate the Commandments’ religious
    message.”). 11
    11
    We recognize that the district court had a different take on the
    situation.
    No believable evidence exists that the Commissioners were
    ever referred to in their official capacities. Furthermore, given
    the nature of the humble tight-knit community in this rural
    (continued...)
    - 35 -
    We underscore that the reasonable observer’s impression of government
    endorsement would not be based upon the commissioners’ statements alone. The
    statements would be just part of the history and context of which the reasonable
    observer would be cognizant. In particular, that observer also would know of the
    11
    (...continued)
    Oklahoma county described by witnesses at trial, the court is
    not convinced that a reasonable observer would have viewed
    these men as speaking or appearing for Haskell County
    government.
    Green, 
    450 F. Supp. 2d
    at 1293. However, we simply do not find the court’s
    reasoning to be persuasive. Precisely because Haskell County is “a small,
    sparsely-populated, rural Oklahoma county,” 
    id., no one
    would need to refer to
    the commissioners as acting in their official capacity in order for the reasonable
    observer to conclude that they were doing so. Furthermore, the court’s assertion
    that it was “not convinced” from the witnesses’ testimony about Haskell County’s
    characteristics that a reasonable observer would have deemed the commissioners
    to be acting for the county is not the sort of finding concerning “the basic
    historical facts upon which the claim is grounded” that is afforded “the usual
    ‘clearly erroneous’ standard of review.” 
    Friday, 525 F.3d at 950
    ; cf. Green, 
    450 F. Supp. 2d
    at 1284, 1293 (making this specific assertion appearing in portion of
    opinion entitled “Conclusions of Law”). The question is not whether the
    commissioners actually were carrying out official functions in connection with
    their appearances at the Monument and in offering comments about it. Cf. Green,
    
    450 F. Supp. 2d
    at 1276 (finding relative to the unveiling that “neither gentlemen
    appeared in his official capacity as County Commissioner”); 
    id. at 1280
    (finding
    as to the rally that “there is no indication they attended in their official capacity
    as County Commissioners”). Rather, the question is whether a reasonable
    observer would have perceived them as being engaged in official activities. And
    the answer to that question is closely (if not inextricably) intertwined with the
    legal effect determination. Therefore, insofar as it is a factual finding at all, the
    court’s assertion regarding the reasonable observer’s perception is akin to a
    finding concerning a constitutional fact and subject to de novo review. See
    
    Weinbaum, 541 F.3d at 1029
    (noting that in the First Amendment context we
    review de novo a district court’s findings concerning constitutional facts). Under
    that standard, we conclude that the district court’s assertion is not well-grounded.
    - 36 -
    religious motivation—seemingly endorsed by the Board—that led to the
    installation of the Monument. And the observer would have little information
    indicating that there was more at play in the Monument’s installation, and the
    Board members’ efforts to maintain it in the face of clearly voiced Establishment
    Clause concerns, 12 than the Board’s desire to facilitate the dissemination of a
    religious (i.e., in their view, Christian) message. In this light, we would be hard-
    12
    There of course is no requirement that governments fold under
    litigation pressure or explain themselves when confronted with an Establishment
    Clause challenge. Indeed, we observed as much in 
    O’Connor, 416 F.3d at 1227
    (“A defendant’s failure to change its behavior in accordance with plaintiffs’
    demands, however, is not in itself proof of anti-religious intent.”). However,
    significantly, the O’Connor court took note under Lemon of the university’s
    publicly announced secular reasons for continuing to maintain the allegedly anti-
    Catholic display after Establishment Clause concerns were raised. 
    Id. at 1228.
    In
    particular, just because a government is not required to explain its intent in
    erecting and retaining a Ten Commandments display, in the face of strongly
    voiced religious endorsement allegations, does not mean that the reasonable
    observer is prohibited from considering the government’s decision to stand mute,
    and from drawing inferences from that decision that the law ordinarily permits to
    be drawn when one does not rebut a serious allegation of wrongdoing, despite
    understanding it and being well situated to respond—that is, the inference that the
    government accepts the truth of the allegation. Cf. Fed. R. Evid. 801(d)(2)(B)
    (discussing adoptive admissions: “a statement of which the party has manifested
    an adoption or belief in its truth”); 5 Joseph M. McLaughlin et al., Weinstein’s
    Federal Evidence (2d ed. 2009) (noting that “[a] party can adopt another’s
    statement by responding to it with silence,” and that courts must look to the
    circumstances including whether the party “understand[s] the statement” and is
    able or “unable . . . to reply to it”); see also New Eng. Mut. Life Ins. Co. v.
    Anderson, 
    888 F.2d 646
    , 650 (10th Cir. 1989) (declining to apply the adoptive
    admission principle to defendant because, inter alia, “New England did not
    establish that she had ever read the Times article [including the alleged
    statement], or that she was in any position to respond to the article”). That
    inference would not be determinative by any means, but it would be one factor,
    among many others, that the reasonable observer could consider in reaching a
    conclusion on the endorsement issue.
    - 37 -
    pressed to conclude that “a reasonable observer, reasonably informed as to the
    relevant circumstances, would perceive the government to be acting neutrally.” 13
    City of 
    Ogden, 297 F.3d at 1010
    .
    We recognize that certain evidence weighs against a finding of
    endorsement. However, surveying the entire record, we cannot conclude that this
    evidence sufficiently blunts the message of endorsement that we find to be
    present to alter the result. Perhaps militating most significantly in favor of a
    conclusion of non-endorsement is the fact that a reasonable observer would have
    13
    The Board can draw little (if any) support from the fact that Mr.
    Bush raised the funds for the Monument from private sources and effectively
    donated it to Haskell County for placement on the courthouse lawn. See Green,
    
    450 F. Supp. 2d
    at 1295-96 (treating the “unexpected dispute” over whether
    Haskell County actually owns the Monument as essentially waived). The
    Supreme Court’s Pleasant Grove decision dispels any doubt—at least under these
    facts—that, once donated, the Monument manifested government speech as a
    matter of law. Pleasant 
    Grove, 129 S. Ct. at 1132
    (holding that “[p]ermanent
    monuments displayed on public property typically represent government speech”);
    see supra note 8. Furthermore, even before Pleasant Grove, Establishment
    Clause jurisprudence made clear that, standing alone, the fact that a display is
    privately donated cannot insulate the government actor from a meaningful
    constitutional challenge; indeed, Establishment Clause cases not uncommonly
    have involved donated displays. See, e.g., Van 
    Orden, 545 U.S. at 701
    (Breyer,
    J., concurring) (“The group that donated the monument, the Fraternal Order of
    Eagles, a private civic (and primarily secular) organization, while interested in the
    religious aspect of the Ten Commandments, sought to highlight the
    Commandments’ role in shaping civic morality as part of that organization’s
    efforts to combat juvenile delinquency.”); Card v. City of Everett, 
    520 F.3d 1009
    ,
    1010 (9th Cir. 2008) (noting in an Establishment Clause case that the monument
    was “donated to the City of Everett . . . by the local aerie (chapter) of the
    Fraternal Order of Eagles”); cf. City of 
    Ogden, 297 F.3d at 998
    , 1009
    (undertaking Establishment Clause hypothetical analysis when raised as a
    “defense” in lawsuit involving Ten Commandments monument donated by the
    Fraternal Order of Eagles).
    - 38 -
    noticed that the Monument was one of numerous other monuments and displays
    on the courthouse lawn. This fact would typically weigh against a finding of
    endorsement. See 
    O’Connor, 416 F.3d at 1228
    (“The reasonable observer . . .
    would therefore be aware that the statue was one of thirty outdoor sculptures
    displayed on the Washburn campus, of which several were located within sight of
    the challenged display.”); City of 
    Ogden, 297 F.3d at 1011
    (“[W]e are persuaded
    that a reasonable observer would, instead, note the fact that the lawn of the
    municipal building contains a diverse array of monuments, some from a secular
    and some from a sectarian perspective.”); see also Van 
    Orden, 545 U.S. at 701
    (Breyer, J., concurring) (“[T]o determine the message that the text [of the Ten
    Commandments] here conveys, we must examine how the text is used. And that
    inquiry requires us to consider the context of the display.”); 
    O’Connor, 416 F.3d at 1228
    (“[T]he question of whether the government has endorsed a particular
    religious display depends in large part on the display’s particular physical
    setting.”). In this regard, in finding that the Monument was constitutional, the
    district court opined that the “mélange” on the courthouse lawn represents “what
    Haskell County citizens consider the noteworthy events and sentiments of their
    county, their state and their nation.” Green, 
    450 F. Supp. 2d
    at 1295. 14
    14
    We do not think the reasonable observer would find the Monument’s
    precise location militates in favor of a conclusion of impermissible endorsement.
    Mr. Green would have us place significance on the fact that the Monument could
    be viewed from the road. While we have noted in the past that a prominent
    (continued...)
    - 39 -
    However, the Monument is not a part of a unified exhibit in a “typical
    museum setting” like the statute found in O’Connor. See 
    O’Connor, 416 F.3d at 1228
    (noting that a brochure made clear “that the statue was part of an outdoor art
    exhibit”). Nor is the courthouse lawn a setting that is typically associated with
    intellectual experimentation like the university setting of O’Connor. 
    Id. at 1229-
    30 (noting that the statue at issue, Holier Than Thou, was “displayed in the
    context of a university campus, a place that is peculiarly the marketplace of
    ideas” and that “especially” in that context “no reasonable person would associate
    the message of Holier Than Thou with the state” (internal quotation marks
    omitted)). Furthermore, we do not view the Haskell County courthouse context as
    bearing a close resemblance to the monument setting in Van 
    Orden. 545 U.S. at 702
    (Breyer, J., concurring) (describing the monument sitting “in a large park
    containing 17 monuments and 21 historical markers, all designed to illustrate the
    14
    (...continued)
    location can weigh in favor of endorsement, see 
    O’Connor, 416 F.3d at 1228
    (observing that factors including “the statue’s location next to a footpath at a
    prominent location on campus, in an area reserved for official use” would “weigh
    toward a finding of state endorsement”), this Monument was placed in line with
    the other monuments already on the lawn, and the monuments could all be seen
    together. See Appendix Ex. C. Thus, we see no grounds for concluding that a
    reasonable observer would find that the Board had assigned a place of special
    prominence to the Monument in an effort to endorse its religious message. See
    Green, 
    450 F. Supp. 2d
    at 1294 (“[T]he Monument is not particularly large, and is
    not in a clearly high traffic area. . . . Furthermore, the Monument does not appear
    to be placed in an area that is the most frequented route taken to the courthouse
    by citizens going there to undertake business.”). However, as suggested by the
    analysis relating to O’Connor and Van Orden in text infra, this point hardly wins
    the day for the Board.
    - 40 -
    ‘ideals’ of those who settled in Texas and of those who lived there since that
    time”). 15 Although ultimately finding that the Monument had a secular effect, the
    district court here acknowledged that “people . . . might see the monument display
    [of Van Orden] in Texas as more cohesive, more integrated, more, well, artistic
    than the Stigler mélange.” 16 Green, 
    450 F. Supp. 2d
    at 1288.
    15
    To be sure, at a high level of generality, the Haskell County
    courthouse display involving the Monument does bear some similarities to the
    capitol grounds display in Van Orden. However, one might reasonably expect
    that frequently that will be the case with Ten Commandments monument displays
    on courthouse lawns, or capitol grounds, or similar governmental venues. Even
    before Van Orden, governments undoubtedly were inclined to display in such
    places multiple symbols of things that they presumed the people they served
    cherished or venerated, including the Ten Commandments. E.g., City of 
    Ogden, 297 F.3d at 998
    (“Located to the left and to the right of the Monument are,
    respectively, a police officer memorial and a sister city tree and plaque. Also
    located on the Municipal Grounds, though somewhat removed from the area
    containing the above-described monuments, are various historical markers.”).
    After Van Orden, governments wishing to display Ten Commandments
    monuments will be even more motivated to display them with multiple symbols in
    the hope of gaining some incremental level of protection against Establishment
    Clause liability.
    16
    Lest we generate confusion, this is not a matter of aesthetics. In Van
    Orden, the secular historical and moral messages of the Ten Commandments
    display were highlighted by the fact that they were part of an assortment of
    monuments that shared a unifying, cohesive secular theme. Van 
    Orden, 545 U.S. at 701
    -02 (Breyer, J., concurring). That theme reflected “the historical ‘ideals’ of
    Texans” that allegedly were grounded on moral principles involving ethics and
    the law. 
    Id. at 702.
    Therefore, at least in part due to the cohesive theme, the
    capitol grounds display in Van Orden “communicate[d] to visitors” predominately
    the message that “the State sought to reflect moral principles, illustrating a
    relation between ethics and law,” id.—rather than a message that was
    predominately religious. The district court here apparently recognized this aspect
    of Van Orden. That led the court to observe that, although there were several
    monuments on Haskell County’s courthouse lawn, there was less of a unifying,
    (continued...)
    - 41 -
    Significantly, the sharp contrast between the timing of the legal challenges
    to the monument in Van Orden and the one in this case sheds significant light on
    whether the reasonable observer would have perceived the latter as having the
    effect of endorsing religion. See 
    Weinbaum, 541 F.3d at 1031
    (“If a government
    symbol has long gone unchallenged, there is a suggestion that an objective
    observer would not think that the symbol endorses a religious message.”). In Van
    Orden, Justice Breyer observed that “40 years passed in which the presence of
    this monument, legally speaking, went 
    unchallenged.” 545 U.S. at 702
    (Breyer,
    J., concurring); see 
    id. at 682
    (plurality opinion) (“Forty years after the
    monument’s erection and six years after Van Orden began to encounter the
    monument frequently, he sued numerous state officials in their official capacities
    . . . seeking both a declaration that the monument’s placement violates the
    Establishment Clause and an injunction requiring its removal.”).
    Justice Breyer reasoned that those years of tranquility “suggest 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
    16
    (...continued)
    cohesive secular theme associated with those monuments than with the Van Orden
    monuments. As a consequence, under the reasoning of Van Orden, the Haskell
    County courthouse display was at least to some appreciable degree less likely
    than the Van Orden display to bring to the fore the secular historical and moral
    messages of the Ten Commandments. The reasonable observer therefore would
    be more inclined than in Van Orden to view the Ten Commandments as evincing
    a religious message. Therefore, the point here is not one of aesthetics.
    - 42 -
    any significantly detrimental way, to a government effort to favor a particular
    religious sect, primarily to promote religion over nonreligion.” 
    Id. at 702
    (Breyer, J., concurring); cf. 
    id. at 703
    (“This case also differs from McCreary
    County, where the short (and stormy) history of the courthouse Commandments’
    displays demonstrates the substantially religious objectives of those who mounted
    them, and the effect of this readily apparent objective upon those who view
    them.”). Indeed, Justice Breyer found the passage of forty years without a
    challenge to the monument to be “determinative.” 17 
    Id. at 702
    ; cf. Pleasant
    
    Grove, 129 S. Ct. at 1140
    (Scalia, J., concurring) (noting that “[t]he city can
    safely exhale” and its residents can enjoy a public park containing a Ten
    Commandments monument “without fear that they are complicit in an
    establishment of religion,” because, inter alia, the monument “was erected in
    1971” and that “means it is approaching its (momentous!) 40th anniversary”
    without an Establishment Clause challenge).
    Here, the difference is striking. In less than one year after the Monument
    17
    Given that Van Orden was decided by a plurality, the separate
    opinion of Justice Breyer, who supplied the “decisive fifth vote,” Heideman v. S.
    Salt Lake City, 
    348 F.3d 1182
    , 1198 (10th Cir. 2003), is controlling under the rule
    of 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 quotation marks omitted)). See Clement, Public 
    Displays, supra, at 241
    (“Because no opinion [in Van Orden] commanded a majority, Justice Breyer’s
    concurring opinion is the law of the case.”).
    - 43 -
    was unveiled, Mr. Green challenged the erection of the Monument as an
    Establishment Clause violation, filing the federal lawsuit underlying this appeal.
    Accordingly, despite its presence on the courthouse lawn with other displays and
    monuments, this rather prompt litigation response to the Monument makes it
    difficult for us to glean “a suggestion that an objective observer would not think
    that the symbol endorses a religious message.” 
    Weinbaum, 541 F.3d at 1031
    .
    Accordingly, viewing the record as a whole, we do not believe that the
    Monument’s setting here should lead us to a different conclusion on the
    endorsement question.
    Likewise, we cannot conclude that the Monument’s text that is unrelated to
    the Ten Commandments would persuade a reasonable observer that the principal
    or primary effect was not to endorse religion. The reasonable observer would
    have been aware that the Monument not only contained the Ten Commandments,
    but also the Mayflower Compact. The fact that the Ten Commandments are not
    displayed in isolation is not without significance. See, e.g., 
    McCreary, 545 U.S. at 869
    (“The point is simply that the original text [of the Ten Commandments]
    viewed in its entirety is an unmistakably religious statement dealing with
    religious obligations and with morality subject to religious sanction. When the
    government initiates an effort to place this statement alone in public view, a
    religious object is unmistakable.” (emphasis added)). But, at least on these facts,
    the import of its pairing with the Mayflower Compact is equivocal at best.
    - 44 -
    The Mayflower Compact has an independent historical significance and
    also demonstrates the relevance of religion to that history. See, e.g., Sch. Dist. of
    Abington Twp. v. Schempp, 
    374 U.S. 203
    , 213 (1963) (“The fact that the Founding
    Fathers believed devotedly that there was a God and that the unalienable rights of
    man were rooted in Him is clearly evidenced in their writings, from the
    Mayflower Compact to the Constitution itself.”); see also Van 
    Orden, 545 U.S. at 683
    (quoting same); Edwards v. Aguillard, 
    482 U.S. 578
    , 606 (1987) (Powell, J.,
    concurring) (quoting same). However, we cannot construe a display of the Ten
    Commandments not to be an endorsement of religion merely because it is
    accompanied by the Mayflower Compact or other secular documents. See
    
    McCreary, 545 U.S. at 854
    , 856 (noting that the Mayflower Compact was
    included in the second and third versions of the display containing the Ten
    Commandments that was ultimately struck down). Its inclusion arguably could be
    viewed as merely part of an “unstinting focus . . . on religious passages” that
    merely furthers the endorsement. 
    Id. at 870.
    The evidence thus cuts in both
    directions, and because no effort was made by the Board to help the reader
    interpret the intended relationship between the two documents, the reasonable
    observer would not find the Mayflower Compact helpful in determining whether
    the Monument endorses religion. 18
    18
    Furthermore, we also note that the reasonable observer would have
    been aware that the Mayflower Compact was added by Mr. Bush after the Board
    (continued...)
    - 45 -
    Similarly, we do not believe that the reasonable observer would be less
    inclined to find an impermissible endorsement of religion because of the
    Monument’s notation “Erected by Citizens of Haskell County.” We recently
    suggested in other cases that a city could post a disclaimer “explaining clearly
    that private entities are responsible for at least some of the [monuments on
    municipal grounds], including the Ten Commandments Monument and the Seven
    Principles Monument.” City of 
    Ogden, 297 F.3d at 1011
    ; see Van 
    Orden, 545 U.S. at 701
    -02 (Breyer, J., concurring) (“The tablets, as displayed on the
    monument [bearing the Ten Commandments], prominently acknowledge that the
    Eagles [a private civic, and primarily secular, group] donated the display, a factor
    18
    (...continued)
    authorized the Monument project and the Board apparently did not subsequently
    formally agree to its placement on the Monument. This fact may bear more on the
    purpose inquiry. Cf. 
    O’Connor, 416 F.3d at 1226
    (“Nor does the evidence show
    that the statue’s caption was selected with anti-Catholic intent. The record
    establishes that the caption had not yet been placed on the statue at the time it
    was selected by the Campus Beautification Committee and approved by President
    Farley.”). However, the Monument’s context and history certainly also are
    relevant to the effect inquiry. See, e.g., 
    Weinbaum, 541 F.3d at 1031
    (noting that
    the effect prong “looks through the eyes of an objective observer who is aware of
    the purpose, context, and history of the symbol” (emphasis added)); cf. 
    O’Connor, 416 F.3d at 1225
    n.2 (“In this case, the context and content of the statue is
    relevant to the effect of the display in addition to the university’s purpose.”)
    Therefore, the reasonable observer assessing the Monument’s effect would have
    been aware that at the time the Board authorized its erection, as far as the Board
    knew, the Monument would consist only of the Ten Commandments. Cf.
    
    Weinbaum, 541 F.3d at 1033
    (“Effects are most often the manifestations of a
    motivating purpose.”). Consequently, even if the independent historical
    significance of the Mayflower Compact ordinarily would militate in favor of a
    finding of non-endorsement in the reasonable observer’s eyes, the reasonable
    observer probably would have been less likely to give it that effect here.
    - 46 -
    which, though not sufficient, thereby further distances the State itself from the
    religious aspect of the Commandments’ message.”). However, the addition of
    such a disclaimer would not be “sufficient,” alone, Van 
    Orden, 545 U.S. at 701
    (Breyer, J., concurring), and could not tip the balance on these facts, given the
    very significant magnitude of the evidence indicating an impermissible
    endorsement. 19 Furthermore, any incremental movement toward the side of non-
    endorsement resulting from the addition of the notation would be hobbled by the
    reasonable observer’s awareness that the addition took place after litigation had
    begun and on the eve of trial. Litigation positions do not alter reasonable
    memories. Cf. 
    McCreary, 545 U.S. at 871-72
    (noting that the counties’ “new
    statements of purpose were presented only as a litigating position” and that “[n]o
    reasonable observer could swallow the claim that the Counties had cast off the
    [religious] objective so unmistakable in earlier displays”).
    We conclude by underscoring the proposition that “[c]ontext carries much
    weight in the Establishment Clause calculus.” 
    Weinbaum, 541 F.3d at 1033
    . In
    the context of the small community of Haskell County, we hold that the Board’s
    19
    Indeed, we had no occasion in City of Ogden to assess the likely
    impact of such a disclaimer because it would merely have aided there in
    confirming what already was clearly not an Establishment Clause violation. See
    City of 
    Ogden, 297 F.3d at 1011
    (rejecting the argument that, hypothetically, the
    city’s acceptance of a display with a religious theme would have the effect of
    endorsing religion, but noting “[t]o the extent to which the City of Ogden remains
    genuinely concerned regarding the likely misapprehensions of passersby, the City
    might also post a disclaimer” (emphasis added)).
    - 47 -
    actions in authorizing and maintaining the Monument—inscribed with the Ten
    Commandments—on the courthouse lawn had the impermissible principal or
    primary effect of endorsing religion in violation of the Establishment Clause.
    III. CONCLUSION
    The district court’s order is REVERSED. We REMAND for the district
    court to enter judgment consistent with this opinion.
    - 48 -
    Appendix A
    Plaintiffs’ Exhibit 85 (size reduced to fit page).
    - 49 -
    Appendix B
    Defendants’ Exhibit 7 (Deposition Exhibit 6) (size reduced to fit page).
    - 50 -
    Appendix C
    Defendants’ Exhibit 27 (size reduced to fit page).
    - 51 -
    Appendix D
    Plaintiffs’ Exhibit 1 (size reduced to fit page).
    - 52 -