Books, William A. v. Elkhart County ( 2005 )

In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 04-2075
WILLIAM A. BOOKS,
Plaintiff-Appellee,
v.
ELKHART COUNTY, Indiana,
Defendant-Appellant.
____________
Appeal from the United States District Court for the
Northern District of Indiana, South Bend Division.
No. 03 C 233—Robert L. Miller, Jr., Chief Judge.
____________
ARGUED NOVEMBER 3, 2004—DECIDED MARCH 25, 2005
____________
Before FLAUM, Chief Judge, EASTERBROOK and SYKES,
Circuit Judges.
SYKES, Circuit Judge. This case tests the constitution-
ality of a display of the Ten Commandments on public
property. The display in question is a framed text of the
King James version of the Ten Commandments, one of nine
historical texts and symbols that comprise a “Foundations
of American Law and Government Display” in the County
Administration Building in Elkhart County, Indiana. Au-
thorized by resolution of the Elkhart County Board of
2 No. 04-2075
Commissioners, the exhibit includes a selection of signi-
ficant historical documents and symbols that, according to
the resolution, “positively contribute to the educational
foundation and moral character of the citizens of [Elkhart]
county.” Evaluating the display under the three-part test of
Lemon v. Kurtzman, 403 U.S. 602 (1971), the district court
held that the inclusion of the Ten Commandments violates
the First Amendment’s Establishment Clause because the
County had no purpose other than “paying homage to the
Ten Commandments,” a sacred religious text. The court
ordered the County to remove the Ten Commandments from
the display.
We reverse. The display satisfies the Lemon test and is
therefore constitutional under the First Amendment. The
County’s stated purposes—to educate its citizens in the
history of American law and politics and provide moral
uplift—are secular, and we see no good reason to doubt the
County’s sincerity. Nor is the primary effect of the display
to advance religion. The inclusion of the Ten Commandments
in a multifaceted historical exhibit of texts and images that
have influenced or symbolized American law and govern-
ment cannot reasonably be understood as an endorsement
of religion.1
I. Background
The pertinent facts are undisputed. Two individuals
approached government officials in Elkhart County, Indiana,
and offered to donate a set of documents for display. The set
included the Preamble to the Indiana Constitution, the
1
Books has not argued that the display excessively entangles
government with religion, the third inquiry under Lemon v.
Kurtzman, 403 U.S. 602, 613 (1971), so we do not address that
issue.
No. 04-2075 3
national motto, the national anthem, an image of Lady
Justice, the Declaration of Independence, the Mayflower
Compact, the Bill of Rights to the United States Constitution,
the Magna Carta, and the Ten Commandments. County
Commissioner Martin McCloskey asked the county attorney
to draft a resolution authorizing a display of the documents,
along with the flags of the United States and Indiana. This
was done, and on March 17, 2003, the County Commission
passed a resolution authorizing installation of the display.
The resolution sets forth the County’s view that the
documents included in the display are historically signifi-
cant and educationally valuable to the citizens of Elkhart
County. In particular, it states as a general matter that “a
sense of historical context, civic duty, and responsibility,
and the general application and understanding of the law
of this land, are all desirable components of the education
of the citizens of this county.” The resolution goes on to say
that the documents included in the display “positively con-
tribute to the educational foundation and moral character
of the citizens of this county.”
Acknowledging that “there may be other symbols, doc-
uments, speeches, letters, and writings that are equally
important as those mentioned,” the resolution states the
Commission’s opinion that the documents and symbols in the
display, “taken as a whole, are valuable examples of docu-
ments and symbols that may instill qualities desirable of
the citizens of this county, and have had particular histor-
ical significance to the development of this country.” The
Commissioners resolved to “support these historical docu-
ments and symbols, and also support the public display of
the above documents and symbols.” The resolution specifies
that the display will be erected on the walls of the County
Administration Building “and at such other public facilities
of Elkhart County Government as shall from time to time
hereafter be designated by the Commissioners.”
4 No. 04-2075
The very day the resolution passed the display was erected
on a wall on the first floor of the County Administration
Building, near the entrance to the County Commissioners’
offices. The display consists of ten individually framed
images and documents—the nine historical documents and
a separately framed explanation of the display—flanked by
the flags of Indiana and the United States. The identically
sized frames hang at eye level and are placed approximately
two inches from one another, forming a bunched grouping
in two rows. The explanation is placed at the far right-hand
end of the display. Each of the historical texts and symbols
is identically sized and matted inside a frame measuring
approximately 11 x 14 inches. Given the varying lengths of
the historical texts, the typeface of the documents is not
identical, but from the photographs included in the record,
they appear nearly the same.
The separately framed explanation sets forth a one- or
two-paragraph exposition of the historical significance of
each text and symbol. These explanations are generally
narratives of the origin and purpose of the historical text or
symbol in question, along with a brief comment on the text’s
significance in American history. For instance, the explana-
tion refers to the Mayflower Compact as “the first written
constitution in the New World” and quotes its author,
William Bradford, describing why the settlers of Plymouth,
Massachusetts, created the Compact. The Declaration of
Independence is rated “perhaps the single most important
document in American History . . . the ‘frame’ into which
the Framers placed the Constitution,” the fundamental
premise of which is that “[g]overnment is not a giver of
rights, but a protector of God-given rights.” The Magna
Carta is described as the origin of the concept of the rule of
law and is related forward to the American war of inde-
pendence: “[T]he American patriots . . . waged war against
England to preserve liberties originating in 13th century
England.”
No. 04-2075 5
The explanation provides the little-known fact that the
national motto, “In God We Trust,” was derived from a line
in the Star-Spangled Banner. Another section of the ex-
planation vividly describes how Francis Scott Key wrote the
poem that became our national anthem while observing the
battle of Fort McHenry during the War of 1812. The
explanation states that the Preamble to the Indiana
Constitution “derives directly from the idea that Government
is not a giver of rights, but a protector of God-given rights.”
The Bill of Rights is described as a check on the potential
tendency to tyranny within the newly organized American
government and “a vital and powerful force in American
Government, shaping our laws and serving as a check on
the exercise of government power.” The explanation also
discusses the symbolism of the Lady Justice icon.
In comparison with the other texts, the description of the
Ten Commandments is relatively short and contains no
information about its origins. Instead, the explanation fo-
cuses on the historical significance of the Ten Commandments:
The Ten Commandments have profoundly influenced
the formation of Western legal thought and the forma-
tion of our country. That influence is clearly seen in the
Declaration of Independence, which declared that “We
hold these truths to be self-evident, that all men are
created equal, that they are endowed by their Creator
with certain unalienable Rights, that among these are
Life, Liberty, and the pursuit of Happiness.” The Ten
Commandments provide the moral background of the
Declaration of Independence and the foundation of our
legal tradition.
The display presents the Ten Commandments (Exodus 20:3-
17) in the King James version:
Thou shalt have no other gods before me.
Thou shalt not make unto thee any graven image, or
any likeness of any thing that is in heaven above, or
6 No. 04-2075
that is in the earth beneath, or that is in the water
underneath the earth: Thou shalt not bow down thyself
to them, nor serve them: for I the LORD thy God am a
jealous God, visiting the iniquity of the fathers upon the
children unto the third and fourth generation of them
that hate me.
Thou shalt not take the name of the LORD thy God in
vain: for the LORD will not hold him guiltless that
taketh his name in vain.
Remember the Sabbath day, to keep it holy.
Honour thy father and thy mother: that thy days may
be long upon the land which the LORD thy God giveth
thee.
Thou shalt not kill.
Thou shalt not commit adultery.
Thou shalt not steal.
Thou shalt not bear false witness against thy neigh-
bour.
Thou shalt not covet thy neighbour’s house, thou shalt
not covet thy neighbour’s wife, nor his manservant, nor
his maidservant, nor his ox, nor his ass, nor any thing
that is thy neighbour’s.
William Books filed this lawsuit against the County under
42 U.S.C. § 1983, together with a separate motion for
preliminary injunction. He asked the district court to order
the County to remove the Ten Commandments from the
display, asserting that their inclusion violated the First
Amendment’s ban on government establishment of religion.
At the parties’ request, the court consolidated the prelimi-
nary injunction motion with the merits of the case and then
ruled on the parties’ cross-motions for summary judgment.
The district court held that the County’s display of the
Ten Commandments failed the first, or “purpose,” prong of
No. 04-2075 7
the Lemon test, and therefore violated the First Amendment.
According to the court, the County had two purposes for
including the Ten Commandments in the larger display: (1)
to contribute to the moral character of the County’s citizens
and (2) to bolster the historical knowledge of County
residents. The court held that the first stated purpose was
impermissible, since by seeking to improve the moral char-
acter of the citizenry by displaying a sacred religious text
the County’s purpose was in fact religious, not secular, as
Lemon requires. The court also held that the second stated
purpose “doesn’t fit with the Display’s content,” in that the
display does not actually establish an historical connection
between the Ten Commandments and the other texts in-
cluded in the exhibit and therefore fails to embody the
secular purpose that supposedly motivates the County. The
district court ordered the County to remove the Ten Com-
mandments from the display. Elkhart County appealed.
II. Discussion
A. Standing
The County offers a brief argument on the issue of stand-
ing, asserting that Books’ alleged injury—direct and unwel-
come contact with a religious object that deeply bothers
him—is trivial and therefore not legally cognizable. The
County argues that Books’ injury is entirely psychological,
and that such injuries, without more, do not confer stand-
ing.
The County’s argument is foreclosed by our decision in
Books v. City of Elkhart, 235 F.3d 292, 299-301 (7th Cir.
2000). There, the selfsame William Books brought a
successful Establishment Clause claim against the City of
Elkhart over a granite Ten Commandments monument that
stood on the lawn of the City’s municipal building. Our
opinion in Books reiterated the general rule that to have
standing to sue in federal court a “plaintiff must allege (1)
8 No. 04-2075
that he has suffered an injury in fact (2) that is fairly
traceable to the action of the defendant and (3) that will
likely be redressed with a favorable decision.” Id. at 299
(citing Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-61
(1992)). An “injury in fact” is an “invasion of a legally
protected interest which is (a) concrete and particularized
and (b) actual or imminent, not conjectural or hypothetical.”
Id. (citing Lujan, 504 U.S. at 560).
We noted that in Establishment Clause cases a plaintiff
can allege injury in fact from a government display of a
religious object by alleging that he has undertaken a “spe-
cial burden” or has altered his behavior to avoid the object
that gives him offense. Id. at 299 (citing, inter alia, Freedom
from Religion Found., Inc. v. City of Marshfield, 203 F.3d
487, 489 (7th Cir. 2000) (avoiding use of a park)); Gonzales
v. North Township, 4 F.3d 1412, 1416-17 (7th Cir. 1993)
(avoiding use of part of a park); and Harris v. City of Zion,
927 F.2d 1401, 1405 (7th Cir. 1991) (altering travel routes).
Such changes in behavior, though sufficient to confer stand-
ing, are not a prerequisite, however. Id. at 300 (citing Doe
v. County of Montgomery, 41 F.3d 1156, 1160-61 (7th Cir.
1994) (plaintiff is not required to show “special burden” or
altered behavior in order to have standing)). In Books and
Doe we held that it is enough for standing purposes that a
plaintiff allege that he “must come into direct and unwel-
come contact with the religious display to participate fully
as [a] citizen[ ] . . . and to fulfill . . . legal obligations.” Id. at
299 (citing Doe, 41 F.3d at 1159).
Books and his fellow plaintiff in our earlier Books case al-
leged that they were forced to come into direct and un-
welcome contact with the City of Elkhart’s outdoor Ten
Commandments monument when they entered the munici-
pal building to conduct business or attend public meetings
and when they visited the adjacent public library. Id. at 297.
We held this sufficient to confer standing. Id. at 300-01. The
injury Books alleges in this case cannot be distinguished
No. 04-2075 9
from the injury he alleged in his successful challenge to the
City of Elkhart’s Ten Commandments monument. Here,
Books has alleged that he must pass by the County’s
“Foundations” display at least once a year in order to pick
up a form he needs to obtain a waiver of excise tax on his
automobile. He also alleged that he must pass by the dis-
play when he visits the County Health Department or when
he goes to the County Administration Building to obtain
maps, which he has done in the past. He has alleged that if
he chooses to attend a meeting of the County
Commissioners, he will be forced to come into unwelcome
contact with the display. On the question of standing, the
only difference between this case and Books’ earlier one is
that the display in question here is located inside a muni-
cipal building rather than directly outside it; this difference
is not significant. Books has standing, and we proceed to
the merits.
B. First Amendment
Under the familiar three-part test set forth in Lemon,
government action does not violate the First Amendment’s
ban on the establishment of religion if it has a secular
purpose, if its principal or primary effect is one that neither
advances nor inhibits religion, and if it does not foster an
excessive government entanglement with religion. Lemon,
403 U.S. at 612-13; County of Allegheny v. ACLU, 492 U.S.
573, 592 (1989). Government action violates the First
Amendment if it fails any one of these three inquiries.
Edwards v. Aguillard, 482 U.S. 578 , 583 (1987).
Lemon’s days may be numbered; we are aware that the
Supreme Court’s resolution of two Ten Commandments
cases accepted for review this Term may undo our work
here. See Van Orden v. Perry, 351 F.3d 173 (5th Cir. 2003),
cert. granted, 125 S.Ct. 346 (2004); ACLU of Ky. v. McCreary
County, 354 F.3d 438 (6th Cir. 2003), cert. granted, 125 S.Ct.
10 No. 04-2075
310 (2004). In McCreary County, the Ten Commandments
appear in public displays that are substantially similar to
the display at issue in this case.2 The petitioners there have
asked the Court to overrule Lemon.
Nevertheless, we have before us a fully briefed and argued
case that is ripe for decision. Despite persistent criticism
from several of the Justices,3 Lemon has not been overruled,
and we are compelled to follow the approach it established.
See State Oil Co. v. Khan, 522 U.S. 3, 20 (1997) (it is the
prerogative of the Supreme Court alone to overrule one of
its precedents); see also Agostini v. Felton, 521 U.S. 203, 217
(1997) (“The views of five Justices that the case should be
reconsidered or overruled cannot be said to have effected a
change in Establishment Clause law.”). Accordingly, we
2
In ACLU of Ky. v. McCreary County, 354 F.3d 438 (6th Cir.
2003), cert. granted, 125 S.Ct. 310 (2004), a divided panel of the
Sixth Circuit invalidated public displays of the
Ten Commandments with other historical documents in two
Kentucky county courthouses and in schools in a third Kentucky
county. The Supreme Court has before it the portion of the case
involving the courthouse displays. Our case differs from McCreary
County in that the displays in Kentucky originated as displays of
the Ten Commandments alone rather than in combination with
other documents in an exhibit; after litigation was commenced,
the displays were modified to include the additional documents.
McCreary County, 354 F.3d at 440-41. Van Orden v. Perry, 351
F.3d 173 (5th Cir. 2003), cert. granted, 125 S.Ct. 346 (2004),
concerns a Ten Commandments monument on the grounds of the
Texas State Capitol.
3
See, e.g., Lee v. Weisman, 505 U.S. 577, 644 (1992) (Scalia, J.,
dissenting, joined by Rehnquist, C.J., and White and Thomas,
JJ.); County of Allegheny v. ACLU, 492 U.S. 573, 655-56 (1989)
(opinion of Kennedy, J., joined by Rehnquist, C.J., and White and
Scalia, JJ.); Aguilar v. Felton, 473 U.S. 402, 426-30 (1985)
(O’Connor, J., dissenting, joined by Rehnquist, C.J.); Wallace v.
Jaffree, 472 U.S. 38, 110 (1985) (Rehnquist, C.J., dissenting).
No. 04-2075 11
proceed to decision applying the Lemon test, and our review
is de novo.4 Books, 235 F.3d at 298.
1. Secular Purpose
The first step in the Lemon analysis requires us to de-
termine whether Elkhart County’s inclusion of the Ten
Commandments in the “Foundations” display has a secular
purpose. The “purpose” inquiry of the Lemon test “asks
whether the government’s actual purpose is to endorse or
disapprove of religion.” Edwards v. Aguillard, 482 U.S. 578,
585 (1987) (quoting Lynch v. Donnelly, 465 U.S. 668, 690
(1984) (O’Connor, J., concurring)). The government’s articu-
lation of a secular purpose is insufficient by itself to avoid
conflict with the First Amendment. See Abington Sch. Dist.
v. Schempp, 374 U.S. 203 (1963) (holding unconstitutional
the daily reading of Bible verses in public schools despite
school district’s assertion of secular purpose). However, we
generally defer to the government’s articulated purpose “as
long as it is not a sham.” Ind. Civil Liberties Union v.
O’Bannon, 259 F.3d 766, 771 (7th Cir. 2001); see also Santa
Fe Indep. Sch. Dist. v. Doe, 530 U.S. 290, 308 (2000);
American Jewish Cong. v. City of Chi., 827 F.2d 120, 127
(7th Cir. 1987).
The Supreme Court has held that government action
lacks a valid secular purpose under Lemon only when there
4
Our colleague suggests that we are not obliged to follow Lemon’s
approach because it has been applied inconsistently and a
majority of the Justices have disavowed it (though not at the same
time). We disagree, and contrast this suggestion with our col-
league’s relatively recent view of Lemon’s continued force.
See United States v. Booker, 375 F.3d 508, 516 (7th Cir. 2004)
(Easterbrook, J., dissenting) (acknowledging that although it “has
been disparaged by most sitting Justices,” Lemon “has not been
overruled”).
12 No. 04-2075
is “no question that the statute or activity was motivated
wholly by religious considerations.” Lynch, 465 U.S. at 680.
Thus, the secular purpose requirement “does not mean that
the government’s purpose must be unrelated to religion.”
American Jewish Cong., 827 F.2d at 126. “Rather, the pur-
pose requirement ‘aims at preventing the relevant govern-
mental decision maker . . . from abandoning neutrality
and acting with the intent of promoting a particular point
of view in religious matters.’ ” Id. (quoting Corp. of the
Presiding Bishop v. Amos, 483 U.S. 327, 335 (1987)). We
examine the content, design, placement, and context of the
“Foundations” display to determine whether the inclusion
of the Ten Commandments was motivated by a valid secu-
lar purpose. Books, 235 F.3d at 302; O’Bannon, 259 F.3d at
771; American Jewish Cong., 827 F.2d at 126-27.
The Ten Commandments are “undeniably a sacred text in
the Jewish and Christian faiths.” Stone v. Graham, 449
U.S. 39, 41 (1980). Although six of the Commandments ad-
dress “arguably secular matters,” id., the first four, which
command believers to worship the Lord God alone, to avoid
idolatry, not to use the Lord’s name in vain, and to observe
the Sabbath, are “wholly religious in nature, and serve no
conceivable secular function.” O’Bannon, 259 F.3d at 770-
71; Stone, 449 U.S. at 41-42. But the permissibility of this
display does not depend solely on the religious character
and origin of the text. That the Ten Commandments are
religious in nature does not mean that their public display
must have been motivated by religious intent or purpose. In
Stone the Supreme Court suggested that biblical texts may
be constitutionally integrated into “an appropriate study of
history, civilization, ethics, comparative religion, or the
like.” Stone, 449 U.S. at 42 (citing Abington, 374 U.S. at 225).
This court has recognized that “[t]he text of the Ten
Commandments no doubt has played a role in the secular
development of our society and can no doubt be presented
by the government as playing such a role in our civic order.”
No. 04-2075 13
Books, 235 F.3d at 302. That is precisely what Elkhart
County purports to be doing with the “Foundations” display.
The Elkhart County Board of Commissioners formally
identified by resolution two purposes behind the
“Foundations” exhibit: to “contribute to the educational foun-
dation and moral character of the citizens of this county.”
The explanation posted with the exhibit tells viewers that
“[t]he Foundations of American Law and Government dis-
play contains documents that played a significant role in
the foundation of our system of law and government.” As to
the Commandments in particular, the explanation states
that “[t]he Ten Commandments have profoundly influenced
the formation of Western legal thought and the formation
of our country.” Considered in the context of the
“Foundations” display as a whole, these statements reflect
an effort by the County to erect a display within the limits
of the permissible purposes articulated by the Supreme
Court in Stone and this court in the first Books case.
The district court gave two reasons why it believed the
display failed the purpose prong of Lemon. First, the court
concluded that any attempt to contribute to the moral
character of the citizenry through a display of a religious
text such as the Ten Commandments was necessarily an
effort to impose a religious code of conduct, impermissible
under Books and O’Bannon. Second, the court rejected the
educational purpose behind the display because it viewed
the historical connection between the Ten Commandments
and the other documents in the exhibit as too weak. We do
not read Books and O’Bannon so broadly, and we disagree
that the First Amendment requires a precise and provable
historical link between the Ten Commandments and the
secular texts and symbols included in the “Foundations”
exhibit.
As a general matter, the district court circumscribed its
focus and considered the Ten Commandments in isolation
14 No. 04-2075
from the other documents in the “Foundations” display. The
court interpreted the County’s “moral uplift” purpose as ap-
plying to the Ten Commandments individually, rather than
to the display as a whole, and concluded that to impute
moral value to the Ten Commandments is to communicate
a religious message. The Supreme Court has cautioned
against so narrow an analysis: “[To] focus exclusively on the
religious component of any activity would inevitably lead to
its invalidation under the Establishment Clause.” Lynch,
465 U.S. at 680.
The district court concluded that Books and O’Bannon left
it no choice but to reject the County’s “moral character”
purpose. Books and O’Bannon concerned the constitutional-
ity of public displays of singular stone monuments depicting
the Ten Commandments, not the inclusion of the Ten
Commandments in a display of many documents. In each
case, we evaluated the purpose of the public display in its
entire context. We noted in Books that “[t]he Supreme
Court has stressed the importance of the context of a clearly
religious symbol in determining whether the purpose in
displaying the symbol is religious or secular.” Books, 235
F.3d at 303. And in O’Bannon we said that “[b]eyond
assessing the purpose expressly articulated by the state, we
ensure that the stated secular purpose is legitimate by also
examining the context and the content of the display.”
O’Bannon, 259 F.3d at 771.
We emphasized in Books that “religious symbols should
not be considered in the abstract; instead, courts must ask
‘whether the particular display at issue, considered in its
overall context, could be said to advance religion.’ ” Books,
235 F.3d at 303 (quoting American Jewish Cong., 827 F.2d
at 125). We rejected the stated secular purpose in both Books
and O’Bannon—to provide a “code of conduct” (Books) and
a statement of “core values” (O’Bannon)—because the over-
all context of the displays did nothing to dilute the religious
character of the Ten Commandments. See Books, 235 F.3d
No. 04-2075 15
at 303 (participation of minister, priest, and rabbi at dedi-
cation of monument “makes it clear that the purpose for
displaying the monument was not only to provide youths
with a common code of conduct to guide their participation
in the civil community but also to urge the people of Elkhart
to embrace the specific religious code of conduct taught by
the Ten Commandments”); O’Bannon, 259 F.3d at 771(where the stated purpose of the monument was to remind
society of its “core values,” the selection of a religious code
revealed the state’s nonsecular purpose).
The same cannot be said of the “Foundations” exhibit at
issue here. The resolution authorizing the display says, in
reference to all the included documents: “[T]hese above
named documents and symbols positively contribute to the
educational foundation and moral character of the citizens
of this county.” Unlike in Books and O’Bannon, where the
government highlighted the religious character of the monu-
ments, here Elkhart County has explicitly emphasized the
holistic character of its display.
Considered in this context, the reference to moral char-
acter in the Commission’s resolution does not necessarily
imply a purpose to advance religion. Elkhart County has
not suggested that morality is impossible without adher-
ence to a particular religious text, or that adherence to a
specific religious text inspires a superior morality. These
would, no doubt, be religious messages. Rather, the County’s
resolution says that instilling “a sense of historical context,
civic duty, and responsibility” in the citizenry is a desirable
goal, and that the documents in the display “taken as a
whole” are “valuable examples of documents and symbols
that may instill” these qualities. This sort of broad associa-
tion of the Ten Commandments with generally accepted
moral norms does not doom this display under the purpose
prong of Lemon.
As for the County’s “educational foundation” purpose, the
district court found the historical content of the explanation
16 No. 04-2075
insufficient to sustain any bona fide secular educational
purpose. The district court is correct that the explanation
describes the historical connection between the Ten Com-
mandments and the rest of the display in only the most
general and conclusory terms: it states that the Ten
Commandments have “profoundly influenced the formation
of Western legal thought and the formation of our country”
and provide the “moral background of the Declaration of
Independence and the foundation of our legal system.” But
the explanatory text accompanying the other documents
and images is also quite cursory. The explanation does not
purport to offer a nuanced historical analysis of the docu-
ments individually or the exhibit as a whole.
The purpose prong of the Lemon test does not require us
to evaluate the quality or sufficiency of the historical anal-
ysis embodied in the County’s display. While the content of
a religious display might in some instances force a conclu-
sion that the government’s asserted secular purpose is
merely a sham, that is not the case here. This display is a
collection of texts and images from English and American
history. The County does not claim that they are the only or
the most important sources of American law and politics,
merely that they are among the most important. That a
religious text has been included in a display of documents
that have influenced American history and government
does not take the display outside the realm of the secular:
“It is true that religion has been closely identified with our
history and government.” Abington, 374 U.S. at 212.
We said in the first Books case that it is well within the
bounds of constitutional plausibility to assert, as the County
does here, that the Ten Commandments have played an
important role in the development of American society and
civic order. Books, 235 F.3d at 302. To reject this display as
unconstitutional under the purpose prong of Lemon would
amount to a conclusion that the County has failed to
adequately demonstrate that historical thesis. We are not
No. 04-2075 17
willing to set ourselves up as arbiters of the adequacy of the
historical analysis contained in documentary exhibits
appearing on public grounds.
Were this display erected on the wall of a public museum,
we would hardly think it appropriate to second-guess the
museum’s purposes by questioning the quality of the
exhibit’s historical content or substituting our own histori-
cal analysis for that of the curator. Placement in a museum
might signal more clearly the exhibitor’s educational
purpose, as education is one of the primary functions of
museums, but it is also entirely reasonable to accept that
representative governments might credibly propose that
their citizens learn something about their history, law, and
culture inside the very buildings which house their govern-
ment.
We do not hold that this display passes the purpose prong
of the Lemon test merely because the Ten Commandments,
a religious text, has been placed in a setting that includes
secular texts. We noted in O’Bannon that “[t]he display of
secular texts along with the Ten Commandments does not
automatically lead to a finding that the purpose in erecting
the monument is primarily secular.” O’Bannon, 259 F.3d at
771. But the display in this case, taken as a whole, does not
belie the County’s asserted secular purpose of exhibiting
important historical documents to contribute to the educa-
tion and moral character of its citizens by instilling a sense
of history, civic duty, and responsibility.
2. Secular Effect
The second inquiry of the Lemon methodology asks
whether the challenged government action has the principal
or primary effect of advancing or inhibiting religion. Lynch,
465 U.S. at 679. The “effects” prong of Lemon has been re-
fined to focus on whether the government action in question
has the effect of endorsing religion: “[T]he effect prong asks
18 No. 04-2075
whether, irrespective of government’s actual purpose, the
practice under review in fact conveys a message of endorse-
ment or disapproval.” Freedom from Religion Found., 203
F.3d at 493 (quoting Lynch, 465 U.S. at 690 (O’Connor, J.,
concurring)). As with the test for secular purpose, we eval-
uate the effect of the challenged government action by
“assessing the totality of the circumstances surrounding the
display to determine whether a reasonable person would
believe that the display amounts to an endorsement of reli-
gion.” Books, 235 F.3d at 304 (citing County of Allegheny,
492 U.S. at 597).
The “courts have a special responsibility to ensure that a
government-sponsored display does not have the purpose or
effect of endorsing a religion.” Books, 235 F.3d at 304. The
Supreme Court has said that government sponsorship of a
religious message is impermissible because “it sends the
ancillary message to members of the audience who are
nonadherents ‘that they are outsiders, not full members of
the political community, and the accompanying message to
adherents that they are insiders, favored members of the
political community.’ ” Santa Fe Indep. Sch. Dist. v. Doe,
530 U.S. 290, 309-10 (2000) (quoting Lynch, 465 U.S. at 688(O’Connor, J., concurring)).
This does not mean, however, that to constitutionally dis-
play a religious item on public property the government
must ensure that it offends no one. That would be asking
the impossible. That some person or group might be un-
comfortable with the presence of the Ten Commandments
in this display is not enough to require their removal. “[T]he
endorsement inquiry is not about the perceptions of par-
ticular individuals or saving isolated nonadherents from the
discomfort of viewing symbols of faith to which they do not
subscribe.” See Capitol Square Review & Advisory Bd. v.
Pinette, 515 U.S. 753, 779 (1995) (O’Connor, J., concurring).
The effect of a display of a religious object on public prop-
No. 04-2075 19
erty is evaluated against an objective, reasonable person
standard, not from the standpoint of the hypersensitive or
easily offended.
“Thus, ‘we do not ask whether there is any person who
could find an endorsement of religion, whether some people
may be offended by the display, or whether some reasonable
person might think [the State] endorses religion.’ ” Id. at
780 (quoting Ams. United for Separation of Church & State
v. Grand Rapids, 980 F.2d 1538, 1544 (6th Cir. 1992) (en
banc)). Rather, we ask whether an objective, reasonable
observer, “aware of the history and context of the commu-
nity and forum in which the religious display appears,”
would fairly understand the display to be a government
endorsement of religion. Id.; see also Santa Fe Indep. Sch.
Dist., 530 U.S. at 308; County of Allegheny, 492 U.S. at 595.
This standard presupposes a person of ordinary under-
standing and sensibility, familiar with the circumstances
surrounding the display. Santa Fe, 530 U.S. at 308; Books,
235 F.3d at 306. “Every government practice must be
judged in its unique circumstances to determine whether it
constitutes an endorsement or disapproval of religion.”
American Jewish Cong., 827 F.2d at 127 (quoting Lynch,
465 U.S. at 694 (O’Connor, J., concurring)).
Elkhart County’s display is located inside the County’s
main administration building. It could hardly be closer to
the seat of government, and we have previously indicated
that religious displays on or near the seat of government
must receive special scrutiny because that location is “so
plainly under government ownership and control that every
display on its property is marked implicitly with govern-
ment approval.” Books, 235 F.3d at 306 (quoting American
Jewish Cong., 827 F.2d at 128). The placement of this dis-
play so close to the County Commissioners’ hearing room
obviously signals the government’s approval of it.
The Commission’s approval of the “Foundations” display
as a whole, however, does not amount to an endorsement of
20 No. 04-2075
the religious message contained in one of the nine historical
documents included in the exhibit. This display differs in
significant respects from the monuments we found constitu-
tionally impermissible in Books and O’Bannon. In those
cases, as here, we examined the form and content of the
displays as well as their location at the seat of government.
We concluded that the large stone monuments displayed so
prominently on the grounds of the city municipal building
(Books) and Indiana State Capitol (O’Bannon) had the
primary effect of endorsing religion. See Books, 235 F.3d at
306 (“As viewed by the passer-by or by an individual
approaching the building, the monument certainly cannot
be fairly characterized as a component of a comprehensive
display of the cultural heritage of the people of Elkhart.”);
O’Bannon, 259 F.3d at 773 (“Nothing in the context of the
monument itself or the surrounding grounds mitigates the
religious message conveyed.”).
The particular factors we viewed as problematic in
those cases are not present in the “Foundations” display.
Here, the text of the Ten Commandments is displayed in a
simple rectangular frame identical to the other documents
and symbols in the exhibit, not on a tablet-shaped monu-
ment whose “very format,” we previously held, “conveyed a
religious message.” O’Bannon, 259 F.3d at 772. Moreover,
in O’Bannon we found that the placement of additional
historical texts on different sides of the Ten Commandments
monument inhibited observers from visually connecting the
texts; here, in contrast, the documents are displayed in a
way that does not direct an observer to focus on any one
document. Furthermore, while the monument in O’Bannon
lacked “any marker explaining why these particular texts
have been combined,” in this case the display includes a
framed explanation of the historic significance of each of the
documents. The content and context of the “Foundations”
display, considered as a whole, suggest that the Ten
Commandments are included not for their singular religious
No. 04-2075 21
import (that is, as a statement of religious imperatives) but,
rather, for their historical contribution to the development
of American legal and political traditions.
By virtue of the texts that are included and the content of
the accompanying explanation, this display tells viewers
that the American founders were inspired by a religious
tradition that includes the Ten Commandments and that
those values influenced the development of our law and
government. A public acknowledgment by the government
that the founders were religious people whose faith influ-
enced the creation of this nation, its laws, and its institu-
tions of government is far different from saying that the
government itself endorses their religion. Only the latter
message is prohibited by the Establishment Clause.
The Establishment Clause is not violated when govern-
ment teaches about the historical role of religion. In a plur-
alistic society, reasonable people can usually tell the
difference between preaching religion and teaching about
the role of religion in our history. We are satisfied that
Elkhart County is trying to teach, not preach, something
about the Ten Commandments. The theme of the
“Foundations” display is historical, emphasizing the origins
of the American legal order; the historical thesis that un-
derlies the display is that belief in God and the existence of
inherent, God-given rights has played an important role in
the genesis of basic concepts in American law and gov-
ernment.
“There is an unbroken history of official acknowledgment
by all three branches of government of the role of religion
in American life from at least 1789.” Lynch, 465 U.S. at 674.
Because we “’are a religious people whose institutions
presuppose a Supreme Being’ . . . [o]ur history is replete
with official references to the value and invocation of Divine
guidance in deliberations and pronouncements of the
Founding Fathers and contemporary leaders.” Id. at 675
22 No. 04-2075
(quoting Zorach v. Clauson, 343 U.S. 306, 313 (1952)). An
objective, reasonable observer would see Elkhart County’s
“Foundations” display as consistent with this history and
not as an endorsement of religion. Although we acknowl-
edge the symbolic force of exhibiting a religious text at the
seat of government, we conclude that the primary effect of
this display is not the advancement of religion; a reasonable
observer of the “Foundations” display will think history, not
religion. Cf. O’Bannon, 259 F.3d at 773 (“A reasonable
person [viewing the Ten Commandments monument] will
think religion, not history.”).
III. Conclusion
In the first Books case we said that the Ten
Commandments “no doubt ha[ve] played a role in the secular
development of our society and can no doubt be presented
by the government as playing such a role in our civic order.”
Books, 235 F.3d at 302. It appears Elkhart County has taken
us at our word by exhibiting the Ten Commandments in a
comprehensive display along with other historical texts and
images that it considers to be important influences in
American legal and political tradition. We see no reason
why the display as erected must be purged of the Ten
Commandments to survive constitutional scrutiny. This is
a secular display in its purpose and effect. The order of the
district court is reversed and the case is remanded for entry
of summary judgment for Elkhart County.
REVERSED AND REMANDED
No. 04-2075 23
EASTERBROOK, Circuit Judge, dissenting. My colleagues
ask and answer the question whether inclusion of the
Ten Commandments in a display at Elkhart’s County
Administration Building endorses religion and thus trans-
gresses the establishment clause of the first amendment,
applied to state and local governments by the fourteenth
amendment. I have serious doubts about the nature of the
question, even on the supposition that the establishment
clause affects states in the same way as the national gov-
ernment. See Elk Grove Unified School District v. Newdow,
124 S. Ct. 2301, 2330-31 (2004) (Thomas, J., concurring).
“Endorsement” differs from “establishment.” A government
does not “establish” milk as the national beverage when it
endorses milk as part of a sound diet.
“Establishment” entails coercion: either mandatory reli-
gious observance or mandatory support (via taxes) for clergy
on the public payroll. See Philip Hamburger, Separation
of Church and State 89-107 (2002); Leonard W. Levy, The
Establishment Clause: Religion and the First Amendment
(1986); Michael W. McConnell, Establishment and
Disestablishment at the Founding, Part I: Establishment of
Religion, 44 Wm. & Mary L. Rev. 2105 (2003); Michael W.
McConnell, Coercion: The Lost Element of Establishment, 27
Wm. & Mary L. Rev. 933 (1986). See also American Jewish
Congress v. Chicago, 827 F.2d 120, 128-40 (7th Cir. 1987)
(Easterbrook, J., dissenting). Equating “endorsement” with
“establishment” is a novelty with neither linguistic nor
historical provenance. Our obligation to implement the
Supreme Court’s holdings does not require us to predict
how an approach espoused by a few Justices, and applied
unpredictably under a decision (Lemon v. Kurtzman, 403
U.S. 602 (1971)) that a majority of sitting Justices has dis-
avowed (though never at the same time), would deal with a
situation the Court has yet to address. We should use the
Constitution’s own language and rules.
Words do not coerce. See Rust v. Sullivan, 500 U.S. 173(1991). A barrage of advertisements tempting young people
24 No. 04-2075
to join the military does not oblige anyone to do so; no more
does display of the Ten Commandments coerce support for
religion. The Magna Carta (which begins “John, by the
grace of God, king of England . . .”) is part of this display,
yet Elkhart County does not establish divine-right monar-
chy. Lady Justice, derived from the Greek goddess Themis,
is in the display, but Elkhart County has not established
the ancient pantheon as its religion. No one would under-
stand any document’s presence in this display to suggest
that Elkhart County imposes either legal or social sanctions
on nonbelievers. Cf. Santa Fe Independent School District
v. Doe, 530 U.S. 290, 310-13 (2000) (prayer before public
high school event entails social disapproval of those who do
not participate, and thus coerces religious conformity).
What the display may do is give offense, either to persons
outside the religious tradition that includes the Book of
Exodus or to those who believe that religion and govern-
ment should be hermetically separated. Yet Themis may
offend Christians (and all icons offend Muslims), the
military’s ads offend religious pacifists, and the message in
Rust supports one religious perspective on human life while
deprecating others. See also Planned Parenthood of South-
eastern Pennsylvania v. Casey, 505 U.S. 833, 881-87 (1992)
(states may require physicians to tell women about the
risks of abortion and the advantages of childbirth). Public
policies and arguments pro and con about them often give
offense, as do curricular choices in public schools. See
Webster v. New Lenox School District, 917 F.2d 1004 (7th
Cir. 1990). But the rebuke implied when a governmental
body supports a point of view that any given person finds
contemptible (or believes should be left to the private sec-
tor) is a great distance from “coercion.” So great a distance,
indeed, that the insulted person lacks standing to sue.
Just last Term the Court made that point in Newdow when
holding that a father’s dismay at knowing that public
schools call on his daughter to recite “under God” in the
Pledge of Allegiance does not support litigation. Only the
No. 04-2075 25
daughter—the person potentially coerced—or a custodial
parent acting as her next friend could obtain judicial re-
view. See also Crowley v. McKinney, No. 02-3741 (7th Cir.
Mar. 11, 2005), slip op. 7-10. Newdow instantiates the rule
announced in Valley Forge Christian College v. Americans
United For Separation of Church and State, Inc., 454 U.S.
464, 482-90 (1982), that offense taken at the government’s
complicity in religion does not create standing. Cf. Allen v.
Wright, 468 U.S. 737 (1984). Otherwise there would be
universal standing: anyone could contest any public policy
or action he disliked. There must be a concrete injury. All
our plaintiff alleges, however, is dismay at seeing the Ten
Commandments.
Like other appellate courts, we have held that changing
one’s daily route to avoid coming across a religious display,
or staying out of a park, is enough of a concrete effect to es-
tablish injury in fact. See, e.g., ACLU v. St. Charles, 794
F.2d 265, 267-69 (7th Cir. 1986); Doe v. Crestwood, 917 F.2d
1476, 1478 (7th Cir. 1990). Books does not contend that he
has been driven out of the County Administration Building
by the display. To the contrary, he alleges that he visits the
building once a year to apply for a waiver of the excise tax
on his car, and that he has not changed his conduct since
the display was installed. Thus he alleges indignation and
nothing else.
Several decisions of this circuit have reduced Valley Forge
to a hollow shell, holding for example that it is enough to
“allege standing” without establishing injury in fact, see
Harris v. Zion, 927 F.2d 1401 (7th Cir. 1991), or that
dismay while walking past a monument inscribed with the
Ten Commandments is a cognizable injury, see Books v.
Elkhart, 235 F.3d 292, 299-301 (7th Cir. 2000) (Books I).
The approach taken by Harris, problematic at the outset,
see 927 F.2d at 1419-22 (Easterbrook, J., dissenting), was
disapproved in Lujan v. Defenders of Wildlife, 504 U.S. 555,
559-62 (1992), which holds that injury in fact must be
proved and not just asserted. And the conclusion of Books
26 No. 04-2075
I that seeing an unwelcome object equals injury in fact is
impossible to reconcile with Valley Forge, for it treats ob-
servation simpliciter as the injury. If that were right, the
plaintiff in Valley Forge should have been allowed to litigate.
What the Supreme Court held, however, is that “the psy-
chological consequence presumably produced by observation
of conduct with which one disagrees” (454 U.S. at 485) (em-
phasis added), is not an “injury in fact” for constitutional
purposes.
Instead of following Books I we should overrule it as in-
consistent with Valley Forge, a decision that Books I did not
mention. Although Newdow devotes most of its attention to
a prudential question about the effect of a child-custody
decree, it starts with an assumption shared by all of the
Justices: that Newdow’s disgust at knowing that pupils
recite the phrase “under God” was not enough to support
constitutional litigation. “The command to guard jealously
and exercise rarely our power to make constitutional pro-
nouncements requires strictest adherence when matters of
great national significance are at stake.” 124 S. Ct. at 2308.
That reflects an approach at odds with Books I, which as-
sumed that judges should address constitutional grievances
whether or not the plaintiff can show concrete injury.
Decisions such as Books I drain the case-or-controversy
requirement of meaning. Valley Forge requires us to separ-
ate injured from ideological plaintiffs; Books I fails to do
this. We should set things to rights rather than repeat the
mistake. Therefore, unlike my colleagues, who resolve this
appeal on the merits, I would vacate the district court’s
judgment and remand with instructions to dismiss the
complaint for want of standing.
No. 04-2075 27
A true Copy:
Teste:
________________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—3-25-05