Indiana Civil Liberties Union, Joan Laskowski, Alice Bennett v. Frank O'bannon, Governor of Indiana , 259 F.3d 766 ( 2001 )

BAUER, Circuit Judge.

This case comes to us upon the district court’s grant of a preliminary injunction. On appeal, the dispute concerns whether plaintiffs are likely to succeed on the merits. Akin to our recent decision in Books v. City of Elkhart, 235 F.3d 292 (7th Cir.2000),¹ we must determine whether a monument to be placed on state government property will violate the Establishment Clause of the First Amendment to the United States Constitution made applicable to the states through the Fourteenth Amendment. “This task requires that we examine the history of the monument’s placement and maintenance as well as the physical characteristics of the monument and of the surrounding area,” Books, 235 F.3d at 294, and then apply the test articulated in Lemon v. Kurtzman, 403 U.S. 602, 91 S.Ct. 2105, 29 L.Ed.2d 745 (1971). We have completed this work and affirm the district court’s entrance of the preliminary injunction pending resolution on the merits.

BACKGROUND

As detailed in Books, 235 F.3d at 294-95, the Fraternal Order of the Eagles donated plaques inscribed with a version of the Ten Commandments (developed by representatives of Judaism, Protestantism, and Catholicism) to communities across the United States during the 1950s. In 1958, one of the plaques was erected on the Indiana Statehouse grounds in downtown Indianapolis, where it stood until smashed by a vandal in 1991. Indiana State Representative Brent Steele arranged for the creation of a new monument to replace the destroyed plaque. The Indiana Limestone Institute generously agreed to donate both limestone and labor for this purpose. Steele, also an attorney, surmised that it would be legally prudent if, in addition to the Ten Commandments, the new monument displayed historical texts. The texts he chose were the Bill of Rights from the United States Constitution and the Preamble to the 1851 Indiana Constitution.

The planned monument consists of two pieces of limestone — a four-sided block resting upon a rectangular base — and will weigh 11,500 pounds. The two wider sides of the four-sided block are carved into rounded arcs at the top, which resemble tablets, a form typically used in artistic depictions of the stone tablets delivered by Moses upon returning from Mt. Sinai. The monument will stand seven feet tall; six feet, seven inches wide; and four feet, seven inches deep. On one of the wide surfaces, the following version of the Ten Commandments will be engraved in one inch, all capital lettering:

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. Remember the Sabbath day to keep it holy ■

V. Honor thy father and thy mother that thy days may be long in the land which the Lord thy God giveth thee

VI. Thou shalt not kill

VII. Thou shalt not commit adultery

VIII. Thou shalt not steal

IX. Thou shalt not bear false witness against thy neighbor

X. Thou shalt not covet thy neighbor’s house or wife or anything that is thy neighbor’s

The other wide surface will display the Bill of Rights in five-eighths inch, all capital lettering. On one of the smaller sides the 1851 Indiana Constitution Preamble will be inscribed, which states:

To the end, that justice be established, public order maintained, and liberty perpetuated: We, the People of the State of Indiana, grateful to Almighty God for the free exercise of the right to choose our own form of government, do ordain this Constitution.

The 1851 Preamble will not be clearly identified as such. The other small side will read:

Gift of the Indiana Limestone Industry-2000 A.D.

This monument replaces one donated by the Aeries and Auxiliaries of the Indiana Fraternal Order of the Eagles on October 25,1958

The record is not clear as to the exact size of the lettering for the 1851 Preamble and the dedication.

The Statehouse park-like grounds span almost two acres and are home to many Indiana government buildings, including the Capitol Building, the Governor’s office, the General Assembly, the Indiana Supreme Court, the Indiana Court of Appeals, and other state offices. The grounds are surrounded by Ohio Street to the north, Washington Street to the south, Capitol Avenue to the east, and Senate Avenue to the west. There are numerous monuments currently on the grounds, including two monuments honoring the civil engineering of the National Road (U.S. Highway 40), a marker honoring the women of Indiana, two friezes depicting Civil War scenes, a marker describing the Statehouse’s history, and statues of Christopher Columbus, George Washington, a coal miner, and Indiana Governors Thomas A. Hendricks and Oliver H.P. Morton. The grounds also showcase seven dedicated trees. The planned site for the monument at issue in this case is the southwest corner of the grounds, about forty-one feet from one of the trees and ninety-two feet from the National Road monument, although precisely where and in what direction it will face is as of yet undetermined.

In May of 2000, plaintiffs filed an action under 42 U.S.C. § 1983, claiming that acceptance of the monument and the plan to erect it on the grounds of the Indiana Statehouse was state action that violated the Establishment Clause. On July 28, 2000, the district court granted plaintiffs’ motion for a preliminary injunction precluding the State from erecting the monument pending resolution on the merits. See Indiana Civil Liberties Union v. O’Bannon, 110 F.Supp.2d 842 (S.D.Ind.2000).² The district court held that the plaintiffs had demonstrated a likelihood of success on the merits by showing that the state action violated both of the first two prongs of the Lemon test.

Under the first prong of the Lemon test, the district court reasoned that the State’s purpose in displaying the monument was to advance religion because the State had not shown a historical link between most of the Ten Commandments and the ideals of government and the legal system, that the monument’s tablet-shaped design was religious in nature, the Ten Commandments would be displayed apart from the other texts, and there was no explanation on the monument that the Ten Commandments was being displayed for its historical significance. Under the second prong, the district court reiterated that the content, shape, size, design, permanence, and location at the seat of Indiana’s government, would lead a reasonable observer to believe that the Ten Commandments were “marked with the stamp of government approval.”

The State’s appeal asks for the vacation of the preliminary injunction because the plaintiffs have not shown that they are likely to succeed on the merits.

DISCUSSION

A preliminary injunction is an extraordinary remedy intended to preserve the status quo until the merits of a case may be resolved. A preliminary injunction may be issued only if the moving party demonstrates some likelihood of success on the merits, an inadequate remedy at law, and irreparable harm if denied. If these elements are demonstrated, the court must balance the irreparable harm the nonmovant will suffer if relief is granted and the irreparable harm to the movant if relief is denied. The court must also consider the public interest in either the grant or denial of the relief. When a district court grants a preliminary injunction, we review conclusions of law de novo and findings of fact for clear error while giving substantial deference to the district court’s discretionary acts of weighing evidence or balancing equitable factors. See Cooper v. Salazar, 196 F.3d 809, 813 (7th Cir.1999).

Deciding the merits of this case involves the application of the Lemon test. Under Lemon, the Establishment Clause is violated if any of the following are found: (1) the state action does not have a secular purpose; (2) the primary effect of the state action is the advancement or inhibition of religion; or (3) the state action fosters excessive entanglement with religion. See 403 U.S. at 612-13, 91 S.Ct. 2105. In this case, the parties only invoke the first two prongs, which have been refined and dubbed the “endorsement test.” See Books, 235 F.3d at 301. Under the endorsement test we focus on whether the •state’s action has the purpose or effect of conveying a message of endorsement or disapproval of religion. See id. at 302.

I. Secular Purpose

Under the first prong of the Lemon test, we ask whether the State’s actual purpose in planning to erect this monument on the Statehouse grounds is to advance or inhibit religion. See id. We have recognized that the Ten Commandments is a religious and sacred text that transcends secular ethical or moral concerns. See id. This is so in part because its very text commands the reader to worship only the Lord God, to avoid idolatry, to not use the Lord’s name in vain, and to observe the Sabbath. These particular commandments are wholly religious in nature, and serve no conceivable secular function. Yet, we have also recognized that the Ten Commandments “can no doubt be presented by the government as playing ... a role in our crac order.” Id. at 302-03 (recognizing the secular nature of the frieze on the wall of the United States Supreme Court depicting Moses holding the Ten Commandments alongside other “great lawgivers” or the secular use of the Ten Commandments in public schools to study history, civilization, ethics, or comparative religion).

Since displaying the text of the Ten Commandments may have a legitimate secular purpose, the state bears the burden of demonstrating “that it has taken steps to ‘obviate its religious purpose.’ ” Id. at 303 n. 8 (quoting Gonzales v. North Township, 4 F.3d 1412, 1421 (7th Cir.1993)). We generally defer to the purpose offered by the state for its action as long as it is not a sham. Beyond 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. See id. at 302-04.

Since the new monument will be significantly different than the 1958 version, we do not rely on the stated purpose for the display of the 1958 plaque. Therefore, the March 14, 2000 press release issued by Governor O’Bannon announcing that Indiana would accept the new monument provides the state’s stated purpose for agreeing to erect the monument. In the press release, Governor O’Bannon stated:

For more than three decades, a monument inscribed with the Ten Commandments stood on the Statehouse lawn as a reminder of some of our nation’s core values. Soon those words will stand alongside the biding principals of our form of government, especially its protections of individual rights. They’re ideals we all need to be reminded of from time to time.

Citing State v. Freedom From Religion Found., Inc., 898 P.2d 1013 (Colo.1995), the State adds that the display reflects the ideals of our legal system. Regarding the context of the monument, Governor O’Ban-non stated: “The new monument will be an integral part of the Statehouse setting, which honors the history of our state and our nation.” As for the monument’s content, the State points out that most of the words displayed on it are secular in nature. In sum, the State says that the monument is intended to honor our history by reminding society of its core values and to honor our legal tradition since several of our secular laws are parallel to the Ten Commandments.

We start by saying that the 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. The Ten Commandments is still an inherently religious text, and we conclude that the State has not articulated a valid secular justification for planning to erect the monument.

The stated purpose that the Commandments will remind society of its “core values” is akin to the purpose of providing a “code of conduct” rejected in Books. We stated: “The code chosen, however, was a religious code that focuses not only on subjects that are the legitimate concern of civil authorities, but are subjects that are beyond the ken of any government and that address directly the relationship of the individual human being and God.” 235 F.3d at 303. The Commandments are historical, secular “core values” only to those who adhere to them. This is all the more true since the version here, as noted, maintains the religion-based commandments. Moreover, since each text stands apart, the monument’s physical design belies any suggestion that these texts are presented as a whole to remind viewers of the core values and legal ideals of our nation. While we hold that the State’s articulated purposes are not secular ones, we go on to consider the next prong of the Lemon test.

II. Primary Effect

Under the second prong, we ask, irrespective of the state’s stated purpose, whether accepting this monument for display on the Statehouse grounds has the primary effect of conveying a message that the state is advancing or inhibiting religion. See id. at 304. The question is: would a reasonable person believe that the display amounts to an endorsement of religion? “An important concern of the effects test is ... whether the symbolic union of church and state effected by the challenged governmental action is sufficiently likely to be perceived by adherents of the controlling denominations as an endorsement, and by the nonadherents as a disapproval, of their individual religious choices.” Id. at 305 (quotations omitted). Again, to answer these questions-we examine the content and context of the display. See id. at 304-06.

The State argues that the other statues and monuments help neutralize any religious message emanating from the Ten Commandments because they lend a historical context. It is true that the grounds house other statues and monuments, which certainly helps the State’s case because the grounds are somewhat akin to a museum, and “a typical museum setting, though not neutralizing the religious content of a religious painting, negates any message of endorsement of that content.” Lynch v. Donnelly, 465 U.S. 668, 692, 104 S.Ct. 1355, 79 L.Ed.2d 604 (1984) (O’Connor, J., concurring). But, this is not simply some museum nestled in some secluded park. The grounds, which house, among other things the Capitol, the Governor’s office, the General Assembly, the Indiana Supreme Court, and the Indiana Court of Appeals, is the seat of Indiana government. “[We subject] to particularly careful scrutiny displays at the seat of government.” Books, 235 F.3d at 305 (discussing Harris v. City of Zion, 927 F.2d 1401 (7th Cir.1999); American Jewish Congress v. City of Chicago, 827 F.2d 120 (7th Cir.1987)). Given that these grounds are home to all of the branches of Indiana’s government, we are hard-pressed to conclude anything other than that a reasonable observer would think that this monument, regardless of the message it conveys, occupies this location with the support of the state government. And, since we find that a reasonable observer would think the monument conveys a religious message, we hold that it imper-missibly endorses religion.

The large limestone monument, weighing just under six tons and standing seven feet tall and four feet wide, will be a permanent fixture on the Statehouse grounds. Its very format conveys a religious message. The limestone blocks are tablet-shaped, so, particularly given its height, even from afar the religious nature of the monument is suggested to observers. The lettering of the Ten Commandments is larger (one inch capital lettering) than the Bill of Rights inscribed on the other side (five-eighths inch capital lettering), making the Commandments more prominent to observers. The State explains that the lettering sizes are difference because the Ten Commandments consists of fewer words than that of the Bill of Rights, and therefore, the lettering of the Bill of Rights is necessarily smaller so that it can fit on the face of the stone.

While this is an eminently reasonable reason, it is of no matter unless a reasonable observer would surmise such, which we doubt. But, even if a reasonable observer would surmise such, the fact that the Ten Commandments is in larger lettering also means that it can be observed more clearly from a distance. And, depending on from which direction an observer approaches, he or she may only view the Commandments by peering back, for it stands alone on one side, totally isolated from the other texts. So, approaching from one side, an observer would only see the Ten Commandments, reasonably leading he or she to believe that the monument only displayed the sacred text.

The placement of the texts on different sides also inhibits observers from visually connecting the texts. We further hazard that since the texts are not visually connected, a reasonable observer would be hard-pressed to make any analytical connection between the texts, particularly since the planned monument lacks any marker explaining why these particular texts have been combined, although somewhat separately, on one slab of limestone. A reasonable observer would not necessarily link all three of these texts to society’s legal development and history. A reasonable person will think religion, not history.

Nothing in the context of the monument itself or the surrounding grounds mitigates the religious message conveyed. The monument is a display distinct both in its placement by other statues and monuments and in its content. See generally County of Allegheny v. ACLU, 492 U.S. 573, 598 n. 48, 109 S.Ct. 3086, 106 L.Ed.2d 472 (1989). There are no other monuments or statues directly near this one and there is no unifying historical or legal significance between this monument and the others.

Moreover, an observer who views the entire monument may reasonably believe that it impermissibly links religion and law since the Bill of Rights and the 1851 Preamble are near the sacred text. This would signal that the state approved of such a link, and was sending a message of endorsement. See Books, 235 F.3d at 307 (finding that the placement of the American Eagle gripping the national colors at the top of a plaque inscribed with the Ten Commandments endorsed a link between religion and civil government); City of Zion, 927 F.2d at 1412 (finding that the placement of a Latin cross surrounded by other symbols of city life on a municipality’s corporate seal endorsed a link between Christianity and government).

The permanence, content, design, and context of the monument amounts to the endorsement of religion by the state. Our holding is in regards to the likelihood of success on the merits based on the facts available to us at this preliminary stage, but we are hard-pressed to believe that a trial on the merits will support a different conclusion. See ACLU v. City of St. Charles, 794 F.2d 265, 269 (7th Cir.1986).

CONCLUSION

We Affirm the district court’s entrance of the preliminary injunction, pending resolution on the merits.

1 . On May 29, 2001, the Supreme Court denied the petition for a writ of certiorari in our opinion in Books. See Elkhart v. Books, - U.S.-, 121 S.Ct. 2209, 2209, 149 L.Ed.2d 1036 (2001). Chief Justice Rehnquist, joined by Justices Scalia and Thomas dissented from the denial of certiorari, and Justice Stevens issued a statement in support of the denial. Justice Stevens wrote:

Even though the first two lines of the monument’s text appear in significantly larger font than the remainder, they are ignored by the dissenters. Those lines read: “THE TEN COMMANDMENTS — I AM the LORD thy GOD.” The graphic emphasis placed on those first lines is rather hard to square with the proposition that the monument expresses no particular religious preference ....

121 S.Ct. at 2210. The denial of certiorari in Books, coupled with Justice Stevens’ statement, makes our reasoning and decision in this case all the more sound.

2 . Shortly after entrance of the preliminary injunction in this case, Representative Steele asked the President of the Lawrence County Commissioners, Timothy P. Terry, if the monument could be erected on the Lawrence County Courthouse lawn until a decision in this appeal was issued. The Commission voted to accept the monument for display. Not surprisingly, the erection of the monument on the Courthouse lawn spurred the filing of an identical case, which is also being handled by Judge Barker. See Kimbley v. Lawrence County, 119 F.Supp.2d 856 (S.D.Ind.2000).