Card v. City of Everett ( 2008 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
JESSE CARD, 
Plaintiff-Appellant,
No. 05-35996
v.
CITY OF EVERETT; RAY STEPHANSON,  D.C. No.
CV-03-02385-RSL
in his official capacity as Mayor
OPINION
of Everett, Washington,
Defendants-Appellees.

Appeal from the United States District Court
for the Western District of Washington
Robert S. Lasnik, District Judge, Presiding
Argued and Submitted
July 11, 2007—Seattle, Washington
Filed March 26, 2008
Before: Arthur L. Alarcón, Ferdinand F. Fernandez, and
Kim McLane Wardlaw, Circuit Judges.
Opinion by Judge Wardlaw;
Concurrence by Judge Fernandez
3011
CARD v. CITY OF EVERETT 3015
COUNSEL
Marc D. Slonim of Ziontz, Chestnut, Varnell, Berley &
Slonim, Seattle, Washington, for the plaintiff-appellant.
David H. Remes and Benjamin C. Block of Covington & Bur-
ling, Washington, D.C., for the plaintiff-appellant.
Ayesha Khan of Americans United for Separation of Church
and State, Washington, D.C., for the plaintiff-appellant.
Stephen A. Smith, Frederic C. Tausend, and Michael K. Ryan
of Kirkpatrick & Lockhart Preston Gates Ellis LLP, Seattle,
Washington, for the defendants-appellees.
Stephen W. Fitschen of The National Legal Foundation, Vir-
ginia Beach, Virginia, amicus curiae in support of the
defendants-appellees.
OPINION
WARDLAW, Circuit Judge:
Jesse Card appeals the district court’s award of summary
judgment to the City of Everett on his claim that the City’s
display of a six-foot tall granite monument inscribed with the
Ten Commandments on the grounds of the Everett Old City
Hall violates the Establishment Clauses of the Constitutions
of the United States and the State of Washington. In 2005, the
Supreme Court issued decisions in Van Orden v. Perry, 545
3016 CARD v. CITY OF EVERETT
U.S. 677 (2005) and McCreary County v. ACLU, 545 U.S.
844 (2005), both of which addressed the issues presented
here, and the former of which involved a monument of virtu-
ally identical design and origin to the monument at issue here.
The Court concluded that the display on the grounds of the
Texas State Capitol in Van Orden is constitutional, but struck
down as unconstitutional the Kentucky monument display at
issue in McCreary. Although the circumstances of the Ten
Commandments’ installation in the City of Everett vary
slightly from those surrounding the Texas monument, we
must agree with the district court that Van Orden, particularly
Justice Breyer’s concurring—and determinative—analysis,
controls the decision here. We have jurisdiction pursuant to
28 U.S.C. § 1291, and we affirm.
I. BACKGROUND
A. The Everett Monument
The monument at the heart of this dispute1 was donated to
the City of Everett in 1959 by the local aerie (chapter) of the
Fraternal Order of Eagles, a national civic organization. It sits
adjacent to Old City Hall on public land under the City’s con-
trol. The Old City Hall building itself now houses only the
police department. The monument, which is located along a
sidewalk about forty feet north of the entrance to the building,
is constructed of granite and stands about six feet tall. Its main
feature is an inscription of a non-sectarian version of the Ten
Commandments:
the Ten Commandments
I AM the LORD thy God
Thou shalt have no other gods before me.
Thou shalt not make to thyself any graven images.
Thou shalt not take the Name of the Lord thy God
1
See Appendix A, infra.
CARD v. CITY OF EVERETT 3017
in vain.
Remember the Sabbath day, to keep it holy.
Honor 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-
bor.
Thou shalt not covet thy neighbor’s house.
Thou shalt not covet thy neighbor’s wife, nor his
manservant, nor his maidservant, nor his cattle, nor
anything that is thy neighbor’s.
The monument’s design resembles two adjoined tablets with
rounded tops. The upper portion of each larger tablet has a
floral motif circling a smaller tablet bearing what appear to be
ancient Phoenician characters. The all-seeing Eye of Provi-
dence is centered at the point where the two large tablets join;
an eagle and United States flag lie directly below. Centered
under the text of the Ten Commandments is a labarum2
flanked by Stars of David. Finally, prominently carved at the
base of the monument is the following dedication: “PRE-
SENTED TO THE CITY OF EVERETT BY EVERETT
AERIE NO. 13 FRATERNAL ORDER OF EAGLES
DECEMBER, 1959.”
The monument stood in a more conspicuous location at the
corner of the Old City Hall building until 1988, when it was
relocated approximately ten feet away to create space for a
war memorial. The war memorial consists of three eight-foot
2
The labarum is “[t]he imperial standard of the later Roman emperors
. . . [especially] that adopted by Constantine after his conversion to Chris-
tianity,” which consists of “a monogram of the first two letters (XP) of the
name of Christ in Greek form.” Webster’s New International Dictionary
1378 (2d ed. 1934).
3018 CARD v. CITY OF EVERETT
tall black granite towers inscribed with the names of City resi-
dents who died in military service. Across the street, on Sno-
homish County property, there are several other monuments,
including a September 11 memorial, a Medal of Honor
memorial, a county war memorial, an Armed Forces monu-
ment and a monument to the common worker. Old City Hall
also bears a plaque commemorating the rededication of the
building in 1979.3
The events surrounding the conveyance of the monument
from the Eagles to the City are clouded by the passage of
time. Few contemporaneous records exist. The minutes of an
October 29, 1959 Everett City Council meeting are the only
relevant legislative record: “Moved by Johnson, seconded by
Gebert to accept a six-foot high Granite Monolith of the Ten
Commandments from the Everett Aerie No. 13, Fraternal
Order of the Eagles.” More details about the dedication of the
monument are found in two articles published in the Everett
Daily Herald newspaper. The first article, published on Thurs-
day, December 17, 1959, reports that the Everett aerie had
completed preparations for presentation of the monument to
the City on the following Saturday. The article notes that
“Judge Lawrence Leahy of Wenatchee, past grand president
of the Eagles [would be] making the principal address.” An
invocation and benediction were to be performed, and several
religious leaders were to give remarks. A follow-up article on
Monday, December 21, indicated that “[a] granite monolith
bearing the Ten Commandments was unveiled on the front
lawn of city hall Saturday as local dignitaries, church leaders
and Eagles representatives looked on,” and that “Mayor
George Culmback accepted the monolith on behalf of the citi-
zens of Everett.”
The monument’s relocation twenty-nine years later was
3
The Old City Hall building was added to the National Register of His-
toric Places in 1990. No surrounding monuments were included as part of
the City’s application to list Old City Hall in the Register.”
CARD v. CITY OF EVERETT 3019
unaccompanied by any fanfare. In its current location, the
monument is shrouded by shrubberies and obscured from
view unless one is standing close by. In 1990, the City
received its first letter challenging the constitutionality of the
monument’s display. The City took the position that the
Establishment Clause did not require it to remove the monu-
ment. The record contains a total of seven such letters deliv-
ered during the 1990s, five written by two citizens and two
letters written by the Americans United for Separation of
Church and State. In each instance, the City responded by
reiterating its view that the Establishment Clause did not bar
the display of the Ten Commandments monument.
B. Judge Ruegemer, Cecil B. DeMille, and the Eagles
The Everett monument and over a hundred others were pro-
duced by the Eagles in Minnesota and distributed by local
aeries. Distribution of the monuments was the brainchild of
Minnesota Judge E.J. Ruegemer, a leader on the Eagles’
Youth Guidance Committee.4 A primary goal of that commit-
tee was to “design a well-defined and simple program that
would provide youngsters with a common set of values and
a common code of conduct.” Ruegemer’s service in the juve-
nile courts between 1941 and 1947 led him to believe that “if
troubled youths were exposed to one of mankind’s earliest
and long-lasting codes of conduct, those youths might be less
inclined to break the law.” He developed a plan to distribute
4
Ruegemer submitted an affidavit to the district court. Much of this his-
tory is derived from his explanation of the genesis of the Ten Command-
ments project. The source of the Supreme Court’s history of the project
in Van Orden appears to be based on this or a very similar declaration. See
Books v. City of Elkhart, 235 F.3d 292, 294-95 (7th Cir. 2000); State v.
Freedom from Religion Found., Inc., 898 P.2d 1013, 1017 (Colo. 1995).
The plaintiff in Van Orden presented to the district court no independent
evidence of the Eagles’ project, instead stipulating that the history
described in Books and Freedom of Religion was accurate for his pur-
poses. Van Orden v. Perry, No. 01-833 (W.D. Tex. Aug. 9, 2002) (Plain-
tiff’s Trial Brief) (Docket No. 52).
3020 CARD v. CITY OF EVERETT
copies of the Ten Commandments for posting in juvenile
courtrooms nationwide, and approached the Eagles with his
plan. Ruegemer claimed that “[a]t first, the Eagles were reluc-
tant to fund the program because they were worried that the
program might seem sectarian.”
To allay these concerns, Ruegemer convened a committee
of “fellow judges, lawyers, various city officials and clergy of
several faiths from the St. Cloud area,” and “developed a ver-
sion of the Ten Commandments which was not identifiable to
any particular religious group.” The Eagles signed on to pro-
mote Ruegemer’s plan of distributing copies of this credo.
The plan germinated for some years, taking a turn for the
grandiose when Hollywood showman Cecil B. DeMille
became involved. He and Ruegemer decided that instead of
paper copies of the Ten Commandments, they would distrib-
ute granite monoliths. Ruegemer and his committee designed
the monuments, by which, he avers, they “intended . . . to set
forth a code of conduct, not an endorsement of any or one
particular religion at all.” The monuments were produced by
two Minnesota granite companies. Local aeries interested in
participating in the Ten Commandments project would raise
the money to pay for a monument, then present it to their
local community as a gift. Ruegemer estimates that between
140 and 150 monuments were distributed. The total number
of monuments donated by aeries across the country is higher,
however, because some aeries commissioned locally con-
structed versions modeled after those produced in Minnesota.
II. STANDARD OF REVIEW
“We review the grant of summary judgment de novo.”
Buono v. Norton, 371 F.3d 543, 545 (9th Cir. 2004). “We
must determine, viewing the evidence in the light most favor-
able to [Card], the non-moving party, whether there are any
genuine issues of material fact and whether the district court
correctly applied the substantive law.” Olsen v. Idaho State
Bd. of Med., 363 F.3d 916, 922 (9th Cir. 2004).
CARD v. CITY OF EVERETT 3021
III. DISCUSSION
A. The Supreme Court’s Establishment Clause
Jurisprudence
[1] “Congress shall make no law respecting an establish-
ment of religion, or prohibiting the free exercise thereof.”5
U.S. Const. amend. I. In 1971, the Supreme Court issued
Lemon v. Kurtzman, 403 U.S. 602 (1971), which established
the three-part test that has served as the guiding principle for
assessing Establishment Clause violations ever since. To sat-
isfy the Lemon test for constitutionality of a public sanction-
ing of religious activity, the government conduct at issue: (1)
“must have a secular . . . purpose”; (2) “its principal or pri-
mary effect must be one that neither advances nor inhibits
religion”; and (3) it “must not foster ‘an excessive govern-
ment entanglement with religion.’ ” Id. at 612-13 (quoting
Walz v. Tax Comm’n, 397 U.S. 664, 674 (1970)). As recently
as 2005, the Supreme Court reaffirmed the vitality of the
Lemon test. See McCreary, 545 U.S. at 859-66; Access Fund
v. U.S. Dep’t of Agric., 499 F.3d 1036, 1042 (9th Cir. 2007)
(“The Lemon test remains the benchmark to gauge whether a
particular government activity violates the Establishment
Clause.”); Cmty. House, Inc. v. City of Boise, 490 F.3d 1041,
1054-56 (9th Cir. 2007).
5
Card also alleges that the monument violates Article I, Section 11 of
the Washington State Constitution, which states that “[n]o public money
or property shall be appropriated for or applied to any religious worship,
exercise or instruction, or the support of any religious establishment . . . .”
However, because we conclude that the City’s display of the monument
was not motivated by a religious purpose, infra at 2714-15, its display
does not violate Article I, Section 11 of the Washington State Constitu-
tion. See Malyon v. Pierce County, 935 P.2d 1272, 1282 (Wash. 1997)
(“[T]he appropriation of money, or application of property, to effectuate
any objective other than worship, exercise, instruction, or religious estab-
lishment is not within the [Article I, Section 11] prohibition.”).
3022 CARD v. CITY OF EVERETT
The Lemon test has not escaped unscathed, however. See
McCreary, 545 U.S. at 890 (Scalia, J., dissenting) (collecting
criticism of Lemon by various members of the Court). One
notable case decided after Lemon is Marsh v. Chambers, 463
U.S. 783 (1983).6 In that case, the Eighth Circuit applied the
Lemon test to find unconstitutional the Nebraska Legislature’s
employment of a chaplain and the opening of each legislative
session with a prayer. Id. at 785-86. The Supreme Court
reversed, eschewing the Lemon test, instead looking to the
“unique history” of prayer at the opening of Congress dating
back to the Continental Congress and “accept[ing] the inter-
pretation of the First Amendment draftsmen who saw no real
threat to the Establishment Clause arising from a practice of
prayer similar to that . . . challenged.” Id. at 791. As Justice
Brennan pointed out in dissent, Marsh is a narrow opinion
that should be construed as carving out an exception to nor-
mal Establishment Clause jurisprudence due to the “unique
history” of legislative prayer. Id. at 795-96 (Brennan, J., dissent-
ing).7
The Court has also eschewed the Lemon test in the context
of coercive religious activity in public schools, where “there
are heightened concerns with protecting freedom of con-
science from subtle coercive pressure.” Lee v. Weisman, 505
U.S. 577, 592 (1992). In Lee, which addressed mandatory
religious speech at graduation, the Court also did not apply
the Lemon test, instead holding that “[t]he government
involvement with religious activity in this case is pervasive,
to the point of creating a state-sponsored and state-directed
religious exercise in a public school.” Id. at 587; see also Sch.
6
In his concurrence in Lee v. Weisman, 505 U.S. 577 (1992), Justice
Blackmun asserted that in thirty-one Establishment Clause cases decided
since 1971, the Court had applied Lemon in all cases except Marsh. Id. at
603 n.4.
7
The Court also decided Larson v. Valente, 456 U.S. 228 (1982), with-
out applying the Lemon test. Id. at 252 (stating that the Lemon test applied
to “laws affording a uniform benefit to all religions, and not . . . provisions
. . . that discriminate among religions”).
CARD v. CITY OF EVERETT 3023
Dist. of Abington Twp. v. Schempp, 374 U.S. 203, 222-27
(1963) (holding that laws requiring that bible verses be read
at the start of the day in public schools violated the Establish-
ment Clause).8
[2] Even when applying Lemon, the Court has on occasion
tailored the test to the particular facts before it. In Agostini v.
Felton, 521 U.S. 203, 208-09 (1997), the Court upheld a stat-
ute authorizing Title I funds to be distributed to children
attending parochial schools. Justice O’Connor reworked the
Lemon test by “folding the ‘excessive entanglement’ inquiry
into, and setting out revised criteria for, the ‘effect’ prong.”
Cmty. House, 490 F.3d at 1055. Thus, under the revised
Lemon-Agostini inquiry, we look to governmental purpose;
and, in order to evaluate the effect of the activity, “(i) whether
governmental aid results in government indoctrination; (ii)
whether recipients of the aid are defined by reference to reli-
gion; and (iii) whether the aid creates excessive government
entanglement with religion.” Id.
Despite straying from Lemon in narrow situations, the
Court has consistently applied the Lemon test to religious dis-
8
The district court in Lee applied the Lemon test to hold that, because
the mandatory religious speech had the effect of endorsing religion, it vio-
lated the Establishment Clause. Lee, 505 U.S. at 584-85. The First Circuit
affirmed. Id. In spite of the petitioners’ urging, the Supreme Court
declined to revisit its Lemon jurisprudence, noting that “[w]e can decide
the case without reconsidering the general constitutional framework by
which public schools’ efforts to accommodate religion are measured.” Id.
at 587. The Court went on to hold that the religious activity in Lee was
so “pervasive” that it had to violate the Establishment Clause. Id.
In so holding, the Court did not repudiate Lemon. Indeed, it recognized
Lemon as the “general constitutional framework” that applies in this area.
Instead, the Court held that some religious activities, particularly those
that are coercive in the educational setting, are so plainly violative of the
Establishment Clause that they need not be analyzed under any test at all.
It follows that, had the Court applied the Lemon test, it certainly would
have agreed with the district court and the First Circuit that the mandatory
religious speech failed under the Lemon test as well.
3024 CARD v. CITY OF EVERETT
play cases. In Lynch v. Donnelly, 465 U.S. 668 (1984), the
Court applied the Lemon test to find constitutional a city
Christmas display in Pawtucket, Rhode Island. The display
included an assortment of traditional Christmas holiday sea-
son figures and decorations. It also included a city-owned
“crèche, which has been included in the display for 40 or
more years, [and] consists of the traditional figures, including
the Infant Jesus, Mary and Joseph, angels, shepherds, kings,
and animals, all ranging in height from 5 [inches] to 5 [feet].”
Id. at 671. Applying the Lemon test, the Court noted that the
city needed to have “a secular purpose for its display,” but
that the city’s objectives need not be “exclusively secular.” Id.
at 681 n.6. The Court opined:
It would be ironic . . . if the inclusion of a single
symbol of a particular historic religious event, as
part of a celebration acknowledged in the Western
World for 20 centuries, and in this country by the
people, by the Executive Branch, by the Congress,
and the courts for two centuries, would so “taint” the
City’s exhibit as to render it violative of the Estab-
lishment Clause.
Id. at 686.
In Stone v. Graham, 449 U.S. 39 (1980) (per curiam), the
Court found unconstitutional a Kentucky law that required the
posting of privately funded copies of the Ten Commandments
in every public classroom in Kentucky. Id. at 39-40. The law
required that each copy of the Decalogue bear a small nota-
tion that “[t]he secular application of the Ten Commandments
is clearly seen in its adoption as the fundamental legal code
of Western Civilization and the Common Law of the United
States.” Id. at 41 (internal quotation marks omitted). Applying
the Lemon test, the Court found that the statute had no secular
purpose, that “[t]he Ten Commandments are undeniably a
sacred text in the Jewish and Christian faiths, and no legisla-
CARD v. CITY OF EVERETT 3025
tive recitation of a supposed secular purpose can blind us to
that fact.” Id.
Although Stone falls within the public school coercive reli-
gious exercise cases routinely found to violate the Establish-
ment Clause, it also stands for the narrower proposition that
government displays of the Ten Commandments can never
satisfy the Lemon Test. The Court reasoned:
The pre-eminent purpose for posting the Ten
Commandments on schoolroom walls is plainly reli-
gious in nature. The Ten Commandments are unde-
niably a sacred text in the Jewish and Christian
faiths, and no legislative recitation of a supposed
secular purpose can blind us to that fact. The Com-
mandments do not confine themselves to arguably
secular matters, such as honoring one’s parents, kill-
ing or murder, adultery, stealing, false witness, and
covetousness. See Exodus 20: 12-17; Deuteronomy
5: 16-21. Rather, the first part of the Commandments
concerns the religious duties of believers: worship-
ping the Lord God alone, avoiding idolatry, not
using the Lord’s name in vain, and observing the
Sabbath Day. See Exodus 20: 1-11; Deuteronomy 5:
6-15.
Id. at 41-42 (footnote omitted). The Stone Court further
rejected the notion that this presented a case “where the Bible
may constitutionally be used in an appropriate study of his-
tory, civilization, ethics, comparative religion, or the like,”
emphasizing that
[p]osting of religious texts on the wall serves no
such educational function. If the posted copies of the
Ten Commandments are to have any effect at all, it
will be to induce the schoolchildren to read, meditate
upon, perhaps to venerate and obey, the Command-
ments. However desirable this might be as a matter
3026 CARD v. CITY OF EVERETT
of private devotion, it is not a permissible state
objective under the Establishment Clause.
Id. at 42. The clear import of the Stone Court’s rationale is
that posting such an inherently religious document can never
have a secular purpose, and thus can never satisfy the Lemon
test.
B. Recent Developments in Ten Commandments Law
Fast-forward twenty-five years to the year 2005, when the
Court again struggled with the Lemon test as applied to gov-
ernmental displays on public property of the inherently reli-
gious and definitively non-secular Ten Commandments. See
Van Orden, 545 U.S. at 704-05 (Breyer, J., concurring in the
judgment) (holding the Texas display constitutional); Mc-
Creary, 545 U.S. at 858 (holding the Kentucky display uncon-
stitutional). Confounded by the ten individual opinions in the
two cases, and perhaps inspired by the Biblical milieu, courts
have described the current state of the law as both “Establish-
ment Clause purgatory,” ACLU v. Mercer County, 432 F.3d
624, 636 (6th Cir. 2005), and “Limbo,” Green v. Bd. of
County Comm’rs, 450 F. Supp. 2d 1273, 1285 (E.D. Okla.
2006).
Standing at the intersection of Van Orden and McCreary
for the first time, the path we must follow is clear.9 Our study
of the cases leads us to two conclusions. First, that the three-
part test set forth in Lemon and modified in Agostini remains
the general rule for evaluating whether an Establishment
9
Some courts have applied both the Van Orden and the Lemon analysis
in Eagles monument cases. See ACLU Neb. Found. v. City of Plattsmouth,
419 F.3d 772, 778 n.8 (8th Cir. 2005) (en banc) (applying Van Orden, but
then asserting in a footnote that the same decision would result under
Lemon); ACLU of Ohio Found. v. Bd. of Comm’rs, 444 F. Supp. 2d 805,
816 (N.D. Ohio 2006) (applying both Lemon and Van Orden). But see
Twombly v. City of Fargo, 388 F. Supp. 2d 983, 986-90 (D.N.D. 2005)
(applying only Van Orden).
CARD v. CITY OF EVERETT 3027
Clause violation exists. See McCreary, 545 U.S. at 859; see
also Vasquez v. Los Angeles County, 487 F.3d 1246, 1254-55
(9th Cir. 2007) (holding that McCreary reaffirms Lemon),
cert. denied, 128 S. Ct. 711 (2007).
Second, that we do not use the Lemon test to determine the
constitutionality of some longstanding plainly religious dis-
plays that convey a historical or secular message in a non-
religious context. As Justice Breyer stated in Van Orden,
If the relation between government and religion is
one of separation, but not of mutual hostility and
suspicion, one will inevitably find difficult border-
line cases. And in such cases, I see no test-related
substitute for the exercise of legal judgment. . . .
Rather, to determine the message that the text here
conveys, we must examine how the text is used. And
that inquiry requires us to consider the context of the
display.
545 U.S. at 700-01 (Breyer, J., concurring in the judgment).
Similarly, as Chief Justice Rehnquist stated in the plurality
opinion,
Whatever may be the fate of the Lemon test in the
larger scheme of Establishment Clause jurispru-
dence, we think it not useful in dealing with the sort
of passive monument that Texas has erected on its
Capitol grounds. Instead, our analysis is driven both
by the nature of the monument and by our Nation’s
history.
Id. at 686 (plurality opinion). Therefore, we must examine
both McCreary and Van Orden, and exercise our legal judg-
ment to determine whether Everett’s monument to the Com-
mandments passes constitutional muster.
3028 CARD v. CITY OF EVERETT
1. McCreary County v. ACLU
[3] In McCreary, the Court invalidated displays of the Ten
Commandments in two Kentucky courthouses. 545 U.S. at
858. The displays were at first simply “large, gold-framed
copies of an abridged text of the King James version of the
Ten Commandments, including a citation to the Book of Exo-
dus.” Id. at 851. In the course of litigation, the counties
altered the displays twice, each time adding to them arguably
greater secular or historical content. Id. at 853-56. The major-
ity applied the Lemon test, focusing heavily on the question
of the counties’ purpose. Id. at 862 (“[A]n understanding of
official objective emerges from readily discoverable fact,
without any judicial psychoanalysis of a drafter’s heart of
hearts.”). The Court explained that “[t]he 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 unmistak-
able.” Id. at 869. For this reason, the first display failed under
the secular purpose prong of Lemon, as it must. See Stone,
449 U.S. at 39-43. In examining and invalidating the two sub-
sequent versions, the Court rejected the county’s claim that
they evinced a secular purpose, because purpose must be eval-
uated as if by “one presumed to be familiar with the history
of the government’s actions and competent to learn what his-
tory has to show.” McCreary, 545 U.S. at 866; see also id. at
874 (“[A]n implausible claim that governmental purpose has
changed should not carry the day in a court of law any more
than in a head with common sense.”). There can be little
doubt after McCreary not only that Lemon is still alive but
that the secular purpose inquiry has been fortified. See id. at
900-03 (Scalia, J., dissenting).
CARD v. CITY OF EVERETT 3029
2. Van Orden v. Perry
In Van Orden, the Supreme Court’s contemporaneous exe-
gesis, neither the plurality nor Justice Breyer’s vital concur-
rence in the judgment reaches its result by applying Lemon.
545 U.S. at 686 (plurality opinion) (“[W]e think [Lemon is]
not useful in dealing with the sort of passive monument that
Texas has erected on its Capitol grounds.”); id. at 700
(Breyer, J., concurring in the judgment) (“While the Court’s
prior tests . . . might well lead to the same result the Court
reaches today[,] no exact formula can dictate a resolution to
such fact-intensive cases.”) (citation omitted).10 As we have
discussed, the Van Orden decision is not the first time that the
Court has decided that the Lemon test was not applicable in
an Establishment Clause case. See, e.g., Marsh, 463 U.S. at
791, 795. Because the Supreme Court issued McCreary,
broadly espousing Lemon, contemporaneously with Van
Orden, narrowly eschewing Lemon, we must read the latter as
carving out an exception for certain Ten Commandments dis-
plays. We cannot say how narrow or broad the “exception”
may ultimately be; not all Ten Commandments displays will
fit within the exception articulated by Justice Breyer. How-
ever, we can say that the exception at least includes the dis-
play of the Ten Commandments at issue here.
10
The Court’s plurality opinion avoided the purpose inquiry, holding
that, due to the “passive” nature of the Texas Decalogue, the Court only
need consider the history and context of the display to determine that it
passed constitutional scrutiny. Van Orden, 545 U.S. at 691 (plurality opin-
ion). However, the controlling opinion in Van Orden is, of course, that of
Justice Breyer. “When a fragmented Court decides a case and no single
rationale explaining the result enjoys the assent of five Justices, ‘the hold-
ing of the Court may be viewed as that position taken by those Members
who concurred in the judgments on the narrowest grounds . . . .’ ” Marks
v. United States, 430 U.S. 188, 193 (1977) (quoting Gregg v. Georgia, 428
U.S. 153, 169 n.15 (1976)); see United States v. Williams, 435 F.3d 1148,
1157 n.9 (9th Cir. 2006) (“Applying Marks’ rule, we have often construed
one Justice’s concurring opinion as representing a logical subset of the
plurality’s and as adopting a holding that would affect a narrower range
of cases than that of the plurality.”).
3030 CARD v. CITY OF EVERETT
Van Orden involved a challenge to an Eagles-donated
monolith on the grounds of the Texas Capitol.11 The Capitol
is surrounded by twenty-two acres of land, which “contain 17
monuments and 21 historical markers commemorating the
‘people, ideals, and events that compose Texan identity.’ ”12
545 U.S. at 681 (quoting Tex. H. Con. Res. 38, 77th Leg.,
Reg. Sess. (2001)).13 The Texas monument is identical to the
Everett monument, save for the dedication at the base which
reads “PRESENTED TO THE PEOPLE AND YOUTH OF
TEXAS BY THE FRATERNAL ORDER OF EAGLES OF
TEXAS 1961.” Id. at 681-82. “The legislative record sur-
rounding the State’s acceptance of the monument from the
Eagles . . . is limited to legislative journal entries.” Id. at 682.
While the State selected the location where it was placed,
“[t]he Eagles paid the cost of erecting the monument, the ded-
ication of which was presided over by two state legislators.”
Id.
Justice Breyer based his reasoning “upon consideration of
the basic purposes of the First Amendment’s Religion Clauses
themselves.” Id. at 703-04 (Breyer, J., concurring in the judg-
ment). He stressed that in “difficult borderline cases,” there is
“no test-related substitute for the exercise of legal judgment.”
Id. at 700. Further, such analysis, to “remain faithful to the
underlying purposes of the Clauses . . . must take account of
context and consequences measured in light of those pur-
11
See Appendix B, infra.
12
The monuments are: Heroes of the Alamo, Hood’s Brigade, Confeder-
ate Soldiers, Volunteer Fireman, Terry’s Texas Rangers, Texas Cowboy,
Spanish-American War, Texas National Guard, Ten Commandments,
Tribute to Texas School Children, Texas Pioneer Woman, The Boy
Scouts’ Statue of Liberty Replica, Pearl Harbor Veterans, Korean War
Veterans, Soldiers of World War I, Disabled Veterans, and Texas Peace
Officers. Van Orden, 545 U.S. at 681 n.1.
13
We note that the legislative declaration of the purpose of the Texas
Capitol displays cited by the Court post-dates most, if not all of the monu-
ments, suggesting that the contemporary purpose of the displays is rele-
vant.
CARD v. CITY OF EVERETT 3031
poses.” Id. Among the purposes that he recognized are: (1) “to
assure the fullest possible scope of religious liberty and toler-
ance for all”; (2) “to avoid that divisiveness based upon reli-
gion that promotes social conflict, sapping the strength of
government and religion alike”; and (3) “to maintain that sep-
aration of church and state that has long been critical to the
peaceful dominion that religion exercises in this country,
where the spirit of religion and the spirit of freedom are pro-
ductively united, reigning together but in separate spheres on
the same soil.” Id. at 698 (citations, quotations and alterations
in original omitted).14
He referred to Van Orden as a “borderline case,” noting
that the text of the Ten Commandments “undeniably has a
religious message,” but that the text itself was not determina-
tive because the Court must examine “the message that the
text . . . conveys . . . [in] the context of the display.” Id. at
700-01. He reiterated the nature of the Ten Commandments
in some contexts as “a secular moral message” or as “a histor-
ical message.” Id. at 701. He then marshaled facts that he
deemed relevant to making this determination. Viewing Jus-
tice Breyer’s factual analysis side by side with the factual cir-
cumstances here, it becomes clear that Card’s case fits within
the Van Orden exception.
C. Applying Van Orden
The district court noted that the “context of the monument
at issue in this case is remarkably similar to that presented to
the Supreme Court in Van Orden,” and found “that the analy-
sis and holding of Van Orden governs this case.” Card v. City
of Everett, 386 F. Supp. 2d 1171, 1173 (W.D. Wash. 2005).
We agree.
14
Justice Breyer also endorsed Justice O’Connor’s concurrence in
McCreary as embodying the purposes of the Religion Clauses. Van Orden,
545 U.S. at 698 (Breyer, J., concurring in the judgment).
3032 CARD v. CITY OF EVERETT
1. Secular Purpose
[4] Justice Breyer first looked to the purpose of the monu-
ment, finding that its history suggested a secular purpose. Van
Orden, 545 U.S. at 701 (Breyer, J., concurring in the judg-
ment). The Eagles are a “private civic (and primarily secular)
organization . . . [which] sought to highlight the Command-
ments’ role in shaping civic morality as a part of [its] efforts
to combat juvenile delinquency.” Id. Further, “[t]he Eagles’
consultation with a committee composed of members of sev-
eral faiths in order to find a nonsectarian text underscores the
group’s ethics-based motives.” Id. The presence of the graven
dedication from the Eagles on the face of the monument “fur-
ther distances the State itself from the religious aspect of the
Commandments’ message.” Id. at 701-02.
[5] This analysis suggests two facets to the secular purpose
analysis: (1) the actual purpose of the monument; and (2) per-
ceptions of that purpose by viewers. Justice Breyer focused on
the Eagles’ purpose, presumably in part as a proxy for the
State’s intent, which like here, was not well documented. The
district court found that the Eagles “had a strong interest in
the religious aspects of the Ten Commandments.” Card, 386
F. Supp. 2d at 1176. But, it also concluded that there were
secular aspects to the monument, including “provid[ing] a
dramatic visual reminder of proper and, at the time, uncon-
troversial standards of social conduct,” and “ties to a recent
Hollywood blockbuster movie, Mr. DeMille’s ‘The Ten Com-
mandments.’ ” Id. Further, the district court properly recog-
nized the importance of differentiating between the Eagles’
goals and the City’s goals in accepting the gift from “a well-
respected community organization: a desire to reduce juvenile
delinquency, to show appreciation for the organization’s
efforts, or even to obtain inexpensive works of art on a scale
large enough to decorate public property . . . .” Id.
[6] We agree with the district court’s analysis of the monu-
ment’s purpose. The City’s intent is the key here, and nothing
CARD v. CITY OF EVERETT 3033
apart from the monument’s text suggests a religious motive
on the City’s part. We reject Card’s assertion that the pres-
ence of clergy at the dedication ceremony distinguishes this
situation from Van Orden.15 All indications in the record are
that the Eagles arranged and funded the dedication. While the
Mayor was present to accept the monument, as noted above,
the City had many plausible secular reasons for accepting the
gift, and we will not infer a non-secular purpose. We agree
with the City that there is also some contemporary historic
relevance to the monument—as a testament to the Eagles’
lengthy relationship with, and contributions to, the City.
[7] Finally, we agree with the district court that, exactly
like the monument in Van Orden, this monument bears a
prominent inscription showing that it was donated to the City
by a private organization. As in Van Orden, this serves to
send a message to viewers that, while the monument sits on
public land, it did not sprout from the minds of City officials
and was not funded from City coffers.
2. Suggestion of the Sacred
[8] Justice Breyer next looked to the setting of the monu-
ment, finding that it “suggest[ed] little or nothing of the
sacred.” Van Orden, 545 U.S. at 702 (Breyer, J., concurring
in the judgment). The monument was located in a “large
park” with numerous other remembrances of the ideals of the
settlers of the State of Texas, and in a “setting [that] does not
readily lend itself to meditation or any other religious activi-
ty.” Id. Thus, Justice Breyer concluded that the physical set-
ting “suggests that the State intended the display’s moral
message — an illustrative message reflecting the historical
‘ideals’ of Texans — to predominate.” Id. Here, again, Justice
Breyer’s analysis is bifurcated, asking: (1) whether the dis-
15
That clergy participated in the dedication of the monument, a factor
discussed in McCreary, 545 U.S. at 869, as demonstrating religious pur-
pose, does not remove this case from Van Orden’s ambit.
3034 CARD v. CITY OF EVERETT
play includes other elements that suggest a secular message;
and (2) if the physical setting is conducive to religious activi-
ties. Id. at 701-02.
[9] The district court did not rely on the presence of the
other monuments and markers in its analysis. Everett’s collec-
tion of monuments—consisting of the monument, the three
war memorial monoliths and the plaque on Old City Hall—is
certainly more modest in scope than that in Van Orden. This
remains true even accepting the City’s characterization of the
war memorial as three separate monuments, and including the
five monuments located on adjacent county land. The City
argues that these monuments have all been erected in a much
smaller area than the Texas Capitol. However, we do not read
Van Orden as establishing a quota system for monuments or
a requirement for a particular density of monuments in a
given area. We see more similarities than differences here:
Like the display in Texas, the Everett Eagles monument is the
only facially religious monument, while the balance of the
monuments are memorials to wars or to citizen service, and
the lack of additional City monuments may be only a testa-
ment to a disparity in resources between the City of Everett
and the State of Texas.
[10] The district court judge visited Old City Hall, and
observed that there was “an air of neglect or disregard,” in the
display of the monument. Card, 386 F. Supp. 2d at 1176; see
Appendix A. Discussing the 1988 relocation, the court noted
that “[n]ot only was it moved off of its corner perch . . . but
the City opted to relocate it to a spot behind one of the three
War Memorial monoliths and almost surrounded by trees and
shrubs that significantly impair most views of the monu-
ment.” Id. The court further noted that, while the memorial
was illuminated and had benches in front of it, the monument
had neither. These features combine to create a setting that
does not “lend itself to meditation or any other religious activ-
ity.” Id. at 1176-77 (quoting Van Orden, 545 U.S. at 702
 CARD v. CITY OF EVERETT 3035
(Breyer, J., concurring)). We agree entirely that nothing about
the setting is conducive to genuflection.16
3. Historic Lack of Complaints
[11] Justice Breyer found that in addition to the purpose
and setting of the display, another factor was “determinative.”
Van Orden, 545 U.S. at 702 (Breyer, J., concurring in the
judgment). He noted that the monument had stood passively
by for forty years without complaint, holding that:
[T]hose 40 years 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 any significantly
detrimental way, to a government effort to favor a
particular religious sect, primarily to promote reli-
gion over nonreligion, to engage in any religious
practice, to compel any religious practice, or to work
deterrence of any religious belief.
Id. (quotations and alterations in original omitted). To hold
the Texas display unconstitutional would “exhibit a hostility
toward religion that has no place in our Establishment Clause
traditions.” Id. at 704. Justice Breyer voiced concern that such
a ruling would lead to attempts to remove “longstanding
depictions of the Ten Commandments from public buildings
across the Nation,” and thus “create the very kind of reli-
giously based divisiveness that the Establishment Clause
seeks to avoid.” Id.
[12] While two citizens and one organization wrote seven
complaints about the monument in Everett, those complaints
similarly did not surface until the monument had been in
16
There is also no evidence that any remotely religious activities, other
than the original dedication, have been held at the monument.
3036 CARD v. CITY OF EVERETT
place for over thirty years.17 The district court held that under
such similar facts, this factor was also determinative. Card,
386 F. Supp. 2d at 1177. We agree that Justice Breyer’s lon-
gevity rationale applies equally here as it did in Van Orden.
IV. CONCLUSION
[13] Reading Van Orden and McCreary together, we con-
clude a limited exception to the Lemon test exists in contexts
closely analogous to those in Van Orden. This case presents
such a closely analogous context. Therefore, it is clear that
Van Orden controls our decision. Accordingly, the City of
Everett’s Ten Commandments display does not run afoul of
the Establishment Clauses of the United States or Washington
State Constitutions.
AFFIRMED.
17
Because the monument was moved only about ten feet from its origi-
nal position, we view the preceding thirty years as the appropriate time
period to use in the Van Orden longevity analysis.
CARD v. CITY OF EVERETT 3037
APPENDIX A
The Ten Commandments monument in Everett, Washington.
3038 CARD v. CITY OF EVERETT
APPENDIX B
The Ten Commandments monument in Austin, Texas at issue
in Van Orden.
CARD v. CITY OF EVERETT 3039
FERNANDEZ, Circuit Judge, concurring:
While, with all due respect, I cannot fully join in Judge
Wardlaw’s opinion, I do concur.
I applaud Judge Wardlaw’s scholarly and heroic attempt to
create a new world of useful principle out of the Supreme
Court’s dark materials.1 Alas, even my redoubtable colleague
cannot accomplish that. The still stalking Lemon test2 and the
other tests and factors, which have floated to the top of this
chaotic ocean from time to time in order to answer specific
questions, are so indefinite and unhelpful that Establishment
Clause jurisprudence has not become more fathomable.
Would that courts required neutrality in the area of religion
and nothing more or less.3
More to the purpose, this case, as Judge Wardlaw wisely
notes, is controlled by Van Orden v. Perry, 545 U.S. 677, 125
S. Ct. 2854, 162 L. Ed. 2d 607 (2005). Because of that and
because I see no possibility whatsoever that the presence of
this monument has established, or has tended to establish, or
will establish religion,4 I concur in the result.
1
Cf. Milton, Paradise Lost, Book II, ll. 915-16.
2
See Lamb’s Chapel v. Ctr. Moriches Union Free Sch. Dist., 508 U.S.
384, 398, 113 S. Ct. 2141, 2149, 124 L. Ed. 2d 352 (1993) (Scalia, J., con-
curring) (“Like some ghoul in a late-night horror movie that repeatedly
sits up in its grave and shuffles abroad, after being repeatedly killed and
buried, Lemon stalks our Establishment Clause jurisprudence once again
. . . .”).
3
See Newdow v. U.S. Congress, 328 F.3d 466, 490-91 (9th Cir. 2003)
(Fernandez, J., concurring and dissenting), rev’d, Elk Grove Unified Sch.
Dist. v. Newdow, 542 U.S. 1, 124 S. Ct. 2301, 159 L. Ed. 2d 98 (2004).
4
See Newdow, 328 F.3d at 491-93 (Fernandez, J., concurring and dis-
senting).