784 568 federal reporter, 3d series

784 568 FEDERAL REPORTER, 3d SERIES

James W. GREEN, an individual; Amer-ican Civil Liberties Union of Okla-homa, a non-profit corporation, Plain-tiffs–Appellants,

v.

HASKELL COUNTY BOARD OF COM-MISSIONERS, also known as Boardof County Commissioners of HaskellCounty, Oklahoma; Kenny Short, inhis official capacity as Chairman ofthe Haskell County Board of Commis-sioners, Defendants–Appellees,

785GREEN v. HASKELL COUNTY BOARD OF COM’RSCite as 568 F.3d 784 (10th Cir. 2009)

Mainstream Baptist Network; Okla-homa Mainstream Baptists; Ameri-cans United for Separation of Churchand State; American Center for Lawand Justice; The National LegalFoundation; American Legion # 182;and Foundation for Moral Law, AmiciCuriae.

No. 06–7098.

United States Court of Appeals,Tenth Circuit.

June 8, 2009.

Background: Citizen and civil libertiesassociation brought § 1983 action againstcounty board of commissioners and board’schairman, claiming that Ten Command-ments monument on lawn of courthouseviolated Establishment Clause. Followingbench trial, the United States DistrictCourt for the Eastern District of Okla-homa, Ronald A. White, J., 450 F.Supp.2d1273, entered judgment for defendants,and plaintiffs appealed.

Holdings: The Court of Appeals, Holmes,Circuit Judge, held that:

(1) plaintiff citizen had standing;

(2) action was not moot;

(3) county’s approval of Ten Command-ments monument was not presumptive-ly violative of Establishment Clause;but

(4) board’s approval of placement of monu-ment had principal effect of endorsingreligion, given commissioners’ state-ments and other factors.

Reversed and remanded.

1. Civil Rights O1029

Claim of Establishment Clause viola-tion is cognizable under § 1983. U.S.C.A.Const.Amend. 1; 42 U.S.C.A. § 1983.

2. Federal Courts O776Court of Appeals reviews de novo

question of whether plaintiff has constitu-tional standing.

3. Federal Civil Procedure O103.2, 103.3Irreducible constitutional minimum of

standing requires that: (1) plaintiff suf-fered concrete, actual injury in fact; (2)there is causal connection between injuryand conduct at issue; and (3) it is likelythat favorable decision will redress plain-tiff’s injury. U.S.C.A. Const. Art. 3, § 2.

4. Constitutional Law O825Plaintiff in Establishment Clause case

may establish non-economic injury, as re-quired to support standing, if he is directlyaffected by laws and practices againstwhich his complaint is directed; althoughpsychological consequence presumablyproduced by observation of conduct withwhich one disagrees is not sufficient injuryin fact, allegations of personal contact withstate-sponsored image suffice to demon-strate direct injury. U.S.C.A. Const. Art.3, § 2; U.S.C.A. Const.Amend. 1.

5. Civil Rights O1333(6)Citizen had standing to bring § 1983

action against county seeking to enjoinalleged Establishment Clause violationconsisting of placement of Ten Command-ments monument on courthouse lawn; citi-zen purportedly visited county propertywhere courthouse was located on weeklybasis and could not avoid monument sculp-ture when visiting, Establishment Clauseclaim was based on county commissioners’approval of and support for monument,and alleged injury was redressable bycourt-ordered removal of monument.U.S.C.A. Const. Art. 3, § 2; U.S.C.A.Const.Amend. 1; 42 U.S.C.A. § 1983.

6. Constitutional Law O977Citizen’s Establishment Clause chal-

lenge to Ten Commandments monument


placed on county courthouse lawn was notmooted by new policy adopted by countyboard of commissioners, prohibiting countyfrom denying placement of display oncourthouse lawn based on viewpoint; newpolicy did not alter board’s previous ac-tions, i.e. approval of challenged monu-ment, nor change its alleged endorsementof religion through monument. U.S.C.A.Const. Art. 3, § 2; U.S.C.A. Const.Amend.1.

7. Federal Courts O12.1, 723.1

Case or controversy must remain alivethroughout litigation, including on appel-late review. U.S.C.A. Const. Art. 3, § 2.

8. Federal Courts O776, 855.1

On appeal from bench trial in FirstAmendment case, Court of Appeals re-views de novo district court’s findings ofconstitutional fact, and its ultimate conclu-sions regarding First Amendment chal-lenge, while giving due regard to trialjudge’s opportunity to observe witnesses’demeanor; Court of Appeals reviews his-torical facts for clear error. U.S.C.A.Const.Amend. 1.

9. Federal Courts O776

On appeal from bench trial in Estab-lishment Clause case, Court of Appealsconsiders district court’s findings on eachpart of Lemon test to be constitutionalfacts reviewable de novo. U.S.C.A. Const.Amend. 1.

10. Constitutional Law O1295

Under Lemon test, to avoid Establish-ment Clause violation, challenged govern-ment action must: (1) have secular legisla-tive purpose; (2) have principal or primaryeffect that neither advances nor inhibitsreligion; and (3) not foster excessive gov-ernment entanglement with religion.U.S.C.A. Const.Amend. 1.

11. Constitutional Law O1298Government impermissibly endorses

religion, in violation of EstablishmentClause, if its conduct has either: (1) pur-pose or (2) effect of conveying messagethat religion or particular religious belief isfavored or preferred. U.S.C.A. Const.Amend. 1.

12. Constitutional Law O1381 Counties O107

County’s approval of display of TenCommandments, on monument initiatedand supplied by private citizen and placedon courthouse lawn among other monu-ments including war memorials, was notpresumptively violative of EstablishmentClause; Commandments had secular signif-icance that government could acknowl-edge. U.S.C.A. Const.Amend. 1.

13. Constitutional Law O1295Under Establishment Clause, govern-

ments may not make adherence to a reli-gion relevant in any way to person’s stand-ing in political community. U.S.C.A.Const.Amend. 1.

14. Constitutional Law O1298, 1299Actions which have effect of communi-

cating governmental endorsement or dis-approval of religion, whether intentionallyor unintentionally, make religion relevant,in reality or public perception, to status inpolitical community, and thereby infringeEstablishment Clause. U.S.C.A. Const.Amend. 1.

15. Constitutional Law O1298, 1299In determining whether government

conduct has effect of conveying messagethat religion or particular religious belief isfavored or preferred, and thus infringesEstablishment Clause, court evaluateswhether reasonable observer, aware of his-tory and context of community in whichconduct occurs, would view practice ascommunicating message of government en-


dorsement or disapproval. U.S.C.A.Const.Amend. 1.

16. Constitutional Law O1295, 1298

Not every governmental activity thatconfers remote, incidental or indirect bene-fit upon religion is invalid under Establish-ment Clause; rather, activity must haveprincipal or primary effect of advancing orendorsing religion. U.S.C.A. Const.Amend. 1.

17. Constitutional Law O1381

Counties O107

County’s approval of citizen’s proposalto donate Ten Commandments monumentfor placement on courthouse lawn hadprincipal effect of endorsing religion inviolation of Establishment Clause; citizenhad purely religious motivation, county’sboard of commissioners was aware of thatfact and swiftly approved placement, thenelected to maintain monument in face oflegal challenge, and two of three commis-sioners attended unveiling and rally insupport of monument and made state-ments that did not distinguish betweentheir personal beliefs and board’s position,e.g. ‘‘[w]e’re definitely going to leave ourmonument there until the law tells us totake it down.’’ U.S.C.A. Const.Amend. 1.

Daniel Mach, American Civil LibertiesUnion Foundation, Washington, D.C.(Lane Dilg, American Civil Liberties Un-ion Foundation, Washington, D.C.; Mi-cheal Salem, Salem Law Offices, Norman,OK; Tina L. Izadi, American Civil Liber-ties Union of Oklahoma Foundation, Okla-homa City, OK, with him on the briefs), forPlaintiffs–Appellants.

Kevin H. Theriot (Joel L. Oster, withhim on the brief), Alliance Defense Fund,Leawood, KS, for Defendants–Appellees.

Harry F. Tepker, University of Okla-homa Law Center, Norman, OK, filed anamicus curiae brief for Mainstream BaptistNetwork and Oklahoma Mainstream Bap-tists in support of Plaintiffs–Appellants.

Ayesha N. Khan, Richard B. Katskee,and Heather L. Weaver, Americans Unitedfor Separation of Church and State, Wash-ington, D.C., filed an amicus curiae brieffor Americans United for Separation ofChurch and State in support of Plaintiffs–Appellants.

Jay Alan Sekulow, American Center forLaw & Justice, Washington, D.C.; FrancisJ. Manion and Geoffrey R. Surtees, Ameri-can Center for Law & Justice, New Hope,KY, filed an amicus curiae brief for Ameri-can Center for Law and Justice in supportof Defendants–Appellees.

Philip B. Onderdonk Jr., The AmericanLegion, Indianapolis, IN; Kelly J. Shack-elford and Hiram S. Sasser III, LibertyLegal Institute, Plano, TX, filed an amicuscuriae brief for The American Legion# 182 in support of Defendants–Appellees.

Steven W. Fitschen and Barry C.Hodge, Virginia Beach, VA, filed an ami-cus curiae brief for The National LegalFoundation in support of Defendants–Ap-pellees.

Roy S. Moore, Gregory M. Jones, andBenjamin D. DuPre, Foundation for MoralLaw, Montgomery, AL, filed an amicuscuriae brief for Foundation for Moral Lawin support of Defendants–Appellees.

Before HARTZ, O’BRIEN, andHOLMES, Circuit Judges.

HOLMES, Circuit Judge.

Defendant–Appellee Haskell CountyBoard of Commissioners approved a con-stituent’s request to erect a monumentdisplaying the Ten Commandments (here-inafter the ‘‘Monument’’) on the lawn of


the county courthouse in Stigler, Okla-homa. Plaintiffs–Appellants James Green,a Haskell County resident, and the Ameri-can Civil Liberties Union (‘‘ACLU’’) ofOklahoma filed suit against the HaskellCounty Board of Commissioners and Ken-ny Short, in his official capacity as chair-man of that board, (collectively ‘‘theBoard’’) under 42 U.S.C. § 1983, alleging aviolation of the Establishment Clause ofthe First Amendment. After a bench trial,the district court ruled in favor of theBoard, finding no constitutional violation inthe Monument’s placement on the court-house lawn.

[1] Exercising our jurisdiction under28 U.S.C. § 1291,1 we hold that, under theunique circumstances presented here, theEstablishment Clause was violated be-cause the reasonable observer would viewthe Monument as having the impermissibleprincipal or primary effect of endorsingreligion. Accordingly, we REVERSE thedistrict court’s order.

I. BACKGROUND2

Haskell County has a population ofabout 15,000 people. Approximately 2500people live in the county seat, Stigler.

1. The National Legal Foundation, as amicuscuriae, challenges our jurisdiction, arguingthat 42 U.S.C. § 1983 is not a proper vehicleto address Establishment Clause violations.Because we are required to ascertain ourjurisdiction, we may consider jurisdictionalarguments raised by amici. See Wyo. FarmBureau Fed’n v. Babbitt, 199 F.3d 1224, 1230n. 2 (10th Cir.2000). The National LegalFoundation argues that an EstablishmentClause violation is not a ‘‘deprivation of anyrights, privileges, or immunities secured bythe Constitution and laws’’ for which § 1983provides redress. 42 U.S.C. § 1983; Nat’lLegal Found. Amicus Br. at 11. It arguesthat § 1983 was enacted to vindicate civilrights and that the statute’s history, groundedin the history of similar language in the Four-teenth Amendment, demonstrates that ‘‘free-dom from establishment’’ was not intended tobe treated as such a ‘‘right’’ or one of theFourteenth Amendment ‘‘privileges or immu-nities’’ privately enforceable under § 1983.Nat’l Legal Found. Amicus Br. at 6–10.

The Establishment Clause protects religiousliberty no less than the Free Exercise Clausedoes. See Santa Fe Indep. Sch. Dist. v. Doe,530 U.S. 290, 313, 120 S.Ct. 2266, 147L.Ed.2d 295 (2000) (declaring that ‘‘the com-mon purpose of the Religion Clauses ‘is tosecure religious liberty’ ’’ (quoting Engel v.Vitale, 370 U.S. 421, 430, 82 S.Ct. 1261, 8L.Ed.2d 601 (1962))); Michael W. McConnell,Accommodation of Religion, 1985 Sup.Ct.Rev. 1, 1 (observing that ‘‘religious liberty isthe central value and animating purpose ofthe Religion Clauses’’). The Supreme Court’sapplication of the Establishment Clause to thestates through the Fourteenth Amendment

implicitly determined that individual rightswere at stake. See Cantwell v. Connecticut,310 U.S. 296, 303, 60 S.Ct. 900, 84 L.Ed.1213 (1940) (noting that ‘‘[t]he fundamentalconcept of liberty embodied in [the Four-teenth] Amendment embraces the libertiesguaranteed by the First Amendment,’’ making‘‘the legislatures of the states as incompetentas Congress to enact’’ laws ‘‘respecting anestablishment of religion or prohibiting thefree exercise thereof’’); see also Everson v. Bd.of Educ., 330 U.S. 1, 15, 67 S.Ct. 504, 91L.Ed. 711 (1947) (giving ‘‘the same applica-tion and broad interpretation to the ‘establish-ment of religion’ clause’’ as Cantwell had ap-plied to the Free Exercise Clause). And theSupreme Court has rejected the notion that§ 1983’s scope is limited to civil rights orequal protection laws. Maine v. Thiboutot,448 U.S. 1, 6–8, 100 S.Ct. 2502, 65 L.Ed.2d555 (1980) (interpreting the ‘‘and laws’’ por-tion of § 1983’s grant of jurisdiction). In thatlight, it is unsurprising that both the SupremeCourt and this court repeatedly have, withoutcomment, decided § 1983 actions alleging Es-tablishment Clause violations. See, e.g.,McCreary County, Ky. v. Am. Civil LibertiesUnion of Ky., 545 U.S. 844, 852, 125 S.Ct.2722, 162 L.Ed.2d 729 (2005); Van Orden v.Perry, 545 U.S. 677, 682, 125 S.Ct. 2854, 162L.Ed.2d 607 (2005); Lamb’s Chapel v. Ctr.Moriches Union Free Sch. Dist., 508 U.S. 384,389, 113 S.Ct. 2141, 124 L.Ed.2d 352 (1993);Marsh v. Chambers, 463 U.S. 783, 785, 103S.Ct. 3330, 77 L.Ed.2d 1019 (1983); O’Con-nor v. Washburn Univ., 416 F.3d 1216, 1220(10th Cir.2005). In sum, we have no basis todoubt our jurisdiction.

2. Our recitation of the facts relies largely on


The Haskell County courthouse is locatedin Stigler. It sits in the middle of approxi-mately one square block of county proper-ty. The courthouse contains the courts,the offices of numerous government offi-cials, and county offices where citizens canperform a variety of activities such as vot-ing, paying taxes, and accessing public rec-ords.

The Haskell County Historical Societyoccupies a log cabin in the northeast cor-ner of the property. Outside of the court-house are monuments of various sorts,most of which were paid for and erectedby private citizens. One sidewalk containspersonal message bricks. Two benchesare dedicated to and inscribed by theClasses of 1954 and 1955, respectively.The largest monument—honoring HaskellCounty citizens who died in World Wars Iand II—sits in the middle of the lawn. Infront of it are smaller monuments honor-ing those killed in action in Vietnam andKorea. A small rose garden with a bird-bath sits behind the World Wars monu-ment. A monument honoring the ChoctawNation and a monument honoring all un-marked graves in Haskell County also aresituated on the courthouse lawn.

At issue is a recent addition to thelawn—a block of stone that is approxi-mately eight feet tall and three feet wide,with the Ten Commandments inscribed onone side and the Mayflower Compact onthe other. Photographs of the two sides ofthe Monument are appended to this opin-ion as Appendix A (Ten Commandments)and Appendix B (Mayflower Compact).The side facing the street reads:

The Ten Commandments

I Thou shalt have no other gods beforeme.

II Thou shalt not make unto thee anygraven image.

III Thou shalt not take the name ofthe Lord thy God in vain.

IV Thou shalt remember the sabbathday and keep it holy.

V Thou shalt honor thy father andmother.

VI Thou shalt not kill.

VII Thou shalt not commit adultry.[sic]

VIII Thou shalt not steal.

IX Thou shalt not bear false witnessagainst thy neighbor.

X Thou shalt not covet thy neighbor’shouse.

Exodus 20

App. at 1569.

The opposite side of the Monumentreads, in all capital letters:

The Mayflower Compact

November 11, 1620

In the name of God, Amen.

We whose names are underwritten, theloyal subjects of our dread sovereignLord, King James by the grace of God,of Great Britain, France and Irelandking, defender of the faith, ect. [sic],having undertaken, for the glory of God,and advancement of the Christian faith,and honor of our king and country, avoyage to plant the first colony in theNorthern parts of Virginia, do by thesepresents solemnly and mutually in thepresence of God, and one of another,covenant and combine ourselves togeth-er into a civil body politic, for our betterordering and preservation and further-ance of the ends aforesaid; and by vir-tue hereof to enact, constitute, and

the district court’s factual findings in its opin-ion issued after the bench trial. See Green v.

Bd. of County Comm’rs of County of Haskell,450 F.Supp.2d 1273 (E.D.Okla.2006).


frame such just and equal laws, ordi-nances, acts, constitutions, and offices,from time to time, as shall be thoughtmost meet and convenient for the gener-al good of the colony, unto which wepromise all due submission and obedi-ence.

In witness whereof we have hereundersubscribed our names at Cape–Cod the11 of November, in the year of the reignof our sovereign lord, King James, ofEngland, France, and Ireland the eigh-teenth, and of Scotland the fifty-fourth.Anno Domini 1620.

App. at 1566. At the base of the Monu-ment is a notation added after the start ofthis litigation: ‘‘Erected by Citizens ofHaskell County.’’ App. at 1085; seeGreen, 450 F.Supp.2d at 1277–78.

The Monument’s saga began when Mi-chael Bush, a local citizen who is employedas a construction worker and part-timeminister, appeared at a regularly sched-uled Board meeting to seek approval forplacing a Ten Commandments monumenton the courthouse lawn. At that time, theBoard consisted of three commissioners.After a brief discussion, they approved Mr.Bush’s request. The relevant portion ofthe meeting’s minutes reads: ‘‘The Boardmet with Mike Bush to discuss getting amonument with the 10 Commandments onit to put on the courthouse lawn. The

Board agreed that Mike could go aheadand have the monument made and Mike istaking care of all the expense.’’ App. at1388.

Mr. Bush recalled telling the Board that‘‘the Lord had burdened [his] heart’’ tocreate the Monument and that he would beresponsible for raising the funds and get-ting the Monument. App. at 1013. Hedid not present the Board with any dia-gram of his proposal, although he did de-scribe its proposed size and that it woulddepict the Ten Commandments. Mr. Bushdid not recall being asked any questionsbefore the Board approved his request.One of the commissioners recalled discuss-ing the historical aspects of the Monumentwith the other commissioners but could notrecall any more specific contents of thatdiscussion. Either prior to or shortly af-ter the vote, the Board consulted with theCounty’s attorney, who informed themthat a decision to approve the Monumentcould result in a few legal ‘‘bumps.’’ App.at 516, 1148.

After receiving approval from theBoard, Mr. Bush raised the necessaryfunds through religious groups in the com-munity. With the assistance of a friend,Mr. Bush decided on the wording of theTen Commandments to appear on theMonument, condensing and paraphrasingfrom the King James Version of the Bible.3

3. In our subsequent legal analysis, we placeno significance on the fact—suggested by thedistrict court, Green, 450 F.Supp.2d at 1277–78 & n. 7—that this may be ‘‘a butcheredparaphrase’’ of the King James Version. Id.at 1278. Along with numerous other consid-erations, we focus on the Monument’s text(irrespective of its biblical pedigree) and itslikely effect on a reasonable observer. Ac-cording to Mr. Green, the particular version ofthe Ten Commandments inscribed on theMonument is ‘‘uniquely Christian’’ and ‘‘con-tains expressly sectarian and religious com-mands, such as observing the Sabbath, notworshiping idols, believing in a deity, and not

taking a deity’s name in vain.’’ App. at 22.Mr. Green apparently seeks to draw a benefi-cial contrast with monuments found in otherTen Commandments cases that purport todepict a more interfaith version of the TenCommandments. See ACLU Neb. Found. v.City of Plattsmouth, Neb., 419 F.3d 772, 774n. 2 (8th Cir.2005) (en banc) (‘‘The monumentlists eleven commands ostensibly to serve asan amalgamation of the Jewish, Protestant,and Catholic versions of the Ten Command-ments.’’); Books v. City of Elkhart, Ind., 235F.3d 292, 294 (7th Cir.2000) (‘‘[R]epresenta-tives of Judaism, Protestantism, and Catholi-cism developed what the individuals involved


At some point in the process of designingthe Monument, Mr. Bush decided to in-clude the Mayflower Compact as well. Asit relates to the Ten Commandments, theBoard did not review or approve Mr.Bush’s design of the Monument or theversion of the Ten Commandments that heselected to be inscribed on it. With re-gard to the Mayflower Compact, the Boardapparently was not apprised of Mr. Bush’splan to add it to the Monument and did notauthorize him to do so.4

The Board, however, did select the loca-tion for the monument—in line with sever-al of the other monuments on the lawn,approximately twenty-five feet away fromHighway 9 (the main thoroughfarethrough town, which runs in front of thecourthouse), five feet over from the un-marked graves monument, and fifty feetfrom the World Wars monument in thecenter of the lawn. The location does notappear to be ‘‘a clearly high traffic area’’and not ‘‘the most frequented route takento the courthouse by citizens going thereto undertake business.’’ Green, 450F.Supp.2d at 1294. A sketch of the court-house lawn that sheds some light on theMonument’s location and its spatial rela-tionship with the other monuments is ap-pended to this opinion as Appendix C. Seeid. at 1277 n. 6 (describing the sketch andnoting that ‘‘a not-to-scale diagram show-ing the approximate location of the monu-ments on the lawn was helpful and wasadmitted’’ into evidence).

On November 5, 2004, the Monumentactually was placed on the lawn. It re-

mained covered until a dedication ceremo-ny was held on Sunday, November 7. Thisceremony was organized by Mr. Bush, whoinformed the churches that had participat-ed in the fundraising effort for the Monu-ment that it would be taking place. One totwo hundred people, including two of thethree commissioners, attended the ceremo-ny, and seventeen churches were repre-sented. The ceremony, which lasted forabout one hour, opened with a prayer andincluded remarks by local pastors. Mr.Bush also explained how the Monumentcame to be on the courthouse lawn. Al-though Mr. Bush recalled that the commis-sioners also said a few words, neither com-missioner recalls doing anything otherthan attending the ceremony.

For several months following its unveil-ing, the Monument attracted significantmedia attention. Photographs of commis-sioners posing near the Ten Command-ments appeared in newspapers distributedin Haskell County. In some of the photo-graphs, two of the three commissionerswere present. And, in at least one photo-graph, all three were present. That pho-tograph (featuring all three commission-ers) was introduced into evidence and isappended to this opinion as Appendix D.At least two of the commissioners ex-pressed a recognition that they were askedby the media to participate in the photo-graphs because of their status as commis-sioners.

The media also quoted the commis-sioners making statements about the

believed to be a nonsectarian version of theTen Commandments because it could not beidentified with any one religious group.’’).However, we offer no view concerning thevalidity of Mr. Green’s characterization of theversion of the Ten Commandments inscribedon the Monument. In our view, this factor isnot a material consideration in our disposi-tion under the facts of this case.

4. Although the district court found that therecord was ‘‘irredeemably ambiguous’’ con-cerning whether the Board knew about orapproved the addition of the Compact, thecourt ultimately was ‘‘not convinced’’ that theBoard ‘‘ever officially approved the additionof the Compact.’’ Green, 450 F.Supp.2d at1291 n. 30.


Monument. In November 2004, onecommissioner, referring to the Ten Com-mandments, stated: ‘‘That’s what we’retrying to live by, that right thereTTTT

The good Lord died for me. I canstand for him, and I’m going toTTTT I’ma Christian and I believe in this. Ithink it’s a benefit to the community.’’App. at 455. Around the same time,that commissioner (in substance) told an-other media outlet: ‘‘God died for meand you, and I’m going to stand up forhim.’’ App. at 458–59.

Mr. Green and the ACLU of Oklahomafiled suit on October 6, 2005, alleging thatthe display of the Ten Commandments onthe courthouse lawn violated the Estab-lishment Clause. They sought a declara-tion that the Ten Commandments displaywas unconstitutional and also ‘‘prospectiveinjunctive relief, requiring Defendants toremove the large religious monument fromthe lawn of the Haskell County Court-house.’’ App. at 16–17. They did notassert a claim for monetary relief.

Mr. Green stated that he was offendedby what he perceived as the Monument’smandates because he does ‘‘not feel that[he] should be told [he is] bound by them,’’as they did not come through the demo-cratic process, and because he ‘‘sub-scribe[s] to the later teachings of Jesus’’and rejects this text from ‘‘a period ofharsh, almost terroristic origins.’’ App. at946. He was concerned by the commis-sioners’ statements about the Monumentbecause ‘‘they seemed to be strongly sup-porting the religious aspects of the monu-ment as a body,’’ and he fears that he willbe ‘‘treated differently and more harshly’’because he does not ‘‘subscribe to a partic-ular faith that is represented by this mon-ument.’’ App. at 938–39, 951. He saidthat he cannot avoid the Monument whenhe conducts his business at the courthouse.

Following the initiation of this lawsuit,Mr. Bush organized a rally and circulateda petition to support the Monument. Toadvertise the rally, posters encouragedcommunity members to ‘‘Support the TenCommandments Monument’’ and depicteda young girl praying before an Americanflag with the caption ‘‘One Nation UnderGod.’’ App. at 1409, 1534. One such posterwas placed on the front door of the court-house. The rally was held on the court-house lawn on November 19, 2005, andattended by approximately three to fourhundred people. There were a number ofspeakers at the rally, including local pas-tors and a U.S. Senator. One commission-er acknowledged saying at the rally, ineffect, ‘‘I’ll stand up in front of that monu-ment and if you bring a bulldozer up hereyou’ll have to push me down with it.’’App. at 1405, 1186; see also Green, 450F.Supp.2d at 1280 (noting that ‘‘[n]o re-cording exists’’ of the commissioner’sstatement but he ‘‘was reported to havesaid something like’’ the bulldozer com-ment). Furthermore, on May 6, 2006, theBoard enacted a policy that prohibitedHaskell County from denying placement ofa display on the courthouse lawn based onviewpoint.

The district court held a two-day benchtrial in May 2006. After reviewing theevidence presented and visiting the Has-kell County Courthouse to view the Monu-ment, the district court found in favor ofthe defendants. This appeal followed.

II. DISCUSSION

A. Standing

[2, 3] ‘‘Because it involves the court’spower to entertain the suit, constitutionalstanding is a threshold issue in every casebefore a federal court.’’ O’Connor, 416F.3d at 1222. We review the question ofwhether a plaintiff has constitutionalstanding de novo. United States v.


$148,840 in U.S. Currency, 521 F.3d 1268,1273 (10th Cir.2008). ‘‘[T]he irreducibleconstitutional minimum of standing con-tains three elements.’’ Lujan v. Defendersof Wildlife, 504 U.S. 555, 560, 112 S.Ct.2130, 119 L.Ed.2d 351 (1992). First, theplaintiff must have suffered a concrete,actual ‘‘injury in fact.’’ Id. Second, theremust be a causal connection between theinjury and the conduct at issue. Id. Third,it must be likely that a favorable decisionwill redress the plaintiff’s injury. Id. at561, 112 S.Ct. 2130. Mr. Green meets allthree requirements.5

[4] In the context of alleged Establish-ment Clause violations, a plaintiff may es-tablish non-economic injury if ‘‘ ‘directlyaffected by the laws and practices againstwhich their complaints are directed.’ ’’O’Connor, 416 F.3d at 1222–23 (quotingValley Forge Christian Coll. v. Ams. Unit-ed for Separation of Church & State, Inc.,454 U.S. 464, 486 n. 22, 102 S.Ct. 752, 70L.Ed.2d 700 (1982)). Although ‘‘the psy-chological consequence presumably pro-duced by observation of conduct withwhich one disagrees’’ is not a sufficientinjury in fact, Valley Forge, 454 U.S. at485, 102 S.Ct. 752, we have held that ‘‘[a]l-legations of personal contact with a state-sponsored image suffice to demonstratethis kind of direct injury.’’ O’Connor, 416

F.3d at 1223 (citing Foremaster v. City ofSt. George, 882 F.2d 1485, 1490–91 (10thCir.1989)); Weinbaum v. City of LasCruces, N.M., 541 F.3d 1017, 1028 (10thCir.2008) (restating O’Connor’s rule that inEstablishment Clause cases, such allega-tions of personal contact are sufficient todemonstrate direct injury); see also Vas-quez v. L.A. County, 487 F.3d 1246, 1252(9th Cir.2007) (‘‘We note that the majorityof other circuits that have considered theissue have held spiritual harm resultingfrom one’s direct contact with an offensivereligious (or anti-religious) symbol to be asufficient basis to confer Article III stand-ing.’’).

[5] In O’Connor, plaintiffs had to walkpast the offensive statue ‘‘almost everyweek’’ or alter their routes across campus.O’Connor, 416 F.3d at 1223. In Wein-baum, the plaintiffs alleged that they haddirect contact with the cross symbol thatthe city used as its seal, in that it wasconspicuously displayed on city property.Weinbaum, 541 F.3d at 1028. In Fore-master, plaintiff alleged that he was ‘‘con-fronted by the [offending city] logo on adaily basis.’’ Foremaster, 882 F.2d at1491. Mr. Green testified that he visitsthe Haskell County Historical Society on aweekly basis and that business occasionally

5. The district court determined that the ACLUof Oklahoma lacked standing for failure toallege all the elements required of an associa-tional plaintiff. Green, 450 F.Supp.2d at 1286(citing Hunt v. Wash. State Apple Adver.Comm’n, 432 U.S. 333, 343, 97 S.Ct. 2434, 53L.Ed.2d 383 (1977)). Plaintiffs–Appellants donot challenge this conclusion in any substan-tial fashion, only noting in a footnote that‘‘although it is unnecessary for this appeal,the ACLU of Oklahoma also has constitutionalstanding to challenge the display,’’ and argu-ing that we should take judicial notice of theorganization’s readily identifiable mission.Aplt. Opening Br. at 22 n. 7. Because weconclude that Mr. Green has standing, weagree that it is unnecessary to address the

ACLU of Oklahoma’s standing. However, tothe extent that Plaintiffs–Appellants intendedto challenge the district court’s exclusion ofthe ACLU of Oklahoma, their argument isinadequately raised for appellate review, andwe will not address it. See United States v.Hardman, 297 F.3d 1116, 1131 (10th Cir.2002) (en banc) (‘‘Arguments raised in a per-functory manner, such as in a footnote, arewaived.’’). Furthermore, as the party invok-ing federal jurisdiction, the ACLU of Okla-homa must do more than describe its objec-tion to the district court’s determination; tocarry its burden, it must establish each ele-ment of standing. Lujan, 504 U.S. at 561,112 S.Ct. 2130. Thus, we review only theBoard’s challenge to Mr. Green’s standing.


takes him to the courthouse. Further, Mr.Green testified that whenever he visits thecourthouse square for either purpose, hecannot avoid the Monument. We concludethat Mr. Green’s statements are sufficientto establish that he is being ‘‘frequentlybrought into direct and unwelcome contactwith’’ the structure allegedly giving rise tothe Establishment Clause violation (i.e.,the Monument). O’Connor, 416 F.3d at1223. Thus, Mr. Green meets the injury-in-fact requirement of standing.

The second element of constitutionalstanding, a causal connection, is not dis-puted and is easily met here: Mr. Green’sEstablishment Clause claim is based onthe Board’s approval of and support forthe Monument that allegedly caused hisinjury. Turning to the third element, theBoard argues that Mr. Green’s injury can-not be redressed by a favorable decisionbecause his argument should be construedas primarily evidencing an opposition tothe comments that certain commissionersmade regarding the Monument, not theMonument itself, and that Mr. Green hasnot sought damages or an injunction re-stricting such statements by the commis-sioners.

This argument must fail. While the dis-trict court did note that there were incon-sistencies in Mr. Green’s testimony as towhether he was more offended by theMonument itself or by commissioners’statements about the Monument, Green,450 F.Supp.2d at 1282, from the outset ofthe lawsuit Mr. Green has challenged theMonument, and his alleged injury in thatregard is redressable. While Mr. Greenmight not have a remediable injury if hewere objecting to the past comments ofcommissioners in isolation, it is the Monu-ment itself that gave rise to his Establish-ment Clause challenge, and Mr. Green pri-marily referred to the comments becausethey (allegedly) indicate governmental en-

dorsement of religion through the Monu-ment. The court-ordered removal of theMonument that Mr. Green seeks wouldredress his injury. Accordingly, we con-clude that Mr. Green has standing to bringhis claim.

B. Mootness

[6, 7] Like standing, mootness is athreshold inquiry. Navani v. Shahani,496 F.3d 1121, 1127 (10th Cir.2007), cert.denied, ––– U.S. ––––, 128 S.Ct. 1232, 170L.Ed.2d 64 (2008); see Citizens for Re-sponsible Gov’t State Political ActionComm. v. Davidson, 236 F.3d 1174, 1182(10th Cir.2000) (noting that ‘‘the courtmust determine whether a case is mootbefore proceeding to the merits’’). ‘‘A caseor controversy must remain alive through-out the litigation, including on appellatereview.’’ Navani, 496 F.3d at 1127. ‘‘If,during the pendency of the case, circum-stances change such that the plaintiff’slegally cognizable interest in a case is ex-tinguished, the case is moot, and dismissalmay be required.’’ Kan. Judicial Reviewv. Stout, 562 F.3d 1240, 1245 (10th Cir.2009). The Board argues that its newpolicy that prohibits Haskell County fromdenying placement of a display on thecourthouse lawn based on viewpoint consti-tutes just such a circumstance, renderingthis case moot.

‘‘In deciding whether a case is moot,‘[t]he crucial question is whether grantinga present determination of the issues of-fered TTT will have some effect in the realworld.’ ’’ Id. at 1246 (alteration in original)(quoting Davidson, 236 F.3d at 1182); seePhelps v. Hamilton, 122 F.3d 885, 891(10th Cir.1997) (noting that the ‘‘inabilityto grant effective relief renders’’ an issuemoot). To the extent that the Board char-acterizes this case as merely a challenge tothe unwritten policy regarding placementof displays on the courthouse lawn, the


assertion is belied by the very portion ofthe complaint that they cite. It chargesthat the Board’s ‘‘ ‘acts, practices, and poli-cies constitute an impermissible endorse-ment.’ ’’ Aplee. Br. at 25 (quoting App. at25). The Board’s implementation of itsMay 2006 policy does not alter the previ-ous actions of the Board; nor does itchange the Board’s alleged endorsement ofreligion through the Monument. Mr.Green has sought a declaration thatBoard’s actions resulting in the erection ofthe Ten Commandments display were un-constitutional. See App. at 731 (amendedpretrial order noting that plaintiffs ‘‘seekdeclaratory relief that the Ten Command-ments Monument and its placement onHaskell County Courthouse law violatesthe Establishment Clause’’).

Moreover, insofar as the Board’s moot-ness assertion rests on the ground that,regardless of the outcome of this case, its2006 written policy would oblige it to ac-cept an identical monument for display,the assertion is untenable. The possibilitythat a future monument installed underdifferent circumstances might pass consti-tutional muster does not moot the presentcase. We are unable to decide that hypo-thetical case on the facts before us. SeeO’Connor, 416 F.3d at 1222 (‘‘Although itis conceivable that the university couldbring some other religiously themed statueonto campus as part of a future sculptureexhibition, this court cannot resolve theconstitutionality of a hypothetical futurestatue given that Establishment Clause

questions are heavily dependent on thespecific context and content of the dis-play.’’). The Monument remains on thecourthouse lawn; at bottom, Mr. Green’slawsuit seeks its removal. Therefore, Mr.Green has a legally cognizable interest inthis litigation’s outcome. For the forego-ing reasons, then, we conclude that thiscase presents a live case or controversyand is not moot.

C. Establishment Clause Claim

1. Standard of Review

[8, 9] Ordinarily, we ‘‘review the dis-trict court’s factual findings, made after abench trial, for clear error[,] and its legalconclusions de novo.’’ Orient Mineral Co.v. Bank of China, 506 F.3d 980, 1001 (10thCir.2007), cert. denied, ––– U.S. ––––, 128S.Ct. 2872, 171 L.Ed.2d 811 (2008); seealso Fed.R.Civ.P. 52(a)(6).6 However, in aFirst Amendment case, we have an ‘‘obli-gation to make an independent examina-tion of the whole record.’’ Snyder v. Mur-ray City Corp., 159 F.3d 1227, 1230 n. 7(10th Cir.1998) (en banc) (internal quota-tion marks omitted) (citing Bose Corp. v.Consumers Union of U.S., Inc., 466 U.S.485, 499, 104 S.Ct. 1949, 80 L.Ed.2d 502(1984)); Weinbaum, 541 F.3d at 1029.‘‘We review de novo a ‘district court’s find-ing of constitutional fact’ and its ‘ultimateconclusions’ regarding a First Amendmentchallenge.’’ 7 Weinbaum, 541 F.3d at 1029(quoting Fleming v. Jefferson County Sch.Dist. R–1, 298 F.3d 918, 922 (10th Cir.2002)). More specifically, in Establish-

6. Rule 52(a)(6) provides: ‘‘Findings of fact,whether based on oral or other evidence,must not be set aside unless clearly errone-ous, and the reviewing court must give dueregard to the trial court’s opportunity to judgethe witnesses’ credibility.’’

7. In Bose, the Supreme Court concluded that‘‘the strictures of Federal Rule of Civil Proce-dure 52(a) did not apply to a district court’sconclusion that an alleged libeler had ‘actual

malice’ because the determination was a‘First Amendment question[ ] of constitutionalfact.’ ’’ United States v. Friday, 525 F.3d 938,949 (10th Cir.2008) (quoting Bose, 466 U.S. at508 n. 27, 104 S.Ct. 1949), cert. denied, –––U.S. ––––, 129 S.Ct. 1312, 173 L.Ed.2d 595(2009); see generally Henry P. Monaghan,Constitutional Fact Review, 85 Colum. L.Rev.229 (1985).


ment Clause cases, we consider ‘‘a districtcourt’s findings on each part of the Lemontest’’ to be ‘‘constitutional facts.’’ Robin-son v. City of Edmond, 68 F.3d 1226, 1230n. 7 (10th Cir.1995) (applying the test de-rived from Lemon v. Kurtzman, 403 U.S.602, 91 S.Ct. 2105, 29 L.Ed.2d 745 (1971)).We must still give ‘‘due regard,’’ however,to the trial judge’s opportunity to observethe demeanor of witnesses. Bose, 466 U.S.at 499–500, 514, 104 S.Ct. 1949.

Furthermore, our searching review ofthe record with regard to ‘‘constitutionalfacts’’ does not alter our ordinary clearly-erroneous review of the district court’sother factual findings. See id. at 514 n. 31,104 S.Ct. 1949 (‘‘The independent reviewfunction is not equivalent to a ‘de novo’review of the ultimate judgment itself, inwhich a reviewing court makes an originalappraisal of all the evidence to decidewhether or not it believes that judgmentshould be entered for plaintiff.’’). ‘‘[T]hespecial Bose rule applies only to ‘constitu-tional facts’ and not to the basic historicalfacts upon which the claim is grounded,which are subject to the usual ‘clearly er-roneous’ standard of review.’’ Friday, 525F.3d at 950 (applying Bose to a Free Exer-cise Clause claim). While it may be diffi-cult at times to distinguish historical factsfrom constitutional facts, we will give def-erence to the district court’s ordinary fac-tual findings and more closely review itsconclusions about ‘‘purpose,’’ ‘‘effect,’’ and‘‘entanglement.’’

2. The Lemon Test

[10] The Religion Clauses of the FirstAmendment provide that ‘‘Congress shallmake no law respecting an establishmentof religion, or prohibiting the free exercisethereof.’’ U.S. Const. amend. I. Like oth-er provisions of the First Amendment,they are applied to the states under theFourteenth Amendment. Cantwell, 310

U.S. at 303, 60 S.Ct. 900. ‘‘Despite scat-tered signals to the contrary, the touch-stone for Establishment Clause analysisremains the tripartite test set out in Lem-on.’’ Weinbaum, 541 F.3d at 1030 (foot-note omitted); see Utah Gospel Mission v.Salt Lake City Corp., 425 F.3d 1249, 1258–59 (10th Cir.2005) (noting that we deemthe Lemon test to be the ‘‘traditional stan-dard’’ for evaluating Establishment Clauseclaims). Under that test, to avoid an Es-tablishment Clause violation, the chal-lenged government action (1) must have asecular legislative purpose, (2) must have aprincipal or primary effect that neitheradvances nor inhibits religion, and (3) mustnot foster an excessive government entan-glement with religion. Utah Gospel Mis-sion, 425 F.3d at 1259 (citing Lemon, 403U.S. at 612–13, 91 S.Ct. 2105).

[11] Justice O’Connor’s concurringopinion in Lynch v. Donnelly, 465 U.S.668, 687–94, 104 S.Ct. 1355, 79 L.Ed.2d 604(1984) (O’Connor, J., concurring), offered‘‘a refined version of the Lemon test’’ im-plicating its purpose and effect elementsthat has been repeatedly used in this cir-cuit. O’Connor, 416 F.3d at 1224 (‘‘Inexamining challenges to government actionunder the Establishment Clause, this cir-cuit has interpreted the purpose and effectprongs of Lemon in light of Justice O’Con-nor’s endorsement test.’’); see Weinbaum,541 F.3d at 1030; Bauchman ex rel.Bauchman v. W. High Sch., 132 F.3d 542,551 (10th Cir.1997). This ‘‘endorsementtest’’ holds that ‘‘the government imper-missibly endorses religion if its conducthas either (1) the purpose or (2) the effectof conveying a message that religion or aparticular religious belief is favored or pre-ferred.’’ Bauchman, 132 F.3d at 551 (in-ternal quotation marks omitted).

We are obliged here to apply the Lemontest, with Justice O’Connor’s endorsementpatina. See Weinbaum, 541 F.3d at 1030


(noting our obligation to apply the ‘‘hybridLemon /endorsement test’’); O’Connor,416 F.3d at 1224 (‘‘This court will thereforecontinue to apply the Lemon test as modi-fied by Justice O’Connor’s endorsementtest, while remaining mindful that there is

‘no test-related substitute for the exerciseof legal judgment.’ ’’) (quoting Van Orden,545 U.S. at 700, 125 S.Ct. 2854 (Breyer, J.,concurring)).8 A governmental action vio-lates the Establishment Clause if it fails tosatisfy any of three prongs of the Lemon

8. A plurality of the Supreme Court has (a)concluded that the Lemon test is ‘‘not usefulin dealing with the sort of passive [Ten Com-mandments] monument that Texas has erect-ed on its Capitol grounds,’’ (b) disregardedthe endorsement test, and (c) instead em-ployed an analysis ‘‘driven both by the natureof the monument and by our Nation’s histo-ry.’’ Van Orden, 545 U.S. at 686, 125 S.Ct.2854 (plurality opinion). Justice Breyer con-curred in the judgment, noting that ‘‘theCourt has found no single mechanical formu-la that can accurately draw the constitutionalline in every case’’ and declaring that in bor-derline cases there is ‘‘no test-related substi-tute for the exercise of legal judgment.’’ Id.at 699–700, 125 S.Ct. 2854 (Breyer, J., con-curring). In Weinbaum, we observed thatcertain Supreme Court Justices have ‘‘harshlycriticized’’ the Lemon test. Weinbaum, 541F.3d at 1030 n. 14. However, we ultimatelyconcluded that we are still obliged to applyLemon, as refined by Justice O’Connor’s en-dorsement test: ‘‘[T]he Lemon test clings tolife because the Supreme Court, in the seriesof splintered Establishment Clause cases sinceLemon, has never explicitly overruled thecase. While the Supreme Court may be freeto ignore Lemon, this court is not.’’ Id. (cita-tion omitted); see also Edith Brown Clement,Public Displays of Affection TTT For God: Re-ligious Monuments After McCreary and VanOrden, 32 Harv. J.L. & Pub. Pol’y 231, 246(2009) [hereinafter Clement, Public Displays ](‘‘Most courts of appeals have concluded thatthe Lemon tripartite test of purpose, effect,and entanglement still stands after Van Orden,yet this conclusion has not come without astruggle.’’). Therefore, we cannot do as theBoard wishes, see Aplee. Br. at 38, 45–46 n.21, and be guided in our analysis by the VanOrden plurality’s disregard of the Lemon test.

The Board also has argued that Establish-ment Clause jurisprudence should not applyhere at all and that this case should be ana-lyzed under the legal framework of the FreeExercise Clause. ‘‘The Free Speech Clauserestricts government regulation of privatespeech; it does not regulate government

speech.’’ Pleasant Grove City, Utah v. Sum-mum, ––– U.S. ––––, 129 S.Ct. 1125, 1131,172 L.Ed.2d 853 (2009) (emphasis added).As a logical and necessary support for itsargument, the Board thus maintains that theMonument should be viewed as privatespeech rather than government speech. TheSupreme Court’s recent Pleasant Grove deci-sion, however, forecloses this argument.There, the Court held that ‘‘[p]ermanent mon-uments displayed on public property typicallyrepresent government speech’’ and, therefore,Free Exercise Clause jurisprudence is inappo-site. Id. at 1132. The Board notes that theSupreme Court did not say that all permanentmonuments constitute government speech—just that they typically do—and that the Boardhas intentionally opened a limited public fo-rum for monuments on the courthouse lawn.We are hard-pressed to view the circum-stances here as resembling the ‘‘limited cir-cumstances in which the forum doctrinemight properly be applied to a permanentmonument,’’ as described by the PleasantGrove Court. Id. at 1138 (noting that such‘‘limited circumstances’’ might be present,‘‘for example, if a town created a monumenton which all of its residents (or all thosemeeting some other criterion) could place thename of a person to be honored or someother private message’’). This is simply notone of those ‘‘situations in which it is difficultto tell whether a government entity is speak-ing on its own behalf or is providing a forumfor private speech.’’ Id. at 1132. However,as the Court noted: ‘‘This does not mean thatthere are no restraints on government speech.For example, government speech must com-port with the Establishment Clause.’’ Id. at1131–32; see id. at 1139 (Stevens, J., concur-ring) (‘‘For even if the Free Speech Clauseneither restricts nor protects governmentspeech, government speakers are bound bythe Constitution’s other proscriptions, includ-ing those supplied by the Establishment andEqual Protection Clauses.’’). And it is thepropriety of the Board’s action under the Es-tablishment Clause that is properly before ushere.


test. See Utah Gospel Mission, 425 F.3dat 1259 (‘‘Thus, to succeed, Plaintiffs mustallege facts which suggest a violation ofany part of the [Lemon] analysis.’’ (em-phasis added)); Bauchman, 132 F.3d at551 (noting that governmental action doesnot run afoul of the Establishment Clause‘‘so long as’’ it satisfies all three prongs ofthe Lemon test); see also O’Connor, 416F.3d at 1224 (relying on Bauchman innoting the need for the challenged govern-mental action to satisfy all three Lemonprongs).

Mr. Green’s arguments do not implicatethe third prong of the Lemon test. Thatis, Mr. Green does not contend on appealthat the Board’s conduct in relation to theTen Commandments display fosters an ex-cessive government entanglement with re-ligion. He does argue, however, that theBoard’s conduct in connection with the TenCommandments display fails to satisfyLemon’s first and second prongs. For thereasons stated below, we ultimately con-clude that the Board’s action does violatethe Establishment Clause with respect tothe second prong. In other words, weconclude that the principal or primary ef-fect of the Board’s action is to endorsereligion or a particular form of religion.Accordingly, we need not (and do not)opine on whether the Board’s action satis-fies the first Lemon prong (i.e., whetherthe Board’s purpose was secular).

3. Application

i. The Monument Is Not Presump-tively Unconstitutional

[12] ‘‘Establishment Clause cases arepredominantly fact-drivenTTTT’’ Wein-baum, 541 F.3d at 1022. We reject at theoutset Mr. Green’s argument that ‘‘[g]ov-ernmental [d]isplays of the [t]ext of theTen Commandments [a]re [p]resumptively[u]nconstitutional.’’ Aplt. Opening Br. at24. In Stone v. Graham, 449 U.S. 39, 41,

101 S.Ct. 192, 66 L.Ed.2d 199 (1980), theSupreme Court observed that ‘‘[t]he pre-eminent purpose for posting the Ten Com-mandments on schoolroom walls is plainlyreligious in nature.’’ In McCreary, theCourt construed that language to meanthat isolated exhibition in public schoolclassrooms ‘‘could presumptively be under-stood as meant to advance religion.’’McCreary, 545 U.S. at 867, 125 S.Ct. 2722.However, McCreary did not adopt a gen-eral presumption outside of that schoolcontext: Specifically, it noted that ‘‘Stonedid not purport to decide the constitution-ality of every possible way the Command-ments might be set out by the government,and under the Establishment Clause detailis key.’’ Id.; see also Van Orden, 545 U.S.at 690–91, 125 S.Ct. 2854 (construing Stoneas an example of ‘‘particular[ ] vigilan[ce]in monitoring compliance with the Estab-lishment Clause in elementary and second-ary schools’’ (internal quotation marksomitted)); id. at 703, 125 S.Ct. 2854 (Brey-er, J., concurring) (distinguishing Stone onthe basis that ‘‘given the impressionabilityof the young, government must exerciseparticular care in separating church andstate’’ on the grounds of a public school).

The Ten Commandments have a secularsignificance that government may acknowl-edge. See Van Orden, 545 U.S. at 688–89,125 S.Ct. 2854 (plurality opinion) (provid-ing examples showing that ‘‘acknowledg-ments of the role played by the Ten Com-mandments in our Nation’s heritage arecommon throughout America’’ and observ-ing that the Court’s ‘‘opinions, like ourbuilding, have recognized the role the De-calogue plays in America’s heritage’’); id.at 701, 125 S.Ct. 2854 (Breyer, J., concur-ring) (noting that in certain contexts theCommandments can convey ‘‘a secularmoral message TTT about proper standardsof social conduct’’ or a message ‘‘about ahistoric relation between those standards


and the law’’). Like the McCreary Court,we are unwilling to presume that the textof the Ten Commandments here could notbe constitutionally integrated into a gov-ernmental display that highlights its secu-lar significance. See McCreary, 545 U.S.at 874, 125 S.Ct. 2722 (expressly decliningto hold that ‘‘a sacred text can never beintegrated constitutionally into a govern-mental display on the subject of law, orAmerican history’’).9 Accordingly, we re-ject Mr. Green’s contention that we shoulddeem the Board’s display of the Monumentas presumptively unconstitutional becausethe Monument is inscribed with the TenCommandments.

ii. The Monument’s Effect

[13–16] Governments may not ‘‘mak[e]adherence to a religion relevant in any wayto a person’s standing in the political com-munity.’’ County of Allegheny v. Am. Civ-il Liberties Union Greater PittsburghChapter, 492 U.S. 573, 594, 109 S.Ct. 3086,106 L.Ed.2d 472 (1989) (quoting Lynch,465 U.S. at 687, 104 S.Ct. 1355 (O’Connor,J., concurring)). And actions which havethe effect of communicating governmentalendorsement or disapproval, ‘‘whether in-tentionally or unintentionally, TTT makereligion relevant, in reality or public per-ception, to status in the political communi-ty.’’ Lynch, 465 U.S. at 692, 104 S.Ct.1355 (O’Connor, J., concurring). In apply-ing the effect prong, we ‘‘evaluate whethera reasonable observer, aware of the histo-ry and context of the community in whichthe conduct occurs, would view the prac-tice as communicating a message of gov-ernment endorsement or disapproval.’’Bauchman, 132 F.3d at 551–52 (internal

quotation marks omitted). ‘‘However, notevery governmental activity that confers aremote, incidental or indirect benefit uponreligion is constitutionally invalid.’’ Id. at555. Rather, it must be established thatthe governmental activity has ‘‘a prin-cip[al] or primary effect of advancing orendorsing religion.’’ Id.

In Weinbaum, we noted that applicationof the effect prong of the Lemon test to aparticular set of facts ‘‘involves an objec-tive inquiry.’’ See Weinbaum, 541 F.3d at1031; cf. Borden v. Sch. Dist. of Twp. ofE. Brunswick, 523 F.3d 153, 175 (3d Cir.2008) (viewing the endorsement analysis asconstituting a distinct EstablishmentClause test but noting that ‘‘[t]he test doesnot focus on the government’s subjectivepurpose when behaving in a particularmanner, but instead focuses on the percep-tions of the reasonable observer’’), cert.denied, ––– U.S. ––––, 129 S.Ct. 1524, 173L.Ed.2d 656 (2009). We proceeded then tooffer a useful summary of the nature ofthe inquiry:

[T]he ‘‘effect’’ prong looks through theeyes of an objective observer who isaware of the purpose, context, and histo-ry of the symbol. The objective or rea-sonable observer is kin to the fictitious‘‘reasonably prudent person’’ of tort law.So we presume that the court-created‘‘objective observer’’ is aware of informa-tion ‘‘not limited to the informationgleaned simply from viewing the chal-lenged display.’’ If a government sym-bol has long gone unchallenged, there isa suggestion that an objective observerwould not think that the symbol endors-es a religious message.

9. In fact, the closest the McCreary Court cameto a presumption against a display of the TenCommandments is its conclusion that ‘‘a reli-gious object is unmistakable’’ when ‘‘the gov-ernment initiates an effort to place this state-ment alone in public view.’’ 545 U.S. at 869,

125 S.Ct. 2722. Because this case involvesneither government initiation nor an isolateddisplay, we are on firm footing in reviewingthis case without adopting a presumptionagainst the Monument.


Weinbaum, 541 F.3d at 1031 (citations andfootnote omitted) (quoting Gaylor v. Unit-ed States, 74 F.3d 214, 217 (10th Cir.1996);O’Connor, 416 F.3d at 1228).

In this inquiry, ‘‘[u]ndoubtedly, the ‘ob-jective observer’ is presumed to know farmore than most actual members of a givencommunity.’’ Id. at 1031 n. 16. ‘‘[R]eason-able observers have reasonable memories’’and are aware of ‘‘the context in which thepolicy arose.’’ McCreary, 545 U.S. at 866,125 S.Ct. 2722 (alteration and internal quo-tation marks omitted). However, we donot treat the reasonable observer as om-niscient. See, e.g., Bauchman, 132 F.3d at560 (concluding that courts ‘‘impart[ ] suchknowledge to the reasonable observer inthe broad sense of community awareness,not in the sense that a reasonable observerwould have knowledge of every allegedpast constitutional violation of a particulardefendant’’).

Consistent with the fact-intensive natureof this effect inquiry, ‘‘the Supreme Courthas advised that, in Establishment Clausecases, ‘the inquiry calls for line drawing;no fixed, per se rule can be framed.’ ’’Weinbaum, 541 F.3d at 1039 (quotingLynch, 465 U.S. at 678, 104 S.Ct. 1355). Achallenged government action that mightpass constitutional muster in some settingsmight be deemed ‘‘constitutionally suspectin some other American communities or inother contexts.’’ Id.; cf. Borden, 523F.3d at 158–59, 178 (holding that ‘‘when

viewing the acts [i.e., ‘‘silent acts of bowinghis head during his team’s pre-meal graceand taking a knee with his team during alocker-room prayer’’] in light of [plaintiffcoach’s] twenty-three years of prior prayeractivities with the East Brunswick HighSchool football team during which he orga-nized, participated in, and even led prayeractivities with his team, a reasonable ob-server would conclude that [plaintiff] wasendorsing religion when he engaged inthese acts,’’ but noting that ‘‘this conclu-sion would not be so clear’’ without these‘‘twenty-three years of prior prayer activi-ties’’). ‘‘Context carries much weight inthe Establishment Clause calculus.’’Weinbaum, 541 F.3d at 1033.

[17] Thus, the reasonable observer inthis case would be aware of the nature andhistory of the Haskell County community,the circumstances surrounding the Monu-ment’s placement on the courthouse lawn,its precise location on the lawn and itsspatial relationship to the other courthousemonuments, and also the Haskell Countycommunity’s response to the Monument.In particular, the reasonable observerwould be aware of Mr. Bush’s religiousmotivation for seeking the erection of theMonument. After learning of these moti-vations, the Board swiftly approved itserection and allowed the project to goforward, despite being aware that theremight be adverse legal consequences.10

10. To be clear, the focus is on the governmentactor’s conduct rather than the private citi-zen’s. In connection with Lemon’s purposeprong, this is probably most patent. SeeWeinbaum, 541 F.3d at 1031 (‘‘[W]e mustscrutinize the government’s intent; thus,where the challenged conduct is the selectionor display of artwork, the artist’s inspirationor intent is irrelevant.’’); Summum v. City ofOgden, 297 F.3d 995, 1010 (10th Cir.2002)(‘‘The purpose inquiry, however, centers noton the purpose animating the speech of aparticular private actor TTT but, rather, on thepurpose for which the government allows such

speech on government property.’’); cf. Bor-den, 523 F.3d at 175 (noting that ‘‘[t]he [en-dorsement] test does not focus on the govern-ment’s subjective purpose when behaving in aparticular manner, but instead focuses on theperceptions of the reasonable observer’’).Therefore, the subjective motivation of Mr.Bush per se, in the purpose inquiry, is essen-tially irrelevant. However, as to the effectprong, things are not that simple. Under theeffect prong, although the area of concern isstill the government actor’s conduct—that is,its effect—the analysis must undertake a sig-


And, when those adverse legal conse-quences did in fact materialize in the formof Mr. Green’s lawsuit, the Board seeming-ly did not hesitate to stay the course,electing to maintain the Monument withoutclarifying its purposes in doing so. Fur-ther, although the Monument ultimatelyalso was inscribed with the MayflowerCompact, the Board approved the Monu-ment with the understanding that it wouldbe inscribed only with the Ten Command-ments.

Haskell County is a place where ‘‘[e]v-eryone knows each other.’’ Green, 450F.Supp.2d at 1274. The Board memberswere identifiable as Board members. In-deed, one commissioner noted that Boardmembers act as county officials ‘‘24 hoursa day, 7 days a week.’’ App. at 535. Mr.Bush also testified that everyone wouldknow the commissioners and they wouldnot have to be identified for people toknow their position.

The reasonable observer would knowthat two of the three commissioners at-tended the unveiling of the Monument,which had been organized by Mr. Bushand included remarks by local pastors.See Green, 450 F.Supp.2d at 1291 n. 30(‘‘[E]veryone knows each other[,] and wordtravels in Haskell County faster than theconstant airspeed of a European swal-

low.’’). Mr. Bush specifically recalled bothof the commissioners speaking at the un-veiling. Those commissioners posed forphotographs beside the Monument, whichappeared in locally distributed newspa-pers. After this lawsuit began, Mr. Bushorganized a religiously themed rally tosupport the Monument, which gathered acrowd of three to four hundred people.The same two commissioners attended.One of them spoke briefly in support of themonument, and he is reported to have said,‘‘I’ll stand up in front of that monumentand if you bring a bulldozer up here you’llhave to push me down with it.’’ App. at1405, 1186; see also Green, 450 F.Supp.2dat 1280.

Numerous quotes from these commis-sioners appear in news reports, rangingfrom statements reflecting their determi-nation to keep the Monument, see App. at459 (‘‘I won’t say that we won’t take itdown, but it will be after the fight.’’), tostatements of religious belief, see, e.g.,App. at 455 (‘‘That’s what we’re trying tolive by, that right there.’’ ‘‘The good Lorddied for me. I can stand for him. AndI’m going to.’’ ‘‘I’m a Christian and Ibelieve in this. I think it’s a benefit to thecommunity.’’); App. at 458–59 (‘‘God diedfor me and you, and I’m going to stand upfor him.’’). We conclude, in the unique

nificant inquiry into the surrounding circum-stances of which the reasonable observerwould have been aware. And, here, the rea-sonable observer would have been aware ofthe circumstances under which the Monu-ment came to sit on the courthouse lawn,including the fact that Mr. Bush revealed tothe Board his unalloyed religious motivationin seeking to put the Monument there andthat the Board in short order agreed to allowhim to erect it. The reasonable observerwould be very unlikely in the effect analysis togive the Board’s agreement determinativeweight as an endorsement of religion. Howev-er, in light of Mr. Bush’s expressed views, thereasonable observer could not negate this cir-cumstance as one in the totality of circum-

stances that was consistent with a conclusionthat the Board’s conduct had the effect ofendorsing religion. This is something thatthe reasonable observer would have beenmore readily able to do if Mr. Bush, for exam-ple, had voiced a historical or other secularpurpose for the installation of the Monument.Cf. Van Orden, 545 U.S. at 701, 125 S.Ct.2854 (Breyer, J., concurring) (noting that, giv-en the Fraternal Order of Eagles’s civic-edu-cation purposes aimed at fighting juvenile de-linquency, ‘‘[t]he circumstances surroundingthe display’s placement on the capitolgrounds,’’ inter alia, ‘‘suggest that the Stateitself intended the latter, nonreligious aspects[of the Ten Commandments] tablets’ messageto predominate’’).


factual setting of a small community likeHaskell County, that the reasonable ob-server would find that these facts tendedto strongly reflect a government endorse-ment of religion. In particular, we findsupport for this conclusion in the publicstatements of the Haskell County commis-sioners. In none of their statements didthe commissioners attempt to distinguishbetween the Board’s position and theirown beliefs. Several of the commissioners’statements would naturally be construedas having been made on behalf of theBoard, including, ‘‘I won’t say that wewon’t take it down, but it will be after thefight,’’ App. at 459 (emphasis added), and‘‘We’re definitely going to leave our monu-ment there until the law tells us to take itdown.’’ App. at 1170 (emphasis added).By not distinguishing their personal opin-ions from their official views, the commis-sioners left the impression that a principalor primary reason for the erection andmaintenance of the display was religious.See, e.g., App. at 458–59 (where one com-missioner’s statement that ‘‘God died forme and you, and I’m going to stand up forhim’’ appeared in close proximity to thestatement ‘‘I won’t say that we won’t takeit down, but it will be after the fight’’).

Nor did the Board ‘‘act[ ] affirmativelyto discourage any mistaken impressionthat private speakers [were] speaking forthe Board.’’ Peck v. Upshur County Bd.of Educ., 155 F.3d 274, 281 (4th Cir.1998).Such action or inaction has been foundsignificant in the Establishment Clausecontext. Cf. Rosenberger v. Rector &Visitors of Univ. of Va., 515 U.S. 819,841, 115 S.Ct. 2510, 132 L.Ed.2d 700(1995) (holding that government neutrali-ty was apparent where ‘‘the governmentha[d] not fostered or encouraged any mis-taken impression that’’ the private speechwas the university’s own (internal quota-tion marks omitted)); Capitol Square Re-view & Advisory Bd. v. Pinette, 515 U.S.

753, 766, 115 S.Ct. 2440, 132 L.Ed.2d 650(1995) (rejecting the idea that the distinc-tion between private and governmentspeech ‘‘disappears when the privatespeech is conducted too close to the sym-bols of government,’’ ‘‘at least where, ashere, the government has not fostered orencouraged the mistake’’); Bd. of Educ.v. Mergens ex rel. Mergens, 496 U.S. 226,251, 110 S.Ct. 2356, 110 L.Ed.2d 191(1990) (rejecting the ‘‘fear of a mistakeninference of endorsement’’ because theschool had the capacity to make clearthat ‘‘its recognition of [a student reli-gious] club is not an endorsement of theview of the club’s participants’’ and to theextent that it did so, ‘‘students will rea-sonably understand that the school’s offi-cial recognition of the club evinces neu-trality toward, rather than endorsementof, religious speech’’). Furthermore, thephotographs of commissioners standingbeside the Monument—at least one de-picting all three commissioners—give theimpression of the Board’s united endorse-ment of the Monument itself. Indeed, atleast two of the commissioners expresslyrecognized that they were asked by themedia to participate in the photographsbecause of their status as commissioners.

Like the Eighth Circuit, we ‘‘do notbelieve elected government officials are re-quired to check at the door whatever reli-gious background (or lack of it) they carrywith them before they act on rules that areotherwise unobjectionable under the con-trolling Lemon standards.’’ Clayton exrel. Clayton v. Place, 884 F.2d 376, 380(8th Cir.1989) (refusing to find an actionunconstitutional ‘‘due only to its harmonywith the religious preferences of constitu-ents or with the personal preferences ofthe officials taking action’’); cf. Van Or-den, 545 U.S. at 699, 125 S.Ct. 2854 (Brey-er, J., concurring) (‘‘[T]he EstablishmentClause does not compel the government to


purge from the public sphere all that inany way partakes of the religious. Suchabsolutism is TTT inconsistent with our na-tional traditions TTTT’’ (citations omitted)).In a small community like Haskell County,where everyone knows everyone, and thecommissioners were readily identifiable assuch, however, we conclude that the rea-sonable observer would have been left withthe clear impression—not counteracted bythe individual commissioners or the Boardcollectively—that the commissioners werespeaking on behalf of the government andthe government was endorsing the reli-gious message of the Monument. SeeMcCreary, 545 U.S. at 869, 125 S.Ct. 2722(‘‘The reasonable observer could only thinkthat the [government] meant to emphasize

and celebrate the Commandments’ reli-gious message.’’).11

We underscore that the reasonable ob-server’s impression of government en-dorsement would not be based upon thecommissioners’ statements alone. Thestatements would be just part of the histo-ry and context of which the reasonableobserver would be cognizant. In particu-lar, that observer also would know of thereligious motivation—seemingly endorsedby the Board—that led to the installationof the Monument. And the observerwould have little information indicatingthat there was more at play in the Monu-ment’s installation, and the Board mem-bers’ efforts to maintain it in the face ofclearly voiced Establishment Clause con-cerns,12 than the Board’s desire to facili-

11. We recognize that the district court had adifferent take on the situation.

No believable evidence exists that the Com-missioners were ever referred to in theirofficial capacities. Furthermore, given thenature of the humble tight-knit communityin this rural Oklahoma county described bywitnesses at trial, the court is not convincedthat a reasonable observer would haveviewed these men as speaking or appearingfor Haskell County government.

Green, 450 F.Supp.2d at 1293. However, wesimply do not find the court’s reasoning to bepersuasive. Precisely because Haskell Countyis ‘‘a small, sparsely-populated, rural Okla-homa county,’’ id., no one would need to referto the commissioners as acting in their officialcapacity in order for the reasonable observerto conclude that they were doing so. Fur-thermore, the court’s assertion that it was‘‘not convinced’’ from the witnesses’ testimo-ny about Haskell County’s characteristics thata reasonable observer would have deemed thecommissioners to be acting for the county isnot the sort of finding concerning ‘‘the basichistorical facts upon which the claim isgrounded’’ that is afforded ‘‘the usual ‘clearlyerroneous’ standard of review.’’ Friday, 525F.3d at 950; cf. Green, 450 F.Supp.2d at1284, 1293 (making this specific assertion ap-pearing in portion of opinion entitled ‘‘Con-clusions of Law’’). The question is notwhether the commissioners actually were car-rying out official functions in connection with

their appearances at the Monument and inoffering comments about it. Cf. Green, 450F.Supp.2d at 1276 (finding relative to theunveiling that ‘‘neither gentlemen appeared inhis official capacity as County Commission-er’’); id. at 1280 (finding as to the rally that‘‘there is no indication they attended in theirofficial capacity as County Commissioners’’).Rather, the question is whether a reasonableobserver would have perceived them as beingengaged in official activities. And the answerto that question is closely (if not inextricably)intertwined with the legal effect determina-tion. Therefore, insofar as it is a factualfinding at all, the court’s assertion regardingthe reasonable observer’s perception is akinto a finding concerning a constitutional factand subject to de novo review. See Wein-baum, 541 F.3d at 1029 (noting that in theFirst Amendment context we review de novoa district court’s findings concerning constitu-tional facts). Under that standard, we con-clude that the district court’s assertion is notwell-grounded.

12. There of course is no requirement thatgovernments fold under litigation pressure orexplain themselves when confronted with anEstablishment Clause challenge. Indeed, weobserved as much in O’Connor, 416 F.3d at1227 (‘‘A defendant’s failure to change itsbehavior in accordance with plaintiffs’ de-mands, however, is not in itself proof of anti-religious intent.’’). However, significantly,


tate the dissemination of a religious (i.e., intheir view, Christian) message. In thislight, we would be hard-pressed to con-clude that ‘‘a reasonable observer, reason-ably informed as to the relevant circum-stances, would perceive the government tobe acting neutrally.’’ 13 City of Ogden, 297F.3d at 1010.

We recognize that certain evidenceweighs against a finding of endorsement.However, surveying the entire record, we

cannot conclude that this evidence suffi-ciently blunts the message of endorse-ment that we find to be present to alterthe result. Perhaps militating most sig-nificantly in favor of a conclusion of non-endorsement is the fact that a reasonableobserver would have noticed that theMonument was one of numerous othermonuments and displays on the court-house lawn. This fact would typicallyweigh against a finding of endorsement.

the O’Connor court took note under Lemon ofthe university’s publicly announced secularreasons for continuing to maintain the alleg-edly anti-Catholic display after EstablishmentClause concerns were raised. Id. at 1228. Inparticular, just because a government is notrequired to explain its intent in erecting andretaining a Ten Commandments display, inthe face of strongly voiced religious endorse-ment allegations, does not mean that the rea-sonable observer is prohibited from consider-ing the government’s decision to stand mute,and from drawing inferences from that deci-sion that the law ordinarily permits to bedrawn when one does not rebut a seriousallegation of wrongdoing, despite understand-ing it and being well situated to respond—thatis, the inference that the government acceptsthe truth of the allegation. Cf. Fed.R.Evid.801(d)(2)(B) (discussing adoptive admissions:‘‘a statement of which the party has manifest-ed an adoption or belief in its truth’’); 5Joseph M. McLaughlin et al., Weinstein’s Fed-eral Evidence (2d ed.2009) (noting that ‘‘[a]party can adopt another’s statement by re-sponding to it with silence,’’ and that courtsmust look to the circumstances includingwhether the party ‘‘understand[s] the state-ment’’ and is able or ‘‘unable TTT to reply toit’’); see also New Eng. Mut. Life Ins. Co. v.Anderson, 888 F.2d 646, 650 (10th Cir.1989)(declining to apply the adoptive admissionprinciple to defendant because, inter alia,‘‘New England did not establish that she hadever read the Times article [including the al-leged statement], or that she was in any posi-tion to respond to the article’’). That infer-ence would not be determinative by anymeans, but it would be one factor, amongmany others, that the reasonable observercould consider in reaching a conclusion onthe endorsement issue.

13. The Board can draw little (if any) supportfrom the fact that Mr. Bush raised the fundsfor the Monument from private sources andeffectively donated it to Haskell County forplacement on the courthouse lawn. SeeGreen, 450 F.Supp.2d at 1295–96 (treating the‘‘unexpected dispute’’ over whether HaskellCounty actually owns the Monument as essen-tially waived). The Supreme Court’s PleasantGrove decision dispels any doubt—at least un-der these facts—that, once donated, the Mon-ument manifested government speech as amatter of law. Pleasant Grove, 129 S.Ct. at1132, 129 S.Ct. 1125 (holding that ‘‘[p]erma-nent monuments displayed on public propertytypically represent government speech’’); seesupra note 8. Furthermore, even before Pleas-ant Grove, Establishment Clause jurispru-dence made clear that, standing alone, thefact that a display is privately donated cannotinsulate the government actor from a mean-ingful constitutional challenge; indeed, Es-tablishment Clause cases not uncommonlyhave involved donated displays. See, e.g., VanOrden, 545 U.S. at 701, 125 S.Ct. 2854 (Brey-er, J., concurring) (‘‘The group that donatedthe monument, the Fraternal Order of Eagles,a private civic (and primarily secular) organi-zation, while interested in the religious aspectof the Ten Commandments, sought to high-light the Commandments’ role in shaping civ-ic morality as part of that organization’s ef-forts to combat juvenile delinquency.’’); Cardv. City of Everett, 520 F.3d 1009, 1010 (9thCir.2008) (noting in an Establishment Clausecase that the monument was ‘‘donated to theCity of Everett TTT by the local aerie (chapter)of the Fraternal Order of Eagles’’); cf. Cityof Ogden, 297 F.3d at 998, 1009 (undertakingEstablishment Clause hypothetical analysiswhen raised as a ‘‘defense’’ in lawsuit involv-ing Ten Commandments monument donatedby the Fraternal Order of Eagles).


See O’Connor, 416 F.3d at 1228 (‘‘Thereasonable observer TTT would thereforebe aware that the statue was one of thirtyoutdoor sculptures displayed on theWashburn campus, of which several werelocated within sight of the challenged dis-play.’’); City of Ogden, 297 F.3d at 1011(‘‘[W]e are persuaded that a reasonableobserver would, instead, note the fact thatthe lawn of the municipal building con-tains a diverse array of monuments, somefrom a secular and some from a sectarianperspective.’’); see also Van Orden, 545U.S. at 701, 125 S.Ct. 2854 (Breyer, J.,concurring) (‘‘[T]o determine the messagethat the text [of the Ten Commandments]here conveys, we must examine how thetext is used. And that inquiry requiresus to consider the context of the dis-play.’’); O’Connor, 416 F.3d at 1228(‘‘[T]he question of whether the govern-ment has endorsed a particular religiousdisplay depends in large part on the dis-play’s particular physical setting.’’). Inthis regard, in finding that the Monumentwas constitutional, the district courtopined that the ‘‘melange’’ on the court-house lawn represents ‘‘what HaskellCounty citizens consider the noteworthyevents and sentiments of their county,

their state and their nation.’’ Green, 450F.Supp.2d at 1295.14

However, the Monument is not a part ofa unified exhibit in a ‘‘typical museumsetting’’ like the statute found in O’Con-nor. See O’Connor, 416 F.3d at 1228 (not-ing that a brochure made clear ‘‘that thestatue was part of an outdoor art exhibit’’).Nor is the courthouse lawn a setting thatis typically associated with intellectual ex-perimentation like the university setting ofO’Connor. Id. at 1229–30 (noting that thestatue at issue, Holier Than Thou, was‘‘displayed in the context of a universitycampus, a place that is peculiarly the mar-ketplace of ideas’’ and that ‘‘especially’’ inthat context ‘‘no reasonable person wouldassociate the message of Holier ThanThou with the state’’ (internal quotationmarks omitted)). Furthermore, we do notview the Haskell County courthouse con-text as bearing a close resemblance to themonument setting in Van Orden. 545 U.S.at 702, 125 S.Ct. 2854 (Breyer, J., concur-ring) (describing the monument sitting ‘‘ina large park containing 17 monuments and21 historical markers, all designed to illus-trate the ‘ideals’ of those who settled inTexas and of those who lived there sincethat time’’).15 Although ultimately finding

14. We do not think the reasonable observerwould find the Monument’s precise locationmilitates in favor of a conclusion of impermis-sible endorsement. Mr. Green would have usplace significance on the fact that the Monu-ment could be viewed from the road. Whilewe have noted in the past that a prominentlocation can weigh in favor of endorsement,see O’Connor, 416 F.3d at 1228 (observingthat factors including ‘‘the statue’s locationnext to a footpath at a prominent location oncampus, in an area reserved for official use’’would ‘‘weigh toward a finding of state en-dorsement’’), this Monument was placed inline with the other monuments already on thelawn, and the monuments could all be seentogether. See Appendix Ex. C. Thus, we seeno grounds for concluding that a reasonableobserver would find that the Board had as-signed a place of special prominence to the

Monument in an effort to endorse its religiousmessage. See Green, 450 F.Supp.2d at 1294(‘‘[T]he Monument is not particularly large,and is not in a clearly high traffic areaTTTT

Furthermore, the Monument does not appearto be placed in an area that is the mostfrequented route taken to the courthouse bycitizens going there to undertake business.’’).However, as suggested by the analysis relat-ing to O’Connor and Van Orden in text infra,this point hardly wins the day for the Board.

15. To be sure, at a high level of generality, theHaskell County courthouse display involvingthe Monument does bear some similarities tothe capitol grounds display in Van Orden.However, one might reasonably expect thatfrequently that will be the case with Ten Com-mandments monument displays on court-house lawns, or capitol grounds, or similar


that the Monument had a secular effect,the district court here acknowledged that‘‘people TTT might see the monument dis-play [of Van Orden] in Texas as morecohesive, more integrated, more, well, ar-tistic than the Stigler melange.’’ 16 Green,450 F.Supp.2d at 1288.

Significantly, the sharp contrast be-tween the timing of the legal challenges tothe monument in Van Orden and the onein this case sheds significant light onwhether the reasonable observer wouldhave perceived the latter as having theeffect of endorsing religion. See Wein-baum, 541 F.3d at 1031 (‘‘If a governmentsymbol has long gone unchallenged, thereis a suggestion that an objective observerwould not think that the symbol endorsesa religious message.’’). In Van Orden,Justice Breyer observed that ‘‘40 yearspassed in which the presence of this monu-ment, legally speaking, went unchal-lenged.’’ 545 U.S. at 702, 125 S.Ct. 2854

(Breyer, J., concurring); see id. at 682, 125S.Ct. 2854 (plurality opinion) (‘‘Forty yearsafter the monument’s erection and sixyears after Van Orden began to encounterthe monument frequently, he sued numer-ous state officials in their official capacitiesTTT seeking both a declaration that themonument’s placement violates the Estab-lishment Clause and an injunction requir-ing its removal.’’).

Justice Breyer reasoned that thoseyears of tranquility ‘‘suggest more strong-ly than can any set of formulaic tests thatfew individuals, whatever their system ofbeliefs, are likely to have understood themonument as amounting, in any signifi-cantly detrimental way, to a governmenteffort to favor a particular religious sect,primarily to promote religion over nonreli-gion.’’ Id. at 702, 125 S.Ct. 2854 (Breyer,J., concurring); cf. id. at 703, 125 S.Ct.2854 (‘‘This case also differs from

governmental venues. Even before Van Or-den, governments undoubtedly were inclinedto display in such places multiple symbols ofthings that they presumed the people theyserved cherished or venerated, including theTen Commandments. E.g., City of Ogden, 297F.3d at 998 (‘‘Located to the left and to theright of the Monument are, respectively, apolice officer memorial and a sister city treeand plaque. Also located on the MunicipalGrounds, though somewhat removed from thearea containing the above-described monu-ments, are various historical markers.’’). Af-ter Van Orden, governments wishing to dis-play Ten Commandments monuments will beeven more motivated to display them withmultiple symbols in the hope of gaining someincremental level of protection against Estab-lishment Clause liability.

16. Lest we generate confusion, this is not amatter of aesthetics. In Van Orden, the secularhistorical and moral messages of the TenCommandments display were highlighted bythe fact that they were part of an assortmentof monuments that shared a unifying, cohe-sive secular theme. Van Orden, 545 U.S. at701–02, 125 S.Ct. 2854 (Breyer, J., concur-ring). That theme reflected ‘‘the historical‘ideals’ of Texans’’ that allegedly were

grounded on moral principles involving ethicsand the law. Id. at 702, 125 S.Ct. 2854.Therefore, at least in part due to the cohesivetheme, the capitol grounds display in VanOrden ‘‘communicate[d] to visitors’’ predomi-nately the message that ‘‘the State sought toreflect moral principles, illustrating a relationbetween ethics and law,’’ id.—rather than amessage that was predominately religious.The district court here apparently recognizedthis aspect of Van Orden. That led the courtto observe that, although there were severalmonuments on Haskell County’s courthouselawn, there was less of a unifying, cohesivesecular theme associated with those monu-ments than with the Van Orden monuments.As a consequence, under the reasoning of VanOrden, the Haskell County courthouse displaywas at least to some appreciable degree lesslikely than the Van Orden display to bring tothe fore the secular historical and moral mes-sages of the Ten Commandments. The rea-sonable observer therefore would be moreinclined than in Van Orden to view the TenCommandments as evincing a religious mes-sage. Therefore, the point here is not one ofaesthetics.


McCreary County, where the short (andstormy) history of the courthouse Com-mandments’ displays demonstrates thesubstantially religious objectives of thosewho mounted them, and the effect of thisreadily apparent objective upon those whoview them.’’). Indeed, Justice Breyerfound the passage of forty years without achallenge to the monument to be ‘‘determi-native.’’ 17 Id. at 702, 125 S.Ct. 2854; cf.Pleasant Grove, 129 S.Ct. at 1140, 129S.Ct. 1125 (Scalia, J., concurring) (notingthat ‘‘[t]he city can safely exhale’’ and itsresidents can enjoy a public park contain-ing a Ten Commandments monument‘‘without fear that they are complicit in anestablishment of religion,’’ because, interalia, the monument ‘‘was erected in 1971’’and that ‘‘means it is approaching its (mo-mentous!) 40th anniversary’’ without anEstablishment Clause challenge).

Here, the difference is striking. In lessthan one year after the Monument wasunveiled, Mr. Green challenged the erec-tion of the Monument as an EstablishmentClause violation, filing the federal lawsuitunderlying this appeal. Accordingly, de-spite its presence on the courthouse lawnwith other displays and monuments, thisrather prompt litigation response to theMonument makes it difficult for us toglean ‘‘a suggestion that an objective ob-server would not think that the symbolendorses a religious message.’’ Wein-baum, 541 F.3d at 1031. Accordingly,viewing the record as a whole, we do notbelieve that the Monument’s setting hereshould lead us to a different conclusion onthe endorsement question.

Likewise, we cannot conclude that theMonument’s text that is unrelated to theTen Commandments would persuade areasonable observer that the principal orprimary effect was not to endorse religion.The reasonable observer would have beenaware that the Monument not only con-tained the Ten Commandments, but alsothe Mayflower Compact. The fact that theTen Commandments are not displayed inisolation is not without significance. See,e.g., McCreary, 545 U.S. at 869, 125 S.Ct.2722 (‘‘The point is simply that the originaltext [of the Ten Commandments] viewedin its entirety is an unmistakably religiousstatement dealing with religious obli-gations and with morality subject to reli-gious sanction. When the government ini-tiates an effort to place this statementalone in public view, a religious object isunmistakable.’’ (emphasis added)). But, atleast on these facts, the import of its pair-ing with the Mayflower Compact is equivo-cal at best.

The Mayflower Compact has an inde-pendent historical significance and alsodemonstrates the relevance of religion tothat history. See, e.g., Sch. Dist. of Abing-ton Twp. v. Schempp, 374 U.S. 203, 213, 83S.Ct. 1560, 10 L.Ed.2d 844 (1963) (‘‘Thefact that the Founding Fathers believeddevotedly that there was a God and thatthe unalienable rights of man were rootedin Him is clearly evidenced in their writ-ings, from the Mayflower Compact to theConstitution itself.’’); see also Van Orden,545 U.S. at 683, 125 S.Ct. 2854 (quoting

17. Given that Van Orden was decided by aplurality, the separate opinion of Justice Brey-er, who supplied the ‘‘decisive fifth vote,’’Heideman v. S. Salt Lake City, 348 F.3d 1182,1198 (10th Cir.2003), is controlling under therule of Marks v. United States, 430 U.S. 188,193, 97 S.Ct. 990, 51 L.Ed.2d 260 (1977)(‘‘When a fragmented Court decides a caseand no single rationale explaining the result

enjoys the assent of five Justices, the holdingof the Court may be viewed as that positiontaken by those Members who concurred inthe judgments on the narrowest grounds.’’(internal quotation marks omitted)). SeeClement, Public Displays, supra, at 241 (‘‘Be-cause no opinion [in Van Orden ] commandeda majority, Justice Breyer’s concurring opin-ion is the law of the case.’’).


same); Edwards v. Aguillard, 482 U.S.578, 606, 107 S.Ct. 2573, 96 L.Ed.2d 510(1987) (Powell, J., concurring) (quotingsame). However, we cannot construe adisplay of the Ten Commandments not tobe an endorsement of religion merely be-cause it is accompanied by the MayflowerCompact or other secular documents. SeeMcCreary, 545 U.S. at 854, 856, 125 S.Ct.2722 (noting that the Mayflower Compactwas included in the second and third ver-sions of the display containing the TenCommandments that was ultimately struckdown). Its inclusion arguably could beviewed as merely part of an ‘‘unstintingfocus TTT on religious passages’’ thatmerely furthers the endorsement. Id. at870, 125 S.Ct. 2722. The evidence thuscuts in both directions, and because noeffort was made by the Board to help thereader interpret the intended relationshipbetween the two documents, the reason-able observer would not find the Mayflow-er Compact helpful in determining wheth-er the Monument endorses religion.18

Similarly, we do not believe that thereasonable observer would be less inclinedto find an impermissible endorsement of

religion because of the Monument’s nota-tion ‘‘Erected by Citizens of Haskell Coun-ty.’’ We recently suggested in other casesthat a city could post a disclaimer ‘‘explain-ing clearly that private entities are respon-sible for at least some of the [monumentson municipal grounds], including the TenCommandments Monument and the SevenPrinciples Monument.’’ City of Ogden, 297F.3d at 1011; see Van Orden, 545 U.S. at701–02, 125 S.Ct. 2854 (Breyer, J., concur-ring) (‘‘The tablets, as displayed on themonument [bearing the Ten Command-ments], prominently acknowledge that theEagles [a private civic, and primarily secu-lar, group] donated the display, a factorwhich, though not sufficient, thereby fur-ther distances the State itself from thereligious aspect of the Commandments’message.’’). However, the addition of sucha disclaimer would not be ‘‘sufficient,’’alone, Van Orden, 545 U.S. at 701, 125S.Ct. 2854 (Breyer, J., concurring), andcould not tip the balance on these facts,given the very significant magnitude of theevidence indicating an impermissible en-dorsement.19 Furthermore, any incremen-

18. Furthermore, we also note that the reason-able observer would have been aware that theMayflower Compact was added by Mr. Bushafter the Board authorized the Monumentproject and the Board apparently did not sub-sequently formally agree to its placement onthe Monument. This fact may bear more onthe purpose inquiry. Cf. O’Connor, 416 F.3dat 1226 (‘‘Nor does the evidence show thatthe statue’s caption was selected with anti-Catholic intent. The record establishes thatthe caption had not yet been placed on thestatue at the time it was selected by the Cam-pus Beautification Committee and approvedby President Farley.’’). However, the Monu-ment’s context and history certainly also arerelevant to the effect inquiry. See, e.g., Wein-baum, 541 F.3d at 1031 (noting that the effectprong ‘‘looks through the eyes of an objectiveobserver who is aware of the purpose, context,and history of the symbol’’ (emphasis added));cf. O’Connor, 416 F.3d at 1225 n. 2 (‘‘In thiscase, the context and content of the statue is

relevant to the effect of the display in additionto the university’s purpose.’’) Therefore, thereasonable observer assessing the Monu-ment’s effect would have been aware that atthe time the Board authorized its erection, asfar as the Board knew, the Monument wouldconsist only of the Ten Commandments. Cf.Weinbaum, 541 F.3d at 1033 (‘‘Effects aremost often the manifestations of a motivatingpurpose.’’). Consequently, even if the inde-pendent historical significance of the May-flower Compact ordinarily would militate infavor of a finding of non-endorsement in thereasonable observer’s eyes, the reasonable ob-server probably would have been less likely togive it that effect here.

19. Indeed, we had no occasion in City ofOgden to assess the likely impact of such adisclaimer because it would merely have aid-ed there in confirming what already wasclearly not an Establishment Clause violation.


tal movement toward the side of non-en-dorsement resulting from the addition ofthe notation would be hobbled by the rea-sonable observer’s awareness that the ad-dition took place after litigation had begunand on the eve of trial. Litigation posi-tions do not alter reasonable memories.Cf. McCreary, 545 U.S. at 871–72, 125S.Ct. 2722 (noting that the counties’ ‘‘newstatements of purpose were presented onlyas a litigating position’’ and that ‘‘[n]o rea-sonable observer could swallow the claimthat the Counties had cast off the [reli-gious] objective so unmistakable in earlierdisplays’’).

We conclude by underscoring the propo-sition that ‘‘[c]ontext carries much weight

in the Establishment Clause calculus.’’Weinbaum, 541 F.3d at 1033. In the con-text of the small community of HaskellCounty, we hold that the Board’s actions inauthorizing and maintaining the Monu-ment—inscribed with the Ten Command-ments—on the courthouse lawn had theimpermissible principal or primary effectof endorsing religion in violation of theEstablishment Clause.

III. CONCLUSION

The district court’s order is RE-VERSED. We REMAND for the districtcourt to enter judgment consistent withthis opinion.

See City of Ogden, 297 F.3d at 1011 (rejectingthe argument that, hypothetically, the city’sacceptance of a display with a religious themewould have the effect of endorsing religion,but noting ‘‘[t]o the extent to which the City of

Ogden remains genuinely concerned regard-ing the likely misapprehensions of passersby,the City might also post a disclaimer’’ (em-phasis added)).


Plaintiffs’ Exhibit 85 (sizereduced to fit page).


Defendants’ Exhibit 7 (Deposition Exhibit6) (size reduced to fit page).


Defendants’ Exhibit 27 (sizereduced to fit page).


Plaintiffs’ Exhibit 1 (size reducedto fit page).

784 568 federal reporter, 3d series

Documents