Freethought Soc., Philadelphia v. Chester County, 02-1765.

CourtUnited States Courts of Appeals. United States Court of Appeals (3rd Circuit)
Citation334 F.3d 247
Docket NumberNo. 02-1765.,02-1765.
PartiesFREETHOUGHT SOCIETY, OF GREATER PHILADELPHIA; Sally Flynn v. CHESTER COUNTY; Colin A. Hanna; Karen L. Martynick; Andrew E. Dinniman; each of whom is sued in their official capacities as Chester County Commissioners, Appellants
Decision Date26 June 2003
334 F.3d 247
CHESTER COUNTY; Colin A. Hanna; Karen L. Martynick; Andrew E. Dinniman; each of whom is sued in their official capacities as Chester County Commissioners, Appellants
No. 02-1765.
United States Court of Appeals, Third Circuit.
Argued: April 7, 2003.
Filed: June 26, 2003.

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William M. McSwain (Argued), Alison D. Kehner, Michael L. Berry, Dechert, William M. Janssen (Argued), Susan M. Rabii, Amy S. Kline, Saul Ewing LLP, Philadelphia, PA, Thomas C. Abrahamsen, Office of the Chester County Solicitor, West Chester, PA, Counsel for Appellants.

Stefan Presser (Argued), American Civil Liberties Union of Pennsylvania, Seth Kreimer, Philadelphia, PA, Peter Goldberger, Ardmore, PA, Counsel for Appellees.

Alfred W. Putnam, Jr. (Argued), Kirke D. Weaver, D. Alicia Hickok, Drinker Biddle & Reath LLP, Philadelphia, PA, Counsel for Amicus Chester County Historic Preservation Network in Support of Appellants.

D. Michael Fisher, Calvin R. Koons, John G. Knorr, III, Office of Attorney General, Appellate Litigation Section, Harrisburg, PA, Counsel for Amicus Commonwealth of Pennsylvania in Support of Appellants.

Robert L. Knupp, Mark A. Mateya, Knupp, Kodak & Imblum, P.C., Harrisburg, PA, Counsel for Amicus County Commissioners Association of Pennsylvania in Support of Appellants.

Francis J. Manion, American Center for Law and Justice, New Hope, KY, Counsel for Amicus American Center for Law and Justice in Support of Appellants.

Burton Caine, Temple University School of Law, Philadelphia, PA, Counsel for Amici Americans for Religious Liberty, The American Humanist Association, The American Ethical Union, The Philadelphia Ethical Society, The Unitarian Universalist Association, and The Society for Humanistic Judaism in Support of Appellees.

Marc D. Stern, American Jewish Congress, New York, NY, Nancy Winkelman, Stewart M. Weintraub, O. Scott Barber, Schnader Harrison Segal & Lewis LLP, Philadelphia, PA, Counsel for Amicus American Jewish Congress in Support of Appellees.

Ayesha N. Khan, Alex J. Luchenitser, Americans United for Separation of Church and State, Washington, DC, Steven M. Freeman, Steven C. Sheinberg, Anti-Defamation League, New York, NY, Counsel for Amici Americans United For Separation of Church and State and Anti-Defamation League in Support of Appellees.

Before: BECKER,* BARRY and BRIGHT,** Circuit Judges.


BECKER, Circuit Judge.

The Chester County Courthouse in West Chester, Pennsylvania, erected in 1846, was designed by Thomas Ustick Walter, renowned architect of the United States Capitol. In 1920, following a public dedication ceremony with both religious and secular overtones, the Chester County Commissioners accepted a bronze plaque displaying a Protestant version of the Ten Commandments for placement on the Courthouse facade from a group of local citizens who represented an organization known as the Religious Education Council. The plaque was affixed near what was then

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the entrance to the Courthouse. It has remained there for over eight decades, but during that time nothing has been done by the County to draw attention to, celebrate or even maintain the plaque.

Until a few years ago, visitors to the Courthouse would walk past the plaque on their way in. However, that entrance was closed, so visitors now enter via the modern addition to the Courthouse, some seventy feet to the north. While the title of the plaque, "The Commandments," is legible to a visitor walking along the sidewalk to or from the north wing main entrance, a visitor would have to climb the steps in front of the former entrance to read the rest of the text.

The present lawsuit was brought by Plaintiff Sally Flynn, a Chester County resident who noticed the plaque as early as 1960 but was apparently not bothered enough by it to complain until 2001, and the Freethought Society of Greater Philadelphia (of which Flynn is a member) after the County Commissioners denied Flynn's request to remove the Ten Commandments plaque. Freethought, according to its founder Margaret Downey, is "a forum for atheists, agnostics, freethinkers to meet, socialize and exchange ideas." The defendants are Chester County and the Chester County Commissioners, in their official capacities.

The plaintiffs contend that the plaque's placement is in violation of the Establishment Clause of the First Amendment because the Religious Education Council donated the plaque (and the County accepted it) for religious purposes and because the effect of the plaque is to cause a reasonable observer to believe that the County is endorsing religion. The defendants disagree. They maintain that our focus should be on the Commissioners' 2001 action, or more precisely inaction, in denying Flynn's request that the plaque be removed, rather than on the original purpose for accepting the decalogue in 1920. They also assert that the long history of the plaque, and the fact that the County has not taken any action to highlight or celebrate the plaque since its placement, change the overall effect of the plaque so that when it is viewed in context, a reasonable observer would not perceive it to be an endorsement of religion by the County. The defendants also contend that we should depart from the purpose/effect inquiry used in religious display cases, first set forth in Lemon v. Kurtzman, 403 U.S. 602, 612-613, 91 S.Ct. 2105, 29 L.Ed.2d 745 (1971), and craft an exception for historic artifacts such as this plaque.

This appeal presents a number of important legal questions that inform our ultimate analysis. We identify two questions at this juncture: (1) what principles of Establishment Clause jurisprudence should we use to decide the case; and (2) whether we should focus on the events of 1920 (when the plaque was erected) or the events of 2001 (when the County Commissioners declined to remove the plaque)? With respect to the first question, in light of our decision in Tenafly Eruv Association, Inc. v. Borough of Tenafly, 309 F.3d 144 (3d Cir.2002), we believe that Justice O'Connor's modification of Lemon, known as the "endorsement" test, applies in religious display cases of this type. Under this approach, we collapse the "`purpose' and `effect' prongs into a single inquiry: would a reasonable, informed observer, i.e., one familiar with the history and context... perceive the challenged government action as endorsing religion?" Id. at 174. However, in an abundance of caution, we will also analyze the case under the much maligned Lemon test. While consideration of the effect of the plaque is coextensive with our discussion of the "endorsement" test, which focuses on the perceptions

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of the reasonable observer, under Lemon, there must also be a legitimate secular purpose for the County's actions, although the County's purpose need not be "exclusively secular." Lynch v. Donnelly, 465 U.S. 668, 681 n. 6, 104 S.Ct. 1355, 79 L.Ed.2d 604 (1984).

With respect to the second question, we think that the appropriate focus of our inquiry is on the events of 2001, when the Commissioners declined to remove the plaque. Applying the "endorsement" test, we conclude that: (1) the reasonable observer would be aware of the approximate age of the plaque and the fact that the County has done nothing since it was erected to highlight or celebrate the plaque; (2) because of the plaque's age and its placement on an historic Courthouse, the reasonable observer would believe that the plaque itself is historic; and (3) the reasonable observer would not believe that the County's inaction was motivated by a desire to endorse religion, or some religious practice such as Sabbatarianism, but rather by a desire to preserve a longstanding plaque. As such, the overall effect of the display, when viewed in the context of its history, does not appear to be an endorsement of religion.

Alternatively, applying the Lemon test, under which the County must also have a legitimate secular purpose, we note that the District Court found believable the testimony of the Commissioners that they thought the Ten Commandments plaque celebrated the significance of the decalogue as a foundational legal document. We note too that the Commissioners' conclusions are buttressed by some well documented history, presented by Chester County and its amici, to the effect that the Ten Commandments have an independent secular meaning in our society because they are regarded as a significant basis of American law and the American polity, including the prohibitions against murder and blasphemy. Because the purpose prong is subjective, it appears that the Commissioners' articulation of a secular purpose for refusing to remove the plaque met the requirements of Lemon.

Based on the foregoing conclusions, on which we will elaborate at length, we will reverse the judgment of the District Court and vacate the permanent injunction ordering the removal of the plaque.

I. Facts and Procedural History

The plaque at issue was affixed to the east facade of the Courthouse at a dedication ceremony on December 11, 1920, upon the initiative of the Religious Education Council. The Council had appeared before the Chester County Commissioners requesting permission to erect a bronze plaque containing the text of the Ten Commandments. The County accepted the donation of the plaque, which was purchased exclusively with private funds, "to the people of Chester County." Samuel C. Hodge, a Protestant Minister and a member of the Religious Education Council, presided over the dedication ceremony, at which both the religious and secular significance of the Ten Commandments were stressed. In his address, entitled "The Relation of the Ten Commandments to Jurisprudence," Judge J. Frank E. Hause, the keynote speaker at the dedication ceremony, admonished those in attendance:

Have you remembered the Sabbath Day...

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