BAKER v. ADAMS COUNTY/OHIO VALLEY SCHOOL BOARD

Full title: Berry Baker, et. al. Plaintiffs vs. Adams County/Ohio Valley School Board…

Court: United States District Court, S.D. Ohio, Western Division

Date published: Jun 6, 2002

Case No. C-1-99-94 (S.D. Ohio Jun. 6, 2002)

Opinion

Case No. C-1-99-94

June 6, 2002

ORDER

TIMOTHY S. HOGAN, United States Magistrate Judge

This matter is before the Court on the motion of plaintiffs Berry Baker and Anonymous Plaintiff Number One for summary judgment as to all claims asserted in the Third-amended and Supplemental Complaint (Doc. 71), the motion for summary judgment by defendant Adams County/Ohio Valley School Board (Doc. 72), the summary judgment motion by intervenor-defendants Kenneth Johnson, Thomas D. Claiborne, Ronald D. Stephens, and Douglas W. Ferguson (Doc. 77), and the parties' responsive and supplemental memoranda. (Docs. 76, 78, 83, 84, 85, 88, 89, 90, 91, 93). The parties have consented to entry of final judgment by the undersigned United States Magistrate Judge. (Doc. 8).

INTRODUCTION

This case involves the constitutionality of displaying the Ten Commandments on public school property. The question raised by the instant case is one of Constitutional interpretation. The job faced by any trial judge in such a case is to follow the Constitutional interpretations of higher courts and to deliver on the commitment made to the public when the oath of office was taken to support and defend the Constitution and to follow, not make, the law. The issue is not whether or not this judge believes that the Ten Commandments have great educational and moral value, because the answer is an enthusiastic yes. The issue is not whether society would be better served if its citizens learned about and adhered to the rules for living promulgated by the Ten Commandments for in the personal opinion of the undersigned it surely would. The issue is whether or not government, in this case, the public schools of Adams County, Ohio, should be used as a vehicle to endorse and promote the Ten Commandments. Higher courts have answered this question in the negative based on their interpretation of the Establishment Clause of the First Amendment to the United States Constitution and a trial judge, if he is true to his oath, must follow the directives of the appellate courts. This is not to say that families, churches, private businesses, non-governmental institutions, clubs and like organizations are or should be limited in the expression of their First Amendment rights to express support for and encourage allegiance to the family and moral values that are embodied in the document which forms the subject matter of this case. This judge has a certain admiration for the members of the Adams County Ministerial Association and the members of the defendant School Board for their dedication to spreading the word of God, however misdirected that effort is determined to be by after-the-fact Constitutional analysis. Nevertheless, the role of government is neither to promote nor advance religion or any particular religious beliefs. Because the purpose and effect of the Ten Commandments display in this case is to advance the religious beliefs embodied therein, the display violates the First Amendment and must be enjoined.

The Facts of this Case must be Examined in the Context of the Public School Setting.

The First Amendment to the United States Constitution provides that "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof. . . ." In Establishment Clause cases under the First Amendment, the Court must be mindful of the particular concerns that arise in the context of the public elementary and secondary school system. See Edwards v. Aguillard, 482 U.S. 578, 583 (1987). The Supreme Court has stated:

The Court has been particularly vigilant in monitoring compliance with the Establishment Clause in elementary and secondary schools. Families entrust public schools with the education of their children, but condition their trust on the understanding that the classroom will not purposely be used to advance religious views that may conflict with the private beliefs of the student and his or her family. Students in such institutions are impressionable and their attendance is involuntary. See, e.g., Grand Rapids School Dist. v. Ball, 473 U.S. 373, 383, 105 S.Ct. 3216, 3222, 87 L.Ed.2d 267 (1985); Wallace v. Jaffree, 472 U.S. 38, 60, n. 51, 105 S.Ct. 2479, 2492, n. 51, 86 L.Ed.2d 29 (1985); Meek v. Pittenger, 421 U.S. 349, 369, 95 S.Ct. 1753, 1765, 44 L.Ed.2d 217 (1975); Abington School Dist. v. Schempp, 374 U.S. 203, 252-253, 83 S.Ct. 1560, 1587-1588, 10 L.Ed.2d 844 (1963) (BRENNAN, J., concurring). The State exerts great authority and coercive power through mandatory attendance requirements, and because of the students' emulation of teachers as role models and the children's susceptibility to peer pressure. See Bethel School Dist. No. 403 v. Fraser, supra, 478 U.S., at 683, 106 S.Ct., at 3164; Wallace v. Jaffree, supra, 472 U.S., at 81, 105 S.Ct., at 2503 (O'CONNOR, J., concurring in judgment). Furthermore, "[t]he public school is at once the symbol of our democracy and the most pervasive means for promoting our common destiny. In no activity of the State is it more vital to keep out divisive forces than in its schools. . . ." Illinois ex rel. McCollum v. Board of Education, 333 U.S. 203, 231, 68 S.Ct. 461, 475, 92 L.Ed. 649 (1948) (opinion of Frankfurter, J.).

Edwards, 482 U.S. at 583-584 (footnote omitted). In Washegesic v. Bloomingdale Public Schools, 33 F.3d 679 (6th Cir. 1994), cert. denied, 514 U.S. 1095 (1995), the Sixth Circuit noted the import of the Establishment Clause in protecting the rights of those outside the majority. The Court, in holding that the display of a portrait of Jesus Christ in a hallway outside a public school gymnasium violated the Establishment Clause, stated:

Though the portrait, like school prayers and other sectarian religious rituals and symbols, may seem "de minimis" to the great majority, particularly those raised in the Christian faith and those who do not care about religion, a few see it as a governmental statement favoring one religious group and downplaying others. It is the rights of these few that the Establishment Clause protects in this case.

Id. at 684. Keeping in mind the importance of the school setting and the special protection the First Amendment holds for individuals not in the majority, we now examine the facts of this case.

BACKGROUND AND FACTS

The facts of this case are largely undisputed. Plaintiff Berry Baker is a taxpayer and resident of Adams County, Ohio. Anonymous Plaintiff No. I is an individual taxpayer and resident of Adams County who, at the time the Third Amended Complaint was filed, was also a parent of one or more children who attend one of the public high schools of Adams County. Defendant Adams County/Ohio Valley School Board (the School Board) is the duly elected body which sets policy for and governs the Adams County schools located in the Adams County/Ohio Valley School District. Intervenor-defendants Kenneth Johnson, Thomas D. Claiborne, Ronald D. Stephens, and Douglas W. Ferguson are members of the Adams County Ministerial Association, and were permitted to join this case as defendants pursuant to Fed.R.Civ.P. 24. (Doc. 45).

In the Fall of 1997, four new high schools opened in Adams County, Ohio. Each school houses the seventh through twelfth grades in a junior high wing and high school wing. Reverend Kenneth Johnson of the Adams County Ministerial Association contacted then School Board President Chris Armstrong about donating plaques containing the Ten Commandments to each of the new schools to commemorate the opening of the schools. The original idea of the Ministenal Association was to erect plaques of the Ten Commandments inside each of the four junior high/high schools. (Armstrong Depo. at 9-12). One Board member suggested placement of the Ten Commandments outside of the school buildings in monument form instead of inside the schools, referring to "the Kentucky case where the Ten Commandments were removed from the classroom." (Armstrong Depo. at 12, 19). The Board consented to the donation and erection of the Ten Commandments monuments outside the entrance of each school following the informal canvassing of Board members by the School Board President. The Ten Commandments monuments were viewed as permanent displays at the entrance of each junior high/high school. (Armstrong Depo. at 23; Hansgen Depo. at 19). There was an agreement that the Ministerial Association would pay any costs of litigation involving the Ten Commandments monuments. (Armstrong Depo. at 26; Hansgen Depo. at 14-15).

The monuments bear identical inscriptions of a Protestant¹ version of the Ten Commandments along with etchings of an American Flag and American eagle.² The Ten Commandments monuments were purchased and designed by the Adams County Ministerial Association, an association of Christian church pastors and ministers in Adams County. The School Board did not expend any funds for the creation or placement of the monuments. The decision to accept the Adams County Ministerial Association's donation was never discussed at a Board meeting. Rather, Ms. Armstrong, then President of the School Board, contacted each Board member individually and then communicated the Board's consent to accept the donation and permit the erection of the monuments on school property. The School Board concedes that no official Board action was taken with respect to these original monuments either prior to the placement of the tablets or subsequent to the initiation of this litigation. At the same time, the Board received two additional donations to commemorate the opening of the schools: small caskets used as time capsules, which were buried near the flag pole at each school, and American flags. These additional donations were also accepted without official Board action. All three donations were placed near the front entrance of each high school building.

1 Reverend Johnson testified that the wording appearing on the Adams County Ten Commandments monuments is different from the Catholic version. (Johnson Depo. at 79).

2 Each stone tablet is inscribed with the following:

Following the placement of the Ten Commandments tablets on school grounds, plaintiff Baker initiated this lawsuit in February 1999. Thereafter, the Board adopted a policy entitled "Policy Regarding Placement of Structures and Objects in Designated Area in Front of Adams County High Schools." (Armstrong Depo. at 50; Hansgen Depo. at 37-38). The policy established guidelines for determining whether a proposed donated item warrants approval for placement at any of the schools. The policy stated in part:

At each high school in Adams County a flag pole is located in a small area in front of the schools. The small parcels of land on which these flag poles are located, may be used, with permission from the Adams County School Board ("Board"), only by citizens of Adams County with prior permission of the Board, to erect, place, construct, or otherwise locate on that property statutes, monuments, or other structures or objects, so long as such statutes, objects, etc., symbolize or reflect one or more aspects of our local and/or national history, heritage, or traditions, and are not inconsistent with the educational goals of the School District.

(Doc. 72, Def. Summary Judgment Motion, Declaration of Diane Lewis, Ex. A, attached). The policy further stated that if the board determined that a donated object may "reasonably be considered to be religious in nature," but otherwise satisfied the Board's criteria set forth in the policy, the Board would require that either the structure itself or a separate plaque placed next to the structure contain the following language:

This [monument, structure, etc.] was not constructed with, nor is it maintained by, public funds, and it does not constitute an endorsement by the Adams County School District of any religion or religious belief.

(Id.). A plaque containing the above-quoted disclaimer language was then placed adjacent to the Ten Commandments monuments at each high school. Board members admit that the policy and disclaimer plaques resulted from the filing of this lawsuit. (Armstrong Depo. at 50; Hansgen Depo. at 38-39). The Ten Commandments display was never reexamined in light of the new policy adopted by the Board. (Hansgen Depo. at 38). Lucinda Hansgen. the current Board President, testified that she didn't view the Ten Commandments as a "religious issue," but rather a donation from the Ministerial Association similar to other donations received by the Board. (Hansgen Depo. at 39-40). The Ten Commandments display at each school remained in place, as described above and with the addition of the placement of the disclaimer plaque, for approximately one year.

On May 16, 2000, the Board convened a meeting and undertook two actions relating to the Ten Commandments display. First, it rescinded its "Policy Regarding Placement of Structures and Objects in Designated Area in Front of Adams County High Schools." Second, the Board adopted a resolution to construct a new display entitled "Foundations of American Law and Government." (Id., Exs. B C, attached). The new display consists of five stone monuments coequal in size, shape, color, and substance, positioned in a semi-circle and connected together to form a semi-circular wall. (Id., Ex. C, ¶ 5). On each stone is inscribed a passage taken from five documents that the Board "believes are essential to the foundations of this country's legal and governmental systems." (Id., Ex. C, ¶ 4). The documents selected by the Board are: (1) the Preamble to the United States Constitution; (2) the Declaration of Independence; (3) the Magna Carta; (4) the Justinian Code; and (5) the Ten Commandments. The "Resolution to Construct Foundations of American Law and Government Display" states in part that its purpose is "to create an educational display to inform Adams County high school students about some of the essential documents that the Board believes form the foundation of American law and government." (Id., Ex. C, ¶ 1.) In addition, commentary concerning each document's importance to the foundations of American law and government is inscribed on a stone marker which is positioned in front of each stone monument. The Board's resolution states that the commentary "will further serve to educate Adams County high school students regarding these documents' importance to the foundations of American law and government." (Id., Ex. C, ¶ 8). Currently, the new five monument display has been constructed at each high school. Public funds were not used for its construction; rather, the Adams County for the Ten Commandments organization, which functioned as the successor to the Adams County Ministerial Association,³ paid for the new display. The Board states that school funds will not be used to preserve or maintain the new displays in the future. (Lewis Aff., ¶¶ 16-17). Photographs of the display and copies of the text inscribed thereon are attached to the Lewis declaration. (Id., Exs. D E).

3 See Doc. 78 at 31 n. 17 and citations therein.

Plaintiffs brings this action pursuant to 42 U.S.C. § 1983, alleging that the School Board violated the First and Fourteenth Amendments to the United States Constitution by permitting the permanent placement of religious monuments in the shape of two tablets, representing and inscribed with a Protestant version of the Ten Commandments, on school property and within approximately thirty feet of the entrance to each of Adams County's four high schools. Plaintiffs also allege that the School Board's erection of additional stone tablet monuments adjacent to the original Ten Commandments during the course of this litigation does not alter the nature and purpose of the original display and therefore "promote[s] and endorse[s] the religious beliefs that are inherent in and inextricably a material part of the Ten

Commandments." (Doe. 65, p. 6, ¶ 28). Plaintiffs claim that the erection and maintenance of these monuments on public school property violate the First Amendment's Establishment Clause and constitute an unconstitutional endorsement of religion. Plaintiffs also assert that this conduct violates Article I, Section 7 of the Ohio Constitution. Plaintiffs seek declaratory and injunctive relief, including a court order finding the placement of these monuments to be unconstitutional, and therefore a violation of plaintiffs' rights under the First Amendment and the Ohio Constitution, and requiring defendants to immediately remove the monuments from school property. Plaintiffs also request that the Court issue an order prohibiting the School Board from continuing to establish or maintain policies, practices, or customs which encourage the erection of these, or any other religious symbols on school property. Plaintiffs further seek an order designating plaintiffs and any other witnesses as entitled to witness protection under federal law. Lastly, plaintiffs seek attorney's fees and costs pursuant to 42 U.S.C. § 1988.

SUMMARY JUDGMENT STANDARD

A motion for summary judgment should be granted if the evidence submitted to the court demonstrates that there is no genuine issue as to any material fact and that the movant is entitled to summary judgment as a matter of law. Fed.R.Civ.P. 56. See also Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48 (1986). The moving party has the burden of showing the absence of genuine disputes over facts which, under the substantive law governing the issue, might affect the outcome of the action. Celotex, 477 U.S. at 323.

A party may move for summary judgment on the basis that the opposing party will not be able to produce sufficient evidence at trial to withstand a motion for judgment as a matter of law. In response to a summary judgment motion properly supported by evidence, the non-moving party is required to present some significant probative evidence which makes it necessary to resolve the parties' differing versions of the dispute at trial. Sixty Ivy Street Corp. v. Alexander, 822 F.2d 1432, 1435 (6th Cir. 1987); Harris v. Adams, 873 F.2d 929, 931 (6th Cir. 1989). Conclusory allegations, however, are not sufficient to defeat a properly supported summary judgment motion. McDonald v. Union Camp Corp., 898 F.2d 1155, 1162 (6th Cir. 1990). The non-moving party must designate those portions of the record with enough specificity that the Court can readily identify those facts upon which the non-moving party relies. Karnes v. Runyon, 912 F. Supp. 280, 283 (S.D. Ohio 1995) (Spiegel, J.).

The trial judge's function is not to weigh the evidence and determine the truth of the matter, but to determine whether there is a genuine factual issue for trial. Anderson, 477 U.S. at 249-50. In so doing, the trial court does not have a duty to search the entire record to establish that there is no material issue of fact. Karnes, 912 F. Supp. at 283. See also Street v. J.C. Bradford Co., 886 F.2d 1472, 1479-80 (6th Cir. 1989); Frito-Lay, Inc. v. Willoughby, 863 F.2d 1029, 1034 (D.C. Cir. 1988). The inquiry is whether the evidence presents a sufficient disagreement to require submission to a jury or whether it is so one-sided that one party must prevail as a matter of law. Anderson, 477 U.S. at 249-50.

If, after an appropriate time for discovery, the opposing party is unable to demonstrate a prima facie case, summary judgment is warranted. Street, 886 F.2d at 1478 (citing Celotex and Anderson). "Where the record taken as a whole could not lead a rational trier of fact to find for the non-moving party, there is no `genuine issue for trial.'" Matsushita Electric Industrial Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986).

APPLICABLE LAW AND ANALYSIS

Plaintiffs Have Standing in this Matter.

The Board argues that plaintiffs lack standing to bring the present action because there is no evidence that they have come in contact with the new display, and because the Anonymous Plaintiff, while a parent of a former student who attended one of the high schools, no longer has children who attend any of the four Adams County high schools at issue in this case. To demonstrate standing, a plaintiff must show an actual injury, caused by a defendant's conduct, which can be remedied by a court. City Communications, Inc. v. Detroit, 888 F.2d 1081 (6th Cir. 1989). Generally, in First Amendment cases, the injury can be non-economic. Hawley v. City of Cleveland, 773 F.2d 736 (6th Cir. 1985). A sufficient injury exists to support standing where plaintiff alleges the use of governmental authority to encourage a sectarian religious view directed toward plaintiff. Washegesic v. Bloomingdale Public Schools, 33 F.3d 679, 682 (6th Cir. 1994), cert. denied, 514 U.S. 1095 (1995). While the Board argues that plaintiffs have not demonstrated sufficient injury because the harm they allege is hypothetical, psychological harm particular only to the plaintiffs, Sixth Circuit precedent makes clear that "unwelcome direct contact with the offensive object is enough" to confer standing. Id. (quoting Harvey v. Cobb County, 811 F. Supp. 669, 674 (N.D. Ga. 1993) (internal quotations omitted). Therefore, the Washegesic Court noted that the student-plaintiffs graduation from the high school where a portrait of Jesus Christ hung in the hallway did not eliminate or render moot the plaintiffs standing. Id. Relying on the reasoning of Hawley, supra, the Court of Appeals found that:

[T]he portrait does not affect students only — it potentially affects any member of the public who attends an event at the school. A member of the PTA or a member of the public would have standing if she attended events in the gymnasium and took the portrait as a serious insult to her religious sensibilities.

Id. (citing Jager v. Douglas County School District, 862 F.2d 824, 826 n. 1 (11th Cir. 1989).

Like Washegesic, the relevant inquiry in this case is "whether the individual plaintiff uses the facility and suffers actual injury." Id. Both plaintiffs have submitted affidavits indicating that they suffered actual injury caused by the display of the Ten Commandments and that they continue to suffer such injury as a result of the Ten Commandments tablets which form part of the new display. ( See Doc. 78, affidavits of plaintiff Baker and Anonymous Plaintiff attached). The Anonymous Plaintiff avers that during the time his/her child or children attended one of the high schools, he/she came into contact with the original Ten Commandments monument, and subsequently the new display, as a result of transporting his/her child to and from school and as a parent participant or spectator at school events. Both plaintiffs claim that they pass at least one of the school buildings as part of their regular course of business in the community and that the displays are visible from the road. Plaintiffs also claim that they come into direct contact with the displays as a consequence of attending sporting events, holiday shows, and theatrical performances at the high schools. Plaintiffs allege direct and unwelcome personal contact with the Ten Commandments monument display on public school property. Plaintiffs' averments are sufficient to confer standing for purposes of this lawsuit. See Books v. City of Elkhart, 235 F.3d 292, 300-301 (7th Cir. 2000); Doe v. Porter, 188 F. Supp.2d 904, 907-909 (E.D. Tenn. 2002); Doe v. Harlan County School District, 96 F. Supp.2d 667, 669-70 (E.D. Ky. 2000).

Plaintiff Baker's Claim is Not Barred the Doctrine of Clean Hands.

Defendants' argument that plaintiff Baker's claims are barred by the equitable doctrine of unclean hands is without merit. Defendants argue that Baker perpetrated a fraud on the Board through a series of letters in which he represents himself to be the Director of a non-existent organization seeking to erect a phallic symbol on school property. Baker contends his letter writing campaign was an exaggerated stratagem to show the Board's misguided policy if properly applied would require it to accept donation of any and all religious objects, even those devoted to phallic worship. The last letter written by Baker was sent five months before this lawsuit was instituted. Baker maintains that at the time he filed this lawsuit and consistently thereafter he has held the belief that the permanent placement of the Ten Commandments on public school property violates the Establishment Clause.

The doctrine of unclean hands "closes the doors of a court of equity to one tainted with inequitableness or bad faith relative to the matter in which he seeks relief. . . ." Cleveland Newspaper Guild v. Plain Dealer Pub. Co., 839 F.2d 1147, 1155 (6th Cir. 1988), cert. denied, 488 U.S. 899 (1988), quoting Precision Inst. Mfg. Co. v. Automotive Maintenance Mach. Co., 324 U.S. 806, 814 (1945). In Kinner v. Lake Shore Michigan So. Ry. Co., 69 Ohio St. 339, 69 N.E. 614 (1904), cited by defendants, the Ohio Supreme Court described the unclean hands doctrine as follows: "The maxim, `He who comes into equity must come with clean hands,' requires only that the plaintiff must not be guilty of reprehensible conduct with respect to the subject-matter of his suit." Baker's letter writing campaign, while certainly unusual from some points of view, does not constitute reprehensible conduct which should bar equitable relief in this case. It occurred prior to the institution of this lawsuit and was collateral thereto. The fact that his conduct was merely collateral to his Establishment Clause claim in this case weighs against a finding of unclean hands. 27A Am. Jur.2d Equity § 133. Defendants have neither alleged nor shown they suffered any injury or prejudice as a result of Baker's conduct. 27A Am Jur.2d Equity § 136. In addition, Baker's conduct did not affect the equitable relations between the pates to the litigation. Moreover, the standing of the Anonymous Plaintiff to challenge the Ten Commandments display is not affected by this contention against Baker. For these reasons, the doctrine of unclean hands is inapplicable in this matter and does not require a dismissal of plaintiff Baker's claim.

The Foundations of American Law and Government Diplay Violates the Establishment Clause of The First Amendment.

The First Amendment to the United States Constitution provides that "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof. . . ." The First Amendment proscriptions are made applicable to States and their subdivisions by the Fourteenth Amendment. Santa Fe Independent School District v. Doe, 530 U.S. 290, 301 (2000). The heart of the matter confronting the Court on the parties' cross-motions for summary judgment is whether the Foundations of American Law and Government display violates the Establishment Clause of the First Amendment.⁴

Because the constitutional limits of Article

As an initial matter, plaintiffs urge the Court to apply a strict scrutiny analysis in examining the constitutionality of the Board's actions in this case. Plaintiffs argue that the Ten Commandments tablets as originally posted serve to favor one religion over another because the version of the Ten Commandments inscribed on the monuments is a Protestant version which is inconsistent with the versions commonly recognized by other faiths, including Catholic and Jewish traditions. According to plaintiffs, by manifesting an official preference in favor of Protestant Christian sects over other denominations through the wording of the inscription, the Board's posting of the Ten Commandments is subject to a "strict scruting" analysis as set forth in Larson v. Valente, 456 U.S. 228 (1982).

Contrary to plaintiffs' assertions, the Court does not find that the evidence supports a conclusion that the version of the Ten Commandments inscribed on the tablets grants denominational preference for one religion over another. While the affidavit of plaintiffs' expert, Arthur Dewey, ThD., indicates that the inscribed version at issue is not consistent with catechisms of the Catholic Church and is inconsistent with Jewish traditions concerning how to read and understand Scripture, neither is the version identifiable with any particular religious sect or denomination. The fact that the posted version may be more like a traditional Protestant version than Catholic or Jewish, does not mean that the posting of the tablets favors one denomination or one religion over another. Plaintiffs cannot equate the posted version with the "official" version of the Ten Commandments associated with any particular religious denomination. In other words, the strict scrutiny analysis set forth in Larson, is inapplicable to the case at bar.

The Sixth Circuit has made clear that the appropriate analytical framework for the question pending before this Court is the well-known (and oft criticized) Lemon test as set forth by the Supreme Court in Lemon v. Kurtzman, 403 U.S. 602 (1971)). See American Civil Liberties Union v. Capitol Square Review Advisory Board, 243 F.3d 289, 305-308 (6th Cir. 2001) (en banc); Coles v. Cleveland Bd. of Educ., 171 F.3d 369, 383-85 (6th Cir. 1999); Washegesic v. Bloomingdale Public Schools, 33 F.3d 679, 683 (6th Cir. 1994), cert. denied, 514 U.S. 1095 (1995). To comply with the Establishment Clause of the First Amendment, the government action must (1) have a secular purpose; (2) have the primary effect of neither advancing nor inhibiting religion; and (3) not foster an excessive governmental entanglement with religion. Lemon, 403 U.S. at 612-13. The Supreme Court has also utilized an "endorsement test," a refinement of the Lemon test. Under the endorsement test, a governmental practice or action violates the Establishment Clause if it has the purpose or effect of "endorsing' religion. . . ." County of Allegheny v. American Civil Liberties Union, 492 U.S. 573, 592 (1980). The Sixth Circuit has found the endorsement test to be a refinement of the "effects" element of the Lemon test. See Granzeier v. Middleton, 173 F.3d 568, 573 (6th Cir. 1999), and cases cited therein. The endorsement test prohibits governmental actions which convey or attempt "to convey a message that a religion or a particular religious belief is favored or preferred." County of Allegheny, 492 U.S. at 593, citing Wallace v. Jaffree, 472 U.S. 38, 70 (1985) (O'Connor, J., concurring). Under this test, the Court must determine whether a "reasonable observer" would conclude that the government is endorsing religion through its action. Capitol Square Review, 243 F.3d at 302; Granzeier, 173 F.3d at 574. This "reasonable observer" is "deemed aware of the history and context of the community and forum in which the religious display appears." Capitol Square Review, 243 F.3d at 302, quoting Capitol Square Review and Advisory Bd. v. Pinette, 515 U.S. 753, 780 (1995) (O'Connor, J., concurring). See also Santa Fe Independent School Dist., 530 U.S. at 308; Books, 235 F.3d at 306.

As indicated above, the Court must view with special scrutiny religious activity in the public school setting. "Public schools play a key role in `the maintenance of a democratic pluralistic society.'" Doe v. Porter, 188 F. Supp.2d 904, 911 (E.D. Tenn. 2002), quoting Coles, 171 F.3d at 377. Because "students are young, impressionable, and compelled to attend public schools," Coles, 171 F.3d at 377, "there are heightened concerns with protecting freedom of conscience from subtle coercive pressure in schools." Lee v. Weisman, 505 U.S. 577, 592 (1992). Against this backdrop, we apply the Lemon test to the facts of this case.

Application of the Lemon Test 1. Purpose

The focus of the Court in examining whether the posting of the Foundations of American Law and Government display has a secular purpose must be on the intentions of the government. Coles, 171 F.3d at 384. Specifically, the Court must ask whether the government subjectively intended to convey a message of endorsement or disapproval of religion. Edwards v. Aguillard, 482 U.S. 578, 585 (1987). See also Lynch v. Donnelly, 465 U.S. 668, 690 (1984) (O'Connor, J., concurring); Coles, 171 F.3d at 384.

A governmental intention to promote religion is clear when the State enacts a law to serve a religious purpose. This intention may be evidenced by promotion of religion in general, see Wallace v. Jaffree, supra, 472 U.S., at 52-53, 105 S.Ct., at 2487 (Establishment Clause protects individual freedom of conscience "to select any religious faith or none at all"), or by advancement of a particular religious belief, e.g., Stone v. Graham, supra, 449 U.S., at 41, 101 S.Ct., at 194 (invalidating requirement to post Ten Commandments, which are "undeniably a sacred text in the Jewish and Christian faiths").

Edwards, 482 U.S. at 585 (additional citations omitted). If the Board had a secular purpose in posting the Foundations of American Law and Government display, its action cannot survive this First Amendment challenge if that purpose was dominated by a religious purpose. Lynch, 465 U.S. at 690-91. While the stated purpose of the Board is entitled to deference, Santa Fe Independent School Dist., 530 U.S. at 308; Capitol Square Review, 243 F.3d at 307, the stated secular purpose "must be sincere and not a mere sham." Santa Fe Independent School Dist., 530 U.S. at 308. See also Capitol Square Review, 243 F.3d at 307; Coles, 171 F.3d at 384. Relevant to the issue of determining the subjective intent of the Board is the text, history and context surrounding the implementation and display of the Foundations of American Law and Government monument. Santa Fe Independent School Dist., 530 U.S. at 308-309.

Defendants urge us to start our examination of this issue at the point the five monument display was erected. The Board contends that plaintiffs' claims concerning the original Ten Commandments monuments are moot because the monuments have been incorporated into the new display and no longer exist as described when the suit was initially filed. According to the School Board, there is no longer a case or controversy concerning the posting of the original Ten Commandments monuments and to find otherwise would require the Court to issue an advisory opinion, thereby offending the case or controversy clause of Article III of the Constitution. Defendants contend that the current display does not offend the Establishment Clause.

Plaintiffs argue that this matter is not moot. They argue that the Foundations of American Law and Government display was established solely for purposes of defeating this lawsuit. Plaintiffs contend that the Ten Commandments as incorporated into the new display continue to violate First Amendment.

We cannot agree with defendants' contention to begin our analysis with the erection of the five monument display. Defendants ask us to disregard the genesis of the display. This would require us to ignore evidence relevant to discerning the true purpose behind the display. "As the Supreme Court has made abundantly clear in its articulation of the endorsement test, the court must examine the actual purpose of the use of the religious objects and should not blindly accept an allegedly secular purpose which is contrary to the facts of the case." American Civil Liberties Union of Kentucky v. McCreary County, KY, 96 F. Supp.2d 679, 687 (E.D. Ky. 2000). See, e.g., Edwards, 482 U.S. at 590; Stone v. Graham, 449 U.S. at 41. Thus, an examination of the history and context surrounding the Foundations of American Law and Government display is critical to discerning the Board's purpose in this lawsuit. Santa Fe Independent School Dist., 530 U.S. at 308-309.

An examination of the history behind the Ten Commandments display shows the Board had no secular purpose in displaying the original Ten Commandments monument. The Ten Commandments tablets were proposed and purchased by a Christian religious group, the Adams County Ministerial Association in 1997. From the inception of the display, the Board recognized the religious nature of the Ten Commandments. A decision was made to abandon the idea of Ten Commandments plaques to be hung inside the school in favor of monuments outside of the school after one Board member raised concerns about "the Kentucky case where the Ten Commandments were removed from the classroom." (Armstrong Depo. at 12, 19). In addition, the Board premised its acceptance of the Ten Commandments donation on the agreement of the Adams County Ministerial Association to pay the costs of litigation involving the display. (Armstrong Depo. at 26; Hansgen Depo. at 14-15). In addition, the Board has articulated no secular purpose in conjunction with the acceptance and erection of the Ten Commandments display donated by the Adams County Ministerial Association. See Ring v. Grand Forks Public School District Number 1, 483 F. Supp. 272, 274 (D.N.D. 1980) (posting of Ten Commandments without any explanation plainly failed to convey secular message of instilling in students basic mores of civilization and principles of common law). There was no formal Board meeting discussing the placement of the Ten Commandments tablets at the high schools. There are no contemporaneous minutes, documents or formal policies explaining the intent or purpose of the Board in permitting the display of the Ten Commandments. (Armstrong Depo. 11-12, 23-24; Hansgen Depo. 11-12). Nor has the Board ever articulated a position on the educational purpose behind the display of the Ten Commandments monument at the high schools. (Armstrong Depo. at 24; Hansgen Depo. at 35-36). Finally, although the lawsuit prompted a new policy governing displays at the Adams County high schools, the Board never reexamined the Ten Commandments display in light of the new policy. (Hansgen Depo. at 38).

The text of the Ten Commandments display also indicates the Board had no secular purpose in placing the monuments on school grounds. Numerous courts have found the text and content of the Ten Commandments to be unquestionably religious. See American Civil Liberties Union of Tennessee v. Hamilton County, Tennessee, ___ F. Supp.2d ___, 2002 W.L. 971791, *4 (E.D. Tenn. May 03, 2002) ("In determining the purpose of the posting [of the Ten Commandments], one need look no further than the text of the posted plaques); ACLU Nebraska Foundation v. City of Plattsmouth, Nebraska, 186 F. Supp.2d 1024, 1033 (D.Neb. Feb. 19, 2002) (noting the "vibrant religious nature of the text of the Ten Commandments" and its "overwhelming religious nature"); Indiana Civil Liberties Union v. O'Bannon, 259 F.3d 766, 771 (7th Cir. 2001) (Ten Commandments is an inherently religious text), cert. denied, 122 S.Ct. 1173 (2002); Harvey v. Cobb County, 811 F. Supp. 669, 675 (N.D. Ga. 1993) ("The content of the panel, the Ten Commandments and the so-called Great Commandment attributed to Jesus of Nazareth, is undeniably religious."), aff'd w/o opinion, 15 F.3d 1097 (11th Cir.), cert. denied, 511 U.S. 1129 (1994). See also Books v. City of Elkhart, 235 F.3d 292 (7th Cir. 2000) (Ten Commandment monument on lawn of municipal building unconstitutional), cert. denied, 532 U.S. 1058 (2001); Freethought Society v. Chester County, 191 F. Supp.2d 589, 598 (E.D. Pa. 2002) (Ten Commandments plaque on courthouse exterior found unconstitutional), injunction modified in part, 194 F. Supp.2d 437 (E.D. Pa. 2002); ACLU v. McCreary County, Ky., 145 F. Supp.2d 845, 848-50 (E.D. Ky. 2001) (posting of Ten Commandments in courthouse unconstitutional); Doe v. Harlan County Sch. Dist, 96 F. Supp.2d 667 (E.D.Ky. 2000) (posting of Ten Commandments in public schools unconstitutional); American Civil Liberties Union of Ky. v. Pulaski County, 96 F. Supp.2d 691 (E.D. Ky. 2000) (posting of Ten Commandments in courthouse unconstitutional).

Nevertheless, defendants argue that the Ten Commandments are part of secular history and have played a role in the development of our society and legal traditions.⁵ The Kentucky legislature, in 1978, similarly argued that "[t]he secular application of the Ten Commandments is clearly seen in its adoption as the fundamental legal code of Western Civilization and the Common Law of the United States." Stone v. Graham, 449 U.S. 39, 41 (1980). The Supreme Court in Stone rejected this avowed secular purpose and held that a Kentucky statute requiring the posting of a copy of the Ten Commandments, purchased with private contributions, on the wall of each public classroom violated the First Amendment's Establishment Clause and was therefore unconstitutional. Applying the Lemon test, the Supreme Court found that the statute violated the first part of the Lemon test, that the statute have a secular purpose: "Kentucky's statute requiring the posting of the Ten Commandments in public schoolrooms has no secular legislative purpose, and is therefore unconstitutional." 449 U.S. at 193. The High Court rejected the articulated secular purpose, finding:

Defendant cites the concurring opinion of Justice Stevens in

The Ten Commandments are undeniably a sacred text in the Jewish and Christian faiths, and no legislative recitation of a supposed secular purpose can blind us to that fact. The Commandments do not confine themselves to arguably secular matters, such as honoring one's parents, killing or murder, adultery, stealing, false witness, and covetousness. See Exodus 20: 12-17; Deuteronomy 5: 16-21. Rather, the first part of the Commandments concerns the religious duties of believers: worshiping the Lord God alone, avoiding idolatry, not using the Lord's name in vain, and observing the Sabbath Day. See Exodus 20: 1-11; Deuteronomy 5: 6-15.

449 U.S. at 41-42.

Likewise, the display of the Ten Commandments in the instant case is undeniably religious. The Adams County Ministerial Association defendants have acknowledged the obvious religious nature of the Ten Commandments. (Claiborne Depo. at 19: the message of the Ten Commandments must "be viewed in the context of urging respect for God;" Claiborne Depo. at 30: the Ten Commandments encourage a belief in a divine or supernatural power; Stephens Depo. at 57: Ten Commandments must be viewed as a whole in context and should not be presented in such a way "that they are completely devoid of religious content or meaning or message;" Johnson Depo. at 122: the Ten Commandments make a religious statement; Ferguson Depo. at 49: the Ten Commandments "make a religious statement;" Ferguson Depo. at 50-51: "Q. Well, part of the power and the force of the Ten Commandments is the fact that they're uttered in the context of religious belief in God, correct? A. There is a transcendence that's implied there, yes, that go beyond human origin." Ferguson Depo. at 66: the Ten Commandments promulgates an objective moral order, the source of which is a supreme being; Ferguson Depo. at 106: Ten Commandments expresses a relationship between people and God.). The display of the Ten Commandments, in the absence of any explanation of a secular reason for the display, leads to the indisputable conclusion that the purpose of the display was to promote religious ideals and not any secular beliefs. Therefore, the stand-alone monument of the Ten Commandments violated the purpose prong of the Lemon test and thus the First Amendment.

The question then becomes whether the Board's actions in altering the display to include the four other stone monuments is sufficient to support their avowed secular purpose of educating Adams County students about the foundations of American law, or whether the additions were merely a pretense to circumvent this lawsuit and continue the display of the Ten Commandments on school property.

Defendants argue that the Court must defer to the Board's articulated secular purpose. They argue that plaintiffs have come forward with no evidence other than the statements of the intervening defendants to prove that the Foundations of American Law and Government display conveys a religious rather than a secular message. The Board argues that the statements of the Ministerial Association cannot be ascribed to the Board.

The intent and identity of the donor is relevant to discerning the purpose behind the Foundations display. See Books, 235 F.3d 292, 303-304. See also American Civil Liberties Union of Tennessee v. Hamilton County, Tennessee, ___ F. Supp.2d ___, 2002 W.L. 971791, *4 (E.D. Tenn. May 03, 2002) (statements by prime sponsor of Ten Commandments resolution relevant in discerning purpose). As indicated above, the Court may "not blindly accept an allegedly secular purpose which is contrary to the facts of the case." McCreary County, KY, 96 F. Supp.2d at 687. See also Edwards, 482 U.S. at 590; Stone v. Graham, 449 U.S. at 41. To ignore the statements of the Adams County Ministerial Association as the Board urges would require us to ignore the factual history and context in which the Foundations display and this dispute arose, something the Supreme Court and other courts have said is crucial to discerning the purpose prong of Lemon. See Santa Fe, 530 U.S. at 308-309; Edwards, 482 U.S. at 590; Books, 235 F.3d at 294.

In the present case, the views and the actions of the intervening defendants are relevant in discerning the purpose behind the Foundations of American Law and Government display. The Adams County Ministerial Association is an association of Christian ministers and pastors in Adams County. The Adams County Ministerial Association proposed, paid for, and provided the original stand-alone Ten Commandments display. The Adams County Ministerial Association also agreed to pay any costs of litigation involving the Ten Commandments monument. The successor organization to the Ministerial Association, "Adams County for the Ten Commandments," was organized and led by the intervenor defendants. (Johnson Depo. 26, 53). Adams County for the Ten Commandments paid for the new display and agreed to support the Board financially with any ensuing court battle. (Johnson Depo. at 146-148). In view of its intimate involvement in the creation and continuation of the displays, the Court cannot ignore the Adams County Ministerial Association and their predominant religious purpose in donating, erecting and defending the displays.

As indicated above, the Adams County Ministerial Association defendants have conceded that the Ten Commandments are indisputably religious in nature. (Claiborne Depo. at 19, 30; Stephens Depo. at 57; Johnson Depo. at 122; Ferguson Depo at 49, 50-51, 66, 106). Intervening defendant Reverend Douglas W. Ferguson is a member of the Adams County Ministerial Association and on the steering committee of Adams County for the Ten Commandments, "an organization of citizens that felt like that they needed to come together to say that we believe in what the school board did in Adams County." (Johnson Depo. at 23; Ferguson Depo. at 28-29). Reverend Ferguson testified that it is his desire to have the Ten Commandments in their entirety become the moral and civil touchstone in the public schools. (Ferguson Depo. at 95). He testified that one of the purposes in erecting the Ten Commandments monument was as an example of "absolute moral standards and guidelines" given by God. (Ferguson Depo. at 111, 113). He testified he viewed the Ten Commandments as an educational tool that was backed up by "the word of God." (Ferguson depo. at 103-104). A consistent theme running through the deposition testimony of the Adams County Ministerial Association defendants is the value of repetition as a pedagogical tool. (See, e.g., Johnson Depo. at 37; Ferguson Depo. at 102-103). The Ten Commandments monuments, erected as permanent displays outside the school entrances, are viewed as valuable reminders of the moral values they seek to "inculcate" into students. (Ferguson Depo. at 103). Reverend Stephens testified that "the teaching of the Ten Commandments needs to be part of our school system." (Stephens Depo. at 65). He explained, "I mean that there is a God and that . . . is, you know — much of our society believes that there is a creator and that he has his laws to govern the world that he made." Id.

Significantly, the Adams County Ministerial Association defendants testified that the essential character of the Ten Commandments display did not change as a result of the addition of the four other monuments. (Ferguson Depo. at 130-131; Johnson Depo. at 158; Stephens Depo. at 36-37; Claiborne Depo. at 41-42). This evidence highlights the fact that the Ten Commandments is "a religious code that focuses not only on subjects that are beyond the ken of any government and that address directly the relationship of the individual human being and God." Books, 235 F.3d at 303 (emphasis added). The evidence shows that the purpose in continuing to display the Ten Commandments on public school grounds is to entreat students to "embrace the specific religious code of conduct taught in the Ten Commandments." Id.

Examining the history and context of the Foundations display is also critical in scrutinizing the Board's stated intent. Santa Fe, 530 U.S. at 308-309. In Santa Fe, the Supreme Court struck down a policy of student-initiated and student-led "invocations" at high school football games. Prior to 1995, a student elected "chaplain" delivered a prayer over the public address system before each football game. Suit was filed challenging the practice under the Establishment Clause. During the pendency of the lawsuit, the school district adopted a different policy authorizing student elections to determine whether "invocations" should be delivered at football games and, if so, to select a student to deliver them. The Supreme Court, in examining whether a secular purpose existed for the new policy, stated:

Most striking to us is the evolution of the current policy from the longsanctioned office of `Student Chaplain' to the candidly titled `Prayer at Football Games' regulation. This history indicates that the District intended to preserve the practice of prayer before football games. The conclusion that the District viewed the October policy simply as a continuation of the previous policies is dramatically illustrated by the fact that the school did not conduct a new election, pursuant to the current policy, to replace the results of the previous election, which occurred under the former policy. Given these observations, and in light of the school's history of regular delivery of a student-led prayer at athletic events, it is reasonable to infer that the specific purpose of the policy was to preserve a popular `state-sponsored religious practice.'

530 U.S. at 309.

The history and context of a religious display by public officials was also found to be important in American Civil Liberties Union v. McCreary County, 145 F. Supp.2d 845 (E.D. Ky. 2001). In that case, the court issued a supplemental injunction barring the display of the Ten Commandments in courthouses and schools by county officials. The display at issue originally consisted of only a framed copy of the Ten Commandments. Several other documents were later added to the display. Finding the amended displays lacked a secular purpose and had the effect of endorsing religion, the court ordered their removal from the courthouses and school system. The defendants again modified the display, posting several historical documents alongside the Ten Commandments. This display, entitled "The Foundations of American Law and Government Display," included the full text of the Magna Carta as enacted in 1215 A.D., the Declaration of Independence, the Bill of Rights of the Constitution of the United States, the Star Spangled Banner, the Ten Commandments with a Biblical citation, the Mayflower Compact of 1620, a picture of Lady Justice and an explanation of its significance, the National Motto of the United States ("In God We Trust") emblem, the Preamble to the Kentucky Constitution, and an explanation of each of the documents' historical and legal significance. The stated purpose of the defendants in enacting this new display was to educate the citizens of McCreary and Pulaski Counties and the schoolchildren of Harlan County regarding the history of the nation's law and government. Despite this articulated purpose, the court evaluated the totality of the circumstances and held:

In light of the history of the government's involvement in these displays, the defendants' purpose is clear. This purpose — posting the Ten Commandments — is improper and violative of the Establishment Clause "because it sends the ancillary message to . . . nonadherents `that they are outsiders, not full members of the political community, and an accompanying message to adherents that they are insiders, favored members of the political community.'"

McCreary, 145 F. Supp.2d at 850, quoting Books, 235 F.3d at 309-10 (quoting Lynch v. Donnelly, 465 U.S. 668, 688 (1984) (O'Connor, J., concurring)). See also Edwards 482 U.S. at 590 (in view of historic and contemporaneous link between the teachings of certain religious denominations and the teaching of evolution court need not be blind to legislature's preeminent religious purpose in forbidding teaching of evolution in public schools unless accompanied by instruction in creation science); Stone v. Graham, 449 U.S. at 41 ("The Ten Commandments are undeniably a sacred text in the Jewish and Christian faiths, and no legislative recitation of a supposed secular purpose can blind us to that fact."); School Dist. of Abington v. Schempp, 374 U.S. 203, 223 (1963) (statute "requiring the selection and reading at the opening of the school day of verses from the Holy Bible and the recitation of the Lord's Prayer by the students in unison," despite proffer of such secular purposes as the "promotion of moral values, the contradiction to the materialistic trends of our times, the perpetuation of our institutions and the teaching of literature," held unconstitutional).

The history of the Foundations of American Law and Government display also reveals the primary purpose behind the display was religious, and not secular, See Lynch, 465 U.S. at 691 (O'Connor, J., concurring). Here, the Ten Commandments display started from a distinctly religious premise. As explained above, the stand alone Ten Commandments monument was religious in content and had no stated secular purpose. Supra, at pp. 15-18. Like the display of the Ten Commandments in McCreary County, Ky., "It is significant that the first display, containing only the Ten Commandments, [was] erected in violation of the Supreme Court's clear ruling in Stone." 145 F. Supp.2d at 849. The free-standing Ten Commandments monument remained in place for almost four years before the addition of the four other monuments. It is undisputed that the additional monuments were donated only after the initiation of this lawsuit challenging the original Ten Commandments display. The intervenor-defendants have testified at depositions that the purpose in constructing the new display was to defeat this litigation and to ensure that the Ten Commandments tablets could remain on their original site on school property. Reverend Johnson testified that these additional monuments were proposed as "the best way to win the case." Johnson Depo. at 145. See McCreary County, 96 F. Supp. at 687 (history of display showed original display contained only Ten Commandments and only in face of litigation did defendants attempt to flank Commandments with other documents). Adams County for the Ten Commandments paid for the additional monuments. The record indicates that the original Ten Commandments tablets were neither disassembled nor removed from school grounds prior to the Board's adoption of the Foundations resolution and the construction of the new display. The new display was constructed around and incorporated into the original tablets, with the Ten Commandments tablets taking center stage. The history of the Foundations display demonstrates that a religious purpose — the display of the Ten Commandments — dominated the Board's stated secular purpose. See Lynch, 465 U.S. at 691 (O'Connor, J., concurring). It is reasonable to infer from the history and evolution of the display that the specific purpose of the Board in erecting the Foundations display was to preserve a popular religious practice — the display of the Ten Commandments. See Santa Fe, 530 U.S. at 309.

The Board urges the Court to view the stated secular purpose in a vacuum, without reference to the history and context of the original display of the stand-alone Ten Commandments tablets and this litigation. To do so would be to ignore reality. The Board's Foundations of law display began from a distinctly religious premise. It is clear that the Board intended to convey a message of endorsement of religion by maintaining the Ten Commandments display throughout the nearly four years it remained as a stand-alone display in clear violation of the Supreme Court's decision in Stone. The secondary purpose, the education of Adams County students about the foundations of American law, only came about in response to litigation. That this secondary purpose could be achieved without resort to the inclusion of a highly religious document is additional evidence that the Board's stated purpose is illusory. Coles, 173 F.3d at 384. While the Supreme Court suggested in Stone that where the "Ten Commandments are integrated into the school curriculum, where the Bible may constitutionally be used in an appropriate study of history, civilization, ethics, [or] comparative religion" such a system would not run afoul of the constitution, this is not such a case. There is no integration of the Ten Commandments into the curriculum of the Adams County public schools. There is no serious attempt to present the monuments as a comprehensive lesson in history. The visual proximity of the explanatory footers reinforces the conclusion of a primarily religious purpose. The explanations carved into the footers are relatively undersized. The footers are placed at the base of each monument. To read, let alone comprehend any serious history lesson from the footers, one must walk over the grass and landscaping to hover above them. (Doc. 72, Exh. D; Doc. 78, Fifth Baker Aff. ¶ 3). See, e.g., Kimbley v. Lawrence County, 119 F. Supp.2d 856, 872 (S.D. Ind. 2000).

Defendants attempt to distinguish Stone v. Graham and the cases which rely on Stone by arguing that Stone predates the Supreme Court's "far more comprehensive treatment of religious displays on public property . . .," citing to Capitol Square Review and Advisory Bd. v. Pinette, 515 U.S. 753 (1995), Lynch v. Donnelly, 465 U.S. 668 (1984), and County of Allegheny v. American Civil Liberties Union, 492 U.S. 573 (1980). Those cases, however, did not involve religious displays on school property. See Lynch (nativity scene in Christmas display in park in city shopping district); Pinette (Ku Klux Klan cross in public plaza next to state capitol); City of Allegheny (creche in a county courthouse and Chanukah menorah outside city and county building). In fact, the Supreme Court in City of Allegheny noted it would be faced with a much different case if the displays arose in a school setting: "This is not to say that the combined display of a Christmas tree and a menorah is constitutional wherever it may be located on government property. For example, when located in a public school, such a display might raise additional constitutional considerations. Cf. Edwards v. Aguillard, 482 U.S., at 583-584, 107 S.Ct., at 2577 (Establishment Clause must be applied with special sensitivity in the public-school context)." City of Allegheny, 492 U.S. at 620 n. 69.

It is clear that the addition of the four other monuments to the original Ten Commandments monument is a calculated attempt to continue an unconstitutional action under the guise of the secular purpose of educating students on the foundations of American law. In view of the history and context of the Foundations of American Law and Government display and the views expressed by the Adams County Ministers Association, the Court finds the Foundations display violates the purpose prong of the Lemon test and therefore the Establishment Clause of the First Amendment.

2. Effect

Even if the Court were to accept the stated secular purpose behind the Foundations display, we find that the display has the primary or principal effect of advancing religion. The endorsement test requires us to ask whether reasonable observers would think that the Adams County School Board is endorsing religion by its Foundations display. Capitol Square Review, 243 F.3d at 302; Granzeier, 173 F.3d at 574. The "reasonable observer," is "deemed aware of the history and context of the community and forum in which the religious display appears." Capitol Square Review, 243 F.3d at 302, quoting Capitol Square Review and Advisory Bd. v. Pinette, 515 U.S. 753, 780 (1995) (O'Connor, J., concurring). See also Santa Fe Independent School Dist., 530 U.S. at 308; Books, 235 F.3d at 306.

In American Civil Liberties Union v. McCreary County, 145 F. Supp.2d 845 (E.D. Ky. 2001), the court examined the "totality of the circumstances surrounding the display" in determining whether the display, the Ten Commandments surrounded by historical documents such as the Magna Carta, the Declaration of Independence, the Bill of Rights of the United States Constitution, and the Star Spangled Banner, among others, had the primary effect of advancing religion. The court looked to the "reasonable observer" who "is "familiar with the history and placement' of the display, rather than one who sees it with no prior knowledge." Id. at 851, quoting Books, 235 F.3d at 306. The court held that "the composition, setting, and history of the current displays would lead a reasonable observer to interpret them as the county governments' endorsement of religion." The court stated:

The composition of the current set of displays accentuates the religious nature of the Ten Commandments by placing them alongside American historical documents. Given the religious nature of this document, placing it among these patriotic and political documents, with no other religious symbols or moral codes of any kind, imbues it with a national significance constituting endorsement. The Ten Commandments are completely different from the remainder of the displays. The reasonable observer will see one religious code placed alongside eight political or patriotic documents, and will understand that the counties promote that one religious code as being on a par with our nation's most cherished secular symbols and documents. This is endorsement.

145 F. Supp.2d at 851, footnotes omitted.

In the instant case, the "reasonable observer" is deemed to be aware of the following history behind the Foundations display: A stand-alone Ten Commandments display was originally donated by the Adams County Ministerial Association in 1997 for permanent placement outside the entrances of four Adams County high schools. The Board accepted the donation and endorsed the erection of the Ten Commandments display without articulating any secular purpose behind the display. The Ten Commandments display stood outside schoolhouse doors for nearly four years before the addition of four other monuments, which included excerpts from the Preamble to the United States Constitution, the Declaration of Independence, the Magna Carta, and the Justinian Code. The additional monuments were co-equal in size and shape and surrounded the original Ten Commandment display. Adams County for the Ten Commandments, the successor organization to the Adams County Ministerial Association, paid for the additional monuments. The resolution proposing the additional four monuments was made only after this lawsuit was initiated. Deposition testimony indicates that the proposal for the Foundations display was viewed as "the best way to win the case." Johnson Depo. at 145. Finally, Adams County for the Ten Commandments agreed to defend the Board in any litigation that might arise from the posting of the Ten Commandments.

A reasonable observer, imbued with the foregoing history of the Foundations display, would perceive State endorsement of religion in this case. Like the reasonable observer in McCreary, the reasonable observer here would know of the defendants' previous attempts to post the Ten Commandments alone and the ensuing controversy surrounding the current display, which has concentrated on only one of the five monuments: the Ten Commandments. "The defendants' non-secular purpose would be known to such a viewer and would increase the displays' religious effect by conveying the message that the [school board] had succeeded not in posting a display of "The Foundations of American Law and Government,' but in posting the Ten Commandments." 145 F. Supp.2d at 852. In addition, the visual presentation of the Ten Commandments conveys a message that "a particular religious belief is favored or preferred." County of Allegheny, 492 U.S. at 593. The stone monument is a permanent fixture on the grounds of a public school. It is located at the entrance to the school building. Its distinctive "tablet" shape and placement at the center of the four other documents sends a message of endorsement of the Ten Commandments by the School Board. The reasonable observer would understand the Foundation display, in view of its history and context, communicates the message that the Adams County School Board endorses religion. The Foundations display thus has the effect of advancing religion and fails the second prong of the Lemon test.

3. Entanglement

Finally, there is evidence of impermissible governmental entanglement with religion in this case. "[T]o assess entanglement, [courts] have looked to `the character and purpose of the institutions that are benefitted, the nature of the aid that the State provides, and the resulting relationship between the government and religious authority.'" Coles v. Cleveland Bd. of Educ., 171 F.3d 369, 385 (6th Cir. 1999) (quoting Agostini v. Felton, 521 U.S. 203, 232-33 (1997), quoting Lemon, 403 U.S. at 615). Here, the Board received the donation of the original Ten Commandments from a religious organization, the Adams County Ministerial Association. The Adams County Ministerial Association agreed to maintain the monument and "fight" any litigation arising from the Ten Commandments display. Board members relied on this guarantee to pay for costs of litigation surrounding the monuments in assenting to the display on school property. After litigation ensued, the successor organization to the Adams County Ministerial Association paid for the additional four monuments and agreed to continue funding the litigation. These factors, taken together, show sufficient entanglement under the Lemon test.

The Cases Cited by Defendants do Not Compel a Different Result.

The defendants rely primarily on four cases in support of their position on the constitutionality of the Foundations of American Law and Government display. The first, Anderson v. Salt Lake City Corp., 475 F.2d 29 (10th Cir.), cert. denied, 414 U.S. 879 (1973), was decided before the Supreme Court's decision in Stone v. Graham and its continuing validity has been questioned by the Tenth Circuit itself. See Summum v. Callaghan, 130 F.3d 906, 910 n. 2 (10th Cir. 1997) ("Although we recognized the religious nature of the Ten Commandments, we also noted its "substantial secular attributes' as a precedent legal code and concluded that the "monolith is primarily secular, and not religious in character; that neither its purpose nor effect tends to establish religious belief. . . .' Since Anderson was decided, however, more recent cases, including a Supreme Court case, cast doubt on the validity of our conclusion that the Ten Commandments monolith is primarily secular in nature."). Therefore, this Court finds Anderson to be of dubious value in evaluating this case.

In Suhre v. Haywood County, North Carolina, 55 F. Supp.2d 384 (W.D. N.C. 1999), also relied on by the Board, the court of appeals upheld the display of a Ten Commandments plaque containing an abridged version of the Ten Commandments on a county courtroom wall, finding the county clearly had the secular purpose of honoring and respecting the development of the judicial system when the display was erected. The display of the Ten Commandment plaque was part of a larger display dominated by a statute of Lady Justice and which contained other secular objects including the sword of justice and scales of justice flanked by the American and North Carolina flags. In upholding the display, the Court considered the historical context in which the display was erected. At the dedication of the new county courthouse in 1932, "great effort was taken to recount the historical development of law, including the ancient mythical gods and goddesses, and the laws of Rome and the Tribes of Israel." 55 F. Supp.2d at 385. The court reviewed the remarks presented at the dedication ceremony and found they "clearly establish that the historical component of the plaques within the display was to honor and respect the development of the judicial system." Id. at 394. Also relevant to the historical context was the fact that in 1972 the courthouse, including the display, was entered on the National Register of Historic Places by the United States Department of Interior recognizing the property to be "significant in American history, architecture, archaeology and culture — a comprehensive index of the significant physical evidences of our national patrimony." Id. at 388. The court also considered the size of the Ten Commandments display in relation to rest of the display:

For the past 67 years, the 6 foot, 6 inch sculptured form of Lady Justice has welcomed all who came into the main courtroom of the Haywood County Courthouse, holding her Scales of Justice in one hand and her 3-foot-long Sword of Justice in the other. . . . On either side of her are marble plaques measuring 1 foot, 8 inches wide by 2 feet, 7 inches high, and on which are contained the Decalogue, commonly referred to as the Ten Commandments, in lettering which is 1 inch high.

Id. at 386. The court noted that in the 68-foot-wide courtroom, the total display consumed 22 feet and of that, one and one half feet displayed the abridged version of the Ten Commandments in one inch lettering. Relevant to the court was the fact "that the plaques are the smallest part of the display which is overwhelmingly dominated by Lady Justice and which contains other secular objects such as the sword of justice and the scales of justice flanked by the American and North Carolina flags," signifying respect not for religion but for the law. Id. at 395-96. The "reasonable observer," who is deemed "aware of the history and context of the community and forum in which the religious display appears," would understand the overall message of the display to be equal justice under the law. Id. at 396, 397. Finally, the court noted that there was no excessive entanglement with religion because, among other things, "[t]he display was not erected and is not maintained by any religious organization. No religious faith, denomination or organization is affiliated with or identified as a sponsor of the display." Id. at 398.

Unlike Suhre, the setting of the present display is on school property, and not a historically significant county courthouse. Unlike Suhre, the enactment of the Ten Commandment display in 1997 was for religious purposes, and not for the secular purpose of honoring and respecting the development of the judicial system. Only after this lawsuit was brought did the display change its character to include the four other historical documents. These four monuments mimic the shape universally recognized as the stone tablets handed down by God to Moses and surround the original Ten Commandments. The so-called secular monuments do not "overwhelmingly" dominate the centered Ten Commandments monument. Significantly, unlike Suhre, the original and modified display here were purchased, erected and maintained by a religious group, who view the Ten Commandments as "absolute moral standards and guidelines" given by God. (Ferguson Depo. at 1111, 113). Rather than support defendants' position, Suhre points out the vast differences in the historical and aesthetic context of the Foundations of American Law and Government display in this case.

The third case cited by defendants, State of Colorado v. Freedom From Religion Foundation, Inc., 898 P.2d 1013, 1018 (Colo. 1995), cert. denied, 516 U.S. 1111 (1996), is likewise distinguishable from the instant case. In Freedom From Religion Foundation, the Colorado Supreme Court held that a Ten Commandments monument in a public park near the capitol did not violate the Establishment Clause. The monument was donated by a fraternal group as part of a National Youth Guidance Program to demonstrate codes of conduct. The monument included symbols of Judaism and Christianity, and contained an "all-seeing eye." It was one of the smallest and least conspicuous memorials in a one square city block park and stood with a taller statute honoring an Hispanic Congressional Medal of Honor recipient, Veterans and Civil War Memorials, a Pearl Harbor memorial, a grove of trees honoring the memory of the Challenger Astronauts who perished in a shuttle disaster, and a statute of a Native American and buffalo, among others. The court held "that the monument's content and its setting among several much more prominent monuments in Lincoln Park and throughout the Capitol Complex Grounds sufficiently neutralize its religious character resulting in neither an endorsement nor a disapproval of religion." Id. at 1019. The Court found that the "preeminent purpose of erecting the monument was not plainly religious in nature — rather, the monument represents the secular objective intended at the outset, recognition of a historical, jurisprudential cornerstone of American legal significance." Id. at 1026. Significantly, the Colorado Supreme Court took pains to distinguish the case before it with school religion cases which "require a more stringent analysis because of the age of the minds affected, and because students are captive audiences, especially susceptible to influence." Id. at 1023. The court stated, "It has been where the display or publication of the Ten Commandments concerns public schools — where young and impressionable minds are in need of greater protection — the courts have been less tolerant of the potential to inappropriately persuade or coerce students by religious views." Id. at 1022.

Unlike Freedom From Religion Foundation, the instant case involves a permanent display at the entrance of school buildings, requiring "a more stringent analysis." 898 P.2d at 1023. In addition, the monuments in the instant case were donated by a religious, and not fraternal organization, whose donative intent was primarily religious. Id. at 1024. Also, the Ten Commandments monument in the Colorado case was one of numerous more prominent monuments in a public park, unlike the instant Ten Commandments which is centered between four monuments of co-equal size and shape outside school entrances. Freedom From Religion Foundation does not persuade us that the Foundations display sufficiently neutralized the undeniably religious message of the Ten Commandments, especially in view of its permanent placement outside the schoolhouse doors.

Defendants also cite to Books v. City of Elkhart, Indiana, No. 3:98cv0230 AS (N.D. Ind. March 4, 2002), on remand from the Seventh Circuit in Books v. City of Elkhart, 235 F.3d 292 (7th Cir. 2000), cert. denied, 121 S.Ct. 2209 (2001). On remand, the court adopted a stipulation presented by the parties stating it "represents a proper balance concerning all of the constitutional values that are involved in this case. . . ." (Doc. 91, attachment). The parties agreed to erect a new display in front of the Elkhart Municipal Building. The new display, called "The Cornerstones of Law and Liberty" includes monuments containing excerpts from the texts of the Bill of Rights, the Preamble to the United States Constitution, the Declaration of Independence, and the Magna Carta. In front of the display will be an explanatory sign which will briefly explain the historical significance of each text.

Books is distinguishable in that the display does not appear on school grounds. As the dissent in the Seventh Circuit decision in Books points out, "context is critical." Books, 235 F.3d at 322 (Manion, J., concurring in part and dissenting in part). "[W]hile Stone speaks for the school setting — where student attendance is compulsory, and pupils are particularly susceptible to influence — it does not answer the question in the context of an open courtyard where citizens may divert their eyes, if confronted by a discomforting reference to God, to one of the other secular monuments forming the larger historical display." Id.

Therefore, the cases cited by defendants do not compel a different result in this matter.

CONCLUSION

The Establishment Clause of the First Amendment prohibits the promotion or advancement of religion by government. Because the Adams County/Ohio Valley School Board has accomplished that by their display of the Ten Commandments on public school property, their actions violate the First Amendment and the Ten Commandments must be removed from school property. This is not to say that the Ten Commandments may not be displayed in every church, synagogue, mosque, home, storefront, yard, or business in Adams County, for surely they may. Posting the Ten Commandments on private property, where the residents of Adams County may read and observe the precepts of the Ten Commandments if they so choose, satisfies the best interests of both government and religion. The Establishment Clause recognizes;

When the power, prestige and financial support of government is placed behind a particular religious belief, the indirect coercive pressure upon religious minorities to conform to the prevailing officially approved religion is plain. But the purposes underlying the Establishment Clause go much further than that. Its first and most immediate purpose rested on the belief that a union of government and religion tends to destroy government and to degrade religion. The history of governmentally established religion, both in England and in this country, showed that whenever government had allied itself with one particular form of religion, the inevitable result had been that it had incurred the hatred, disrespect and even contempt of those who held contrary beliefs. That same history showed that many people had lost their respect for any religion that had relied upon the support for government to spread its faith. The Establishment Clause thus stands as an expression of principle on the part of the Founders of our Constitution that religion is too personal, too sacred, too holy, to permit its "unhallowed perversion' by a civil magistrate.

Engel v. Vitale, 370 U.S. 421, 431-32 (1962) (footnotes omitted). In this case, the Adams County/Ohio Valley School Board symbolically set the "government's seal of approval on one religious view — the Christian view," Stein v. Plainwell Community Schools, 822 F.2d 1406, 1410 (6th Cir. 1987), by erecting the Ten Commandments on public school grounds. As this Court noted from the outset, courts must be particularly scrupulous in Establishment Clause challenges involving the posting of religious messages where young and impressionable children attend school. The permanent posting of the Ten Commandments at the school house door, while undoubtedly popular with numerous Adams County residents, sends the message to the minority "`that they are outsiders, not full members of the political community. . . .'" Books, 235 F.3d at 309-10, quoting Lynch v. Donnelly, 465 U.S. 668, 688 (1984) (O'Connor, J., concurring).

For these reasons, this Court finds the display of the Ten Commandments on public school property, whether alone or as part of the Foundations of American Law and Government display, violates the Establishment Clause of the First Amendment of the United States Constitution and must be enjoined.

IT IS THEREFORE ORDERED THAT:

1. The motion of plaintiffs Berry Baker and Anonymous Plaintiff Number One for summary judgment as to all claims asserted in the Third-amended and Supplemental Complaint (Doc. 71) be GRANTED.

2. The motion for summary judgment by defendant Adams County/Ohio Valley School Board (Doc. 72) and the summary judgment motion by intervenor-defendants Kenneth Johnson, Thomas D. Claiborne, Ronald D. Stephens, and Douglas W. Ferguson (Doc. 77) be DENIED.

3. The Court DECLARES that the display on public school property of the Ten Commandments, whether alone or as part of the Foundations of American Law and Government display, violates the Establishment Clause of the First Amendment of the United States Constitution and Article 1, § 7 of the Ohio Constitution.

3. Defendant Adams County/Ohio Valley School Board is ORDERED to remove the Ten Commandments display from each Adams County high school.

4. Plaintiffs' request for a court order prohibiting the Adams County/Ohio Valley School Board from continuing to establish or maintain policies, practices, or customs which encourage the erection of these, or any other religious symbols on school property is DENIED as overly broad.

5. Plaintiffs' request for an order designating plaintiffs and any other witnesses as entitled to witness protection under federal law is DENIED, except to the extent provided in the Court's Protective Order of May 24, 2000 (Doc. 47), as plaintiffs have failed to establish that further relief is warranted in this matter.

THOU SHALT HAVE NO OTHER GODS BEFORE ME THOU SHALT NOT WORSHIP ANY GRAVEN IMAGE THOU SHALT NOT TAKE GOD'S NAME IN VAIN REMEMBER THE SABBATH TO KEEP IT HOLY HONOR THY FATHER AND THY MOTHER THOU SHALT NOT KILL THOU SHALT NOT COMMIT ADULTERY THOU SHALT NOT STEAL THOU SHALT NOT BEAR FALSE WITNESS THOU SHALT NOT COVET

See Doc. 78 at 31 n. 17 and citations therein.