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Click here for the full text of this decision FACTS:In 1953, the Star of Hope Mission, a Houston-area Christian charity, built a memorial to a local businessman and philanthropist and longtime Star of Hope supporter, William S. Mosher. The Harris County Commissioners agreed to let Star of Hope place the memorial in front of the courthouse. The monument is just over 4 feet high. Engraved on the front are the words “STAR OF HOPE / MISSION ERECTED / IN LOVING MEMORY OF HUSBAND AND FATHER / WILLIAM S. MOSHER / A.D. 1956.” The top part of the monument included a glass case inside of which lay an open Bible to memorialize Mosher’s Christian faith. The monument’s public dedication included Christian prayers. Over the next 40 years, Star of Hope maintained the monument, replacing the Bible when it was stolen or vandalized. In 1988, a group of atheists complained to Harris County about the inclusion of the Bible in a monument on public grounds where litigants, jurors, courthouse employees and legal practitioners constantly had to pass. Rather than get involved with litigation, Star of Hope decided to remove the Bible from the monument. The space where the Bible had been began being used as a trash bin. In 1995, Judge John Devine took over the maintenance of the monument. When campaigning for his judicial seat, Devine ran on a platform of putting Christianity back into government. Devine and his court reporter, Karen Friend, solicited private donations to refurbish the monument, which included replacing the Bible and outlining it in red neon light. Devine held a rededication ceremony in November 1995, which included several Christian prayers and a singing of “The Battle Hymn of the Republic.” Though Harris County has paid for the annual electric bill to keep the neon light illuminated, Friend paid for repairs to the monument in 1996 and 1998. Friend would also periodically turn the pages of the Bible to showcase various Bible verses until Star of Hope took that duty over in 1997. Kay Staley, a Harris County lawyer and an acknowledged atheist, sued the county over the monument in August 2003, saying the Bible’s display offended her and sent the message to other atheists and non-Christians that they are not full members of the Houston political community. A large rally was held in response to Staley’s suit the next month. Several judges participated, stressing that the Bible was a foundation of the Christian faith. The district court granted Staley’s request for a temporary restraining order, preliminary injunction and permanent injunction. Reasoning that the purpose and effect of the Bible in the monument were religious, the presence of the Bible violated the Establishment Clause and had to be removed. The district court also ordered Harris County to pay $40,586 in attorneys’ fees and expenses. HOLDING:Affirmed. In addressing the county’s argument that the district court erred in finding the monument’s purpose to be religious instead of purely a tribute to William Mosher the court says resolution of this case is “foretold” by the U.S. Supreme Court’s rulings in 2005 McCreary County, Ky., v. ACLU of Ky., 125 S.Ct. 2722, and Van Orden v. Perry, 125 S.Ct. 2854. The court reviews these two cases extensively, noting that the McCreary case “does not bring good news for the defendants in this case,” while the Van Orden case has a more “favorable outcome for the defendants.” The court states that in discerning the purpose of a display has the effect of endorsing religion, the display must be examined from the viewpoint of a “reasonable observer,” that is not the “uninformed, causal passerby, the heckler, or the reaction of single individual.” The reasonable observer would be familiar with the history of the government’s actions and the context in which they arose. The court adds that McCreary made clear that a display’s entire history is relevant: “[A] religious purpose cannot be hidden one way or the other. An original religious purpose may not be concealed by later acts, nor may a newfound religious purpose be shielded by reference to an original purpose.” In 1956, although Christian prayers were offered at the dedication ceremony, from the viewpoint of the objective observer, the primary purpose of the monument was not to endorse Christianity but to honor the life of a well-respected local citizen whose contributions to the community were guided by his Christian faith. For 32 years the monument stood without anyone complaining about it. From 1988 to 1995 there was the removal of the Bible, as well as the neglect of the monument. In 1995, however, “the monument begins to morph into a religious symbol, an occurrence that would have been fully noticed by the objective observer.” The court takes note of three factors in that transformation: (1) Devine’s crusade to refurbish the monument came after he promised to put Christianity back in government, not because he or Friend had any personal connection to Mosher or Mosher’s family; (2) the refurbishment also altered the monument by adding a red neon light to the display; and (3) the rededication ceremony included Christian ministers leading prayers. “Taking into account Judge Devine’s political platform, the lack of connections between the refurbishers of the monument and Mosher or Star of Hope, the religious ceremonies attending the refurbishment, and the addition of a red neon light drawing added attention to the religious portion of the monument, an objective observer would conclude that the monument in its new phase of life had come to have a predominantly religious purpose. This observer would conclude that Judge Devine and his allies essentially had commandeered the monument for religious purposes, and that the primary purpose of the monument had now become religious.” OPINION:E. Grady Jolly, J.; Jolly, Higginbotham and Smith, JJ. DISSENT:Jerry E. Smith, Circuit Judge. Accusing the majority of exhibiting an “appalling hostility to any hint of religion in public spaces,” the dissent also thinks the majority misunderstands McCreary and Van Orden. “This formerly unknown principle of constitutional law � which perhaps should be crowned the”Principle of Devine Intervention’ � has serious doctrinal and practical consequences. First, it justifies the removal of a monument having a predominantly secular purpose . . . as long as any religious purpose arises during the course of the monument’s multi-decade lifetime. Second, it places in particular jeopardy those monuments that are most deserving of judicial protection because they have”stood apparently uncontested for . . . generations’ and are”unlikely to prove divisive’ in the future.”

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