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Chester County, Pa., must remove a bronze plaque of the Ten Commandments that has hung on the east wall of its courthouse for more than 80 years because its strong religious message violates the First Amendment’s prohibition against state establishment of religion, a federal judge has ruled. “The tablet’s necessary effect on those who see it is to endorse or advance the unique importance of this predominantly religious text for mainline Protestantism,” U.S. District Judge Stewart Dalzell of the Eastern District of Pennsylvania wrote in his 25-page opinion in Freethought Society of Greater Philadelphia v. Chester County. In the ruling, which came just one day after completing a two-day, nonjury trial, Dalzell rejected the county’s argument that the plaque serves a valid “secular purpose” of being a “symbol of law giving.” Instead, Dalzell found that the plaque’s history shows it had a strongly religious purpose when it was first placed on the outside wall of the courthouse in 1920. Chester County received the plaque as a gift from the Council of Religious Education of the Federated Churches of West Chester, an organization Dalzell described as “a group of mainline Protestant churches that promoted Bible study and religious education.” In the trial, plaintiff’s attorney Stefan Presser, the legal director of the American Civil Liberties Union of Pennsylvania, set out to prove that county and court officials had strong religious motives when they accepted the plaque as a gift from the council of churches. Presser introduced as evidence a program book from the dedication ceremony that included the text of a dedication in which audience members participated by reciting responses in unison. The ceremony leader opened the dedication by saying: “Because we believe that the Ten Commandments are basic to righteousness and justice in government, industry, commerce, the administration of law, and in society.” The audience responded, “We dedicate to God this tablet of the Ten Commandments.” The leader then said: “Because we believe that the presence of these inscriptions in bronze of the Ten Commandments will be a reminder, to all who read as they pass by, of their duty and responsibility to God and their fellow men.” The audience responded: “We solemnly dedicate to the cause of public morality this tablet of the Ten Commandments.” Dalzell found that Presser had proven that the plaque’s history showed that its purpose was not secular. “The program of the Dec. 11, 1920 ceremony dedicating the plaque … confirms the marriage of Church and County that took place that day,” Dalzell wrote. Dalzell also found that the plaque displays a version of the Ten Commandments that is taken from the King James version of the Bible. As a result, Dalzell concluded that the county’s display of the plaque amounts to a “denominational preference” that “runs afoul of settled Supreme Court Establishment Clause jurisprudence. Before tackling what he called a “vexing question under the First Amendment’s Establishment Clause,” Dalzell first addressed the county’s argument that the plaintiffs in the suit had no standing to bring the case. Presser filed the suit on behalf of the Freethought Society of Greater Philadelphia and two of its members — Sally Flynn and Margaret Downey — who testified that they are offended by the religious nature of the plaque every time they see it. At trial, attorney Thomas C. Abrahamsen of the Chester County Solicitor’s office argued that since the plaque hangs on the courthouse’s eastern wall near an entrance that is no longer used, the plaintiffs are never required to see it. Abrahamsen argued that neither Flynn nor Downey satisfied the U.S. Supreme Court’s test for standing announced in the 1992 decision in Lujan v. Defenders of Wildlife since they can’t show that they have “suffered an injury in fact.” Dalzell disagreed, saying that Flynn, who is an atheist, “must go to the courthouse building for matters as mundane as getting a dog license (as she has done) or as important as serving as a juror or witness (as she has repeatedly done).” Flynn also testified that she is a frequent visitor to the east side of the courthouse because it is the location for rallies she attends to support the Democratic Party and abortion rights. “She finds the tablet unwelcome every time she passes it by, and has often taken steps to avoid seeing it,” Dalzell wrote. Likewise, Dalzell found that Downey, a secular humanist, “must go to the courthouse to obtain a special license to solemnize marriages … . As a secular humanist celebrant, she will need to return to the courthouse on a regular basis.” Since both women suffered “actual injury,” Dalzell found that the Freethought Society has valid “organizational standing” that was “unimpaired by the closing of the High Street door.” Turning to the central question in the case — whether the plaque’s display violates the First Amendment — Dalzell’s first task was to choose a legal test to apply. Dalzell found that the appropriate analysis to use is the three-prong test articulated by the U.S. Supreme Court in 1971 in Lemon v. Kurtzman even though “at least four sitting justices of the Supreme Court have criticized Lemon in recent years.” Under Lemon, Dalzell said, the court must decide “(1) whether the governmental activity in question has a secular purpose, (2) whether its primary effect advances or inhibits religion and (3) whether it fosters an excessive entanglement with religion.” Chief Justice William Rehnquist complained in a recent dissent that “ Lemon has had a checkered career in the decisional law of this court.” Justice John Paul Stevens also expressed reservations, saying he wanted to avoid “continuing with the sisyphean task of trying to patch together the ‘blurred, indistinct and variable barrier’ described in Lemon.” But Dalzell found that “no justice … has heaped more ashes on Lemon than Justice [Antonin] Scalia did in his concurrence in Lamb’s Chapel v. Center Moriches School Dist. Scalia wrote: “Like some ghoul in a late-night horror movie that repeatedly sits up in its grave and shuffles abroad, after being repeatedly killed and buried, Lemon stalks our Establishment Clause jurisprudence once again, frightening the little children and school attorneys of Center Moriches Union Free School District. Its most recent burial, only last Term, was, to be sure, not fully six feet under: Our decision in Lee v. Weisman conspicuously avoided using the supposed ‘test’ but also declined the invitation to repudiate it.” Lamenting that the Lemon test seemed incapable of being killed, Scalia wrote that “no fewer than five of the currently sitting Justices have, in their own opinions, personally driven pencils through the creature’s heart (the author of today’s opinion repeatedly [Justice White]), and a sixth has joined an opinion doing so.” But Dalzell found that despite all the criticism, the Lemon test is still controlling law. Applying the test, Dalzell found that since the plaque’s display failed the first two prongs — by lacking a secular purpose, and by having a primarily religious purpose — there was no need to reach the third prong. Even without proof of the religious nature of the plaque’s dedication, Dalzell found that its wording showed its religious aim. “The text’s first 220 words are exclusively religious,” Dalzell wrote. Although several of the commandments also have a moral or legal message, Dalzell concluded that “no less than 241 words are explicitly religious, while only 84 could be fairly regarded as conveying a secular, moral message.” Two of Chester County’s current commissioners — Andrew Dinniman and Colin Hanna — testified at the trial that they believe the county should be allowed to keep displaying the plaque because of the “dual nature” of the Ten Commandments as both a religious text and one of the foundations of western legal traditions. Dalzell disagreed, saying “interesting and sensitive as the commissioners’ observations are, they nevertheless cannot negate the plain words of the tablet, which by a ratio of almost three to one convey a religious message.” Turning to the second Lemon prong, Dalzell found that the plaque amounts to a “state endorsement of religion.” Since the plaque hangs alone on the east wall, Dalzell said, Chester County cannot use the argument that proved a winner for the state of Colorado when it successfully defended the erection of a Ten Commandments monument in a state park by pointing to numerous other monuments in the same vicinity. In an interview Wednesday, plaintiffs’ attorney Presser said “obviously, we’re delighted that the judge has reaffirmed a gift that was given to us 200 years ago — that each person is free to find their own religious path, or to turn from religion.” County officials said they will consider an appeal. “Our display of the Ten Commandments plaque is entirely consistent with the original intent” of the First Amendment, Commissioner Hanna said. The Associated Press contributed to this report.

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