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Lawyers for Chester County, Pa., are asking a federal judge to stay the effect of his order that requires the county to remove a plaque of the Ten Commandments that has hung on the outside wall of the county courthouse for more than 80 years. Attorney Thomas C. Abrahamsen of the Chester County Solicitor’s Office said in a brief filed last week that the plaque is mounted on brittle limestone and that removing it could cause damage to both the wall and the plaque. Abrahamsen argues that the county will be “irreparably harmed if there is damage to the plaque or courthouse wall” and will have no way to recover the costs of restoring the plaque if it is damaged. But as the American Civil Liberties Union sees it, the judge can simply order the county to cover the plaque while it pursues an appeal. “Had [the county] either made some effort to comply with the court’s order or at least put in the record admissible evidence of the fragility of either the plaque or the courthouse facade, the court could have considered amending its order during the pendency of the appeal to require [the county] to simply drape or otherwise cover the plaque so that its text could not be read,” ACLU legal director Stefan Presser wrote. Wednesday, U.S. District Judge Stewart Dalzell of the Eastern District of Pennsylvania said he will hold a hearing on April 8 to consider the issues. In the meantime, Dalzell said the lawyers should conduct “expedited discovery” on the issue of “the physical removal of the plaque.” In court papers filed last week, Abrahamsen urged Dalzell to stay the ruling because the county has a “strong likelihood of success” in its appeal. Abrahamsen argues that Dalzell erred when he applied the so-called Lemon test, a three-prong test for alleged violations of the Establishment Clause of the First Amendment that was devised by the U.S. Supreme Court in its 1971 decision in Lemon v. Kurtzman. Since five of the current justices on the Supreme Court have criticized Lemon, and the 3rd U.S. Circuit Court of Appeals has questioned whether the test still applies in some cases, Abrahamsen argues that Dalzell’s ruling is likely to be overturned. Abrahamsen also argues that Dalzell never should have allowed religious experts to offer evidence on the legal issue of whether the plaque has the effect of endorsing religion, and that his ruling was premised on an erroneous finding that the plaque has no secular purpose. Dalzell also erred, Abrahamsen argues, in finding that the plaintiffs — the Freethought Society of Greater Philadelphia, an atheist group, and Sally Flynn, one of its members — even had standing to bring the suit since they couldn’t show that they suffered “palpable injury” that resulted from a “direct, unwanted contact” with the plaque. Abrahamsen argues that the plaintiffs won’t suffer any irreparable injury if the plaque remains on the courthouse wall during the appeal because “they do not come to the courthouse on a daily basis or even on a monthly basis.” Presser, in a response brief, argues that Abrahamsen is wrong in predicting that the courts are likely to overturn Lemon. Instead, Presser argues, Dalzell got it right when he held that despite the percolating controversy, Lemon remains the law of the land and is still the test that must be employed by federal trial judges. Within the past two years, Presser notes, the Supreme Court has applied Lemon at least once and turned away two other cases in which lower courts had applied it. Presser argues that the rest of Abrahamsen’s arguments for a stay are essentially rehashings of his arguments that failed at trial. On the issue of the plaintiffs’ standing, Presser says, the evidence showed that Flynn and Margaret Downey, another Freethought Society member, regularly come into contact with the plaque and are bothered by its religious content. Presser also argues that Dalzell was “on solid ground” when he held that the strongly religious nature of the 1920 ceremony when the plaque was dedicated showed that the county was “acting with the intent of promoting a particular point of view in religious matters.” As for the experts, Presser argues that Abrahamsen didn’t object during trial, and that even if he had, Dalzell didn’t rely on the experts in reaching his legal conclusions. On the issue of irreparable harm, Presser argues that the plaintiffs and the public will suffer if a stay is granted, but that the county won’t suffer at all if the stay is denied. While Abrahamsen claims that removal could damage the plaque and the wall, Presser argues that the county presented no facts to support that claim. In a pre-emptive strike, Presser submitted an affidavit from Jim Brooks, a structural engineer, who testified that “the plaque can be removed in a matter of several hours without damaging the building.” The stay should be denied, Presser argues, because the county offered “nothing more than sheer speculation” about “the mere possibility of damage.” In his closing paragraph, Presser argues that the final prong of the test for any court injunction is the “public interest,” and that it clearly weighs in favor of denying the stay. “This court has now declared that Chester County’s [Ten Commandments] display violates the First Amendment’s Establishment Clause. Leaving it in place will continue to irreparably violate plaintiffs’ rights not to be made as outcasts in their own communities.” In a footnote, Presser argues that the public’s strongly negative reaction to Dalzell’s ruling “should dispel any doubt that the display embodies a deeply religious text.” The footnote says Downey “has been made to fear for her physical safety” as a result of the court’s ruling. “People do not normally threaten the lives of others over secular displays. History, however, is littered with the terrible results of religious crusades,” Presser wrote.

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