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Within two weeks, Chester County, Pa., must cover up a plaque of the Ten Commandments on the east wall of the courthouse with a drapery that closely matches the color of the building’s limestone walls, a federal judge ruled Monday. The decision by U.S. District Judge Stewart Dalzell of the Eastern District of Pennsylvania came in response to the county’s request that he issue a stay of his March 6 order that called for removal of the plaque — which has hung for more than 80 years — while the county pursues its appeals. Assistant County Solicitor Thomas C. Abrahamsen argued that the plaque is mounted on brittle limestone and that removing it could cause damage to both the wall and the plaque. Abrahamsen also argued that the county is likely to succeed in its appeal since Dalzell’s original decision was premised on an application of the so-called Lemon test which, he says, the U.S. Supreme Court appears poised to overturn. In a brief hearing Monday, Abrahamsen presented expert witnesses who said that removing the plaque could be a complicated and expensive job, and that once it is gone, the stone wall behind it is sure to be a different color — a problem that could cost as much as $250,000 to cure since it would require sandblasting the entire facade. Within a few hours after the hearing, Dalzell issued an 11-page decision in which he denied the county’s motion for a stay, but lifted the order that the plaque be removed. Instead, Dalzell said the county now has until April 22 to cover the plaque so that it appears nearly invisible. “It would seem that the real possibility of irreparable physical injury here may be cured merely by covering the plaque with an opaque beige drape that is calculated to match the color of the surrounding limestone. Balancing the equities, such a drape will surely suffice during the pendency of appellate review,” Dalzell wrote. Attorney Stefan Presser, the legal director of the American Civil Liberties Union of Pennsylvania, who filed the suit on behalf of the Freethought Society, said Dalzell’s order was a “Solomonic ruling” that wisely responded to both sides’ concerns. Abrahamsen said the county will respect the ruling and won’t be asking the 3rd Circuit to issue a stay. “We’re shopping for a drape,” he said. Legally, Dalzell’s latest opinion is significant because it amplifies and clarifies some of the conclusions he reached in his March 6 decision. Dalzell flatly rejected the county’s argument that his original ruling is shaky since the Supreme Court is likely to overturn its 1971 decision in Lemon v. Kurtzman. “Putting aside the inherently speculative nature of defendants’ prophecy, there is no reason to expect that the Supreme Court will reconsider, much less overrule, Lemon,” Dalzell wrote. Dalzell himself had noted in the original decision that the Lemon test has been criticized in recent years by as many as five of the current Supreme Court justices. Nonetheless, Dalzell said he was required to apply the test until it is overruled. Now Dalzell has found that “such an overruling is not imminent.” Within the past two years, he noted, the Supreme Court has applied the Lemon test once and turned away several cases that challenged it. “In the harsh light of actual opportunities to review Lemon — even in two cases presenting challenges to Ten Commandments memorials — the Supreme Court has declined to revisit that watershed decision. Lemon thus remains good law, and [county's] views to the contrary constitute nothing more than wishful thinking,” Dalzell wrote. Dalzell also rejected Abrahamsen’s argument that the judge had erred in finding that the Freethought Society and two of its members had legal standing to bring the challenge since they could easily avoid looking at the plaque and don’t have to encounter it to enter the courthouse. “If neither of these women has standing to challenge the plaque, it is very hard to imagine who in Chester County would. Indeed, on defendants’ reasoning, no one in Chester County would have standing to challenge the mounting of a crucifix on the High Street facade,” Dalzell wrote. Dalzell also addressed the county’s recent decision to explore its options for expanding the display with additional plaques that, it hopes, would have the effect of “secularizing” the Ten Commandments by making it just one part of a display on the history of law giving. Without rejecting such a plan, Dalzell made clear that such a display would make for a very different case from the one he heard. “Had this plaque been displayed next to, say, plaques of the Bill of Rights, the Declaration of Independence and the Mayflower Compact, this might have been a much closer case. As this plaque hangs alone, however, it is not a close case,” Dalzell wrote. As a result, Dalzell found that Abrahamsen fell short of showing that he has a strong likelihood of succeeding in the appeal. Instead, he said, the county has no chance of winning since “the plaque here stands in contrast to other cases where the language of the Ten Commandments was both laundered to remove sectarian origin and placed among many other wholly secular memorials.” But in a footnote, Dalzell hinted that the county’s plan for expanding the display to change its context may work after all. Having ruled on the stay motion, Dalzell said he no longer has jurisdiction, but that the county could ask for the case to be referred to the 3rd Circuit’s mediation program or to U.S. Magistrate Judge Jacob P. Hart, of the Eastern District of Pennsylvania, who ran the appellate mediation program for several years before being appointed to the bench. Without commenting on the merits of the county’s publicly disclosed plan to expand the display so that it will pass constitutional muster, Dalzell seemed to take a positive view, saying he considered it “a laudable effort to reconcile the sincere and deeply held opposing views of their constituents,” and that “we applaud any effort to reach a compromise here.” Abrahamsen said Monday that the county commissioners were pleased by the remarks Dalzell made in the footnote since they appeared to imply that an expanded display would not violate the First Amendment.

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