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The courthouse in Chester County, Pa., can keep a bronze plaque of the Ten Commandments that was mounted on its east wall 83 years ago, the 3rd U.S. Circuit Court of Appeals ruled Thursday, because the modern-day county officials who refused to take it down acted only out of respect for its historic importance and not because they wanted to promote its religious message. The court concluded that a “reasonable” person who sees the plaque today — in its historic context — would not read it as an “endorsement of religion.” “A reasonable observer must be presumed to know the history of the courthouse … and the fact that the plaque itself has become part of this historic courthouse. Thus, the reasonable observer would perceive the plaque as a part of an historic monument, namely the courthouse itself,” Senior U.S. Circuit Judge Edward R. Becker wrote in Freethought Society of Greater Philadelphia v. Chester County. “Viewed in this context, the [County] Commissioners’ refusal to remove the plaque appears even less like an endorsement of religion and more likely motivated by the desire to preserve a plaque that has become part of the courthouse,” Becker wrote in an opinion joined by 3rd Circuit Judge Maryanne Trump Barry and visiting 8th Circuit Senior Judge Myron H. Bright. In a paragraph that squarely addressed the potential impact of the decision, Becker said that by including history as a part — but just a part — of the legal analysis, the court had provided a sensible and flexible approach. “By considering the history of a religious display as part of the context in which the reasonable observer views the display, we will ensure that courts following this opinion will not be forced to hold that benign and longstanding religious references are unconstitutional; instead courts should examine the age and relevant history surrounding the use of the display as part of the context in which the reasonable observer views it,” Becker wrote. “At the same time, by stressing that history is only part of the context of a display, and not giving a presumption of constitutionality to historic artifacts or monuments, we ensure that displays that do have the effect of endorsing religion are not held to be constitutional simply because of their age,” Becker wrote. The decision overturns a March 2002 injunction issued by U.S. District Judge Stewart Dalzell who found that the plaque’s strong religious message violates the First Amendment’s prohibition against state establishment of religion. Dalzell found that the plaque’s history shows it had a strongly religious purpose when it was first placed on the east wall of the courthouse in 1920, and that “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.” Dalzell at first ordered that the plaque be removed, but later allowed the county to cover it with a shroud while it pursued the appeal. Thursday’s decision calls for the injunction to be lifted, allowing the county to remove the shroud and display the plaque. But the county’s lawyer, William M. Janssen of Saul Ewing, said the shroud will remain in place for now because an appellate court’s ruling does not take effect until the court issues its “mandate.” Under court rules, Janssen said, the plaintiffs have time to ask for a stay of the decision. Janssen, hailed the decision as a “thoughtful” one that allows for a more “flexible” approach when government displays are challenged on religious grounds. “What the court has essentially said is that history does count as part of the context that must be considered,” said Janssen. Attorney Stefan Presser of the ACLU, who represented the plaintiffs, said an appeal is likely and that the court’s ruling was flawed because the traditional test for deciding whether a governmental display is unconstitutional focuses on the “original purpose.” “Courts have never held that the duration of a display will remove it from constitutional scrutiny or guarantee its constitutionality,” Presser said. “If we all agree it would be unconstitutional to put this up today, then it was unconstitutional to do so then.” In the 47-page opinion, Becker set out first to decipher the proper test to apply, noting that the U.S. Supreme Court’s jurisprudence in the Establishment Clause area is especially tricky because the court has never overturned the so-called Lemon test, but many of the justices have criticized it. In the end, Becker concluded that the proper test is the more recent-vintage “endorsement test” first announced in a concurring opinion by Justice Sandra Day O’Connor in Lynch v. Donnelly, and adopted by a majority of the court in later cases. Drawing on several of those cases, Becker concluded that “when evaluating whether the Ten Commandments plaque is an endorsement of religion by the County, we ask whether the plaque sends a message to non-adherents 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.” In so doing, Becker said, “we will assume that the reasonable observer is informed about the approximate age of the plaque and the fact that the County has done nothing with the plaque since it was erected; we also conclude that the reasonable observer is aware of the general history of Chester County.” Due to the plaque’s age and its placement on an historic courthouse, Becker found that “the reasonable observer would believe that the plaque itself is historic.” As a result, Becker concluded that “the reasonable observer would not believe that the County’s inaction [the decision not to remove it when the recent controversy erupted] was motivated by a desire to endorse religion … but rather by a desire to preserve a longstanding plaque.” Under the endorsement test, Becker found, the Supreme Court has held that the “history and ubiquity” of a practice is relevant “because it provides part of the context in which a reasonable observer evaluates whether a challenged governmental practice conveys a message of endorsement of religion.” Unlike the Lemon test, Becker found that the endorsement test would not call for consideration of the county’s purpose in determining whether a religious display has violated the Establishment Clause. Instead, “we focus on the effect of the display on the reasonable observer, inquiring whether the reasonable observer would perceive it as an endorsement of religion,” Becker wrote. But Becker found that, even under a Lemon analysis, the Chester County courthouse plaque would still pass constitutional muster. Dalzell, too, applied Lemon and focused on the religious nature of the county’s actions in 1920, noting that the 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.” But Becker concluded that, if the Lemon test is applied, “the primary focus should be on the events of 2001,” when the county first refused to remove the plaque. Focusing on those more recent events, Becker concluded that the court’s actions passed the Lemon test. Under Lemon, Becker said, the county must have a “legitimate secular purpose.” Becker noted that Judge Dalzell “found believable the testimony of the commissioners that they thought the Ten Commandments plaque celebrated the significance of the decalogue as a foundational legal document.” The commissioners’ conclusions, Becker said, “are buttressed by some well documented history, presented by Chester County and its amici, to the effect that the Ten Commandments have an independent secular meaning in our society because they are regarded as a significant basis of American law and the American polity, including the prohibitions against murder and blasphemy.” Since the purpose prong of the Lemon test is subjective, Becker said, “it appears that the Commissioners’ articulation of a secular purpose for refusing to remove the plaque met the requirements of Lemon.”

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