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A plaque of the Ten Commandments that has hung for 86 years on a wall outside the Allegheny County, Pa., courthouse may remain in place because the county did not violate the First Amendment’s Establishment Clause when it rejected the demands of two atheists who wanted it removed, a divided federal appeals court has ruled. The decision in Modrovich v. Allegheny County echoes a similar 3rd Circuit decision in June 2003 that overturned a lower court’s order requiring Chester County, Pa., to remove a nearly identical plaque from its courthouse. But a dissenting judge said he would have ordered additional hearings in the case because remarks by some Allegheny County officials at the time the suit was filed suggested that “the decision to keep the plaque stemmed predominantly from religious impulses.” The Allegheny County suit was filed in 2001 by attorneys Ayesha N. Khan and Alex J. Luchenitser of Americans United for Separation of Church and State on behalf of two avowed atheists — Andy Modrovich and James Moore — who claimed they had regular and unwelcome contact with the plaque while entering and walking past the courthouse. But U.S. District Judge Donetta W. Ambrose of the Western District of Pennsylvania put the case on hold soon after U.S. District Judge Stewart Dalzell handed down his decision in Freethought Society of Greater Philadelphia v. Chester County. Ambrose opted to wait for the outcome of Chester County’s appeal before ruling. After the 3rd Circuit overturned Dalzell’s decision and held that no “reasonable observer” would infer an endorsement of religion from Chester County’s decision not to remove the plaque, Ambrose found that the same logic applied to the Allegheny County plaque. Now the 3rd Circuit has ruled that Ambrose was right and that, like Chester County, Allegheny was not sending any religious message by merely refusing to remove the plaque. “Because the Ten Commandments plaque in Allegheny County has been a fixture on an historical courthouse since 1918, is not highlighted or displayed prominently, and is one of several historical relics displayed on the courthouse, Allegheny County’s refusal to remove it does not send a message of government endorsement of religion,” U.S. Circuit Judge Julio M. Fuentes wrote in an opinion joined by U.S. Circuit Judge D. Brooks Smith. Fuentes found that the 3rd Circuit’s decision in Freethought Society called for courts to look at the situation as a “reasonable observer” would. “Bearing in mind that the reasonable observer is an informed citizen who is more knowledgeable than the average passerby, the reasonable observer is deemed to know the history of the Allegheny plaque, the general history of Allegheny County, and the fact that the plaque has been affixed to the courthouse for many years,” Fuentes wrote. “The reasonable observer is aware that the plaque is one of approximately 20 other historical and cultural displays erected in the courthouse over the past hundred years and that it is not given any preferential treatment over other displays.” Although the plaque was donated by a religious organization, Fuentes found that a reasonable observer would also be aware that the county “expressed secular reasons for accepting it given the social conditions at the time (i.e., wartime).” Modrovich and Moore argued that the Allegheny County plaque was displayed more prominently than the Chester County plaque. Fuentes disagreed, saying “it is true that the Chester County plaque is in an unobtrusive location, next to an entrance that has been permanently closed, and that it is not legible from the sidewalk. However, we do not agree that the Allegheny plaque is displayed any more prominently than the Chester County plaque.” The evidence, Fuentes said, showed that Allegheny’s plaque “does not hang in any preeminent place, but is affixed to a side entrance on Fifth Avenue (as opposed to the main courthouse entrance on Grant Street).” The plaintiffs’ attempt to distinguish the case failed, Fuentes said, because “even if one were to concede that the Allegheny plaque is in a slightly more prominent location, [its] location is certainly not prominent enough to send a message to the reasonable observer that the county is endorsing religion.” But in dissent, visiting Judge John R. Gibson of the 8th U.S. Circuit Court of Appeals said he believed the plaintiffs had mustered significant evidence that Allegheny County officials had religious motivations in keeping the plaque. As a result, Gibson said Ambrose erred in dismissing the suit on summary judgment, and instead should have held hearings to determine the factual issue of the county officials’ motives. The Chester County case was different, Gibson said, because the trial judge specifically found that the county’s current leaders had no religious motivations in keeping the plaque. But Gibson said a “reasonable observer” who attended the Allegheny County Council meeting on Jan. 16, 2001, would have heard a debate over a “sense of council” motion in support of keeping the plaque. In the debate, Gibson said the sponsor of the motion, Councilman Vince Gastgeb, said “there’s values and traditions here in this county that people have fought for, and as elected representatives, we should fight to continue that moving forward.” Gibson noted that Gastgeb concluded his speech by stating, “We have to have faith,” and later told news reporters, “I’d rather see 10 religious expressions in the courthouse than none.” Another council member, Richard Olasz, said during the debate: “Maybe some of these people that object to [the plaque] ought to go back and remember that there are no atheists in foxholes.” Gibson said he believed Ambrose erred in dismissing the suit because there was “significant record evidence that the decision to keep the plaque stemmed predominantly from religious impulses and would have been so perceived by a reasonable observer.” The county officials’ “statements of religious purpose,” Gibson said, “were made in public in circumstances that may well have given rise to an appearance of endorsement of religion by responsible county officials.”

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