The plaintiffs in this case challenged a Ten Commandments monument located in a public park. The monument had been given to the City by the Fraternal Order of Eagles in 1966. The district court found that the monument had a religious effect and ordered its removal. The City appealed to the Eighth Circuit, and in August 2002 we filed an amicus brief arguing that the lower court’s decision should be affirmed because the display sends the message that the City endorses Judeo-Christianity in general and Protestantism in particular. On February 18, 2004, the Eighth Circuit affirmed the lower court’s ruling 2-1, holding that the monument violated both the purpose and effect prongs of Lemon. While there were no records of the City’s decision-making process in accepting the monument, the court held that the religious purpose is evident in the content and context of the monument itself: The monument’s message is undeniably religious, and nothing in the monument’s surroundings detracts from that message because it stands alone. With respect to effect, the court held that the reasonable observer of the monument would perceive a government endorsement of religion because the context of the monument does nothing to secularize it: The park and monument are public property upon which a religious message has been placed; the monument’s inscription links government to its religious message; and, although the City had accepted other donated items for display in the park, none of them bears a religious message. The defendants requested rehearing en banc on the purpose prong of Lemon, which the court granted. The court did not request additional briefing, so we simply resubmitted our original amicus brief. The en banc court held oral argument on September 15, 2004. Unfortunately, on August 19, 2005, the full Eighth Circuit reversed the panel decision 11-2, holding that the monument is constitutional under the Supreme Court’s ruling in Van Orden because it is a passive acknowledgment of the role of religion in our Nation’s heritage; it was on display for several decades without objection; and it is located in a relatively isolated corner of the park, over ten blocks away from any government building. The plaintiffs elected not to file a petition for certiorari with the U.S. Supreme Court, and the case is now over.
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