Freedom from Religion Foundation, Inc. v. Connellsville Area School District (127 F. Supp. 3d 283, 2015)

MEMORANDUM OPINION

TERRENCE F. McVERRY, Senior District Judge.

This case involves a large, granite monument bearing the text of the Ten Commandments on the grounds of a junior high school in the Connellsville Area School District. Freedom from Religion Foundation, Inc. (“FFRF”), Doe 4, by Doe 4’s next of friend and parent, Doe 5, who also sues on Doe 5’s own behalf (“Plaintiffs”), have challenged the existence of the monument on public school grounds under the Establishment Clause of the First Amendment to the United States Constitution. The parties have filed cross-motions for summary judgment. ECF Nos. 37, 47. The motions have been fully briefed, and the factual record has been thoroughly developed via the parties’ concise statements of material fact (“CSMF”), their respective responses, and the attached appendices. ECF Nos. 38-46, 48-49, 52-57. Accordingly, the cross-motions are ripe for disposition.

I. Background

The Monument

The monument was donated to the Con-nellsville Joint School System, now the Connellsville Area School District, in 1956 by Connellsville Aerie No. 493, the local chapter of the Fraternal Order of Eagles. The monument is 54 inches tall, 32 inches wide, and eight inches thick and weighs about 3,000 pounds. It sits alone in a grassy area near the entrance to the auditorium of Connellsville Area Junior High School, which houses seventh and eighth grades, facing a sidewalk that runs adjacent to a parking lot/street area where school buses line up to drop off and pick up students. Fourteen feet separate the monument from the sidewalk, and 22 feet separate the monument from the parking lot/street area. There is a fire hydrant located several feet to the left and slightly in front of the monument, a tree several feet behind the monument, a “DO NOT ENTER” sign several feet to the right and slightly in front of the monument, and there is some shrubbery several feet to the right of the monument. There are not, however, any other monuments or displays of any sort in the vicinity. The text of the monument, which is visible from the sidewalk, reads:

The Ten Commandments

I AM the LORD thy God.

I. Thou shalt have no other gods before me.

II. Thou shalt not take the Name of the Lord thy God in vain.

III. Remember the Sabbath Day, to keep it holy.

IV. Honor thy father and thy mother, that thy days may be long upon the land which the Lord thy. God giv-eth thee.

V. Thou shalt not kill.

VI. Thou shalt not commit adultery.

VII. Thou shalt not steal.

VIII. Thou shalt not bear false witness against thy neighbor.

IX. Thou shalt not covet thy neighbor’s house.

X. Thou shalt not covet thy neighbor’s wife, nor his manservant, nor his maidservant, nor his cattle, nor anything that is thy neighbor’s.

At the top of the monument, there are two tablets inscribed with unintelligible ancient script surrounded by a floral motif. An all-seeing eye, like that on the one dollar bill, sits between the two tablets, and an eagle grasping an American flag is immediately below the all-seeing eye. Below the text are the superimposed Greek letters Chi and Rho, which represent Christ, and two Stars of David, which are symbols of the Jewish faith. At the bottom of the monument, there is an inscription indicating that the monument was donated to the. School District by the Eagles.

The Joint School Committee of the Con-nellsville Joint School System voted to accept the monument from the Eagles at its September 11, 1956, meeting. A dedication for the monument was held on June 3, 1957. A contemporaneous article in the Connellsville Daily Courier reported that James A. Pujia, state president of the Eagles, presided over the ceremony. George A. Strine, a representative of the Grand Aerie of the Eagles, presented the monument to Robert A. Beard, president of the Connellsville Joint School Committee. Reverend R.A. Nelson, pastor of the Albright Evangelical United Brethren Church in South Connellsville, delivered an invocation and benediction. Several civic leaders and school officials, including Connellsville Mayor Abe I. Daniels, were also on hand.

In his presentation, Strine called “the Commandments ‘the golden yardstick of human behaviour [sic].’ ” He elaborated:

Without a moral code; men fail to be good neighbors and nations do not live at peace with one another. Without a moral code, we are soon lost in personal or national frustration. But, given a firm morality, peace inside men and among nations becomes a reality. Such a code is the Commandments, written with the fingers of God. Men have enacted millions of laws in an effort to live together as neighbors and nations, but all those man-made laws together have not added to, or subtracted from, or improved upon the simple truth of the Commandments themselves.

Mayor Daniels echoed those sentiments in his welcoming remarks, “declaring] that current social conditions demand serious application of the Ten Commandments in daily life.” Pujia added that “[t]here can be no better guidance for youth than God’s laws.” Guy D. Tressler, Jr., president of the local aerie, was quoted as saying that “the monolith [was] to ‘inspire all who pause to view the Ten Commandments with a renewed respect for the law of God which is our greatest strength against the forces that threaten our way of life.’ ” Following the presentation, “students' filed past the monolith.”

The monument is one of over a hundred donated throughout the country by the Eagles in the 1950s and 1960s. Minnesota Judge E.J. Ruegemer, the head of the Eagles’ Youth Guidance Committee, hatched the plan to donate the monuments in the early 1950s. After serving as a juvenile court judge,' Judge Ruegemer came to believe that “troubled youths” might benefit from exposure to the Commandments, which he called “one of mankind’s earliest and long-lasting codes of conduct.” The Commandments, in his view, would provide these youths with a “common code of conduct.” He claimed that it was “never [his] intention that this was to be religious instruction of any kind.” To effectuate his plan, he decided to post printed copies of the Commandments in juvenile courtrooms across the country and looked to the Eagles for financial support. The Eagles were initially reluctant to fund the program because they felt it might be viewed as divisive and sectarian. However, after Judge Ruegemer and others decided on a version of the Ten Commandments that they viewed as “non-sectarian,” or not identified with any particular religion or religious denomination, the Eagles agreed to lend their support. While the plan was developing, Cecil B. Demille, producer of The Ten Commandments movie, contacted Judge Ruegemer to praise the idea, but he suggested that it could be improved by placing the text of the Commandments on bronze plaques. With that in mind, Judge Ruegemer eventually decided to post the Commandments on granite monuments instead of paper. In total, the Eagles donated about 140 to 150 monuments to communities throughout the country. “The total number of monuments donated by aeries across the country is higher, however, because some aeries commissioned locally constructed versions modeled after those produced in Minnesota.” Card v. Everett, 520 F.3d 1009, 1013 (9th Cir.2008). A number of these have been the subject of litigation.

Plaintiffs’ Contact with the Monument

Doe 4 was a seventh-grade student at Junior High East when this lawsuit was filed in September 2012. She encountered the monument on several occasions while she was outside for gym class. She also observed the monument during a fire drill. Seeing the monument “[k]ind of’ bothered her “[b]ecause [she is] not religious.” In addition, she testified, “I know other people who aren’t religious or just simply don’t have that religion. It just bothers me that they’re like encouraging the Ten Commandments.”

Doe 5 is Doe 4’s mother. She is an atheist and member of FFRF, which is a national nonprofit corporation dedicated to promoting the separation of church and state and educating the public on non-theism. She has lived in Connellsville her whole life. Although she might have been aware of the monument whenever she was a student in the School District, “[i]t was most definitely on [her] radar when [her] son began attending ... Junior High East in 2007.” She worked as a substitute teacher at Junior High East from 2008 to 2010. Once Doe 4 began attending Junior High East in 2011, Doe 5 visited the school on numerous occasions to meet with administrators and guidance counselors and to drop Doe 4 off at the school. She typically parked her car in the parking lot in front of the main entrance to the building, from which point she could see the monument. She believes that the monument’s presence on school property “violates separation of church and state” and “helps to establish the endorsement of a religion .... ” While she concedes that “some of -the Commandments have some ethical value,” she also “believe[s] several of the Commandments themselves promote Christianity.” Nevertheless, she did not voice concerns about the monument’s presence until 2012, when she left a voice-mail for an unidentified building and grounds employee about the monument. Thereafter, she made contact with the FFRF, in an attempt to have the monument removed.

Complaints Arise and the School District Responds

The monument went without legal challenge for 55 years. That changed in August 2012, when the group Americans United for Separation of Church and State sent a letter to School District Superintendent Dr. Daniel C. Lujetic demanding that the monument be removed. After receiving the letter, Lujetic consulted with the School District’s solicitor, Christopher Stern, who advised him that the monument would probably not withstand a constitutional challenge. On August 29, 2012, counsel for Plaintiffs sent a letter to the School District, threatening to file suit regarding the monument if the School District did not agree to remove it by September 7, 2012. The School District, fearing the potential costs of litigation, decided to comply with the request. To that end, the monument was initially covered with plastic, but after trespassers removed the plastic, it was covered with a plywood box. Meanwhile, arrangements were being made to relocate the monument to a church next door to the Connellsville Area Senior High School. Dr. Lujetic suggested in an e-mail to a concerned member of the community that relocating the monument could make it “even more prominent.” The pastor of the church said that the church had plans to bring more attention to the monument by putting lights on it and possibly surrounding it with park benches.

Word that the monument would be removed was quickly picked up by the news media. That triggered an outpouring of support from the public in favor of keeping the monument. Superintendent Lujetic received a flood of e-mails regarding the monument, and some community members took to social media to urge the School District to fight.

The School Board was scheduled to discuss the monument at its committee meeting on September 10, 2012. Prior to the meeting, a handful of local pastors, led by Reverend Ewing Marietta, held a prayer rally at the monument, with about 50 people in attendance. More than 100 people attended the Board meeting that followed. The School Board heard two hours of public comment, all of which was in favor of keeping the monument. One Connellsville resident was quoted as saying that the “issue ha[d] ‘brought the silent majority out of silence.’ ” Another asked, “What greater legacy could you leave for the kids than people who stood up and fought the minority and won?” Another speaker who urged the Board to keep the monument commented, “The Lord said if we’re not willing to acknowledge Him before man, then why should He acknowledge us before His heavenly father. The Lord Himself might as well be up there asking us to acknowledge Him before the community.”

Following the meeting, Board President Jon Detwiler told the media that hearing the public's comments caused him to have a change of heart about fighting to preserve the monument. He added that he believed it should be maintained because of its “historical significance.” According to Dr. Lujetic, the “groundswell of public opinion” at the meeting led other Board members to change their minds, as well. He, too, was beginning to come around. From a personal standpoint, “having been deluged with e-mail and phone calls” in support of the monument, Lujetic came to believe that the School District “had a right to stand up for running the district the way we wanted to as opposed to somebody from another state coming in [and telling us how to run it].”

A vote on whether to retain the monument was slated for the Board’s next regularly scheduled meeting, on September 12, 2012. Some 250 members of the community attended the meeting, which was preceded by another, less organized public gathering at the monument. During the Pledge of Allegiance at the start of the meeting, some in attendance noticeably emphasized the word “God.” During the public comment portion of the meeting, a number of community members again spoke in favor of retaining the monument. Some of the comments drew shouts of “Amen” from the crowd.

Reverend Marietta, who organized the prayer rally, was the first speaker. He discussed the monument’s origins and also remarked that the Ten Commandments have both a religious and secular meaning, as the foundation of the laws of the United States.

A different speaker urged the Board to keep the monument because the Supreme Court had upheld a similar monument in a 2005 case, Van Orden v. Perry. He also mentioned that “all of us here are here because we believe in God and Jesus Christ. We have all probably been brought up to believe we are His humble and obedient servants, but we are sinners.”

Another speaker commented, “God has blessed our country ... because we are founded upon God and his word.” She continued, “The Bible was a textbook in all the early schools. Harvard, Yale, Princeton were all founded upon the word of God. But in 1963, our Supreme Court yielded to the demands of one person, and they banned Bible reading and prayer in our schools. Since then, our country has been on a steady slide downhill.” She urged the Board to keep the monument to reverse that trend.

Another speaker urged the members of the Board not to “lay down and let some minority rule us” by ceding to the requests to remove the monument. “They’re running over us. Why should we let the few rule so many,” he asked, before adding:

Some day, when you’re long gone ... this will, and I can say this with confi: dence, this will be your greatest vote that you ever make in your life time .... I promise you, you will be remembered. There is no gray area here. It is black or white. You’re gonna either vote for it or not. And whether you’re a believer or not, someday you’ll stand before God the Creator, Jesus Christ. He’ll, he’ll judge you. And he might say, “You’re apart from me because I don’t know you.” Or he might say, “Well done, my loyal and faithful servant.”

The next speaker said that he could “thump the Bible with the best of them.” Instead of doing that, though, he encouraged the Board to stand its ground and “stick up for the people in this town.”

Next, a member of the crowd asked, “Who is the family that is protesting this monument?” The School District’s solicitor responded that Plaintiffs would likely attempt to proceed anonymously if they filed suit, which drew boos from the crowd. The speaker went on to refer to the Plaintiffs as “yellow-belly bums” for not identifying themselves, a -comment which drew applause from the crowd. “I can’t see how these people can cause all of these problems and get away with it. What are they scared of? They should be here tonight.”

One of the next speakers said she was there to “stand up for the Bible.” She continued, “Our forefathers started this country with God in their hearts, minds, and souls said.” In closing, she said, “Therefore, as a Christian, I humbly pray and ask this board to keep the Ten Commandments on taxpayer property.” Then she held up a sign asking, “What would Pres. Reagan think/say?” that included a number of quotes attributed to the former president, including: “We are never defeated unless we give up on God,” “Without. God, the republic will not long endure,” and “If we ever forget that we are one nation under God, then we are a nation gone under.”

One of the final speakers said, “As a Christian ... I believe in the 10 commandments and everything that they stand for. And I feel that it violates my rights ... to have someone ask to remove them.” She went on to urge the School District to uncover the monument because “it is disrespectful not only to God to cover up the Ten Commandments, but it is also disrespectful to this country to cover up the American flag [which also appears on the monument].”

Following the public comment period, the members of the School Board unanimously voted to retain the monument “until further notice and pending further legal action.” The vote drew a large applause and a standing ovation from the crowd.

On October 21, 2012, about 100 members of the Connellsville community gathered for a vigil at the site of the monument. The vigil coincided with a stop from the “Values Bus,” a group touring the country to promote conservative ideals. As the crowd gathered for the vigil, several men removed the plywood covering that had been placed over the monument, with one of them saying, “It’s the right of the people to have God in their society.” Others at the vigil made similar remarks. Since then, many of the community members who had been rallying in support of the monument have banded together under the name “Thou Shall Not Move.” The group, headed by Reverend Marietta, has sold more than 2,000 yard signs supporting the monument. It has used the proceeds of those sales to purchase permanent granite monuments bearing the Ten Commandments and place them at various locations throughout the Connellsville area. Sixteen such monuments have been donated since 2012.

II. Standard of Review

Summary judgment must be granted when “the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a). The movant must identify those portions of the record which demonstrate the absence of a genuine issue of material fact. See Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). A material fact is one “that might affect the outcome of the suit under the governing law.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). “Factual disputes that are irrelevant or unnecessary will not be counted.” Id.

To withstand a motion for summary judgment, the nonmoving party must show a genuine dispute of material fact for trial by citing to particular parts of material in the record. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586-87, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986). A dispute about a material fact is “genuine” only “if the evidence is such that a reasonable jury could return a verdict for the nonmoving party.” Anderson, 477 U.S. at 248, 106 S.Ct. 2505. “[T]he mere existence of some alleged factual dispute between the parties will not defeat an otherwise properly supported motion for summary judgment; the requirement is that there be no genuine issue of material fact.” Id. at 247-48, 106 S.Ct. 2505.

The parties must support their position by “citing to particular parts of materials in the record, including depositions, documents, electronically stored information, affidavits or declarations, stipulations (including those made for purposes of the motion only), admissions, interrogatory answers, or other materials,” Fed.R.Civ.P. 56(c)(1)(A), or by “showing that the materials cited do not establish the absence or presence of a genuine dispute, or that an adverse party cannot produce admissible evidence to support the fact,”.Fed.R.Civ.P. 56(c)(1)(B). In reviewing all of the record evidence submitted, the court must draw all reasonable inferences in the light most favorable to the nonmoving party. Matsushita, 475 U.S. at 587, 106 S.Ct. 1348.

The court is not permitted to weigh evidence or to make credibility determinations at this stage of the proceeding. Anderson, 477 U.S. at 255, 106 S.Ct. 2505. Those functions are for the jury, not the court. Id. The court is thus limited to deciding whether there are any disputed issues of fact and, if so, whether they are both genuine and material. Id.

This standard remains the same when the parties have filed cross-motions for summary judgment. Transguard Ins. Co. of Am., Inc. v. Hinchey, 464 F.Supp.2d 425, 430 (M.D.Pa.2006). “When confronted with cross-motions for summary judgment, ... ‘the court must rule on each party’s motion on an individual and separate basis, determining, for each side, whether a judgment may be entered in accordance with the summary judgment standard.’ ” Id. (quoting Marciniak v. Prudential Fin. Ins. Co. of Am., 184 Fed.Appx. 266, 270 (3d Cir.2006)). “If review of [the] cross-motions reveals no genuine issue of material fact, then judgment may be entered in favor of the party deserving of judgment in light of the law and undisputed facts.” . Id. (citing Iberia Foods Corp. v. Romeo, 150 F.3d 298, 302 (3d Cir.1998)).

III. Discussion

A. Standing

The Court begins, as it must, with the School District’s argument that Plaintiffs lack standing. “Article III of the Constitution limits the judicial power of the United States to the resolution of ‘Cases’ and ‘Controversies’ ...” Hein v. Freedom from Religion Foundation, Inc., 551 U.S. 587, 597-98, 127 S.Ct. 2553, 168 L.Ed.2d 424 (2007) (citing DaimlerChrysler Corp. v. Cuno, 547 U.S. 332, 342, 126 S.Ct. 1854, 164 L.Ed.2d 589 (2006)). As a corollary of the “cases and controversies” requirement, a plaintiff must establish standing in order to bring suit in federal court. Id. at 598, 127 S.Ct. 2553 (quoting ASARCO Inc. v. Kadish, 490 U.S. 605, 613, 109 S.Ct. 2037, 104 L.Ed.2d 696 (1989)). The Court set forth the law governing standing at length in Freedom from Religion Foundation, Inc. v. New Kensington-Arnold School District, No. 2:12-CV-1319, 118 F.Supp.3d 821, 826-31, 2015 WL 4534850, at *4-8 (W.D.Pa. July 27, 2015) and will not repeat that discussion in its entirety. However, a few salient points bear mention.

As explained in New Kensington-Arnold, the Doe Plaintiffs can establish the requisite injury-in-fact by demonstrating that they had “direct, unwelcome contact” with the monument. Id. at 830, at *8. The contact must be “frequent and regular, not sporadic and remote.” Vasquez v. Los Angeles Cnty., 487 F.3d 1246, 1252 (9th Cir.2007). Furthermore, “[w]hen, as in this case, prospective relief is sought, the plaintiff must show that he is ‘likely to suffer future injury’ from the defendant’s conduct.” McNair v. Synapse Grp. Inc., 672 F.3d 213, 223 (3d Cir.2012) (citing City of Los Angeles v. Lyons, 461 U.S. 95, 105, 103 S.Ct. 1660, 75 L.Ed.2d 675 (1983)).

Here, unlike in New Kensington-Arnold, the “direct, unwelcome contact” standard was satisfied when this lawsuit was filed in September 2012. At that time, Doe 4 was still a seventh grader at Junior High East. Throughout her time at the school, she passed the monument on several occasions, and it was allegedly an affront to her belief system. These contacts, though not as frequent and regular as in some of the eases highlighted in New Kensington-Amold, nonetheless suffice to establish the requisite injury-in-fact under the prevailing standard. To be sure, Doe 4 could not identify the various other elements on the monument during her deposition, but that in no way detracts from the fact that she felt bothered by its presence on school grounds. Furthermore, at the time this lawsuit was filed, a favorable remedy in the form of an injunction ordering the removal of the monument would have remedied Doe 4’s alleged injury. Thus, she has standing.

Since “parents independently have standing to bring constitutional challenges to the conditions in their children’s schools,” Donovan ex rel. Donovan v. Punxsutawney Area School Board, 336 F.3d 211, 217 n. 3 (3d Cir.2003), the Court need not separately address whether Doe 5’s contacts with the monument were sufficient to give her standing. Be that as it may, the Court finds that Doe 5’s contacts with the monument while Doe 4 attended Junior High East likewise sufficed to allow her to challenge the monument in her own right. Although she stated that she did not find every one of the Ten Commandments objectionable, that is not dispositive. See Ahlquist v. City of Cranston ex rel. Strom, 840 F.Supp.2d 507, 520 (D.R.I.2012) (“It is possible to object to the presence of the Prayer Mural without having to find its goals of academic achievement and good sportsmanship offensive.”). Nor is the Court persuaded that Doe 5 gave up her right to file suit because she waited until 2012 to raise an objection about the monument, even though she was aware of its presence for some time before that. See Freethought Soc. of Greater Philadelphia v. Chester Cnty., 334 F.3d 247, 255 n. 3 (3d Cir.2003) (“[W]e do not believe that the defendants have demonstrated that Flynn waived her right to bring this action (or that the statute of limitations has expired) because she noticed the plaque in the 1960s but did not bring an action until 2001.”); Tearpock-Martini v. Borough of Shickshinny, 756 F.3d 232, 238 (3d Cir.2014) (holding that there is no statute of limitations for Establishment Clause challenges to still-existing religious displays). Finally, inasmuch as Doe 5 is a member of the FFRF, the organization has standing, as well. See ACLU-NJ v. Twp. of Wall, 246 F.3d 258, 261 (3d Cir.2001).

B. Mootness

There is, however, another jus-ticiability hurdle that Plaintiffs must overcome: mootness. Neither Plaintiffs nor the School District has affirmatively stated so, but it appears, based on Plaintiffs’ filings, that Doe 4 is no longer a student at Junior High East. See, e.g., Pls.’ CSMF ¶ 24 (“Plaintiff Doe 4 attended Junior High East at the time of her deposition, on March 13, 2014.”); ¶ 29 (“While Doe 4 was a student at Junior High East ....”) (emphasis added). A close reading of Doe 5’s deposition confirms this. According to Doe 5, Doe 4 attended Junior High East for seventh grade during the 2011-2012 school year, eighth grade for part of the 2012-13 school year (she attended a cyber-school for the remainder of the year), and then eighth grade again for the 2013-2014 school year. She would have’ been in ninth grade and no longer a student at Junior High East during the school year that ended in June 2015 and, thus, at the time the parties filed their cross-motions. As a result, the Court “must address whether [Plaintiffs’] request for injunctive and declaratory relief has become moot” because Doe 4 is no longer a student at Junior High East, where the allegedly offensive display is located. Donovan, 336 F.3d at 216. The parties did not raise this issue in their briefs, but the Court must do so sua sponte because it affects the Court’s jurisdiction. Id. (citation omitted).

“Mootness has been described as the doctrine of standing set in a time frame: The requisite personal interest that must exist at the commencement of the litigation (standing) must continue throughout its existence (mootness).” Arizonans for Official English v. Arizona, 520 U.S. 43, 68 n. 22, 117 S.Ct. 1055, 137 L.Ed.2d 170 (1997) (citations and quotation marks omitted). “When a student challenges the constitutionality of a school policy, graduation typically moots her claim for injunctive or declaratory relief.” Id. (citations omitted). By analogy, the same is true if the student has otherwise moved on from “the school in which the [alleged] violation occurred.” Doe v. Mt. Vernon City Sch. Dist. Bd. of Educ., No. 2:08-CV-575, 2010 WL 1433301, at *14 (S.D.Ohio Apr. 6, 2010) (citations omitted). Here, since Doe 4 no longer attends Junior High East, and there is no evidence suggesting that she will have any other reason to visit the school in the future, her claims for injunctive and declaratory relief appear to be moot. That is, the “requisite personal interest that existed at commencement of the litigation” no longer exists. Arizonans for Official English, 520 U.S. at 68 n. 22, 117 S.Ct. 1055.

Our Court of Appeals has recognized, however, that such a change in circumstances “does not automatically render a case moot if the student’s claims are ‘capable of repetition, yet evading review.’ ” Donovan, 336 F.3d at 216-17 (quoting Brody ex rel. Sugzdinis v. Spang, 957 F.2d 1108, 1113-15 (3d Cir.1992)). This is an “extremely narrow exception ... applicable only where: 1) the challenged action is too short in duration to be fully litigated before the case will become moot; and 2) there is a reasonable expectation that the complaining party will be subjected to the same action again.” Id. at 217.

A student about to enter seventh grade at Junior High East who objected to the monument (or that student’s parent) would have about two years to litigate the case before exiting the school after eighth grade. This is likely “ ‘too short to complete litigation and appellate review of a case of this complexity.’ ” Id. (quoting Brody, 957 F.2d at 1113). Yet, while the present controversy might “evade review,” it is not “capable of repetition” with respect to Doe 4. She is no longer a student at Junior High East, and there is nothing in the record to suggest that she will ever again encounter the monument on a frequent and regular basis. See id. (holding that action was not “capable of repetition” because there was “no reasonable expectation” that plaintiff would be “subjected to the same action again” since she “graduated and will never again return ... as a student”).

Nor is there anything in the record to suggest that Doe 5’s contacts with the monument have continued to the present day. Aside from her substitute teaching position, which ended in 2010, she only had occasion to visit Junior High East because Doe 4 was a student there. Since Doe 4 is no longer a student, all of Doe 5’s ties to the school have been severed. If Doe 5 had another child who was still in elementary school in the District, the Court “could potentially find that the present dispute was capable of repetition as to [her].” Id. at 217 (citation omitted). She does not, so the Court need not consider this possibility.

Therefore, the Doe Plaintiffs’ claims for declaratory and injunctive relief are moot; granting “such relief would have no impact on [them] whatsoever.” Id. And because FFRF is relying on Doe 5 in order to establish associational standing, it likewise cannot obtain declaratory or injunctive relief. See 13C The Late Charles Alan Wright, et al., Fed. Prac. & Proc. Juris. § 3531.9.5 (3d ed.).

Plaintiffs, however, also raise a claim for nominal damages in their Complaint. “Nominal damages have traditionally ‘vindicated deprivations of certain ‘absolute’ rights that are not shown to have caused actual injury....’” CMR D.N. Corp. v. City of Philadelphia, 703 F.3d 612, 628 (3d Cir.2013) (quoting Carey v. Piphus, 435 U.S. 247, 266, 98 S.Ct. 1042, 55 L.Ed.2d 252 (1978)). There is no question that nominal damages are “an appropriate remedy for a violation of the rights protected by the Establishment Clause.” Moeller v. Bradford Cnty., No. 3:05CV334, 2006 WL 319288, at *6 (M.D.Pa. Feb. 10, 2006) (citing O’Connor v. Washburn Univ., 416 F.3d 1216, 1222 (10th Cir.2005); Searles v. Van Bebber, 251 F.3d 869, 878-79 (10th Cir.2001); Warner v. Orange Cnty. Dep’t of Probation, 115 F.3d 1068, 1077 (2d Cir.1996)). But can a request for nominal damages — and only nominal damages — save a plaintiffs otherwise moot claim from dismissal?

The Court of Appeals for the Third Circuit has explained that, generally speaking, “the availability of damages or other monetary relief almost always avoids mootness.” Jersey Cent. Power & Light Co. v. New Jersey, 772 F.2d 35, 41 (3d Cir.1985) (emphasis added). Most of the time, though, this rule has been applied in cases where a plaintiff sought nominal, compensatory, and punitive damages, or some combination thereof, in addition to equitable relief. See, e.g., Donovan, 336 F.3d at 217 (case not moot where plaintiffs sought “nominal damages, presumed damages, and/or compensatory damages” and “punitive damages”); Lighthouse Inst. for Evangelism, Inc. v. City of Long Branch, 510 F.3d 253, 260 (3d Cir.2007) (case not moot where plaintiffs sought compensatory and punitive damages); Brown v. Philadelphia Mun. Ct., 47 Fed.Appx. 129, 131 (3d Cir.2002) (case not moot where compensatory damages sought in an addition to injunctive and declarative relief); Doe v. Delie, 257 F.3d 309, 314 (3d Cir.2001) (holding that a prisoner’s claim was saved by his request for nominal and punitive damages, even though he could not recover compensatory damages under the Prison Litigation Reform Act). By contrast, the Court of Appeals does not appear to have ever squarely addressed whether a plaintiffs otherwise moot claim can be saved solely by a claim for nominal damages, which is the precise issue here. It has, nonetheless, at least suggested that a valid claim for nominal damages can do so under certain circumstances. See, e.g., CMR D.N. Corp., 703 F.3d at 628 (discussing availability of nominal damages in context of mootness argument); A.P. Boyd, Inc. v. Newark Pub. Schs., 44 Fed.Appx. 569, 571 (3d Cir.2002) (refusing to read a claim for nominal damages into the complaint and holding that plaintiffs request for injunc-tive and declaratory relief was moot).

The clear consensus outside the Third Circuit is that a “valid claim for nominal damages” is sufficient to “avoid mootness.” Wright et al., supra, § 3533.3; see, e.g., Morgan v. Plano Independent Sch. Dist., 589 F.3d 740, 748 (5th Cir.2009); Lynch v. Leis, 382 F.3d 642, 646 n. 2 (6th Cir.2004); Utah Animal Rights Coal. v. Salt Lake City Corp., 371 F.3d 1248, 1257 (10th Cir.2004); Van Wie v. Pataki, 267 F.3d 109, 115 n. 4 (2d Cir.2001). This rule has not gone without criticism, however. See, e.g., Utah Animal Rights Coal, 371 F.3d at 1263 (McConnell, J., concurring) (arguing that “the proposition that a claim for nominal damages automatically precludes mootness is inconsistent with fundamental principles of justiciability”). In the least, it seems “odd that a complaint for nominal damages could satisfy Article Ill’s case or controversy requirements, when a functionally identical claim for declaratory relief will not.” Id. at 1257 (majority opinion). But that is the law in the majority, if not all, of the circuits and our own Court of Appeals has suggested that it agrees with it. Thus, the Court concludes that Plaintiffs claim for nominal damages “con-tinuéis] to present a live controversy,” and the Court must address the merits of their challenge to the monument. See Donovan, 336 F.3d at 217.

C. Legal Framework

1. The Establishment Clause

The Establishment Clause of the First Amendment, made applicable to the states through the Fourteenth Amendment, Doe v. Indian River School District, 653 F.3d 256, 269 (3d Cir.2011), provides that “Congress shall make no law respecting an establishment of religion,” U.S. CONST. amend. 1. The Clause is “ ‘designed as a specific bulwark against [the] potential abuses of governmental power.’ ” Indian River, 653 F.3d at 269 (quoting Flast v. Cohen, 392 U.S. 83, 104, 88 S.Ct. 1942, 20 L.Ed.2d 947 (1968)) (alteration in original). Consistent with that bedrock principle, both the state and federal governments are prohibited, at a minimum, from

set[ting] up a church. Neither can pass laws which aid one religion, aid all religions, or prefer one religion over another. Neither can force nor influence a person to go to or to remain away from church against his will or force him to profess a belief or disbelief in any religion. No person can be punished for entertaining or professing religious beliefs or disbeliefs, for church attendance or non-attendance. No tax in any amount, large or small, can be levied to support any religious activities or institutions, whatever they may be called, or whatever form they may adopt to teach or practice religion. Neither a state nor the Federal Government can, openly or secretly, participate in the affairs of any religious organizations or groups and vice versa.

Everson v. Bd. of Ed. of Ewing Twp., 330 U.S. 1, 15, 67 S.Ct. 504, 91 L.Ed. 711 (1947).

Most Establishment Clause cases, however, do not fall within those clear prohibitions. To take into account the myriad ways in which the Clause could be violated, “interlocking lines of cases applying the Clause in particular situations” have developed. Id. at 279. Along the way, the United States Supreme Court has announced various so-called tests to analyze whether government action violates the Clause. See Freedom from Religion Foundation, Inc. v. Connellsville Area Sch. Dist., No. 2:12-CV-1406, 2013 WL 869663, at *6 (W.D.Pa. Mar. 7, 2013).

Which of these tests applies to challenges of religious displays on government property is somewhat unclear. See Freethought, 334 F.3d at 256. Over time, the three-part test from Lemon v. Kurtzman, 403 U.S. 602, 91 S.Ct. 2105, 29 L.Ed.2d 745 (1971) has come to be considered the benchmark. To assess the constitutionality of challenged government conduct under Lemon, a court must ask the following: “(1) whether the government practice had a secular purpose; (2) whether its principal or primary effect advanced or inhibited religion; and (3) whether it created an excessive entanglement of the government with religion.” Indian River, 653 F.3d at 271 (citing Lemon, 403 U.S. at 612-13, 91 S.Ct. 2105). Lemon, however, has been criticized at length. See, e.g., Lamb’s Chapel v. Center Moriches Union Free Sch. Dist., 508 U.S. 384, 398-99, 113 S.Ct. 2141, 124 L.Ed.2d 352 (1993) (Scalia, J., concurring) (comparing Lemon to “some ghoul in a late-night horror movie that repeatedly sits up in its grave and shuffles abroad, after being repeatedly killed and buried”). As recently as 2014, several members of the Court showed their predilection for eschewing Lemon altogether in favor of other approaches. See Town of Greece v. Galloway, — U.S. -, 134 S.Ct. 1811, 188 L.Ed.2d 835 (2014). Despite all of the commentary and criticism that has been heaped upon Lemon, though, the Supreme Court has never expressly overruled it. Indian River, 653 F.3d at 283. And “[d]espite straying from Lemon in narrow situations, the Court has consistently applied the Lemon test to religious display cases.” Card, 520 F.3d at 1015. Indeed, in 2005, the Supreme Court reaffirmed the vitality of the Lemon test in a case that involved a display of the Ten Commandments. Id. at 1013 (citing McCreary Cnty. v. ACLU of Kentucky, 545 U.S. 844, 859-66, 125 S.Ct. 2722, 162 L.Ed.2d 729 (2005)). Without clear guidance from the Supreme Court compelling it to do otherwise, our Court of Appeals has also continued to apply Lemon in religious display cases. See, e.g., Freethought, 334 F.3d at 261; Modrovich v. Allegheny Cnty., 385 F.3d 397, 400 (3d Cir.2004). When doing so, though, it has modified Lemon to incorporate the endorsement test first advanced by Justice O’Connor in Lynch v. Donnelly, 465 U.S. 668, 687-94, 104 S.Ct. 1355, 79 L.Ed.2d 604 (1984) (O’Connor, J., concurring) and later adopted by a majority of the Justices in County of Allegheny v. ACLU, 492 U.S. 573, 109 S.Ct. 3086, 106 L.Ed.2d 472 (1989).

2. Stone v. Graham

Irrespective of which so-called Establishment Clause test applies, the Court must also take into account the Supreme Court’s decision in Stone v. Graham, 449 U.S. 39, 101 S.Ct. 192, 66 L.Ed.2d 199 (1980) (per curiam) — its first decision involving a display of the Ten Commandments. Stone involved a Kentucky statute that required the posting of copies of the Ten Commandments on the wall of every classroom in the state. 449 U.S. at 39, 101 S.Ct. 192. The Supreme Court summarily struck down the law under Lemon’s first prong, finding that Kentucky’s “pre-emi-nent purpose for posting the Ten Commandments” was “plainly religious.” Id. at 41, 101 S.Ct. 192. This was so because “[t]he Ten Commandments are undeniably a sacred text in the Jewish and Christian faiths,” which “do not confine themselves to arguably secular matters.... ” Id. “Rather, the first part of the Commandments concerns the religious duties of believers: worshipping the Lord God alone, avoiding idolatry, not using the Lord’s name in vain, and observing the Sabbath Day.” Id. at 42, 101 S.Ct. 192. Since the Commandments were not “integrated into the school curriculum” as part of a “study of history, civilization, ethics, comparative religion, or the like,” the Court was left to conclude that the statute requiring their display was invalid. Id. The Supreme Court also clarified that it made no difference that the Commandments were posted on a wall and not read aloud to the students, finding it “no defense ... that the religious practices here may be relatively minor encroachments on the First Amendment.” Id. (citation omitted).

However, as the Third Circuit Court of Appeals has observed, Stone did not

hold[ ] that there can never be a secular purpose or that the Ten Commandments are so overwhelmingly religious in nature that they will always be seen only as an endorsement of religion; rather ... Stone is fairly limited to its facts. Stone held that a statute, recently enacted, requiring the posting of the Ten Commandments in school classrooms is an endorsement of religion by the state, considering the inherently religious nature of the Ten Commandments.

Freethought, 334 F.3d at 262. So, in essence, “[wjhatever is left of Stone is limited to circumstances involving public displays of the Ten Commandments in isolation.” ACLU of Kentucky v. Mercer Cnty., Ky., 432 F.3d 624, 634 (6th Cir.2005).

3. The Supreme Court’s 2005 Ten Commandments Cases

The Court’s analysis must also be informed by the Supreme Court’s 2005 decisions in McCreary County and Van Orden. Our Court of Appeals has not had the occasion to address the effect, if any, of these two decisions on the continuing application of Lemon and the endorsement test to displays of the Ten Commandments on public property. However, courts in other Circuits have done so, and this Court will turn to the analysis of those courts for guidance.

a. McCreary County

In McCreary County, the Supreme Court struck down identical displays that included the Ten Commandments in the courthouses of two Kentucky counties, McCreary County and Pulaski County. The counties initially posted “large, gold-framed copies” of the Ten Commandments, by themselves, in their courthouses. 545 U.S. at 850-52, 125 S.Ct. 2722. The McCreary County display was required to be a in a “very high traffic area of the courthouse,” per an order from the county’s legislature. Id. at 851, 125 S.Ct. 2722. Meanwhile, at the unveiling for the Pulaski County display, the county’s judge-executive called the Commandments “ ‘good rules to live by.’ ” Id. He also “recounted the story of an astronaut who became convinced ‘there must be a divine God’ after viewing the Earth from the moon.” Id. The judge-executive’s pastor was also present, and during his remarks, he “called the Commandments ‘a creed of ethics’” and said “that displaying the Commandments was ‘one of the greatest things the judge could have done to close out the millennium.’ ” Id.

Prompted by a lawsuit by the ACLU, each county modified its display to include eight other documents in smaller frames with “each either having a religious theme or excerpted to highlight a religious element.” Id. at 853-54, 125 S.Ct. 2722. After the district court entered a preliminary injunction ordering the removal of the displays, the counties modified them again, this time with more arguably secular elements, like the Declaration of Independence and Bill of Rights, included alongside a slightly different version of the Ten Commandments. Id. at 854-56, 125 S.Ct. 2722. The counties dubbed this “The Foundations of American Law and Government Display,” with each document containing a “statement about its historical and legal significance.” Id. at 855, 125 S.Ct. 2722.

Not satisfied with the modifications, the ACLU moved to expand the preliminary injunction to cover the third display. In response, the counties argued that the display was constitutional because it was designed “ ‘to demonstrate that the Ten Commandments were part of the foundation of American Law and Government’ and ‘to educate the citizens of the county regarding some of the documents that played a significant role in the foundation of our system of law and government.’ ” Id. The district court dismissed these purportedly secular purposes for displaying the Commandments as a sham, “[i]n light of the Counties’ decision to post the Commandments by themselves in the first instance” and then to highlight the religious elements of the documents in the second display. Id. Thus, the district court agreed to include the third display in the injunction, and the Sixth Circuit affirmed. Id.

The Supreme Court also affirmed. Id. at 858, 125 S.Ct. 2722. The Court first rejected the counties’ entreaty to abandon Lemon’s purpose prong. Id. at 860-66, 125 S.Ct. 2722. Although the Court noted that the purpose prong is rarely dispositive, it reiterated that it “ ‘serves an important function.’ ” Id. at 859, 125 S.Ct. 2722 (quoting Wallace v. Jaffree, 472 U.S. 38, 75, 105 S.Ct. 2479, 86 L.Ed.2d 29 (1985) (O’Connor, J., concurring)). “When the government acts with the ostensible and predominant purpose of advancing religion,” the Court stressed, “it violates that central Establishment Clause value of official religious neutrality, there being no neutrality when the government’s ostensible object is to take sides.” Id. at 860, 125 S.Ct. 2722 (citations omitted). Next, the Court rejected the counties’ argument that “true ‘purpose’ is unknowable,” reasoning that “[ejxamination of purpose is a staple of statutory interpretation” and “an understanding of official objective” can be discerned “from readily discoverable fact, without any judicial psychoanalysis of a drafter’s heart of hearts.” Id. (citations omitted). This analysis is undertaken through the eyes of an “objective observer, one who takes account of the traditional external signs that show up in the text, legislative history, and implementation of the statute, or comparable official act.” Id. (quotation marks and citations omitted). Finally, the Court was not persuaded by the counties’ attempt to trivialize the enquiry into purpose, casting off the notions that “any transparent claim to secu-larly would satisfy it” and that the purpose enquiry should ignore the history of the challenged display. Id. at 863-64, 125 S.Ct. 2722. “[T]he secular purpose required has to be genuine, not a sham, and not merely secondary to a religious objective.” Id.

The Court proceeded to apply Lemon’s purpose prong, “looking] to the record of evidence showing the progression leading up to the third display of the Commandments.” Id. at 868, 125 S.Ct. 2722. In doing so, it considered Stone “the initial leading benchmark” since it was, at the time, the Court’s “only case dealing with the constitutionality of displaying the Commandments.” Id. at 867, 125 S.Ct. 2722. “Stone recognized that the Commandments are an ‘instrument of religion,’ ” the Court observed, “and that, at least on the facts before it, the display of their text could presumptively be understood as meant to advance religion” because “their isolated exhibition did not leave room even for an argument that secular education explained their being there.” Id. The Court recognized, though, that Stone did not decide that the government can never display the Commandments and that “under the Establishment Clause detail is key.” Id.

The Court went on to liken the counties’ initial display to that which it struck down in Stone: “both set out a text of the Commandments as distinct from any traditionally symbolic representation, and each stood alone, not part of an arguably secular display.” Id. at 868, 125 S.Ct. 2722. This was problematic because “Stone stressed the significance of integrating the Commandments into a secular scheme to forestall the broadcast of an otherwise clearly religious message.... ” Id. “[F]or good reason,” the Court emphasized, since “the Commandments” are “a central point of reference in the religious and moral history of Jews and Christians.”- Id. The Commandments “proclaim the existence of a monotheistic god,” “regulate details of religious obligation,” and “unmistakably rest even the universally accepted prohibitions ... on the sanction of divinity proclaim at the beginning of the text.” Id. So “[wjhere the text is set out, the insistence of the religious message is hard to avoid in the absence of a context plausibly suggesting a message going beyond an excuse to promote the religious point of view.” Id. Thus, the Court concluded, “the Counties’ solo exhibit here did nothing more to counter the sectarian implication than the postings at issue in Stone.” Id. Add to that the statements from the judge-executive’s pastor and the fact that the posting “lacked even the Stone display’s implausible disclaimer,” and a reasonable person would be forced to conclude “that the Counties meant to emphasize and celebrate the Commandments’ religious message.” Id.

The Court went on to examine the evolution of the displays and found that the second version was clearly unconstitutional, inasmuch as it highlighted the religious elements of the texts. Id. at 870, 125 S.Ct. 2722. “The display’s unstinting focus was on religious passages, showing that the Counties were posting the Commandments precisely because of their sectarian content.” Id. The “serial religious references and the accompanying resolution’s claim about the embodiment of ethics in Christ” eliminated any doubt about the counties’ purpose. Id. As to the third display, in part because there was no new authorizing action for the third display and in part because the third display “quoted more of the purely religious language of the Commandments than the first two displays had done,” the Court concluded that “[n]o reasonable observer could swallow the claim that the Counties had cast off the objective so unmistakable in the earlier displays.” Id. at 871-72, 125 S.Ct. 2722. And, according to the Court, the other posted materials did not “suggest a clear theme that might prevail over evidence of the continuing religious object.” Id. at 872, 125 S.Ct. 2722.

At the same time, the Court made clear that its holding did not mean “that a sacred text can never be integrated constitutionally into a governmental display on the subject of law, or American history.” 545 U.S. at 874, 125 S.Ct. 2722. For example, the Court noted that no reasonable observer would view the frieze in the Supreme Court’s own courtroom depicting “Moses holding tablets exhibiting a portion of the Hebrew text of the later, secularly phrased Commandments” as an having a religious purpose since “17 other lawgivers, most of them secular figures,” were also depicted. Id. at 874, 125 S.Ct. 2722.

b. Van Orden

In Van Orden, neither the plurality nor Justice Breyer, who provided the crucial fifth vote, applied Lemon in upholding the display of an Eagles-donated Ten Commandments monument on the grounds of the Texas State Capitol. 545 U.S. at 685, 125 S.Ct. 2854 (plurality); id. at 700, 125 S.Ct. 2854 (Breyer, J., concurring in the judgment). The Texas State Capitol is surrounded by 22 acres of land, “con-tainting] 17 monuments and 21 historical markers commemorating the ‘people, ideals, and events that compose Texan identity.’ ” Id. at 681, 125 S.Ct. 2854 (quoting Texas H. Con. Res. 38, 77th Leg., Reg. Sess. (2001)). The Ten Commandments monument there is virtually identical to the one at Junior High East (except, as discussed supra, the version of the Commandments is slightly different). Id. at 681-82, 125 S.Ct. 2854.

Writing for the four-Justice plurality, Chief Justice Rehnquist cast Lemon aside, finding it “not useful in dealing” with cases involving “passive” displays. Id. In his view, the analysis must instead be “driven both by the nature of the monument and by our Nation’s history.” Id. “Texas has treated its Capitol grounds monuments as representing the several strands in the State’s political and legal history,” the plurality reasoned. Id. at 691, 125 S.Ct. 2854. “The inclusion of the Ten Commandments monument in this group has a dual significance, partaking of both religion and government,” and thus the plurality found it constitutional. Id. at 691-92, 125 S.Ct. 2854. For the plurality, the monument was essentially akin to the many permissible depictions of the Commandments — like that found in the Supreme Court’s own courtroom — common throughout the country. Id. at 688-89, 125 S.Ct. 2854. And while Chief Justice Rehnquist acknowledged the religious significance of the Commandments, he concluded that “[s]imply having a religious content ... does not run afoul of the Establishment Clause.” Id. at 690, 125 S.Ct. 2854. Before concluding, the plurality distinguished Stone because it relied exclusively on the school-prayer line of cases and, as such, “stands as an example of the fact that [the Court has] ‘been particularly vigilant in monitoring compliance with the Establishment Clause in elementary and secondary schools.’” Id. at 690-91, 125 S.Ct. 2854 (quoting Edwards v. Aguillard, 482 U.S. 578, 583-84, 107 S.Ct. 2573, 96 L.Ed.2d 510 (1987)). Along similar lines, Chief Justice Rehnquist reasoned that the monument at issue was “far more passive” than the display in Stone, which “confronted elementary school students every day.” Id. at 691, 125 S.Ct. 2854. Further distinguishing Stone, Chief Justice Rehnquist opined that there was nothing in the record to suggest that Texas acted with a “primarily religious purpose.” Id. at 691 n. 11, 125 S.Ct. 2854.

Justice Breyer wrote separately, concurring in the judgment, and his opinion has come to be viewed as controlling under the rule of Marks v. United States, 430 U.S. 188, 193, 97 S.Ct. 990, 51 L.Ed.2d 260 (1977). See Card, 520 F.3d at 1017 n. 10; Green, 568 F.3d at 807 n. 17. He began by recognizing that “the Court has found no single mechanical formula that can accurately draw the constitutional line in every case.” Id. In his view, the “tests” that the Court has announced do not always adequately explain why certain things are permissible — e.g., the references to God on our currency — while others are not. Id. Justice Breyer thus proposed that in “difficult borderline cases” there is “no test-related substitute for the exercise of legal judgment.” Id. at 700, 125 S.Ct. 2854. “That judgment ... must reflect and remain faithful to the underlying purposes of the [Establishment and Free Exercise] Clauses, and it must take account of context and consequences measured in light of those purposes.” Id. (citation omitted). The purposes identified by Justice Breyer were: (1) assuring the “fullest possible scope of religious liberty and tolerance for all,” (2) minimizing religious divisiveness; (3) maintaining the “separation of church and state,” (4) and “furthering] the basic principles set forth” in Justice O’Connor’s concurring opinion in McCreary County. Id. Although Justice Breyer called the Court’s other Establishment Clause tests “useful guideposts,” he emphasized that “no exact formula can dictate a resolution to such fact-intensive cases.” Id.

Texas’s Ten Commandments monument, in Justice Breyer’s estimation, presented a borderline case. “On the one hand,” the Commandments “undeniably” send “a religious message.” Id. Still, Justice Breyer explained, the text of the Commandments cannot be viewed in isolation. Id. at 701, 125 S.Ct. 2854. One must instead “examine how the text is used. And that inquiry requires us to consider the context of the display.” Id. (emphasis in original). Sometimes, for example, the Commandments can be used to send a “secular moral message (about proper standards of social conduct).” Id. “[A] display of the tablets can also convey a historical message (about a historic relation between those standards and the law) — a fact that helps to explain the display of those tablets in dozens of courthouses through the Nation. ...” Id.

To Justice Breyer, “[t]he circumstances .surrounding the display’s placement on the capítol grounds and its physical setting suggested] that the State itself intended the latter, nonreligious aspects of the tablets’ message to predominate.” Id. Justice Breyer identified a few factors that led to that conclusion: the Eagles, “while interested in the religious aspect of the Ten Commandments, sought to highlight the Commandments’ role in shaping civic morality,” id. at 701, 125 S.Ct. 2854; the monument was displayed in a large park among 17 other monuments and 21 historical markers “designed to illustrate the ‘ideals’ of those who settled Texas and of those who have lived there since that time;” and the setting of the monument did not “lend itself to meditation or other religious activity,” id. at 702, 125 S.Ct. 2854. While these factors strongly suggested that the monument “convey[ed] a predominantly secular message,” the fact that 40 years had passed without anyone legally challenging the monument was “determinative” for Justice Breyer. Id. at 702, 125 S.Ct. 2854. “[T]hose 40 years suggest more strongly than can any set of formulaic tests that few individuals” viewed “the monument as amounting ... to a government effort” to favor one religion over another, to promote religion over nonreli-gion, “to engage in any religious practice, to compel any religious practice, or to work deterrence of any religious belief.” Id. (citations and quotations omitted). Justice Breyer was also closely attuned to the practical consequences of ordering the removal of the monument, observing that doing so “might well encourage disputes concerning the removal of longstanding depictions of the Ten Commandments from public buildings across the Nation,” which would lead to the type of religious divisions the Establishment Clause was designed to prevent. Id. at 704, 125 S.Ct. 2854.

Like the justices in the plurality, Justice Breyer took pains to distinguish Stone, opining that Texas’s monument “is not on the grounds of a public school....” Id. at 708, 125 S.Ct. 2854. Possibly attempting to head off the confusion that would arise by the split decisions in McCreary County and Van Orden (and his vote to strike down one display and uphold the other), Justice Breyer also attempted to distinguish these two cases. As he viewed the matter, “the short (and stormy) history” of the displays in McCreary County “demonstrates the substantially religious objectives of those who mounted them, and the effect of this readily apparent objective upon those who view them.” Id. “That history ... indicates a governmental effort substantially to promote religion, not simply an effort primarily to reflect, historically, the secular impact of a religiously inspired document.” Id. Justice Breyer added that “a more contemporary state effort to focus attention upon a religious text is certainly likely to prove divisive in a way that this longstanding, pre-existing monument has not.” Id.

c. Aftermath of McCreary County and Van Orden

These divergent opinions, like so much else in the murky milieu of Establishment Clause jurisprudence, have sowed confusion among the Courts of A