Arguing that it should be protected as a "historical artifact," lawyers for Chester County, Pa., on Monday urged a federal appeals court to overturn a ruling that ordered the county to take down a bronze plaque of the Ten Commandments that has hung on the east wall of the county courthouse for more than 80 years.
But lawyers arguing to uphold the court order said that historic value cannot trump constitutional values.
Attorney William M. McSwain of Dechert said the lower court erred by focusing too much on the religious motivations of those who installed the plaque in 1920, while ignoring that today's county commissioners have a valid, non-religious motive to simply preserve the plaque as a historic artifact.
"No other court has had a case just like this," McSwain said.
McSwain told the three-judge panel that U.S. District Judge Stewart Dalzell of the Eastern District of Pennsylvania erred by applying the Lemon test when he should have applied the endorsement test that is discussed in more a recent case from the U.S. Supreme Court.
If he had, McSwain said, it would be clear that Chester County's continued display of the plaque is constitutional since it is based on a "facially neutral policy of preserving all historic artifacts."
But early on his argument, McSwain was being peppered with questions from all three judges -- Chief Judge Edward R. Becker, Judge Maryanne Trump Barry and visiting 8th Circuit Senior Judge Myron H. Bright.
Becker noted that Lemon has never been overruled and asked if the endorsement test wasn't simply a modification of the second prong of Lemon that focuses on the effects of a religious message.
McSwain said he believed the endorsement test was truly a separate test, but that "I don't think any case controls."
Barry asked how courts would go about applying the new rule that McSwain was asking that would create an exception for historic artifacts.
"Does it matter how old it is? This is 82 years old. Could it be 81?" she asked.
McSwain said a proper benchmark would be 50 years -- the amount of time that historic societies insist on before ever certifying something as historic.
But Becker wondered whether it would be wise for the court to announce such a rule.
"Do you really think we should be the first court to announce a specific test for historic monuments?" Becker asked.
Before he could answer, Becker said he himself didn't think it made sense to "create a presumption of constitutionality" in such cases.
McSwain insisted that he was not asking for "impossible line drawing," and that such an approach accounts for the context that a long history creates.
Becker said he believed the "critical question" in the case was whether the court should look at the county's actions in 1920 when the plaque was put up, or at the actions of the current county commissioners and their decision to refuse to take it down when it was challenged in court.
Bright said he believed McSwain's historical argument would have more validity if the plaque went back more than a century. Eliciting laughs from the audience, Bright, who is 84, said he was alive when the plaque was mounted.
Becker told McSwain that the U.S. Supreme Court has already described the Ten Commandments as a "sacred text" in its decision in Stone v. Graham.
"What if they wanted to put up the same plaque today? Would you be here defending it?" Becker asked.
McSwain answered the question by saying such a new set of facts would pose new questions about the motives of today's commissioners, and that his first question if such a plaque were proposed now would be "why?"
Attorney William M. Janssen of Saul Ewing, also arguing for the county, said the court should focus on the "reasonable observer" of the plaque.
Such an observer, Janssen said, is "charged with the imputed knowledge of history and history of the community."
In Chester County, Janssen said, an observer would know that county officials decided to keep the plaque up for historic reasons, and not to endorse any specific religion.
And the context, he said, is a courthouse, where observers would recognize that the Ten Commandments was displayed because of its strong connection to the country's legal traditions.
Attorney Alfred W. Putnam Jr. of Drinker Biddle & Reath, who filed an amicus brief on behalf of the Chester County Historic Preservation Network, also urged the court to overturn Dalzell.
"When you preserve something, you're not saying anything," Putnam said.
Since the county isn't sending any religious message today, Putnam said, its conduct is not unconstitutional.
Instead, Putnam said, it was the plaintiffs who were "looking to send a message here" by having the plaque removed.
But Becker cut him off, saying "you've got a right to vindicate your constitutional rights without having your motive assailed."
Bright said he thought Putnam was "not on solid ground" because his argument looked at the case purely in terms of the conduct of today's commissioners and not from the perspective of a reasonable observer.
Barry asked if Putnam was arguing that the court would also be sending the wrong message by upholding Dalzell.
"Is that a message that we're not endorsing [religion] or that we're hostile?" she asked.
Putnam said he believed that if courts order every government building to take down every last monument or plaque with religious content, it would send message of hostility.
Attorney Stefan Presser, the legal director of the American Civil Liberties Union of Pennsylvania who filed the suit on behalf of the Freethought Society of Greater Philadelphia and two of its members, propped up a large poster of the plaque before beginning his arguments, telling the judges that its 39-inch by 50-inch dimension was the same actual size of the one currently hanging on the courthouse under a drape ordered by Dalzell.
Presser said that apart from its connection to American legal traditions, a Ten Commandments plaque conveys the message "that there's a god."
While several of the commandments find an analogue in today's laws, such as thou shalt not kill, Presser said the first few are purely religious.
Becker interrupted and noted that Pennsylvania had "blue laws" until the 1960s that required observance of the Sabbath, and at one time even had blasphemy laws.
But Presser insisted that no state or local government in the United States has ever had a law "directing citizens to love god."
While his opponents had argued that the court must consider all messages in context, Presser said the cases they cited for that principle didn't apply.
Courts have upheld displays of a manger scene during the Christmas season where a city also displays Frosty the Snowman and other non-religious items.
But the Chester County plaque "stands alone," Presser said.
In the courtroom where the U.S. Supreme Court hears its arguments, Presser noted, there is a mural that depicts, among other things, Moses carrying the tablets with the Ten Commandments. But the high court rejected a challenge to its own display, Presser said, due only to the other elements in the mural that showed it was designed to honor all of the great "law givers."
In Chester County, Presser said, "a reasonable person sees this plaque standing alone."
Barry asked, "Where's the line between permissible acknowledgment and accommodation of religion and impermissible endorsement?"
Presser said the display "has to make it clear that there's another purpose other than the religious purpose -- that's not what we have here."
The county's arguments should be rejected, Presser said, because "mere historicity can't trump the constitution."