United States Court of Appeals
                          FOR THE EIGHTH CIRCUIT
                                  ___________

                                  No. 02-2444
                                  ___________

ACLU Nebraska Foundation;                   *
John Doe,                                   *
                                            *
        Plaintiffs - Appellees,             *
                                            *
        v.                                  *
                                            *
City of Plattsmouth, Nebraska,              *
                                            *
        Defendant - Appellant,              *
--------------------------------------      * Appeal from the United States
State of Nebraska,                          * District Court for the
                                            * District of Nebraska.
        Amicus on Behalf of Appellant, *
                                            *
Americans United for Separation of          *
Church and State,                           *
                                            *
        Amicus on Behalf of Appellee, *
                                            *
Foundation for Moral Law, Inc.;             *
Wallbuilders, Inc.; The National            *
Legal Foundation,                           *
                                            *
        Amici on Behalf of Appellant.       *
                                       ___________

                            Submitted: September 15, 2004
                               Filed: August 19, 2005
                                ___________
Before LOKEN, Chief Judge, RICHARD SHEPPARD ARNOLD1, BOWMAN,
      WOLLMAN, MORRIS SHEPPARD ARNOLD, MURPHY, BYE, RILEY,
      MELLOY, SMITH, COLLOTON, GRUENDER, and BENTON, Circuit
      Judges, En Banc.
                             ___________

BOWMAN, Circuit Judge.

     The City of Plattsmouth, Nebraska, appeals the District Court's grant of
summary judgment in favor of John Doe, a Plattsmouth resident, and the ACLU
Nebraska Foundation on their claim that the City's display of a Ten Commandments
monument violates the Establishment Clause of the First Amendment. We reverse.

        In 1965, the Fraternal Order of Eagles (Eagles) donated to the City of
Plattsmouth an approximately five-foot-tall and three-foot-wide granite monument
inscribed with a nonsectarian version of the Ten Commandments.2 Above the text of
the Commandments appear two small tablets surrounded by a floral design; an eye
within a pyramid—an all-seeing eye similar to that appearing on the back of a dollar
bill; and an eagle clutching the American flag. Below the text are two Stars of David;
the intertwined Greek letters "chi" and "rho"; and a scroll reading, "PRESENTED TO
THE CITY OF PLATTSMOUTH, NEBRASKA BY FRATERNAL ORDER OF
EAGLES PLATTSMOUTH AERIE NO. 365 1965." Appellant's Br., Ex. O. The
Plattsmouth monument is one of many other Ten Commandments monuments given


      1
       The Honorable Richard Sheppard Arnold died on September 23, 2004. This
opinion is filed by the remaining judges of the en banc court. See 8th Cir. R. 47E.
      2
        The monument lists eleven commands ostensibly to serve as an amalgamation
of the Jewish, Protestant, and Catholic versions of the Ten Commandments. See
ACLU Nebraska Found. v. City of Plattsmouth, 

, 1032 n.9
(D. Neb. 2002) (noting that Plattsmouth monument is identical in content to
monument at issue in Books v. City of Elkhart, 

, 294–95 (7th Cir. 2000),
cert. denied, 

(2001), in which nonsectarian nature of text is discussed).

                                         -2-
by the Eagles to towns, cities, and even states in the 1950s and 1960s.3 The Eagles
is a national social, civic, and patriotic organization. Its local chapter has been
responsible for many philanthropic and community-enhancing contributions to the
City of Plattsmouth.

       The monument was erected in a corner of Plattsmouth's forty-five-acre
Memorial Park, ten blocks distant from Plattsmouth City Hall. Then Street
Commissioner Art Hellwig, an Eagles officer at the time, and other City employees
helped erect the monument, although it is not known whether these City employees
were acting in their personal or official capacities. The monument is located two
hundred yards away from the park's public parking lot, and there are no roads or
walkways from the parking lot to the monument. The words of the monument face
away from the park, away from any recreational equipment, picnic tables, benches,
or shelters. Although the inscribed side of the monument faces the road, it is too far
away to be read by passing motorists. The City of Plattsmouth performs no regular
maintenance on the monument, but if repairs are required, City employees perform
those duties. In addition to the monument, the park contains, among other items,
recreational equipment, picnic tables and shelters, and a baseball diamond. Certain
individual items located in the park, such as grills, benches, and picnic shelters, bear
plaques identifying their donors. In addition, a large plaque inscribed with the names
of all donors to Memorial Park is located near the park's entrance. Because no
contemporaneous City records exist, there is little evidence in the record regarding
the process by which the monument was accepted and installed.


      3
        Although the history of the Eagles's Ten Commandments project—an attempt
to provide youths with a common code of conduct to govern their actions—is
recounted in detail in other cases, see, e.g., 

–95; State v.
Freedom From Religion Found., Inc., 

, 1017 (Colo. 1995), cert. denied,

(1996); as well as by Justice Stevens in his dissent in Van Orden v.
Perry, 

, 2877–78 (2005) (Stevens, J., dissenting), these facts were not
submitted by the parties in this case.

                                          -3-
       In 2001, more than thirty-five years after the monument was installed, Doe and
the ACLU sued the City of Plattsmouth, claiming that the Ten Commandments
monument interfered with Doe's use of Memorial Park and caused him to modify his
travel routes and other behavior to avoid unwanted contact with the monument.
According to Doe and the ACLU, the City's display of the monument in Memorial
Park is a violation of the Establishment Clause. The District Court granted summary
judgment in favor of the plaintiffs, finding that both Doe and the ACLU have
standing to bring suit and that the City's display of the monument violates the
Establishment Clause.

       On appeal, a divided panel of this Court affirmed. ACLU Nebraska Found. v.
City of Plattsmouth, 

(8th Cir. 2004), vacated and rehearing en banc
granted, April 6, 2004. After agreeing with the District Court that both Doe and the
ACLU have standing to pursue this action, the opinion of the Court concluded that
(1) Plattsmouth's display of the monument violates the Establishment Clause because
the City's purpose in installing or maintaining the monument was solely religious and
(2) the display's primary effect was an impermissible endorsement of religion. 

      We granted Plattsmouth's petition for rehearing en banc to review the District
Court's determination that the City's display of the monument violates the
Establishment Clause.4 With the benefit of the United States Supreme Court's recent
decision in Van Orden v. Perry, 

(2005), we now reverse.


      4
        Standing was not raised in the City of Plattsmouth's petition for rehearing en
banc, nor was it addressed at oral argument. Our three-judge panel's affirmance of
the District Court's ruling that Doe and the ACLU have standing to bring this action
was unanimous. Because we have an independent duty to make sure that we have
jurisdiction over the case, we have studied the question and now affirm the District
Court's conclusion that Doe and the ACLU have standing, adopting the reasoning of
the panel opinion on this point. See ACLU Nebraska 

–31.

                                         -4-
       When we consider a district court's grant of summary judgment, we review
findings of fact for clear error and conclusions of law de novo. Royer ex rel. Royer
v. City of Oak Grove, 

, 687 (8th Cir. 2004). We view the facts in the
light most favorable to the nonmoving party—in this case the City—and give that
party the benefit of all reasonable inferences that may be drawn from the facts.
Morgan v. United Parcel Serv. of Am., Inc., 

, 463 (8th Cir. 2004), cert.
denied, 

(2005).

       The Establishment Clause of the First Amendment prohibits government from
making any law "respecting an establishment of religion." U.S. Const. amend. I.
This prohibition applies to the states through the Fourteenth Amendment. Everson
v. Bd. of Educ., 

, 15 (1947). Using the test described by the Supreme
Court in Lemon v. Kurtzman, 

(1971), the District Court held that the
presence of the monument in a City park violates the Establishment Clause.5 In
Lemon, the Supreme Court announced a three-part test for analyzing whether
government activity results in a prohibited establishment of religion. Under the
Lemon test, government practice is permissible for purposes of Establishment Clause
analysis only if (1) it has a secular purpose; (2) its principal or primary effect neither
advances nor inhibits religion; and (3) it does not foster an excessive entanglement
with religion. 

at 612–13 (citations omitted); Children's Healthcare is a
Legal Duty, Inc. v. Min De Parle, 

, 1093 (8th Cir. 2000), cert. denied,

(2001).

      After the Court en banc heard argument in the present case, the United States
Supreme Court weighed in on the constitutionality of certain government displays of
the Ten Commandments. See Van Orden, 

; McCreary County v.

      5
        The opinion of the panel in this case rejected the appellees' argument that the
strict scrutiny test described in Larson v. Valente, 

, 246 (1982), should
apply here. We also, for the reasons stated in the panel opinion, ACLU Nebraska

–34, reject that argument.

                                           -5-
ACLU, 

(2005). In Van Orden, the Court held that the State of Texas
did not violate the Establishment Clause when it accepted a Ten Commandments
monument from the Eagles (a monument virtually identical to that at issue in this
case) and installed the monument on the grounds of the Texas State Capitol. The Ten
Commandments monument, along with the other monuments and historical markers,
stands on the twenty-two acres surrounding the Texas State Capitol to
"commemorat[e] the 'people, ideals, and events that compose Texan identity.'" Van

(citing Tex. H. Con. Res. 38, 77th Leg. (2001)). In his
plurality opinion finding no Establishment Clause violation, Chief Justice Rehnquist
(joined by Justices Scalia, Kennedy, and Thomas) acknowledged that the test
announced in Lemon occasionally has governed the analysis of Establishment Clause
cases over the past twenty-five years, but noted that "the factors identified in Lemon
serve as 'no more than helpful signposts'" in Establishment Clause analysis. 

(quoting Hunt v. McNair, 

, 741 (1973)). The Chief Justice went
on to cite recent cases in which the Supreme Court did not apply the Lemon test. See,
e.g., Zelman v. Simmons-Harris, 

(2002); Good News Club v. Milford
Cent. Sch., 

(2001). Chief Justice Rehnquist ultimately concluded that
the Lemon test was "not useful in dealing with the sort of passive monument that
Texas has erected on its Capitol grounds." Van 

. Instead,
he declared that Establishment Clause analysis in these circumstances was "driven
both by the nature of the monument and by our Nation's history." 

the religious nature and significance of the Ten Commandments, 

the Chief Justice distinguished the "passive use" of the Ten Commandments
text by the State of Texas from the impermissible use of the text by the State of
Kentucky, where copies of the text hung in public-school classrooms and "confronted
elementary school students every day," 

(distinguishing Stone v. Graham,

(1980)). After discussing in some detail our Nation's history insofar as
the use of the Ten Commandments and other religious symbols are concerned, 

Chief Justice Rehnquist—with a fifth vote from Justice Breyer concurring
in the judgment—concluded that the State of Texas did not violate the Establishment

                                         -6-
Clause by its display of the Ten Commandments monument on its Capitol grounds,

.

       In his opinion concurring in the judgment in Van Orden, Justice Breyer agreed
that the text of the Ten Commandments communicates an undeniably religious
message, but cautioned, as did Chief Justice Rehnquist, see 

that focusing
on the religious nature of the message alone cannot resolve an Establishment Clause
case. Rather, consideration must be given to the context in which the Ten
Commandments' text is used. According to Justice Breyer, the State of Texas
included the Ten Commandments monument in its Capitol grounds display to
communicate both a secular and a religious message. He concluded, however, that
the "circumstances surrounding the display's placement on the capitol grounds and
its physical setting suggest that the State" intended the secular aspects of the
monument's message to predominate, despite the monument's inherently religious
content. 

(Breyer, J., concurring in judgment). Finally, the Ten
Commandments monument had stood on the Texas State Capitol grounds for forty
years without legal challenge. In Justice Breyer's view, "those 40 years suggest more
strongly than can any set of formulaic tests that few individuals . . . are likely to have
understood the monument as amounting, in any significantly detrimental way, to a
government effort" to promote, endorse, or favor religion. 

Court's decision in Van Orden governs our resolution of this
case. Like the Ten Commandments monument at issue in Van Orden, the Plattsmouth
monument makes passive—and permissible—use of the text of the Ten
Commandments to acknowledge the role of religion in our Nation's heritage. Similar
references to and representations of the Ten Commandments on government property
are replete throughout our country. Buildings housing the Library of Congress, the
National Archives, the Department of Justice, the Court of Appeals and District Court
for the District of Columbia, and the United States House of Representatives all
include depictions of the Ten Commandments. See 

& n.9 (listing

                                           -7-
additional examples of government buildings and monuments reflecting the
prominent role religion has played in our Nation's history). Indeed, in the United
States Supreme Court's own Courtroom, a frieze depicts Moses holding tablets that
represent the Ten Commandments, and the Ten Commandments decorate the metal
gates and doors around the Courtroom. 

In addition, the Supreme Court
has acknowledged in its decisions the role of religion in our country's history. See,
e.g., Engel v. Vitale, 

, 434 (1962) (noting that the "history of man is
inseparable from the history of religion"); Sch. Dist. of Abington Township v.
Schempp, 

, 212 (1963) (acknowledging that "religion has been closely
identified with our history and government"); Lynch v. Donnelly, 

, 675
(1984) ("Our history is replete with official references to the value and invocation of
Divine guidance . . . ."); Elk Grove Unified Sch. Dist. v. Newdow, 

,
2317 (2004) (Rehnquist, C.J., concurring in judgment) (recognizing that "patriotic
invocations of God and official acknowledgments of religion's role in our Nation's
history abound"). Moreover, the Court has approved certain government activity that
directly or indirectly recognizes the role of religion in our national life. See, e.g.,

–63 (upholding school voucher program); Good News 

(permitting religious school groups' use of public school facilities);
Agostini v. Felton, 

, 209 (1997) (allowing public employees to teach at
religious schools); Rosenberger v. Rector & Visitors of Univ. of Va., 

,
845–46 (1995) (permitting disbursement of funds from student activity fees to
religious organizations); 

(upholding Christmas display
including a creche); Marsh v. Chambers, 

, 792 (1983) (upholding
legislative prayer); Mueller v. Allen, 

, 391 (1983) (allowing tax
deduction for certain religious school expenses). Given this "rich American tradition
of religious acknowledgments," Van 

, we cannot conclude


      6
       See also Eugene F. Hemrick, One Nation Under God: Religious Symbols,
Quotes, and Images in Our Nation's Capital (Our Sunday Visitor Publishing Division
2001).

                                         -8-
that the City's display of a Ten Commandments monument violates the Establishment
Clause—particularly in light of the Supreme Court's decision in Van Orden.7

      We are required neither to "abdicate our responsibility to maintain a division
between church and state nor evince a hostility to religion by disabling the
government from in some ways recognizing our religious heritage." 

Given the "unbroken history of official acknowledgment by all three branches of
government of the role of religion in American life from at least 1789," 

(quoting 

), and the Supreme Court's "[r]ecognition of the role
of God in our Nation's heritage," 

that, like the Ten Commandments
monument in Van Orden, the City's monument has "a dual significance, partaking of
both religion and government," 

. Like the monument at issue in Van
Orden, the Ten Commandments monument installed in Memorial Park by the City of
Plattsmouth is a passive acknowledgment of the roles of God and religion in our
Nation's history. Moreover, as was the case in Van Orden, decades passed during
which the Ten Commandments monument stood in Plattsmouth's Memorial Park
without objection. See 

(Rehnquist, C.J.), 2870 (Breyer, J., concurring in

      7
         The monument in Van Orden on the Texas State Capitol grounds is situated
between the Capitol and the State Supreme Court. Based on the Appendix to Justice
Breyer's concurring opinion, the monument appears to be within fifty yards or so of
both of those buildings. In contrast, the Plattsmouth monument is located in a
relatively isolated corner of Memorial Park, more than ten blocks distant from
Plattsmouth City Hall and, as far as the record shows, not close to any other building
that is part of City government. This fact provides further support for our conclusion
that Van Orden effectively protects the Plattsmouth monument from successful attack
under the Establishment Clause. In addition, this fact tends to offset any inference
adverse to the City arising from the Plattsmouth monument's being, as far as we
know, the only monument in the forty-five-acre City park, whereas the twenty-two-
acre grounds of the Texas State Capitol are well-populated by other monuments of
various kinds. We note the record in the present case does not contain anything that
would suggest the City of Plattsmouth ever has turned down any monument that was
offered to it.

                                         -9-
judgment). Although the text of the Ten Commandments has undeniable religious
significance, "[s]imply having religious content or promoting a message consistent
with a religious doctrine does not run afoul of the Establishment Clause." 

see 

, 687; 

; McGowan v. Maryland, 

, 445 (1961); Walz v. Tax Comm'n of New York, 

, 678 (1970).
While there are limits to government displays of religious messages or symbols, a fact
well-illustrated by Van Orden's companion case, McCreary County, 

,
we cannot conclude that Plattsmouth's display of a Ten Commandments monument
is different in any constitutionally significant way from Texas's display of a similar
monument in Van Orden.8

      The judgment of the District Court is reversed.

BYE, Circuit Judge, with whom MORRIS SHEPPARD ARNOLD, Circuit Judge,
     joins, dissenting.


      The First Amendment's religion clauses stand as a bulwark to protect religion
and, most importantly, religious freedom, "mandat[ing] governmental neutrality
between religion and religion, and between religion and nonreligion." McCreary
County v. ACLU, 

, 2733 (2005) (quoting Epperson v. Arkansas, 

, 104 (1968)). "They embody an idea that was once considered radical: Free
people are entitled to free and diverse thoughts, which government ought neither to
constrain nor to direct." 

(O'Connor, J., concurring). We enforce the
clauses out of "respect for religion's special role in society," 

      8
       Taking our cue from Chief Justice Rehnquist's opinion for the Court and
Justice Breyer's concurring opinion in Van Orden, we do not apply the Lemon test.
But were we to apply the Lemon test, we would conclude, essentially for the reasons
set out in the dissent to the panel decision in the present case, ACLU Nebraska

–50 (Bowman, J., dissenting), that the City's display of the
monument passes that test.

                                         -10-
relationship between government and religion is one of separation, but not one of
mutual hostility and suspicion," Van Orden v. Perry, 

, 2869 (2005)
(Breyer, J., concurring in judgment). Because this Ten Commandments monument,
erected and displayed with the imprimatur of the City of Plattsmouth, abridges these
ideals, I respectfully dissent.

      The Ten Commandments monument belongs to Plattsmouth. It is located ten
blocks from Plattsmouth's City Hall, in Plattsmouth's Memorial Park, and rests in a
tranquil setting under shady trees on a grassy knoll between a recreation area and a
road. Although the inscribed side faces the road, it is too far away to be read by
passing motorists. Pedestrians, picnickers, and others using the park, however, have
an unrestricted view of the Ten Commandments as written on the monument.

       Nothing in the monument's surrounds suggests its religious message might not
be its raison d'etre. Plaques and nameplates in remembrance of, or in thanks to,
various individuals adorn other park items as well as a wall by the main entrance to
the park. Unlike the monument, however, these messages of thanks and recognition
do not appear on well-known religious symbols nor are they accompanied by any
religious text. The monument shares its environs with trees and recreational
equipment but none of this mise-en-scéne reflects an intent to merely complement an
otherwise secular setting by drawing upon one of the Ten Commandments' secular
applications. Rather, the monument's stark religious message stands alone with
nothing to suggest a broader historical or secular context.9




      9
       The Eagles' stated purpose in providing this and similar monuments was to
"inspire all who pause to view them, with a renewed respect for the law of God,
which is our greatest strength against the forces that threaten our way of life." Van

(Stevens, J., dissenting) (citation and quotations omitted).


                                        -11-
      The majority, relying upon Van Orden, holds the monument "makes passive
– and permissible – use of the text of the Ten Commandments to acknowledge the
role of religion in our Nation's heritage." Inasmuch as I respect "the strong role
played by religion and religious traditions throughout our Nation's history," Van

(Rehnquist, C.J., plurality opinion), I remain true to the
concomitant principle that when government takes as its own an undeniably religious
message, we must thoroughly "examine how the text is used," 

(Breyer, J.,
concurring in the judgment) (emphasis in original), "[a]nd that inquiry requires us to
consider the context of the display." 

opinion concurring in the judgment in Van Orden, Justice Breyer
recognized, as does the majority, a display of the Ten Commandments can convey a
historical message about the relationship between the standards inscribed thereon and
our laws. 

He concluded this relationship "helps to explain the display
of those tablets in dozens of courthouses throughout the Nation, including the
Supreme Court of the United States." 

. The majority expands upon this
principle by identifying other references to and representations of the Ten
Commandments on government property, including the Library of Congress, the
National Archives, the Department of Justice, the Court of Appeals and District Court
for the District of Columbia, and the United States House of Representatives. See
also 

& n.9 (noting additional examples).

      Each of these examples, however, is distinguishable from the monument
erected in Plattsmouth. Many earlier monuments and inscriptions appeared at a time
when we "may not have foreseen the variety of religions for which this Nation would
eventually provide a home." 

(O'Connor, J., concurring).
Indeed, "for nearly a century after the Founding, many accepted the idea that America
was not just a religious nation, but 'a Christian nation,'" Van 

(Stevens, J., dissenting) (citing Church of Holy Trinity v. United States, 

, 471 (1892)) (emphasis in original), and "many of the Framers understood

                                        -12-
the word 'religion' in the Establishment Clause to encompass only the various sects
of Christianity," 

In today's pluralistic America we no longer accept nor
countenance such a narrow reading of the Establishment Clause.

       The majorities' examples of displays and inscriptions are further
distinguishable because of the clear historical context in which they appear. For
example, the oft noted image of Moses holding two tablets, depicted on the frieze in
the Supreme Court's courtroom, appears in the company of seventeen other lawgivers,
both religious and secular. 

. Similarly, the depiction of
Moses and the Ten Commandments on the Court's east pediment also finds him in the
company of renowned secular figures. 

n.23. Such longstanding displays
of the Ten Commandments in courtrooms and public buildings harken back to a time
when the overwhelming majority of Americans espoused a Christian belief, and now
serve as a historical reminder of those times and the relationship between the
Decalogue and our laws. The religious message announced by these depictions is
undeniable, but their long history and proximity to secular institutions founded upon
many of the same basic principles, places them in a historical context not apparent to
those viewing Plattsmouth's display. Instead, the Plattsmouth monument stands alone
with nothing to recommend it but its religious message.

      Texas's display of its Ten Commandments monument, while much like
Plattsmouth's monument, is surrounded by seventeen additional monuments and
twenty-one historical markers "commemorating the 'people, ideals, and events that
compose Texan identity.'" Van 

(Rehnquist, C.J., plurality
opinion) (citation omitted). Conversely, Plattsmouth's monument rests alone among
the park's trees and recreational equipment in an area well-suited for reflection and
meditation. See 

(Breyer, J., concurring in judgment) (noting Texas's
monument was located in a setting poorly suited for meditation). Its location among
donated park equipment and various plaques and nameplates does nothing to mute
its undeniably religious message in favor of the secular and historical messages

                                        -13-
described by Justice Breyer. 

Indeed, though not mentioned by the
majority, Plattsmouth expressly disavows any claim "that it displays the monument
in order to show the secular role and influence of the Ten Commandments."
Appellant's Br. at 6. Accordingly, there is nothing reflected in the context of this
monument to suggest Plattsmouth intended a secular or historical message to
predominate. See 

.

       The majority eschews this distinction, suggesting the monument's location, ten
blocks from City Hall, obviates the need to contextualize its religious message. This
goes well beyond the reasoning advanced in Van Orden's fractured decision. At most,
Van Orden holds a Ten Commandments display, incorporated into a larger display
of thirty-eight monuments and historical markers, will survive constitutional attack
because it reflects a broad range of secular and religious ideals. Van Orden did not
extend constitutional protection to Ten Commandments displays with no secular or
historical message.

       Nor did Van Orden reduce Establishment Clause jurisprudence to a simple
mathematical calculation. It is not enough that Plattsmouth's monument has stood for
more than thirty-five years in Memorial Park. Without the contextualizing presence
of other messages or some indicia of historical significance, there is nothing to free
the display from its singular purpose of advancing its religious message. Because no
such broader application is apparent – or for that matter offered – the monument
violates the Establishment Clause.

       For the foregoing reasons, I reject the majorities' conclusion the monument
stands simply "to acknowledge the role of religion in our Nation's heritage." The
monument does much more than acknowledge religion; it is a command from the
Judeo-Christian God on how he requires his followers to live. To say a monument
inscribed with the Ten Commandments and various religious and patriotic symbols



                                        -14-
is nothing more than an "acknowledgment of the role of religion" diminishes their
sanctity to believers and belies the words themselves. I respectfully dissent.
                        ______________________________




                                      -15-