Card

Opinion by Judge WARDLAW; Concurrence by Judge FERNANDEZ.

Jesse Card appeals the district court’s award of summary judgment to the City of Everett on his claim that the City’s display of a six-foot tall granite monument inscribed with the Ten Commandments on the grounds of the Everett Old City Hall violates the Establishment Clauses of the Constitutions of the United States and the State of Washington. In 2005, the Supreme Court issued decisions in Van Orden v. Perry, 545 U.S. 677 , 125 S.Ct. 2854 , 162 L.Ed.2d 607 (2005) and McCreary County v. ACLU, 545 U.S. 844 , 125 S.Ct. 2722 , 162 L.Ed.2d 729 (2005), both of which addressed the issues presented here, and the former of which involved a monument of virtually identical design and origin to the monument at issue here. The Court concluded that the display on the grounds of the Texas State Capitol in Van Orden is constitutional, but struck down as unconstitutional the Kentucky monument display at issue in McCreary. Although the circumstances of the Ten Commandments’ installation in the City of Everett vary slightly from those surrounding the Texas monument, we must agree with the district court that Van Orden , particularly…

concurring:

While, with all due respect, I cannot fully join in Judge Wardlaw’s opinion, I do concur.

I applaud Judge Wardlaw’s scholarly and heroic attempt to create a new world of useful principle out of the Supreme Court’s dark materials. 1 Alas, even my redoubtable colleague cannot accomplish that. The still stalking Lemon test 2 and *1024 the other tests and factors, which have floated to the top of this chaotic ocean from time to time in order to answer specific questions, are so indefinite and unhelpful that Establishment Clause jurisprudence has not become more fathomable. Would that courts required neutrality in the area of religion and nothing more or less. 3

More to the purpose, this case, as Judge Wardlaw wisely notes, is controlled by Van Orden v. Perry, 545 U.S. 677 , 125 S.Ct. 2854 , 162 L.Ed.2d 607 (2005). Because of that and because I see no possibility whatsoever that the presence of this monument has established, or has tended to establish, or will establish religion, 4 I concur in the result.

. Cf. Milton, Paradise Lost, Book II, ll. 915-16.

. See Lamb’s Chapel v. Ctr. Moriches Union Free Sch. Dist., 508 U.S. 384, 398 , 113 S.Ct. 2141, 2149 , 124 L.Ed.2d…

Marc D. Slonim of Ziontz, Chestnut, Varnell, Berley & Slonim, Seattle, WA, for the plaintiff-appellant.

David H. Remes and Benjamin C. Block of Covington & Burling, Washington, D.C., for the plaintiff-appellant.

Ayesha Khan of Americans United for Separation of Church and State, Washington, D.C., for the plaintiff-appellant.

Steven W. Fitschen of The National Legal Foundation, Virginia Beach, VA, for amicus curiae in support of the defendants-appellees.

Before: ARTHUR L. ALARCÓN, FERDINAND F. FERNANDEZ, and KIM McLANE WARDLAW, Circuit Judges.

Opinion by Judge WARDLAW; Concurrence by Judge FERNANDEZ.

WARDLAW, Circuit Judge:

Jesse Card appeals the district court's award of summary judgment to the City of Everett on his claim that the City's display of a six-foot tall granite monument inscribed with the Ten Commandments on the grounds of the Everett Old City Hall violates the Establishment Clauses of the Constitutions of the United States and the State of Washington. In 2005, the Supreme Court issued decisions in Van Orden v. Perry, 545 U.S. 677 , 125 S.Ct. 2854 , 162 L.Ed.2d 607 (2005) and McCreary County v. ACLU, 545 U.S. 844 , 125 S.Ct. 2722 , 162 L.Ed.2d 729 (2005), both…