govinfo:USCOURTS-insd-1_00-cv-00811-0

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UNITED STATES DISTRICT COURT 
SOUTHERN DISTRICT OF INDIANA 
INDIANAPOLIS DIVISION 
 
INDIANA CIVIL LIBERTIES UNION, et al., ) 
 ) 
Plaintiffs, ) 
 ) 
v. ) No. 1:00-cv-00811-SEB-MKK 
 ) 
MIKE BRAUN, ) 
 ) 
Defendant. ) 
 
ORDER ON DEFENDANT'S MOTION FOR RELIEF FROM THE FINAL 
JUDGMENT AND PERMANENT INJUNCTION 
 
 This lawsuit originated more than twenty-five years ago, in 2000, when then-
Governor Frank O'Bannon sought to erect on the lawn of the Indiana Statehouse a four-
sided tablet-shaped limestone monument containing two large sides and two small sides. 
On one of the monument's large sides, measuring seven feet tall and slightly more than 
three and a half feet wide, was displayed the full text of the Ten Commandments; other 
sides of the monument were inscribed with the Bill of Rights and the Preamble to the 
Indiana Constitution.
1 Plaintiff Indiana Civil Liberties Union ("ICLU") and its co-
Plaintiffs2 filed this lawsuit under 42 U.S.C. § 1983, arguing that erecting the monument 
 
1 The new monument was designed to replace an earlier monument inscribed with the Ten 
Commandments that had been vandalized by one of the Plaintiffs in this litigation. 
2 At the time final judgment was entered in 2002, Plaintiffs, all of whom were represented by 
Kenneth Falk, included: the ICLU, Joan Laskowski, Alice Bennet, James A. Tanford, Steven 
Schroeder, Patrice Muumba Abduallah, Rev. Kevin Armstrong, Rev. Eric Bram, and Dr. Edgar 
Towne. Mr. Schroeder is now proceeding pro se and Ms. Laskowski, Ms. Bennett, Rabbi Bram, 
and Dr. Towne are now deceased. Kenneth Falk and the ACLU of Indiana (formerly known as 
the Indiana Civil Liberties Union) represent the remaining Plaintiffs. PageID #:
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on the Statehouse grounds would violate the Establishment Clause of the First 
Amendment.3 
 The monument was never erected because, on July 28, 2000, the Court 
preliminarily enjoined its installation, holding that Plaintiffs were likely to succeed in 
showing that its placement would violate the Establishment Clause, as that clause had 
been construed by the United States Supreme Court in Lemon v. Kurtzman, 403 U.S. 602 
(1971). Following the Court's entry of the preliminary injunction, that decision was 
affirmed by the Seventh Circuit and the Supreme Court denied cert. The parties then 
entered into a stipulation agreeing to entry of final judgment "because they believe that 
current governing precedent interpreting the First Amendment precludes the Defendant 
from erecting the proposed monument containing the Ten Commandments on the 
Statehouse lawn." Dkt. 59-5 at 1. Their stipulation included an agreement that "[i]f there 
is a change in governing precedent allowing government displays of the Ten 
Commandments, the Defendant reserves the right to file a motion under Rule 60 of the 
Federal Rules of Civil Procedure to lift or modify the permanent injunction agreed to in 
this Stipulation." Id. On April 24, 2002, final judgment was entered based on the parties' 
stipulation, and a permanent injunction was entered by the Court prohibiting the State of 
 
The ICLU is still a registered domestic nonprofit corporation, although it began to be known as 
the American Civil Liberties Union of Indiana, Inc. in 2005. See Indiana Sec. of State, INBiz, 
https://bsd.sos.in.gov/publicbusinesssearch, searching Business Name – "Indiana Civil Liberties 
Union, Inc." and "Assumed Name History" (last visited May 21, 2026). 
3 Plaintiffs framed their challenge to the installment of the Ten Commandments monument in 
violation of the Establishment Clause, not to the constitutionality of Indiana Code § 4-20.5-21-2, 
which statute allows for the posting of the Ten Commandments on State property. PageID #:
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Indiana "from taking any steps to erect, on the grounds of the Indiana Statehouse, the 
proposed monument containing the Ten Commandments." Dkt. 59-6. 
 Now, nearly twenty-five years later, Governor Mike Braun (the "State") is seek ing 
relief from that judgment in an effort to permit the State to place the monument on the 
Statehouse lawn, arguing that the Court should vacate its permanent injunction, pursuant 
to Federal Rule of Civil Procedure 60(b)(5), because the holding in Lemon—which 
provided the legal basis underpinning the judgment—was abrogated by the Supreme 
Court's decision in Kennedy v. Bremerton School District, 597 U.S. 507 (2022), and thus, 
no longer provides an equitable basis on which to prospectively apply the judgment. 
Plaintiffs oppose the State's Rule 60 motion on the grounds that it was not filed within a 
"reasonable time" and "there is nothing in the abrogation of Lemon or in current Supreme 
Court jurisprudence that makes the continued application of the permanent injunction 
inequitable and justifies the grant of this unreasonably delayed motion." Dkt. 80 at 8. 
Pending Motion and Standard of Review 
Currently before the Court is Defendant's Motion for Relief from the Final 
Judgment and Permanent Injunction [Dkt. 59],4 filed on December 29, 2025. Federal 
Rule of Civil Procedure 60(b)(5) provides, in pertinent part, that "the court may relieve a 
 
4 Also currently pending are Defendant's Motion or Leave to File Notice of Supplemental 
Authority [Dkt. 90], which we hereby GRANT, and the Motion for Leave to File Brief of 
Amicus Curiae [Dkt. 79], filed by Interested Party Fraternal Order of Eagles, which motion is 
DENIED as it essentially duplicates the arguments set forth in the State's briefing. See Nat'l 
Organization for Women, Inc. v. Scheidler, 223 F.3d 615, 617 (7th Cir. 2000) ("The policy of this 
court is … never to grant permission to file an amicus curiae brief that essentially merely 
duplicates the brief of one of the parties …."). PageID #:
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party or its legal representative from a final judgment, order, or proceeding for the 
following reasons[, including if] … applying it prospectively is no longer equitable …." 
"Rule 60(b)(5) may not be used to challenge the legal conclusions on which a prior 
judgment or order rests but the Rule provides a means by which a party can ask a court to 
modify or vacate a judgment or order if a significant change either in factual conditions 
or in law renders continued enforcement detrimental to the public interest." Horne v. 
Flores, 557 U.S. 433, 447 (2009) (quotation omitted). "The party seeking relief bears the 
burden of establishing that changed circumstances warrant relief." Id. The party seeking 
Rule 60(b)(5) relief must also show that the proposed relief is "suitably tailored to the 
changed circumstances." Rufo v. Inmates of Suffolk Cnty. Jail, 502 U.S. 367, 393 (1992). 
"[O]nce a party carries this burden, a court abuses its discretion 'when it refuses to 
modify an injunction or consent decree in light of such changes.'" Horne, 557 U.S. at 
447 (quoting Agostini v. Felton, 521 U.S. 203, 215 (1997)). 
"The standards for modifying injunctions under Rule[] 60(b)(5) … that govern 
injunctions that result from a ruling on the merits apply with equal force to those that 
result from a voluntary settlement reached by the parties." Fisher v. Hamos, No. 06 C 
4405, 2012 WL 13206067, at *5 (N.D. Ill. May 8, 2012). While "[a] consent decree no 
doubt embodies an agreement of the parties and thus in some respects is contractual in 
nature … it is an agreement that the parties desire and expect will be reflected in, and be 
enforceable as, a judicial decree that is subject to the rules generally applicable to other 
judgments and decrees." Rufo, 502 U.S. at 378. The Seventh Circuit has made clear that 
"when considering a Rule 60(b) motion with respect to public litigation, the nature of that PageID #:
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litigation must factor into the district court's decision-making process; the public interest 
and 'concerns of federalism' should guide the court's analysis." Shakman v. City of Chi., 
426 F.3d 925, 936 (7th Cir. 2005) (quoting O'Sullivan v. City of Chi., 396 F.3d 843, 868 
(7th Cir. 2005)). 
Legal Analysis 
I. Timeliness 
Plaintiffs' opening challenge to the State's Rule 60 motion is their contention that 
the motion was not filed within a reasonable time. As we have noted, our judgment was 
entered in 2002. But not until June 2022, in Kennedy, did the Supreme Court definitively 
rule that Lemon and the endorsement tests had been "long ago abandoned," 597 U.S. at 
534, citing American Legion v. American Humanist Association, 588 U.S. 29, 46–51 
(2019) and Town of Greece v. Galloway, 572 U.S. 565, 575–77 (2014). The State does 
not claim that it was unaware of that developing case law. In fact, the State itself had 
appeared as amicus curiae in all three cases before the Supreme Court. Nonetheless, it 
waited until December 29, 2025—three and a half years after Kennedy—to seek relief 
from judgment. Plaintiffs argue that the State has failed to provide a persuasive reason 
for this delay, and that its Rule 60(b) motion should therefore be denied. 
Motions for relief from judgment under Rule 60(b)(5) must be made within a 
"reasonable time." Fed. R. Civ. P. 60(c)(1). "[W]hat constitutes 'reasonable time' for a 
filing under Rule 60(b) depends on the facts of each case." Ingram v. Merrill Lynch, 
Pierce, Fenner & Smith, Inc., 371 F.3d 950, 952 (7th Cir. 2004). In addition to relying on 
the litigants' knowledge of the grounds for relief, other factors that courts typically PageID #:
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consider in assessing timeliness include: "the interest in finality, the reason for delay, the 
practical ability of the litigant to learn earlier of the grounds relied upon, and the 
consideration of prejudice if any to other parties." Shakman, 426 F.3d at 934 (citation 
modified). 
 The Supreme Court has made clear that it alone has the "'prerogative of overruling 
its own decisions,'" Agositini, 521 U.S. at 237, and, as the Seventh Circuit has observed, 
neither American Legion nor Town of Greece "formally overruled Lemon." Woodring v. 
Jackson Cnty., 986 F.3d 979, 988 (7th Cir. 2021). The Seventh Circuit, however, has 
identified Kennedy as the decision "abrogat[ing]" Lemon. St. Augustine Sch. v. Underly, 
78 F.4th 349, 353 (7th Cir. 2023). Accordingly, the State cannot be fairly faulted for its 
failure to seek relief from the judgment in this case prior to the issuance of the Kennedy 
decision in June 2022. 
In assessing the reasonableness of the State's delay in filing the instant motion, we 
also weigh the fact that the Governor who seeks this relief could not have done so prior to 
his taking office in January 2025. In the area of public litigation, the Seventh Circuit has 
made clear that district courts "must take into account the nature of that litigation as well 
as the resulting prejudice, if any, to the present elected officials and the public they 
represent" in assessing timeliness under Rule 60(b). Shakman, 426 F.3d at 934. Were we 
to decide this issue solely on the basis of the litigants' knowledge of the grounds for 
relief, we would risk "bind[ing] all future officers of the State" to the decision of the PageID #:
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executive in power at the time the significant change in the law first arose. Rufo, 502 
U.S. at 392.5 
Plaintiffs concede that, "[a]side from having to deal with the State's motion at this 
point in time," they "are not currently aware of any prejudice to them" resulting from the 
State's delay. Dkt. 80 at 12. As important as the interest in finality of judgments is, it 
does not prevail when, as in this instance, the parties expressly contemplated a possible 
need to revisit their stipulated judgment at some point in the future. Governor Braun has 
moved for relief from judgment within one year of his taking office, and Plaintiffs 
acknowledge that they have suffered no prejudice by that delay. We hold that the State's 
Rule 60 motion was filed within a "reasonable time" and therefore is not subject to 
dismissal on the basis of its untimeliness. 
II. Equity of Prospective Enforcement 
The State seeks relief from judgment under Rule 60(b)(5) on the ground that there 
has been a significant change in the governing law, namely, the Supreme Court's 
abrogation of Lemon and the endorsement test, that makes inequitable the prospective 
enforcement of the Court's permanent injunction prohibiting the State from installing the 
Ten Commandments monument on the Statehouse grounds. Plaintiffs do not dispute the 
abrogation of Lemon nor that it constitutes a "significant change" in the law on which the 
original judgment was based. They maintain nonetheless that the State is not entitled to 
 
5 Plaintiffs highlight the fact that Rufo and Shakman, unlike the case at bar, involved institutional 
reform litigation. While federalism concerns and the potential for government prejudice may be 
more significant in such cases, we do not view a distinction regarding the nature of the litigation 
to be dispositive. PageID #:
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Rule 60 relief because it has failed to establish that the placement of the Ten 
Commandments monument on the Statehouse grounds would be constitutional under 
current Supreme Court Establishment Clause case law, and thus, the State has failed to 
show that continued enforcement of the permanent injunction is inequitable. 
The Supreme Court directs that an injunction be vacated if "it rests upon a legal 
principle that can no longer be sustained." Agostini, 521 U.S. at 238. It is indisputable 
here that Establishment Clause jurisprudence has changed significantly since 2002, when 
the final judgment was first entered in this case, and further, there is also no dispute that 
Lemon, which served as the primary legal underpinning for the judgment, no longer 
provides the applicable legal test for assessing an Establishment Clause claim in this 
context. Under these circumstances, we conclude that the State has made a sufficient 
showing that the continued prospective enforcement of the permanent injunction, which 
was supported entirely by precedent that has now been abrogated, is not equitable. 
That said, we do not have before us a sufficient factual record to allow for the 
determination sought by the State, specifically, that "there is no question that placing the 
Monument on the Statehouse grounds is constitutional" under the current legal landscape. 
Dkt. 60 at 14. In Kennedy, the Supreme Court ruled that, "[i]n place of Lemon and the 
endorsement test," the Establishment Clause must be interpreted by "'reference to 
historical practices and understandings.'" 597 U.S. at 535 (quoting Town of Greece, 572 
U.S. at 576). "'The line' that courts and governments 'must draw between the permissible 
and the impermissible'" must "'accor[d] with history and faithfully reflec[t] the 
understanding of the Founding Fathers.'" Id. at 535–36 (quoting Town of Greece, 572 PageID #:
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U.S. at 577). This kind of historical inquiry "requires serious work …." Shurtleff v. City 
of Boston, 596 U.S. 243, 285 (Gorsuch, J., concurring in the judgment). 
Since Kennedy, courts addressing Establishment Clause challenges to the 
government's display of the Ten Commandments under varying factual circumstances 
have reached differing conclusions regarding whether the specific government practice at 
issue would have been historically understood as an establishment of religion. E.g., 
Nathan v. Alamo Heights Ind. Sch. Dist., 173 F.4th 576 (5th Cir. 2026) (holding that state 
statute requiring the display of the Ten Commandments in public school classrooms did 
not bear hallmarks of founding-era establishment of religion, and thus did not facially 
violate the Establishment Clause); Cave v. Jester, -- F. Supp. 3d --, 2026 WL 916187 
(E.D. Ark. Mar. 31, 2026) (holding that the passage of an act "requiring the permanent 
placement of the Ten Commandments Monument on the State Capitol Grounds … 
violates the Establishment Clause," in part because "the placement of a Ten 
Commandments Monument on State Capitol grounds does not fit within and is not 
consistent with a broader tradition in place at the time of the founding"). In each of these 
cases, courts had the benefit of extensive factual records, including expert testimony and 
evidentiary submissions from a variety of historical sources addressing the founding-era 
history of the challenged government action. See, e.g., Nathan, 173 F.4th at 593–601; 
Cave, 2026 WL 916187, at *44–*47. 
We lack a similarly well-developed historical record. Although the State argues 
generally that there exists a longstanding American tradition of recognizing the historical, 
cultural, and legal significance of the Ten Commandments, in Town of Greece, the PageID #:
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Supreme Court made clear that the question is whether "history shows that the specific 
practice is permitted," not whether there is historical support for a more general practice. 
572 U.S. at 577 (emphasis added). Determining whether the specific practice at issue 
here, to wit, the State's erection of a permanent monument containing a seven-foot-tall 
depiction of the complete text of the Ten Commandments on the grounds of the Indiana 
Statehouse is "consistent with a historically sensitive understanding of the Establishment 
Clause," Kennedy, 597 U.S. at 537, requires a more fulsome record than is currently 
before us. 
For these reasons, we GRANT the State's Rule 60 motion and shall reinstate this 
case on our docket, which opens the way for further proceedings. See Bronisz v. Ashcroft, 
378 F.3d 632, 637 (7th Cir. 2004) ("When a district court grants a rule 60(b) motion, the 
effect is to vacate the previous judgment in the case. Consequently, the previous case is 
reinstated and goes forward from that point.") (citation modified). However, we hereby 
STAY the lifting of the permanent injunction for 45 days. This time is intended to allow 
Plaintiffs to determine whether they wish to proceed with this litigation by filing an 
amended complaint to challenge the installation of the Ten Commandments monument 
under current Establishment Clause jurisprudence and standing principles, and/or 
whether, given the significant changes in the law, including those referenced above, the PageID #:
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complaint as originally filed remains a justiciable case or controversy under the current 
legal landscape. 
IT IS SO ORDERED. 
 
Date: _________________________ 
 
 
 
Distribution: 
 
STEVEN SCHROEDER 
112 S. Beatty Street 
Columbus, IN 47201 
 
James A. Barta 
Office of the Indiana Attorney General 
james.barta@atg.in.gov 
 
Joshua Bleisch 
American Civil Liberties Union of Indiana 
jbleisch@aclu-in.org 
 
KENNETH J FALK 
INDIANA CIVIL LIBERTIES UNION 
1031 E WASHINGTON ST 
INDIANAPOLIS, IN 46202 
 
Kenneth J. Falk 
ACLU OF INDIANA 
kfalk@aclu-in.org 
 
John P. Lowrey 
Office of IN Attorney General 
john.lowrey@atg.in.gov 
 
5/28/2026
 _______________________________ 
 SARAH EVANS BAR
KER, JUDGE 
 United States District Court 
 Southern District of Indiana PageID #:
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Moriah O'Hare 
First Liberty Institute 
mohare@firstliberty.org 
 
Stevie J. Pactor 
ACLU OF INDIANA 
spactor@aclu-in.org PageID #:
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