George KALMAN v. Pedro A. CORTES, et al., 723 F. Supp. 2d 766

MEMORANDUM RE: CROSS MOTIONS FOR

SUMMARY JUDGMENT BAYLSON, District Judge. Table of Contents I. Introduction...............................................................770 II. Background...............................................................770 A. Procedural History.....................................................770 B. Parties’ Contentions....................................................771 III. Legal Standard............................................................771 IV. The Blasphemy Statute.....................................................772 A.

Brief History of Blasphemy Jurisprudence................................772 1. Blasphemy Laws in Britain..........................................772 2. Blasphemy Laws in America.........................................773 a. Early Blasphemy Convictions Pre-lst Amend......................773 b. Blasphemy Cases Posl^lst Amend................................775 B. The Blasphemy Statute’s Origins.........................................776 C. Application of the Blasphemy Statute.....................................778 D. Plaintiff Kalman’s Application ...........................................779 E.

The Bureau Amends the “Revised List” of Suspect Words...................781 V. Discussion.................................................................782 A. The Establishment Clause ..............................................782 1. The Lemon Test ...................................................783 a. Purpose.......................................................784 b. Effect............ 788 c. Entanglement..................................................789 B. Freedom of Speech.....................................................791 1.

Commercial Speech.................................................792 a. Central Hudson Test............................................795 i. Prong One.................................................795 ii. Prong Two ......■.........................................795 iii. Prong Three...............................................795 iv. Prong Four................................................797 2. Non-Commercial Speech............................................797 a. Expressive Speech..............................................797 b. ViewpoinL-Based Regulation......................................799 c.

Speech Forum Doctrine.........................................804 VI. Conclusion................................................................806 I. Introduction Blasphemy, which is generally defined as the act of insulting or showing contempt or a lack of reverence for God or something considered sacred, is a religious concept which has existed for thousands of years.

As an example, in the JudeoChristian tradition, blasphemy appears in the Bible in Leviticus 24, where the unnamed son of an Israelite mother and Egyptian father who blasphemed the Lord was brought before Moses, and whose punishment was stoning and death. Other books of the Bible describe the ruthless Babylonian king, Nebuchadnezzar, as a serial blasphemer. Continuing as a religious concept in music and literature, the very same Nebuchadnezzar, with the Italian name “Nabucco” in Verdi’s opera, not only denounces God, but declares himself a deity. See Theodore L.

Gentry, Nabucco 18!$, in Encyclopedia of the Romantic Era, 1760-1850 781, 781 (Christopher John Murray ed., 2003) (“Nabucco appears, places the Crown on his own head, and declares that he is a God. The Hebrews are shocked by the blasphemous act ....”). Decades later, the Nobel Prizewinning Irish playwright George Bernard Shaw irreverently wrote: “All great truths begin as blasphemies.” Annajanska, The Bolshevik Express (1918). In the present ease, Plaintiff George Kalman commenced this action challenging the constitutionality of

Section 1303(c)(2)(ii) of Title 15 of the Pennsylvania Consolidated Statutes (the “Blasphemy Statute”), which prohibits corporate names containing “[w]ords that constitute blasphemy, profane cursing or swearing or that profane the Lord’s name.” Plaintiff asserts that the Blasphemy Statute violates the Establishment Clause and Free Speech Clause of the First Amendment to the United States Constitution.

Plaintiff, who sought to name his film company “I Choose Hell Productions LLC,” challenges the statute both on its face and as applied, seeking a declaratory judgment that it violates his constitutional rights, a permanent injunction prohibiting Defendant from enforcing it against Plaintiff or anyone else, and an award of actual damages and attorney’s fees. Presently before the Court are the parties’ Cross Motions for

Summary Judgment, and no material facts are disputed by the parties. For the reasons discussed below, Plaintiffs motion will be granted, and Defendant’s motion will be denied. II. Background A. Procedural History On February 18, 2009, Plaintiff Kalman filed his Complaint (Doc. No. 1) against Defendant Pedro A.

Cortes, Secretary of the Commonwealth of Pennsylvania, in his official capacity, seeking a declaratory judgment that the Blasphemy Statute violates the First and Fourteenth Amendment to the United States Constitution, a permanent injunction prohibiting enforcement of the Blasphemy Statute, and an award of actual damages and attorney’s fees. On April 16, 2009, Defendant Cortes filed a Motion to Dismiss for Improper Venue (Doc. No. 4), to which Plaintiff responded on May 13, 2009 (Doc. No. 6).

On July 23, 2009, the Court held Oral Argument on Defendant’s Motion to Dismiss, and on July 28, 2009, issued an Opinion and Order denying the motion. (Kalman v. Cortes, 646 F.Supp.2d 738 (E.D.Pa.2009) (Baylson, J.).) On August 10, 2009, Defendant Cortes filed his Answer (Doc. No. 13) to Plaintiffs Complaint. The parties then engaged in and completed extensive discovery. On December 21, 2009, both parties filed Cross Motions for

Summary Judgment (Doc. Nos. 17, 21). On December 24, 2009, an amici curiae brief was filed in support of Plaintiff by the Jewish Social Policy Action Network, the Unitarian Universalist Association, the Rev. Larry W. Smith, and the Rev. Nathan Walker (Doc. No. 23.) Regarding Plaintiffs

summary judgment motion (Doc. No. 21), Defendant Cortes responded on January 19, 2010 (Doc. No. 25), and Plaintiff replied on February 8, 2010 (Doc. No. 30). Regarding Defendant’s

summary judgment motion (Doc. No. 17), Plaintiff responded on January 19, 2010 (Doc. No. 26), and Defendant replied on February 8, 2010 (Doc. No. 29). Oral Argument was held on the cross motions for

summary judgment on April 1, 2010. Having been fully briefed and argued, the motions are now ripe for disposition. B. Parties’ Contentions Plaintiff Kalman argues that the Blasphemy Statute is unconstitutional under the First and Fourteenth Amendments to the United States Constitution, and asks the Court to permanently enjoin both Defendant and Pennsylvania’s Department of State from enforcing it.

Plaintiff argues that the Blasphemy Statute violates the Establishment Clause because it has a non-secular purpose, its principal or primary effect advances religion, and it fosters an excessive government entanglement with religion. Plaintiff also argues that the Blasphemy Statute violates the Free Speech Clause because it discriminates on the basis of viewpoint, constitutes an unconstitutional prior restraint on speech, and is unconstitutionally vague.

Defendant Cortes argues that the Blasphemy Statute does not violate the Establishment Clause because its purpose and effect is to protect the public from offensive, indecent, and profane expression, and because there is no excessive government entanglement with religion. Defendant also argues that the Blasphemy Statute is constitutional because it is appropriately tailored to serve the legitimate end of regulating commercial speech.

In the alternative, Defendant argues that the Blasphemy Statute is constitutional under the Free Speech Clause because it governs speech in a non-public forum and is both reasonable and viewpoint neutral, because it addresses unprotected classes of speech, namely, obscenity and profanity, and because it is not unconstitutionally overbroad or vague. III. Legal Standard

Summary judgment is appropriate “if the pleadings, the discovery and disclosure materials on file, and any affidavits show that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(c). This same standard applies when there are cross motions for

summary judgment. See Princeton Ins. Co. v. Converium Reinsurance (N. Am.) Inc., 344 Fed.Appx. 759, 761 (3d Cir.2009); see also Se. Pa. Transit Auth. v. Pa. Pub. Util. Comm’n, 826 F.Supp. 1506, 1512 (E.D.Pa.1993) (“The standards for granting or denying

summary judgment do not change by virtue of cross-motions being presented.”). An issue is “genuine” if the evidence is such that a reasonable jury could return a verdict for the non-moving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). A factual dispute is “material” if it might affect the outcome of the case under governing law. Id. A party seeking

summary judgment always bears the initial responsibility for informing the district court of the basis for its motion and identifying those portions of the record that it believes demonstrate the absence of a genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). After the moving party has met its initial burden, the adverse party’s response must “by affidavits or as otherwise provided in this rule [ ] set out specific facts showing a genuine issue for trial.” Fed.R.Civ.P. 56(e).

Summary judgment is appropriate if the non-moving party fails to rebut by making a factual showing “sufficient to establish the existence of an element essential to that party’s case, and on which that party will bear the burden of proof at trial.” Celotex, 477 U.S. at 322, 106 S.Ct. 2548. Under Rule 56, the Court must view the evidence presented on the motion in the light most favorable to the opposing party. Anderson, 477 U.S. at 255, 106 S.Ct. 2505. “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.” 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 judgment in light of the law and undisputed facts.” Iberia Foods Corp. v. Romeo, 150 F.3d 298, 302 (3d Cir.1998). IV. The Blasphemy Statute The information set forth below and throughout the remainder of this opinion comes from publicly available sources and from the discovery taken in this case and supplied to the Court by the parties. See Fed.R.Civ.P. 56. A.

Brief History of Blasphemy Jurisprudence 1. Blasphemy Laws in Britain Prohibitions on blasphemy predate the American Revolution, existing in Britain as early as 1648, when the British Parliament passed an ordinance providing that an individual convicted of one of several acts of blasphemy “shall suffer the pains of death.” An Ordinance for the Punishing of Blasphemies and Heresies, 1648 (Eng.), Acts and Ordinances of the Interregnum, 1612-1660 (C.H. Firth & R.S. Rait eds., 1911), available at http://www. british-history.ac.uk/report.aspx?compid= 56264 (last visited May 18, 2010).

The “Blasphemies and Heresies” described in this ordinance were limited to profaning the Christian God; for example, the ordinance prohibited “Preaching, Teaching, Printing or Writing, Maintaining] or publish[ing]” that the Holy Trinity “are not one Eternal God,” or that “Jesus Christ is not the Son of God.” Id. The law was enforced against numerous individuals, including George Fox, founder of the Society of Friends, James Nayler, a prominent Quaker leader, and William Penn, founder of Pennsylvania. As early as 1675, British courts expressly recognized Christianity as comprising English law.

That year, John Taylor was convicted of uttering various “blasphemous expressions,” including that he was Christ’s younger brother, that “Christ is a whoremaster,” and that “religion is a cheat.” Taylor’s Case, 1 Ventis 293, 86 Eng. Rep. 189, 189 (1676).

Justice Matthew Hale, writing for the Court of King’s Bench in Taylor’s Case, explained that “wicked blasphemous words were not only an offense to God and religion, but a crime against the Laws, State and Government, and therefore punishable in this Court,” because “Christianity is a parcel of the laws of England; and therefore to reproach the Christian Religion is to speak in subversion of the law.” Id.

British courts, however, clarified that the blasphemy prohibition only extended to “Christianity,” which is the “established law of the country,” and did not protect Judaism, Islam, or “any sect of the Christian religion, except the [Anglican] form established by law,” including the Catholic Church. Regina v. Gathercole, 2 Lewin 237, 168 Eng.Rep. 1140, 1146 (1838). 2. Blasphemy Laws in America a. Early Blasphemy Convictions Prior to the Incorporation of the First Amendment Britain’s prohibition on blasphemy was also enforced on American soil.

The Massachusetts Bay Colony hanged four Quakers for blasphemy in 1659-1660, and prosecuted numerous individuals accused of blasphemy in the infamous Salem witch trials of the 1690s. See Rufus M. Jones, The Quakers in the American Colonies 76-80 (MacMillan & Co., 1923). Even after the American Revolution and the drafting of the Bill of Rights, which asserted freedom of religion, blasphemy prohibitions remained.

As the Supreme Court has explained, [m]ost of the States that had ratified the Constitution by 1792 punished the related crime of blasphemy or profanity despite the guarantees of free expression in their constitutions, and Massachusetts expressly prohibited the “Composing, Writing, Printing or Publishing, of any Filthy Obscene or Prophane Song, Pamphlet, Libel or Mock-Sermon, in Imitation or in Mimicking of Preaching, or any other part of Divine Worship.” Acts and Laws of Massachusetts Bay Colony (1726), Acts of 1711-1712, c. 1, p. 218. Paris Adult Theatre I v.

Slaton, 413 U.S. 49, 104, 93 S.Ct. 2628, 37 L.Ed.2d 446 (1973); see also Roth v. United States, 354 U.S. 476, 482-483, 77 S.Ct. 1304, 1 L.Ed.2d 1498 (1957) (“Thirteen of the 14 States provided for the prosecution of libel, and all of those States made either blasphemy or profanity, or both, statutory crimes.” (internal footnote omitted)). The First Amendment, including its provisions concerning religion, had not yet been incorporated to apply to the States. In People v.

Ruggles, 8 Johns. 290 (N.Y.Sup.Ct.1811), one of the most famous blasphemy cases in the United States, the New York State Supreme Court affirmed the blasphemy conviction of John Ruggles, a man who had shouted “Jesus Christ was a bastard, and his mother must be a whore” while at the door of a tavern after drinking heavily. Id. at 291.

Ruggles’ attorney argued that unlike English law, New York common-law did not prohibit Ruggles from making blasphemous statements because the Constitution “allows a free toleration to all religions and all kinds of worship,” and that Christianity had not been made part of the law of New York. Id.

Chief Judge Kent rejected these arguments, instead determining that “[t]he people of this State, in common with the people of this country, profess the general doctrines of Christianity,” and “the case assumes we are a Christian people, and the morality of the country is deeply in-grafted upon Christianity and not upon the doctrines or worship of ... imposters.” Id.

Notwithstanding the “expressions in the constitution,” Chief Judge Kent con-eluded that Ruggles’ blasphemous statement, which had been made “with a wicked and malicious disposition, and not in a serious discussion upon any controverted point in religion,” constituted an “abuse” of the right to “free and decent discussion on any religious subject.” Id. at 293. The Ruggles Court, therefore, affirmed that “‘Christianity in general’ described the boundaries of religious liberty in the new American republic,” just as it had been embodied in British common-law. Sarah B.

Gordon, Blasphemy and the Law of Religious Liberty in Nineteenth-Century America, 52 Am. Q. 682, 684 (2000). The Ruggles decision was by no means an outlier. Various other state courts joined the New York Supreme Court in finding Christianity to be part of state common-law. Over a decade after Ruggles, the Pennsylvania Supreme Court affirmed that blasphemy remained a common-law crime under Pennsylvania law in Updegraph v. Commonwealth, 11 Serg. & Rawle 394 (Pa.1824).

In that case, during a debating society’s debate about religion, the defendant, Updegraph, stated that “the Holy Scriptures were a mere fable, that they were a contradiction, and that, although they contained a number of good things, yet they contained a great many lies.” Although the Pennsylvania Supreme Court reversed Updegraph’s conviction on other grounds, the Court noted that “Christianity, general Christianity, is, and always has been, a part of the common law of Pennsylvania,” and that finding to the contrary would carry away “restraints upon civil liberty.” Id. at 399.

In addition, the high courts in Delaware and Massachusetts upheld blasphemy convictions, reasoning that Christianity had been incorporated as part of their common-law. Blasphemy convictions continued through the early Twentieth Century. b. Blasphemy Cases After the Incorporation of the First Amendment Blasphemy case law dramatically changed after the Supreme Court unanimously held in Cantwell v.

Connecticut, 310 U.S. 296, 303, 60 S.Ct. 900, 84 L.Ed. 1213 (1940), that under the Due Process Clause of the Fourteenth Amendment, the States could not violate individual rights guaranteed by the First Amendment, including the “constitutional inhibition of legislation on the subject of religion.” In particular, Justice Roberts’ opinion in Cantwell provided that [i]n the realm of religious faith, and in that of political belief, sharp differences arise. In both fields, the tenets of one man may seem the rankest error to his neighbor.

To persuade others to his own point of view, the pleader, as we know, at times, resorts to exaggeration, to vilification of men who have been, or are, prominent in church or state, and even to false statement. But the people of this nation have ordained in the light of history, that, in spite of the probability of excesses and abuses, these liberties are, in the long view, essential to enlightened opinion and right conduct on the part of the citizens of a democracy. Id. at 310, 60 S.Ct. 900. Following Cantwell, the Supreme Court then held in Joseph Burstyn, Inc. v.

Wilson, 343 U.S. 495, 72 S.Ct. 777, 96 L.Ed. 1098 (1952), that a New York statute authorizing state officials to censor “sacrilegious” films unconstitutionally abridged the rights to free speech and free press.

Even though the New York Court of Appeals had construed the statute as being designed to protect all religions, 303 N.Y. 242, 101 N.E.2d 665, 672 (1951), Justice Clark’s opinion for the Court emphasized that “New York cannot vest such unlimited restraining control over motion pictures in a censor,” because “[ujnder such a standard!],] the most careful and tolerant censor would find it virtually impossible to avoid favoring one religion over another,” 343 U.S. at 505, 72 S.Ct. 777.

Although Justice Clark’s opinion did not discuss blasphemy, Justice Frankfurter’s concurring opinion explained that [i]f “sacrilegious” bans more than the physical abuse of sacred persons, places, or things, if it permits censorship of religious opinions, which is the effect of the holding below, the term will include what may be found to be “blasphemous.” England’s experience with that treacherous word should give us pause, apart from our requirements for the separation of Church and State____ Blasphemy was the chameleon phrase which meant the criticism of whatever the ruling authority of the moment established as orthodox religious doctrine.

Id. at 528-29, 72 S.Ct. 777; see further discussion of Burstyn below. After Burstyn, it appears the only appellate court decision addressing a blasphemy statute is Maryland v. West, 9 Md.App. 270, 263 A.2d 602 (Md.Ct.Spec.App.1970), in which a truck driver, Irving West, was convicted of disorderly conduct, resisting arrest, and blasphemy after getting into a fight and stating: “Get your goddam hands off me.” Constitutional Law: Damning Blasphemy, Time, May 16, 1969, available at http: //www. time.com/time/magazine/article/0,9171, 902576,00.html (last visited May 18, 2010).

West was convicted of violating Maryland’s blasphemy statute, which provided as follows: If any person, by writing or speaking, shall blaspheme or curse God, or shall write or utter any profane words of and concerning our Saviour Jesus Christ, or of and concerning the Trinity, or any of the persons thereof, he shall on conviction be fined not more than one hundred dollars, or imprisoned not more than six months, or both fined and imprisoned as aforesaid, at the discretion of the court. West, 263 A.2d at 603.

The Maryland Court of Special Appeals rejected the state’s argument that this statute had a “secular aura” by protecting “those citizens who desire to worship to carry on unmolested.” Id. at 604. Instead, the Court determined that the blasphemy statute under which West had been convicted “remains in substantially the same form as its predecessor statutes,” and has “historical roots ... embedded in the firm conviction of its original and subsequent framers that legislative fiat was necessary and desirable to preserve the sanctity of the Christian religion.” Id. at 603.

The Court held that “[pjatently, the statute was intended to protect and preserve and perpetuate the Christian religion in this State,” and such an “effort ... to extend [the state’s] protective cloak to the Christian religion or to any other religion is forbidden by the Establishment and Free Exercise Clauses of the First Amendment.” Id. at 605.

Thus, by the time the present case was commenced, American courts had already rejected the notion that Christianity was part and parcel of American common-law, and had clarified that statutes intended to protect Christianity over other religions run afoul of the First Amendment. B. The Blasphemy Statute’s Origins In June 1977, the Pennsylvania Legislature enacted the Blasphemy Statute, adding it to Title 15,

Section 1303 of the Pennsylvania Consolidated Statutes, the statute governing corporate names for domestic business corporations in Pennsylvania. The Blasphemy Statute mandates that no corporate name in Pennsylvania shall contain “[wjords that constitute blasphemy, profane cursing or swearing or that profane the Lord’s name.” 15 Pa.C.S. § 1303(c)(2)(h). As the parties to this case recognize, the legislative history regarding the creation and passage of the Blasphemy Statute is sparse.

Indeed, the Pennsylvania House and Senate journal entries do not reflect recorded discussion on the merits of the legislation upon final passage, the House Bill merely restates the language of the statute, and the “History of House Bills and Resolutions” of the Pennsylvania House of Representatives defines the Blasphemy Statute simply as “[a]n Act amending the ‘Business Corporation Law,’ [as] approved [on] May 5, 1933 (P.L. 364, No. 106), prohibiting the use of blasphemous or obscene words in the corporate name.” This evidence is, ultimately, the extent of the surviving legislative history pertaining to the Blasphemy Statute.

Nevertheless, newspaper articles published both when the Blasphemy Statute was initially introduced and later signed into law shed light on the historical and factual context in which the statute arose. Apparently, the Blasphemy Statute was introduced in response to a McKeesport, Pennsylvania businessman’s incorporation of a gun store named “The God Damn Gun Shop.” After churches complained to their local representative, Rep. Emil Mrkonic, Rep. Mrkonic introduced the Blasphemy Statute in the Pennsylvania legislature.

As reported by The Philadelphia Inquirer: The Pennsylvania House has passed a bill that would make it illegal to use “God damn” in a corporate name. The bill, which passed by a vote of 193-1, ____was prompted by the incorporation of a business in western Pennsylvania, listed as “The God Damn Gun Shop.” There is no law to prevent that now.

The lawyer who filed the papers of incorporation explained that the name developed from a comment made by the wife of the businessman who opened the store, who, when he left the house, would say, “I guess you’re going to the God damn gun shop.” Numerous churches in the area objected to the shop’s name and wrote to Rep. Emil Mrkonic (D., Allegheny) who introduced the measure. House Says No Damning, The Philadelphia Inquirer, Apr. 21, 1977, at 2-B. The Gettysburg [Pa.] Times also published an

article covering the bill’s introduction, attributed to the Associated Press, stating: The House has passed and sent the Senate a bill banning blasphemous or obscene words in corporate names. The measure, which went to the Senate Tuesday on a 193-1 vote, was a reaction to an incident in McKeesport two years ago.

An attorney for an unidentified gun store owner filed incorporation papers with the state, naming the store, “The God Damn Gun Shop.” Currently, the state has no power to prohibit such corporate names.... [T]he attorney who filed the incorporation papers [] said the wife of the businessman always said to her husband, “I guess you’re going to the God damn gun shop.” The husband thought that was funny, so he had [the lawyer] file the incorporation papers. Rep. Emil Mrkonic, D-Allegheny, who was bombarded by letters from protesting churches, didn’t see the humor. He first introduced his legislation last year ....

Would Ban Obscenity in Firm Names, The Gettysburg [Pa.] Times, Apr. 20, 1977, at 18. After the Blasphemy Statute was passed into law in June 1977, numerous local and national newspapers reported on its passage, all of which recited bits and pieces of the same set of facts previously reported by The Philadelphia Inquirer and The Gettysburg Times.

See, e.g., Shop Name Too Profane, The Tuscaloosa [Al.] News, June 19, 1977, at 2C; Wife Gets Last Word, Sarasota [FI.] Journal, June 17, 1977, at 5-C; Law Bans Use of Profanity, The Reading [Pa.] Eagle, June 16, 1977, at 39; On The Light Side, Lewiston [Me.] Evening Journal, June 16, 1977, at 25; Profanity Barred From Firm Names, The Gettysburg [Pa.] Times, June 15, 1977, at 11. C. Application of the Blasphemy Statute Responsibility for enforcing the Blasphemy Statute rests with the Business Processing

Section of the Corporation Bureau of the Pennsylvania Department of State (the “Bureau”). Although the Blasphemy Statute itself does not define its terms, Secretary Cortes has, as part of discovery in this case, provided the following

definitions as those used by the Bureau in construing, interpreting, and applying the Blasphemy Statute: • blasphemy (n) — irreverence toward God, religion, a religious icon or something considered sacred. Cf Profanity (n) — obscene, vulgar or insulting language. Profanity is distinguished from mere vulgarity and obscenity by the additional element of irreverence toward or mistreatment of something sacred. Black’s Law Dictionary, 8th edition (2004); • profane (adj.) — irreverent to something held sacred.

Black’s Law Dictionary, 8th edition (2004); • profanes (v) — to treat (something sacred) with abuse, irreverence or contempt; desecrate. Webster’s 9th New College Dictionary (1986); • cursing — 1(a), to call upon divine or supernatural power to send injury upon; (

b) to execrate in fervent and often profane terms; 2, to use profanely insolent language against; blaspheme. Webster’s 9th New College Dictionary (1986); • swearing — to use profane or obscene language, curse.

Webster’s 9th New Collegiate Dictionary (1986); • the Lord — no definition used, but common understanding includes God, Jesus, Christ; also deities from all religions, Mohammed, Allah, Buddha. (Response No. 7 of Defendant’s Responses to Plaintiffs First Set of Interrogatories.) In applying the Blasphemy Statute to an application for incorporation, Bureau employees were to determine whether a corresponding “rejection code” applied to a desired corporate name.

These “rejection codes” provide various reasons for Bureau employees to reject an application; Rejection Code 170, which pertains to the Blasphemy Statute, merely recites the language of the statute, stating: “170 — The entity name shall not contain words that constitute blasphemy, profane cursing or swearing or that profane the Lord’s name.” As explained more fully below, Bureau employees testified that they received no training, education, standards, or guidance with respect to applying Rejection Code 170.

In September 2005, Martha Brown, Assistant Counsel to the Bureau, created a list of “suspect words” (the “Original List”) to assist Bureau employees when screening names for violations of the Blasphemy Statute. Ms. Brown testified that, on her own initiative, she “sat down and ... gave ... some thought as to ... how the Bureau could realistically implement [the Blasphemy Statute], And I did draw up a list of words to assist staff in flagging things that may or may not need to be rejected under the statute.” (Brown Dep. 23:18-24:6, Oct. 29, 2009.) Ms.

Brown’s Original List contained twenty-three (23) “suspect” words, eighteen (18) of which were vulgarities with no apparent religious significance. The remaining five (5) words included “Christ,” “damn,” “God,” “hell,” and “Jesus.” When creating her Original List, Ms. Brown did not consult with anyone else or undertake any research regarding non-Christian religions, had not received any training or education regarding religion or religious denominations, and believed the word “Lord” in the Blasphemy Statute was a reference to the Christian Lord or concept of God. (Brown Dep. 13:13-13:16, 25-31.) Although Ms.

Brown shared her Original List of suspect words with Joy Drake, the Bureau employee who supervised the “reviewing clerks” — those Bureau employees responsible for reviewing incorporation applications — the Original List was not actually shared with any of the reviewing clerks. (Brown Dep. 30:11-30:16, 35:4-35:18.) In January 2006, Ms. Brown, again on her own initiative and without consulting anyone else, created a revised list of suspect words (the “Revised List”), and circulated her Revised List to Joy Drake and Ms.

Drake’s supervisor, Patricia Hegedus. (Brown Dep. 32:7-34:23.) The Revised List contained one new word (“bull”), as well as variations of several words on the Original List.

Like the Original List, the Revised List included the words “damn,” “Christ,” “God,” “hell,” and “Jesus.” The Revised List also included a statement at the bottom of the page which read that “[a]ny permutation of these words should be flagged for review as well as variations on the spelling of these words which would yield the same pronunciation.” Although created in January 2006, the Revised List was not given to the reviewing clerks until a meeting held sometime after July 2009. (Brown Dep. 35:12-35:24; Decker Dep. 30:18-32:19, Oct. 29, 2009.) Ms.

Brown testified that she does not know whether the name “I Choose Hell Productions LLC” violates the Blasphemy Statute, and acknowledged that some individuals might consider that name to be non-blasphemous. (Brown Dep. 42:23-44:12.) Ms.

Brown further testified that while she does not consider “I Choose God” or “I Reject Hell” to be blasphemous, she stated that “I Choose Hell” is potentially blasphemous not because of the inclusion of the word “hell,” but because of the context in which the word is used, meaning, the use of “I Choose” along with the word “Hell.” (Brown Dep. 44:13-44:23; 48:17-49:2.) In creating both her Original and Revised Lists, Ms.

Brown did not intend that an application for incorporation containing one of the words on her lists should automatically be rejected as a violation of the Blasphemy Statute. (Brown Dep. 36:8-37:4.) Instead, Ms. Brown’s intent was that “if a name contained one of those words[,] ... it ought to be reviewed a little more closer in order to see whether or not it should be rejected .... ” (Brown Dep. 36:15-36:21.) Ms. Brown testified that she did not give any instruction as to what such a review should entail, or what levels within the Bureau such a review should reach. (Brown Dep. 36:22-37:4.) D.

Plaintiff Kalman’s Application On September 26, 2007, Plaintiff George Kalman, an independent filmmaker based in Downingtown, Pennsylvania, applied to the Bureau for a Certificate of Organization under 15 Pa.C.S. § 8913.

Plaintiff sought to register his for-profit film production company in Pennsylvania under the name “I Choose Hell Productions LLC.” In selecting the name “I Choose Hell Productions LLC,” Kalman sought to convey his personal philosophy that it is better to struggle through difficult times in life than to commit suicide. (Kalman Dep. 11:21-15:2, Nov. 4, 2009.) The Bureau rejected Kalman’s application via letter dated October 1, 2007.

The rejection letter indicated that Kalman’s application was rejected pursuant to “Rejection Code 170,” and instructed Kalman to “please return this notice along with your corrected filing.” Subsequently, on October 12, 2008, Kalman resubmitted his application, substituting the name “ICH Productions LLC” for his original intended name.

The Bureau accepted Kalman’s resubmitted application, and registered Kalman’s business under the name “ICH Productions LLC.” Kalman uses the “ICH Productions LLC” name on corporate documents such as waivers and lease forms, in the credits of the films that he produces, on any correspondence he sends to actors he employs, and on any tax forms he may file. (Kalman Dep. 27:15-28:16.) Parke W. Decker was the Bureau’s reviewing clerk who reviewed Kalman’s initial application. Mr.

Decker was one of seven reviewing clerks tasked with reviewing applications for corporate names, all of whom were supervised by Joy Drake. (Decker Dep. 11:10-11:15; Drake Dep. 16:16-16:18, 20:1-20:10, Oct. 29, 2009.) The process undertaken by Mr.

Decker and the other reviewing clerks when reviewing applications for incorporation included determining whether any rejection codes applied to invalidate the application. (Decker Dep. 15:7-20:8.) If a reviewer determined that an application was invalid, the reviewer would note the appropriate rejection code in the Bureau’s computer system, and the system would then generate an appropriate rejection notice. (Decker Dep. 59:3-60:23.) While reviewing clerks like Mr. Decker had discretion to accept or reject an application for incorporation without consulting Ms.

Drake (Drake Dep. 70:17-71:2), if a reviewing clerk was unsure about whether a proposed name might be invalid, he or she might choose to solicit advice from Ms. Drake (Drake Dep. 42:13-43:9). Mr. Decker testified that he was familiar with Rejection Code 170, and knew that the Bureau uses a rejection code for corporate names containing blasphemy, profane cursing or swearing, or that profane the Lord’s name. (Decker Dep. 20:18-21:17.) Mr.

Decker, in applying Rejection Code 170, understood the term “blasphemy” to mean taking the “Lord’s name in vain” (Decker Dep. 26:1-26:12), and the term “Lord” with a capital “L” to refer only to the Christian God, the “God in my ... Christian upbringing. God, like God the father,” (Decker Dep. 28:18-29:7). Essentially, Mr. Decker interpreted and applied Rejection Code 170, and thus the Blasphemy Statute, by reference to his own Catholic upbringing and the standards of the Catholic religion. (Decker Dep. 27:10-29:7, 40:4-40:9.) Mr.

Decker has never received any training or education regarding any religions other than Catholicism, and he does not know what might be considered blasphemous in any religion other than Catholicism. (Decker Dep. 39:8-39:23.) Mr. Decker testified that he does not remember reviewing Kalman’s initial application or discussing it with his supervisor, but that he believes he likely rejected Kalman’s initial corporate name “[bjecause of the blasphemy reason” when he saw the word “Hell” in “I Choose Hell Productions LLC.” (Decker Dep. 50:7-54:5.) Mr.

Decker also testified that as of today, he would not know whether an application for incorporation that contains the words “I Choose Hell” is blasphemous, that he likely would not consider applications with the words “I Choose Heaven” or “I Choose God” to be blasphemous, and that he is unsure of whether the phrase “I Choose Satan” is blasphemous. (Decker Dep. 54:17-57:7.) Ms. Drake, Mr.

Decker’s supervisor, testified that she is “not really sure” as to the meaning of the term “blasphemy,” but that she understands the term to have some sort of religious connotation and to involve “[tjaking the Lord’s name in vain.” (Drake Dep. 40:1^40:13.) Ms. Drake further testified that she understood the term “Lord” with a capital “L” to refer to swearing against the Christian God, and that while “Lord” could apply to non-Christian deities, she had never seen it used in such a context. (Drake Dep. 41:18-42:12.) Ms.

Drake has never received any training or education regarding any religions other than the Protestant religion, and does not know how to determine whether a word might be blasphemous to a non-Christian religion. (Drake Dep. 49:8-49:12, 51:10-51:15.) Ms. Drake testified that she does not consider the words “devil” or “Satan” to be blasphemous, but does consider the word “hell” to be blasphemous because it appeared on Ms. Brown’s Revised List. (Drake Dep. 50:18-51:15.) Ms.

Drake further testified that the only words she would consider to be blasphemous, to constitute profane cursing or swearing, or to profane the Lord’s name are those words contained in Ms. Brown’s Revised List. (Drake Dep. 49:18-50:14.) Mr. Decker and Ms. Drake both testified that they did not receive any training with respect to applying either the Blasphemy Statute or Rejection Code 170. (Decker Dep. 21:23-22:3, Drake Dep. 21:22:-22:7.) Mr.

Decker further testified that he was not provided with any written standards or guidelines regarding how either the Blasphemy Statute or Rejection Code 170 should be applied. (Decker Dep. 21:23-24:20.) E. The Bureau Amends the “Revised List” of Suspect Words On February 18, 2009, Plaintiff Kalman initiated this lawsuit, and on December 21, 2009, both parties filed motions for

summary judgment. In the midst of briefing the

summary judgment issues, Defendant notified the Court that, effective January 4, 2010, the Bureau, “in its discretion in implementing the [Blasphemy Statute],” “voluntarily removed the words ‘Christ,’ ‘God,’ ‘hell’ and ‘Jesus’ from its list of prohibited words in corporate names.” (Defi’s Response to Pl.’s Mot. for

Summary Judgment, at 3.) Indeed, on January 4, 2010, the Bureau circulated an internal memo, authored by Assistant Counsel Martha Brown and addressed to five reviewing clerks, two legal assistants, Joy Drake (Chief, Business Processing Unit and Legal Assistant Supervisor), Patricia Hegedus (Chief, Division of Business Processing, Certification and UCC), and Richard K. House (Director, Corporation Bureau), which stated: You have been using a list of 24 words to assist with reviewing filings for compliance with the [Blasphemy Statute].

Effective immediately, the list has been revised to eliminate the words: “Christ,” “God,” “hell” and “Jesus.” Please find attached the revised list, which is the same as the former list except for the elimination of these four words. (Exhibit I. to Def.’s Response to Pl.’s Mot. for

Summary Judgment.) Y. Discussion A. The Establishment Clause Plaintiff contends that the Blasphemy Statute violates the First Amendment’s Establishment Clause, which provides that “Congress shall make no law respecting an establishment of religion.” U.S. Const. amend. I. This prohibition is extended to the states by virtue of the Fourteenth Amendment. Wallace v. Jaffree, 472 U.S. 38, 49-50, 105 S.Ct. 2479, 86 L.Ed.2d 29 (1985); Modrovich v. Allegheny County, Pa., 385 F.3d 397, 400 (3d Cir.2004).

The Establishment Clause prohibits government from establishing a religion in the sense of “sponsorship, financial support, [or] active involvement of the sovereign in religious activity.” Walz v. Tax Comm’n of N.Y., 397 U.S. 664, 668, 90 S.Ct. 1409, 25 L.Ed.2d 697 (1970). As the Supreme Court has explained, under the Establishment Clause, “government may not promote or affiliate itself with any religious doctrine or organization.” County of Allegheny v. ACLU Greater Pittsburgh Chapter, 492 U.S. 573, 590, 109 S.Ct. 3086, 106 L.Ed.2d 472 (1989).

The Establishment Clause is not, as some might suggest, an anti-religion provision, but instead rests on the understanding that “a union of government and religion tends to destroy government and to degrade religion.” Engel v. Vitale, 370 U.S. 421, 431, 82 S.Ct. 1261, 8 L.Ed.2d 601 (1962). The Establishment Clause “forbids alike the preference of a religious doctrine or the prohibition of theory which is deemed antagonistic to a particular dogma.” Edwards v. Aguillard, 482 U.S. 578, 593, 107 S.Ct. 2573, 96 L.Ed.2d 510 (1987) (emphasis in original).

The Supreme Court has articulated three separate tests for determining whether governmental action violates the Establishment Clause: (1) the Lemon test, (2) the “endorsement test,” and (3) the “coercion test.” Borden v. Sch. Dist. of Twp. of E. Brunswick, 523 F.3d 153, 175 (3d Cir.2008) (citing Modrovich, 385 F.3d at 400-01). The Lemon test, set forth by the Supreme Court in Lemon v. Kurtzman, 403 U.S. 602, 91 S.Ct. 2105, 29 L.Ed.2d 745 (1971), is the predominant test used by courts when determining the constitutionality of a challenged state or governmental action under the Establishment Clause.

See, e.g., McCreary County, Ky. v. ACLU of Ky., 545 U.S. 844, 859, 125 S.Ct. 2722, 162 L.Ed.2d 729 (2005); Edwards, 482 U.S. at 582-83, 107 S.Ct. 2573; Stratechuk v. Bd. of Educ., S. Orange-Maplewood Sch. Dist., 587 F.3d 597, 604 (3d Cir.2009); Busch v. Marple Newtown Sch. Dist., 567 F.3d 89, 100 (3d Cir.2009). While Lemon remains the primary Establishment Clause test, the Supreme Court has, without discarding the Lemon test, set forth two related tests: the “endorsement test,” see Lynch v.

Donnelly, 465 U.S. 668, 687-94, 104 S.Ct. 1355, 79 L.Ed.2d 604 (1984) (O’Connor, J., concurring), and the “coercion test,” see Lee v. Weisman, 505 U.S. 577, 112 S.Ct. 2649, 120 L.Ed.2d 467 (1992). Stratechuk, 587 F.3d at 604 (stating that the Supreme Court has set forth the endorsement and coercion tests without discarding Lemon). In the present case, however, where neither the coercion test nor the endorsement test is applicable, the Court will use the Lemon test to determine the Blasphemy Statute’s constitutionality. 1.

The Lemon Test Under the Lemon test, a state law or governmental action is constitutional only if it meets three criteria: (1) it must have a secular purpose, (2) its primary or principal effect can neither advance nor inhibit religion, and (3) it does not foster an excessive government entanglement with religion. Lemon, 403 U.S. at 612-13, 91 S.Ct. 2105; Stratechuk, 587 F.3d at 604; Busch, 567 F.3d at 100; ACLU of N.J. v. Black Horse Pike Reg’l Bd. of Educ., 84 F.3d 1471, 1483 (3d Cir.1996) (en banc).

The Supreme Court has explained that governmental action violates the Establishment Clause if it fails to satisfy any of Lemon’s three prongs. Edwards, 482 U.S. at 583, 107 S.Ct. 2573. As the Third Circuit has made clear, while the Lemon test has been much maligned, it remains good law, and as such, courts are obligated to consider it. See Stratechuk, 587 F.3d at 604 (citing criticisms of Lemon, but reinforcing that it is “still good law”); Freethought Soc’y of Greater Philadelphia v. Chester County, 334 F.3d 247, 257 n. 4 (3d Cir.2003) (“[Sitting] Supreme Court Justices have ... criticized Lemon ....

However, since Lemon has not been explicitly overruled, we are bound to follow [it].” (internal citations omitted)); Black Horse Pike, 84 F.3d at 1484 (“The Lemon test has been the subject of critical debate in recent years, and its continuing vitality has been called into question by members of the Supreme Court.... Nevertheless, Lemon remains the law of the land, and we are obligated to consider it until instructed otherwise by a majority of the Supreme Court.”).

Here, Plaintiff argues that the Blasphemy Statute fails all three of Lemon’s prongs, while Defendant argues that the Blasphemy Statute meets all three of Lemon’s prongs. The Court now addresses each prong in turn. a. Purpose Under Lemon’s purpose prong, a court must invalidate a statute if it lacks “a secular legislative purpose.” Santa Fe Indep. Sch. Dist. v.

Doe, 530 U.S. 290, 314, 120 S.Ct. 2266, 147 L.Ed.2d 295 (2000) (quoting Lemon, 403 U.S. at 612, 91 S.Ct. 2105). “The touchstone for our analysis is the principle that the ‘First Amendment mandates governmental neutrality between religion and religion, and between religion and nonreligion.’ ” McCreary, 545 U.S. 844, 860, 125 S.Ct. 2722 (2005) (quoting Epperson v. Arkansas, 393 U.S. 97, 104, 89 S.Ct. 266, 21 L.Ed.2d 228 (1968); Everson v. Bd. of Ed. of Ewing Twp., 330 U.S. 1, 15-16, 67 S.Ct. 504, 91 L.Ed. 711 (1947)).

As the Supreme Court has explained, “[w]hen the government acts with the ostensible and predominant purpose of advancing religion, 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. (citing Corp. of Presiding Bishop of Church of Jesus Christ of Latter-day Saints v. Amos, 483 U.S. 327, 335, 107 S.Ct. 2862, 97 L.Ed.2d 273 (1987)).

Further stated, “[mjanifesting a purpose to favor one faith over another, or adherence to religion generally, clashes with the ‘understanding, reached ... after decades of religious war, that liberty and social stability demand a religious tolerance that respects the religious views of all citizens ....’” Id. (quoting Zelman v. Sim mons-Harris, 536 U.S. 639, 718, 122 S.Ct. 2460, 153 L.Ed.2d 604 (2002) (Breyer, J., dissenting)).

By showing a purpose to favor religion, the government “sends the ... message to ... nonadherents ‘that they are outsiders, not full members of the political community, and an accompanying message to adherents that they are insiders, favored members....’” Id. (quoting Santa Fe, 530 U.S. at 309-10, 120 S.Ct. 2266 (quoting Lynch, 465 U.S. at 688, 104 S.Ct. 1355 (O’Connor, J., concurring))).

In applying Lemon’s purpose prong, “it is appropriate to ask whether government’s actual purpose is to endorse or disapprove of religion.” Stratechuk, 587 F.3d at 604 (quoting Wallace, 472 U.S. at 56, 105 S.Ct. 2479 (internal quotation omitted)).

Stated otherwise, the purpose prong “simply requires that the [government] articulate some legitimate secular purpose for [its action] .... [T]his is a ‘low threshold,’ and courts are generally deferential to the government’s proffered secular purpose as long as it is legitimate.” Modrovich, 385 F.3d at 411 (internal quotations and citations omitted) (emphasis in original).

Then again, while courts are “normally deferential to a State’s articulation of a secular purpose, it is required that the statement of such purpose be sincere and not a sham.” Stratechuk, 587 F.3d at 604 (emphasis added) (quoting Edwards, 482 U.S. at 586-87, 107 S.Ct. 2573 (1987)); see also McCreary, 545 U.S. at 864, 125 S.Ct. 2722 (“[AJlthough a legislature’s stated reasons will generally get deference, the secular purpose required has to be genuine, not a sham, and not merely secondary to a religious objective.”) (citing Santa Fe, 530 U.S. at 308, 120 S.Ct. 2266 (“When a governmental entity professes a secular purpose for an arguably religious policy, the government’s characterization is, of course, entitled to some deference.

But it is nonetheless the duty of the courts to ‘distinguish a sham secular purpose from a sincere one.’ ”)).

Indeed, the Supreme Court has rejected the idea that to satisfy the purpose prong, the government must identify merely “any” secular purpose: The dissent ... maintains that the purpose test is satisfied so long as any secular purpose for the government action is apparent. [Such a conclusion] would leave the purpose test with no real bite, given the ease of finding some secular purpose for almost any government action.... [A]n approach that credits any valid purpose, no matter how trivial, has not been the way the [Supreme] Court has approached government action that implicates establishment.” McCreary, 545 U.S. at 865 n. 13, 125 S.Ct. 2722 (internal citation omitted) (emphasis added).

Several Courts of Appeals have reached similar conclusions. See Hall v. Bradshaw, 630 F.2d 1018, 1020 (4th Cir.1980) (“[T]he state cannot escape the proscriptions of the Establishment Clause merely by identifying a beneficial secular purpose. The inquiry goes beyond this.”); DeSpain v. DeKalb County Cmty. Sch.

Dist., 384 F.2d 836, 839 (7th Cir.1967) (recognizing that if the state could avoid the application of the First Amendment merely by identifying any beneficial secular purpose, “any religious activity of whatever nature could be justified by public officials on the basis that it has beneficial secular purposes.”).

Accordingly, the Supreme Court has stated that while it “often does accept governmental statements of purpose .... in those unusual cases where the claim was an apparent sham, or the secular purpose secondary, the unsurprising results have been findings of no adequate secular object, as against a predominantly religious one.” McCreary, 545 U.S. at 865, 125 S.Ct. 2722. In the present case, Plaintiff argues that the Blasphemy Statute’s purpose is religious and not secular. First, Plaintiff contends that the statute’s plain language alone makes it clear that its purpose is religious, pointing out that the

definitions applied by the Bureau have religious meaning, as both “blasphemy” and “profane” are defined in religious terms as being irreverent to something sacred. In addition, Plaintiff contends that because the statute does not merely prohibit “cursing” or “swearing,” but instead, “profane cursing or swearing,” religious context is injected into the words “cursing” and “swearing.” Plaintiff also argues that the phrase “profaning the Lord’s name” has an entirely religious meaning.

For these reasons, Plaintiff argues that the statute’s plain language shows its manifest and predominant purpose to prohibit the use of words that are irreverent, disrespectful, or hostile to religion, religious beliefs, or religious symbols. Plaintiff also argues that while the legislative history regarding the Blasphemy Statute is sparse, the statute’s historical context confirms that its predominant purpose is religious. For these reasons, Plaintiff argues that the Blasphemy Statute fails Lemon’s purpose prong.

Defendant counters that the Blasphemy Statute’s purpose is to protect the public from offensive, indecent, and profane expression, something that has long been considered a legitimate public interest separate and apart from any religious sphere. Defendant contends that expression that is blasphemous, obscene, profane, or insulting may be prohibited because its very utterance is offensive and injurious to civil society, independent of any religious consideration.

Further, Defendant argues that the Blasphemy Statute was enacted in an effort to preserve the peace and maintain civil order by protecting Pennsylvania’s citizens from offensive language, and that the statute’s primary purpose is to prohibit language that is grossly offensive.

When courts examine whether a governmental action or statute had a secular purpose, “[t]he eyes that look to purpose belong to 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.” Stratechuk, 587 F.3d at 604 (quoting McCreary, 545 U.S. at 862, 125 S.Ct. 2722 (internal quotations omitted)).

The Supreme Court has explained that “in determining the legislative purpose of a statute, the Court has also considered the historical context of the statute, and the specific sequence of events leading to the passage of the statute.” Edwards, 482 U.S at 594-95, 107 S.Ct. 2573 (emphasis added) (internal citations omitted); McCreary, 545 U.S. at 862, 125 S.Ct. 2722 (quoting same in parenthetical). Thus, to determine whether the Blasphemy Statute has a secular purpose, the Court first looks to the Blasphemy Statute’s text, before subsequently moving to its legislative history and historical context.

After reviewing the Blasphemy Statute’s text, the Court finds that the statute’s plain language makes apparent its predominantly religious purpose. The statute prohibits words that constitute (1) blasphemy, (2) profane cursing or swearing, or (3) that profane the Lord’s name. The very

definitions used by the Bureau in interpreting and applying the Blasphemy Statute indicate that the statute’s words, on their face, have a religious purpose. First, blasphemy is defined as “irreverence toward God, religion, a religious icon or something considered sacred,” indicating that such a definition has religious meaning.

Second, while the term “cursing or swearing” would have no religious meaning in the abstract, the fact that “profane” precedes and thus modifies these words— and that the definition of “profanes,” as applied by Defendant, is “irreverent to something sacred” — indicates an inherent religious meaning in this phrase as well. Third, the term “profanes the Lord’s name” clearly has religious meaning. Thus, the presence of the words “blasphemy,” “profanes,” and “Lord” in the statute’s text is compelling evidence that there was no secular purpose sought to be achieved by the Blasphemy Statute’s passage.

Defendant argues that the Blasphemy Statute was enacted “in an effort to preserve the peace and maintain civil order by protecting Pennsylvania’s citizens from offensive language,” and that the statute’s primary purpose is to prohibit language that is grossly offensive. (Def.’s Mot. for

Summary Judgment at 23.) While Defendant’s proffered justification is noble enough, it fails to account for the fact the statute, on its face, does not actually say what Defendant would have it say. The Blasphemy Statute does not state that it prohibits language that is grossly offensive, obscene, or insulting. Instead, the Blasphemy Statute, on its face, seeks to prevent corporate names containing words that are offensive or irreverent to religious beliefs. The fact that offensive, obscene, or insulting language is also swept into the Blasphemy Statute’s relatively broad purview does not alter this conclusion.

Defendant’s stated purpose is belied and contradicted by the statute’s plain words. Moving beyond the statute’s text, courts typically analyze a statute’s legislative history to help understand its purpose. See, e.g., Wallace, 472 U.S. at 55-60, 105 S.Ct. 2479 (analyzing a statute’s legislative history in determining purpose under the Lemon test). In the present case, however, an inquiry into legislative history bears little fruit.

As discussed above, the Blasphemy Statute’s nearly non-existent legislative history provides little guidance as to the Pennsylvania legislature’s actual purpose in enacting the statute. Thus, the Court heeds the Supreme Court’s instruction that “in determining the legislative purpose of a statute, the Court has also considered the historical context of the statute ... and the specific sequence of events leading to passage of the statute.” Edwards, 482 U.S. at 595, 107 S.Ct. 2573 (1987) (emphasis added) (citing Epperson, 393 U.S. at 103-09, 89 S.Ct. 266; Vill. of Arlington Heights v. Metropolitan Hous. Dev.

Corp., 429 U.S. 252, 97 S.Ct. 555, 50 L.Ed.2d 450 (1977)). Newspaper articles describing the Blasphemy Statute’s historical context and the specific sequence of events leading to its passage further illustrate the statute’s predominant religious purpose: Local churches were upset about the name of the “God Damn Gun Shop” and complained to their state representative, who subsequently introduced the Blasphemy Statute in the state legislature. See Would Ban Obscenity in Firm Names, The Gettysburg Times, Apr. 20, 1977, at 18 (stating that Rep.

Mrkonic was “bombarded by letters from protesting churches” prior to introducing the Blasphemy Statute in the Pennsylvania legislature). Indeed, it was not a school organization or a group of concerned parents who complained about the “God Damn Gun Shop.” Instead, it was local churches — religious entities — who complained, and as a result of their religiously-motivated outrage, the Blasphemy Statute was born.

Clearly, given the religious nature of blasphemy as a concept, both the historical context of the Blasphemy Statute’s birth and the specific sequence of events leading to its inception further compel the conclusion that the statute had a primarily religious purpose. All told, the Blasphemy Statute’s plain language, historical context, and the specific sequence of events leading to its passage inevitably lead to the conclusion that, objectively speaking, the statute was introduced and passed into law with a predominantly religious purpose.

In reaching this conclusion, the Court is well aware of the Third Circuit’s statement that Lemon’s purpose prong is a “relatively low threshold” for a state government to meet, Freethought Soc’y, 334 F.3d at 267, and that courts are “generally deferential to the government’s proffered secular purpose as long as it is legitimate,” Modrovich, 385 F.3d at 411. Nevertheless, although courts have rarely looked behind the stated legislative purposes, it is clear that an avowed secular purpose, if found to be self-serving, may not be sufficient to avoid conflict with First Amendment. See Stone v.

Graham, 449 U.S. 39, 41, 101 S.Ct. 192, 66 L.Ed.2d 199 (1980); see also Edwards, 482 U.S. at 586-87, 107 S.Ct. 2573 (“In determining the legislative purpose ... the court is not required to accept a spurious stated legislative purpose.”); McCreary, 545 U.S. at 864, 125 S.Ct. 2722 (“[A]lthough a legislature’s stated reasons will generally get deference, the secular' purpose required has to be genuine, not a sham, and not merely secondary to a religious objective.”).

Here, in the absence of an actual stated purpose by the legislature itself, and after considering Defendant’s proffered post-hoc justification for the Blasphemy Statute — provided some thirty-plus years after the Blasphemy Statute’s adoption — the Court finds that Defendant’s contentions are merely secondary to a predominant religious objective. For the aforementioned reasons, the Blasphemy Statute fails the Lemon test’s purpose prong. b.

Effect The Lemon test’s second prong considers whether the “principal or primary effect” of the challenged governmental policy or practice “advances [ ] or inhibits religion.” Stratechuk, 587 F.3d at 605 (quoting Lemon, 403 U.S. at 613, 91 S.Ct. 2105). This means that “regardless of its purpose, [government] action cannot symbolically endorse or disapprove of religion.” Busch, 567 F.3d at 100 (citing Lemon, 403 U.S. at 612, 91 S.Ct. 2105).

The Third Circuit has emphasized Justice O’Connor’s explanation that “[t]he effect prong asks whether, irrespective of government’s actual purpose, the practice under review in fact conveys a message of endorsement or disapproval [of religion].” Stratechuk, 587 F.3d at 606 (quoting Lynch, 465 U.S. at 690, 104 S.Ct. 1355, (O’Connor, J., concurring)); see also Black Horse Pike, 84 F.3d at 1495 (quoting same). “While an adjudication of [a statute’s] effect must take into account the perspective of one who is neither Christian nor Jewish, as well as of those who adhere to either of these religions, the constitutionality of its effect must also be judged according to the standard of a ‘reasonable observer.’ ” Stratechuk, 587 F.3d at 606 (quoting Allegheny, 492 U.S. at 620, 109 S.Ct. 3086).

In a passage “often quoted to describe the effects prong of the Lemon test,” Justice O’Connor emphasized that the “history and ubiquity” of a practice is relevant because it “provides part of the context in which a reasonable observer evaluates whether a challenged government practice conveys a message of endorsement of religion.” Stratechuk, 587 F.3d at 606 (quoting Allegheny, 492 U.S. at 630, 109 S.Ct. 3086) (O’Connor, J., concurring). The Court finds that the Blasphemy Statute fails Lemon’s second prong.

By requiring the Bureau to reject corporate names that are “blasphemous,” contain “profane” cursing or swearing, or that “profane the Lord’s name” — given the religious meaning inherent in these terms’

definitions as applied by the Bureau — the Blasphemy Statute requires the Bureau to reject applications that they believe are irreverent or offensive to religious beliefs, but accept applications that they believe are respectful or reverent to religious beliefs. Accordingly, the Court concludes that a reasonable observer would find that the Blasphemy Statute conveys a message of state endorsement of religion over non-religion.

See Allegheny, 492 U.S. at 593, 109 S.Ct. 3086 (noting that the Establishment Clause “preclude[s] government from conveying ... a message that religion ... is favored or preferred”) (quoting Wallace, 472 U.S. at 70, 105 S.Ct. 2479 (O’Connor, J., concurring)). c. Entanglement The third and final Lemon prong considers whether the challenged policy or practice “foster[s] an excessive government entanglement with religion.” Stratechuk, 587 F.3d at 608 (quoting Lemon, 403 U.S. at 612-13, 91 S.Ct. 2105 (internal citation omitted)).

The Third Circuit has explained that “[a]s now-Justiee Alito wrote when he was a member of this court, an excessive entanglement ‘requires more than mere “[ijnteraction between church and state,” for some level of interaction has always been “tolerated.” ’ ” Id. (quoting Child Evangelism Fellowship of N.J. Inc. v. Stafford Twp. Sch. Dist., 386 F.3d 514, 534 (3d Cir.2004) (quoting Agostini v. Felton, 521 U.S. 203, 233, 117 S.Ct. 1997, 138 L.Ed.2d 391 (1997))).

The factors used to assess whether an entanglement is “excessive” are similar to the factors used to examine “effect,” and thus, courts must “look to the character and purposes of the institutions that are benefitted, the nature of the aid that the State provides, and the resulting relationship between the government and religious authority.” Stratechuk, 587 F.3d at 608 (internal quotation marks omitted) (quoting Child Evangelism Fellowship, 386 F.3d at 534-35 (quoting Agostini, 521 U.S. at 232, 117 S.Ct. 1997)).

The Supreme Court has noted that “[tjhere is no exact science in gauging entanglement of church and state,” and that the factors must be “considered cumulatively in judging the degree of entanglement.” Roemer v. Bd. of Pub. Works of Md., 426 U.S. 736, 766, 96 S.Ct. 2337, 49 L.Ed.2d 179 (1976) (internal quotation omitted). The question in the present case is therefore whether the application of the Blasphemy Statute by Bureau employees results in an excessive degree of entanglement with religion. Under the undisputed facts, the Court must answer this question in the affirmative.

In reaching this conclusion, the Supreme Court’s decision in Joseph Burstyn, Inc. v. Wilson, 343 U.S. 495, 72 S.Ct. 777, 96 L.Ed. 1098 (1952), is an important precedent, albeit in a different factual context, which supports, if not mandates, this Court’s conclusion that the Blasphemy Statute is unconstitutional. In Burstyn, the Supreme Court struck down a New York statute which permitted the state to ban films that were deemed “sacriligious,” finding that the statute was an unconstitutional abridgement of freedom of speech and of the press.

The Supreme Court explained that [i]n seeking to apply the broad and all-inclusive definition of [“]sacrilegious[”] ... the censor is set adrift upon a boundless sea amid a myriad of conflicting currents of religious views, with no charts but those provided by the most vocal and powerful orthodoxies, [and] New York cannot vest such unlimited restraining control ... in a censor.

Under such a standard the most careful and tolerant censor would find it virtually impossible to avoid favoring one religion over another, and he would be subject to an inevitable tendency to ban the expression of unpopular sentiments .... 343 U.S. at 505-06, 72 S.Ct. 777 (internal citation omitted) (emphasis added).

While the Burstyn court only addressed the New York statute in the context of freedom of speech and of the press, the Supreme Court did note that “[application of the ‘sacrilegious’ test ... might raise substantial questions under the First Amendment’s guaranty of separate church and state ....” Id. at 506, 72 S.Ct. 777 (emphasis added). No rational distinctions can be made between Burstyn and this case, as here, Bureau employees applying the Blasphemy Statute are similarly tasked with applying the broad and all-inclusive definition of “blasphemy” in the absence of any guidance, standards, education, or training.

Judge Posner carried forward the Burstyn holding in a theatrical setting in Linnemeir v. Bd. of Trustees of Purdue Univ., 260 F.3d 757 (7th Cir.2001), denying a motion for a stay pending appeal from the district court’s refusal to grant a preliminary injunction. The plaintiffs, residents of the state of Indiana, sought to prohibit Perdue University, a state institution, from putting on a performance of a “notorious” play titled “Corpus Christi,” which depicts Jesus Christ as a homosexual who has sexual relations with his disciples. Id. at 758.

The plaintiffs sought the injunction on the theory that by allowing the presentation of this play, the university would violate the First Amendment by publicly endorsing anti-Christian beliefs. Id. In a holding supportive of this Court’s decision to strike down Pennsylvania’s Blasphemy Statute, Judge Posner, noting that the play was “indeed blasphemous,” refused to grant the stay pending appeal, holding that “[t]he contention that the First Amendment forbids a state university to provide a venue for the expression of views antagonistic to conventional Christian beliefs is absurd.” Id. at 758-59.

Thus, in the educational context, the Seventh Circuit found that imposing censorship on a theatrical production because it had an anti-Christian bias was not allowed under the Constitution, stressing the “controlling principle” that the First Amendment “forbids ... the prohibition of theory which is deemed antagonistic to a particular dogma .... ‘[T]he state has no legitimate interest in protecting any or all religions from views distasteful to them.’ ” Id. at 759 (quoting Epperson, 393 U.S. at 106-07, 89 S.Ct. 266) (quoting Burstyn, 343 U.S. at 505, 72 S.Ct. 777).

In the present case, the above-stated testimony of Bureau employees underscores the nearly limitless entanglement with religion inherent in applying the Blasphemy Statute. Indeed, the deposition testimony of Mr. Decker, Ms. Brown, and Ms. Drake, taken together, makes very apparent that Bureau employees interpreted and applied the Blasphemy Statute and Rejection Code 170 completely differently, and with complete discretion to apply the statute as each saw fit, based only on their own individual religious beliefs, experiences, and upbringing: Mr.

Decker believed that “I Choose Hell” was blasphemous, but today is unsure of whether “I Choose Satan” would be blasphemous; Ms. Brown thinks that “I Choose Hell” is blasphemous because the speaker is “choosing hell,” whereas “I Reject Hell” would not be blasphemous because, contextually, the speaker is “rejecting” hell instead of “choosing” it; Ms. Drake considers the word “hell” to be blasphemous only because it appeared on Ms. Brown’s list of suspect words; but Ms.

Brown testified that she did not intend that an application containing one of the words on her list should automatically be rejected as violating the Blasphemy Statute. Such tortured logic serves to demonstrate the statute’s inherent entanglement with religious concepts, where here, as in Burstyn, Bureau employees are impermissibly “set adrift upon a boundless sea amid a myriad of conflicting currents of religious views, with no charts but those provided by the most vocal and powerful orthodoxies.” 343 U.S. at 505-06, 72 S.Ct. 777.

As it turns out, Christianity was the orthodoxy that carried the day within the Bureau, but it could be any religion or set of religious beliefs that determines how an individual Bureau employee applies the Blasphemy Statute. That the Blasphemy Statute requires Bureau employees to make such haphazard, standardless decisions, based solely upon their respective religious beliefs and experiences, further underscores the statute’s impermissibly excessive degree of entanglement with religion.

Additionally, the Court rejects Defendant’s argument that the Blasphemy Statute does not entangle Bureau employees with religion where the Bureau’s list of suspect words was revised to no longer include words with religious meaning. This list, whether in its present form or in some future iteration, is merely a nonbinding, subjectively-written internal memo, subject to change at any time.

That the Bureau has removed from the current list words with religious meaning fails to remedy the impermissible entanglement with religion that the statute requires; Bureau employees, in their own discretion, are still required to make standardless determinations as to what constitutes blasphemy, profane cursing or swearing, or profanes the Lord’s name, based on nothing but their own religious beliefs.

Even if the list of suspect words contains no religious phrases, there is nothing stopping a Bureau employee from applying the statute and rejecting a proposed corporate name if the employee believes that the name contains a phrase that constitutes blasphemy, regardless of whether the phrase in question appears or does not appear on the list. Thus, the Bureau’s assurance that it will apply the Blasphemy Statute more restrictively than its language provides simply emphasizes the statute’s constitutional defects.

For these reasons, the Blasphemy Statute entangles Bureau employees with religion to a degree such that it fails Lemon’s third prong. B.

Freedom of Speech In addition to his Establishment Clause arguments, Plaintiff contends that the Blasphemy Statute violates the First Amendment’s Free Speech Clause because it constitutes an impermissible viewpoint-based restriction on valid expressive speech by prohibiting corporate names that convey a perceived anti-religious viewpoint, because it is an unlawful prior restraint on speech that vests unbridled discretion in state officials who, in their sole discretion, may prohibit names based on their own religious or anti-religious views, and because it is void for vagueness.

Defendant, on the other hand, argues that the Blasphemy Statute does not violate the Free Speech Clause. First, Defendant contends that a corporate name is not expressive speech, but instead, is merely commercial speech afforded only limited First Amendment protection. Second, as an alternative, Defendant argues that even outside the commercial speech context, the Blasphemy Statute is constitutional because it governs speech in a nonpublic forum, and is both reasonable and viewpoint-neutral.

Defendant further argues that the Blasphemy Statute does not violate the Free Speech Clause because it addresses obscenity and profanity, both being unprotected classes of speech. Finally, Defendant argues that the Blasphemy Statute is not overbroad, does not constitute an unconstitutional prior restraint, and is not void for vagueness. In determining whether the Blasphemy Statute violates the Free Speech Clause, the Court must first determine whether a corporate name is “commercial speech” for First Amendment purposes.

As explained below, the Court’s review of case law on this issue leads to the conclusion that a corporate name can potentially be considered commercial speech. Nevertheless, in the absence of any clear guidance from the Supreme Court or Third Circuit, the Court will not make a definitive ruling on this issue. Instead, the Court will analyze the constitutionality of the Blasphemy Statute under both the commercial speech and noncommercial, private speech doctrines. 1.

Commercial Speech “The Supreme Court has repeatedly emphasized that ‘[c]ommercial speech [enjoys] a limited measure of protection, commensurate with its subordinate position in the scale of First Amendment values,’ and is subject to ‘modes of regulation that might be impermissible in the realm of noncommercial expression.’ ” Riel v. City of Bradford, 485 F.3d 736, 752 (3d Cir.2007) (quoting Fla. Bar v. Went For It, Inc., 515 U.S. 618, 623, 115 S.Ct. 2371, 132 L.Ed.2d 541 (1995) (internal quotation marks omitted)).

Stated otherwise, while commercial speech is entitled to First Amendment protection, it gets “protection somewhat less extensive than that afforded ‘noncommercial speech.’ ” U.S. Healthcare, Inc. v. Blue Cross of Greater Philadelphia, 898 F.2d 914, 932 (3d Cir.1990) (quoting Zauderer v. Office of Disciplinary Counsel, 471 U.S. 626, 637, 105 S.Ct. 2265, 85 L.Ed.2d 652 (1985)). While “the prevailing framework under which restrictions on commercial speech are considered was laid down in Central Hudson Gas & Elec. Corp. v. Pub. Serv.

Comm’n of N.Y., 447 U.S. 557, 100 S.Ct. 2343, 65 L.Ed.2d 341 (1980),” Riel, 485 F.3d at 752, before analyzing the Blasphemy Statute under the Central Hudson test, the Court must first determine whether a corporate name qualifies as “commercial speech.” As the Third Circuit has recognized, “the Supreme Court has provided substantial guidance” as to what qualifies as “commercial speech.” U.S.

Healthcare, 898 F.2d at 933. “Commercial speech may be broadly defined as expression related to the economic interests of the speaker and its audience, generally in the form of a commercial advertisement for the sale of goods and services.” Id. (citing Bolger v.

Youngs Drug Products Corp., 463 U.S. 60, 66-67, 103 S.Ct. 2875, 77 L.Ed.2d 469 (1983); Central Hudson, 447 U.S. at 561, 100 S.Ct. 2343). “The Supreme Court has cited three factors to consider in deciding whether speech is commercial: (1) is the speech an advertisement; (2) does the speech refer to a specific product or service; and (3) does the speaker have an economic motivation for the speech.” Id. (citing Bolger, 463 U.S. at 66-67, 103 S.Ct. 2875). “An affirmative answer to all three questions provides ‘strong support’ for the conclusion that the speech is commercial.” Id. (citing Bolger, 463 U.S. at 67, 103 S.Ct. 2875).

Even still, the Supreme Court has noted the inherent difficulty in determining whether speech qualifies as commercial speech, stating that “the precise bounds of the category of expression that may be termed commercial speech” are “subject to doubt,” and that “[o]ur commercial speech doctrine rests heavily on the ‘commonsense’ distinction between speech proposing a commercial transaction ... and other varieties of speech.” Zauderer, 471 U.S. at 637, 105 S.Ct. 2265 (internal quotation marks omitted) (quoting Ohralik v. Ohio State Bar Ass’n, 436 U.S. 447, 455-56, 98 S.Ct. 1912, 56 L.Ed.2d 444 (1978)).

At the onset, the Court notes that a corporate name does not at first blush seem to “propose a commercial transaction.” Furthermore, a common-sense consideration of the three factors used to determine whether speech is commercial speech seems to suggest that a corporate name is not commercial speech, as: (1) a corporate name is not an advertisement, using the generally accepted definition of the term; (2) a corporate name does not necessarily refer to a specific product or service, although it is, for all intensive purposes, an overarching label of sorts for an entity that can — and in the case of a for-profit company, likely does — create or provide products or services; and (3) while the creator of a corporate name likely has some economic motivation to apply for a desired name, in some cases — such as the present case — the speaker can rightfully argue that he or she has personal, non-economic motivations for their desired corporate name.

Nevertheless, answering the question of whether a corporate name is commercial speech for purposes of the present case requires a more nuanced analysis. While the parties argued their respective positions in their

summary judgment briefing, neither Plaintiff nor Defendant set forth nor addressed any specific case law dealing with whether a corporate name is commercial speech for First Amendment purposes. Even still, the Court’s own inquiry into this question indicates that a corporate name may, in fact, be commercial speech, as the Court has identified five cases which stand for the proposition that corporate names can be commercial speech. First, in Friedman v.

Rogers, 440 U.S. 1, 99 S.Ct. 887, 59 L.Ed.2d 100 (1979), the Supreme Court, when facing the constitutionality of a Texas law prohibiting the practice of optometry under a trade name, assumed name, or corporate name, stated: Once a trade name has been in use for some time, it may serve to identify an optometrical practice and also to convey information about the type, price, and quality of services offered for sale in that practice.

In each role, the trade name is used as part of a proposal of a commercial transaction .... [T]he optometrist who uses a trade name does not wish to editorialize on any subject, cultural, philosophical, or political. He does not wish to report any particularly newsworthy fact, or to make generalized observations even about commercial matters. His purpose is strictly business. The use of trade names in connection with optometrical practice, then, is a form of commercial speech and nothing more. Id. at 11, 99 S.Ct. 887 (emphasis added) (internal citations and quotations marks omitted).

Second, in Piazza’s Seafood World, LLC v. Odom, 2004 WL 2998575 (E.D.La. Dec. 23, 2004), where a Louisiana seafood import and distribution business challenged the constitutionality of a Louisiana statute regulating the use of the name “Cajun” in business names, Judge Zainey stated: Plaintiff ... began marketing certain products under the brand names “Cajun Boy” and “Cajun Delight” (collectively referred to as “Cajun Boy”) some time in 1976.

Plaintiff asserts that it has a substantial investment of money and time in promoting its Cajun Boy products and claims sales of over fifty million dollars in the last five years alone. In 2000, [Plaintiff] registered the Cajun Delight name with the Louisiana Secretary of State. In April 2003 [Plaintiff] registered the Cajun Boy trade name with the Secretary of State....

The parties agree that a trade name constitutes commercial speech, and that regulations on commercial speech are subject to the four-part test articulated by the Supreme Court in [Central Hudson ] Id. at *2-3 (citing Central Hudson, 447 U.S. 557, 100 S.Ct. 2343) (emphasis added). Third, in U.S. Olympic Comm. v. Olympic Supply, Inc., 655

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