ACLU v. McCreary Cnty

Opinion

RECOMMENDED FOR FULL-TEXT PUBLICATION Pursuant to Sixth Circuit Rule 206 2 ACLU of KY, et al. v. McCreary No. 01-5935 ELECTRONIC CITATION: 2004 FED App. 0089P (6th Cir.) County, KY, et al. File Name: 04a0089p.06 The panel has further reviewed the petition for rehearing and concludes that the issues raised in the petition were fully UNITED STATES COURT OF APPEALS considered upon the original submission and decision of the FOR THE SIXTH CIRCUIT case. Accordingly, the petition is denied. _________________ ENTERED BY ORDER OF THE COURT

AMERICAN CIVIL LIBERTIES X UNION OF KENTUCKY , et al., - /s/ Leonard Green Plaintiffs-Appellees, - _________________________________ - No. 01-5935 - Clerk v. > , - MCCREARY COUNTY, - KENTUCKY , et al., - Defendants-Appellants. - - N Appeal from the United States District Court for the Eastern District of Kentucky at London.

Filed: March 23, 2004

Before: RYAN, CLAY, and GIBBONS, Circuit Judges. _________________ ORDER _________________ The court having received a petition for rehearing en banc, and the petition having been circulated not only to the original panel members but also to all other active judges of this court, and less than a majority of the judges having favored the suggestion, the petition for rehearing has been referred to the original panel.

1 No. 01-5935 ACLU of KY, et al. v. McCreary 3 4 ACLU of KY, et al. v. McCreary No. 01-5935 County, KY, et al. County, KY, et al.

CLAY, Circuit Judge, concurring in denial of rehearing Lynch support the view that the government’s presentation of en banc, joined by Martin, J. the Ten Commandments, or religious messages generally, is constitutional so long as the religious messages are presented In Stone v. Graham, 449 U.S. 39 (1980)(per curiam), the objectively and as an integral component of an overarching Supreme Court held that it was patently insufficient for the secular subject matter. government to justify schoolhouse displays of the Ten Commandments merely by asserting that “[t]he secular This view is manifested even in those Supreme Court application of the Ten Commandments is clearly seen in its decisions upholding governmental displays containing adoption as the fundamental legal code of Western patently religious symbols, including the cases cited by the Civilization and the Common Law of the United States.” Id. dissent – Lynch, supra, and County of Allegheny v. ACLU, at 40 n.1. The Court reasoned that posting the Ten supra.2 Lynch approved of a Christmastime display of a Commandments with only this disclaimer served no creche because that symbol, as a matter of fact in that case, “educational function.” Id. at 42. shared a common secular link – the holiday season – with the numerous other secular symbols included in the display. The The Court further opined that the display may have been display was permissible because the secular connection permissible had the Ten Commandments been “integrated between the symbols rendered “indirect, remote and into the school curriculum…in an appropriate study of incidental” the religious message that the creche would have history, civilization, ethics, comparative religion, or the like.” conveyed standing alone. Lynch, 465 U.S. at 683. Id. (citation omitted). This statement was a critical Consistently, the Court struck down a creche display in component of the Court’s holding. Indeed, the Supreme County of Allegheny because the creche was the display’s Court expressly endorsed this statement in Lynch v. Donnelly, solitary element. County of Allegheny, 492 U.S. at 599 465 U.S. 668 (1984). See id. at 679 (expressing approval of (holding that “nothing in the context of the display detracts Stone and noting that the Stone decision “carefully pointed from the creche’s religious message”). In contrast, through a out that the Commandments were posted purely as a religious series of fractured opinions, a majority of the Court in County admonition, not ‘integrated into the school curriculum, where of Allegheny approved the display of a menorah, alongside a the Bible may constitutionally be used in an appropriate study of history, civilization, ethics, comparative religion, or the like’”) (quoting Stone, 449 U.S. at 442.). The Court further elaborated that study of the Bible or of religion, “‘when religious beliefs.…For the same reason, posting the T en Comm andments on the wall of a public-school classroom violates the Establishment presented objectively as part of a secular program of Clause.”) (citing Stone, supra; other citations omitted). education,’” may be effected consistently with the First Amendment. Id. at 679-80 (quoting Abbington Sch. Dist. v. 2 The dissent’s citation to Capitol Square Review & Advisory Bd. v. Schempp, 374 U.S. 203, 225 (1963)).1 Thus, both Stone and Pinette, 515 U.S. 753 (1995) is baffling. That case is irrelevant because, there, the disp lay of a cross involved priva te speech, not government speech as in the case at b ar. Id. at 760, 765 (“There is a crucial difference 1 between government speech endorsing religion, which the Establishment The Court also discussed Stone with approval in County of Clause forbids, and priva te speech endorsing religion, which the Free Allegheny v. ACLU, 492 U.S. 573, 590-91 n.40 (1989) (“[T]he content of Speech and Free Exercise Clauses protect.”) (internal quotation m arks, a public school’s curriculum may not be based on a desire to promote punctuation and citation omitted). No. 01-5935 ACLU of KY, et al. v. McCreary 5 6 ACLU of KY, et al. v. McCreary No. 01-5935 County, KY, et al. County, KY, et al.

Christmas tree and an explanatory sign, because the overall secular. Moreover, neither Defendants’ displays, nor their theme conveyed by the display was one of diversity, legal briefs, provided a shred of evidence to support the secularism, the holiday season and/or freedom. These principal assertion in the courthouse displays that the Ten decisions demonstrate that the manner in which a display’s Commandments profoundly influenced the drafting of the religious and secular elements integrate with one another is Declaration of Independence. Defendants’ schoolhouse highly relevant to the inquiry concerning the government’s displays did not even purport to cite to objective historical purpose behind the display.3 evidence, instead relying on the Harlan County School Board’s subjective “belief” and “opinion” that the displays Using this approach, the panel concluded that the will “positively contribute to the …moral character of documents and symbols in Defendants’ displays utterly students” and “instill qualities desirable of the students in lacked a unifying secular theme. The dissent has not disputed [their] schools.” Like the display of the Ten Commandments this conclusion. Under Stone, Defendants’ mere assertion of in Stone, the schoolhouse displays, as a matter of fact, served such a unifying theme did not render the displays’ purpose no educational mission, as might have been the case had the Ten Commandments been integrated into the objective study of a secular subject matter. Defendants’ posting of the Ten 3 A hypothetical from Justice Stevens illustrates how the them atic Commandments served no purpose but as a religious integration of the T en Comm andments with secular symbols or m essages, admonition. Accordingly, the content of the displays or the lack thereof, can render a display containing the Ten sufficiently demonstrated that Defendants’ true purpose for Commandments religious or non-religious in nature: the displays was religious. … [A] carving of Moses holding the Ten Commandments, if that is the only adornment on a courtroom wall, conveys an The dissent suggests that as long as the Ten equivocal message, perhaps of respect for Judaism, for religion Commandments are displayed “as part of an array containing in general, or for law. T he add ition of carvings depic ting eight or nine otherwise secular, historical documents,” further Confucius and Mohammed may honor religion, or particular inquiry into Defendants’ purpose must cease. This is wrong. religions, to an extent that the First Amendment does not tolerate Neither the Supreme Court nor this Court has ever adopted any more than it does “the permanent erection of a large Latin cross on the roof of city hall.” See post [492 U.S. at 661] such a facile approach to the Establishment Clause. The (KENNEDY, J., concurring in judgment in part and dissenting determination of an Establishment Clause violation is a in part). Cf. Stone v. Graham, 449 U.S. 39, 101 S. Ct. 192, 66 highly fact-specific inquiry that requires a court to pay careful L.Ed.2d 199 (198 0) (per curiam). Placement of secular figures attention to the content and context of the display containing such as Caesar Augustus, William Blackstone, Napoleon a religious symbol. See, e.g., County of Allegheny, 492 U.S. Bonaparte, and J ohn M arshall alongside these three religious at 597 (stating that the Court’s task was “to determine leade rs, however, signals respect not for great proselytizers but for great lawgivers. It would be absurd to exclude such a fitting whether the display of the creche and the menorah, in their message from a courtroom, as it would to exclude religious respective ‘particular physical settings,’” has the effect of paintings by Italian Renaissance masters from a public museum. endorsing or disapproving religious beliefs”); Adland v. Russ, Cf. Lynch, 465 U.S., at 712-713, 717, 104 S. Ct., at 1379-1380, 307 F.3d 471, 481 (6th Cir. 2002) (looking at the “intended 1382 (B REN NAN , J., dissenting). physical context” of the Ten Commandments display). The County of Allegheny, 492 U.S. at 65 2-53 (S tevens, J., concurring, in part, dissent’s approach would require courts to ignore and dissenting, in part). disingenuous governmental attempts to convey religious No. 01-5935 ACLU of KY, et al. v. McCreary 7 8 ACLU of KY, et al. v. McCreary No. 01-5935 County, KY, et al. County, KY, et al.

messages whenever it has included secular elements in its A careful reading of the panel’s opinion does not support the speech, no matter how unrelated those secular elements are to dissent’s attempt to conjure a conflict with Granzeier v. the religious elements. If followed to its logical conclusion, Middleton, 173 F.3d 568 (6th Cir. 1999). the dissent’s approach would justify a classroom display of a crucifix or the Lord’s Prayer, so long as surrounded by the Finally, the dissent argues that “the lead opinion Magna Carta, the Declaration of Independence, the Star erroneously applies the heightened Establishment Clause Spangled Banner and, perhaps, excerpts from the Internal standards for public schools to other public buildings such as Revenue Code. courthouses.” This argument is incorrect and misleading. First, the discussion of the public school and courthouse The dissent inaccurately refers to the panel’s “sympathetic settings appeared in my separate discussion of the treatment of the district court’s conclusion that the history of “endorsement” prong of the three-part test under Lemon v. the defendants’ earlier attempts to erect ‘constitutionally Kurtzman, 403 U.S. 602 (1971). Judge Gibbons did not join invalid displays’ had “imprinted the defendants’ purpose, this aspect of my opinion and, therefore, the discussion was from the beginning, with an unconstitutional taint[.]”” not adopted by a majority of the panel. It would have been (quoting ACLU v. McCreary County, 354 F.3d 438, 457 (6th inappropriate for the entire Court to review this non-binding Cir. 2003) (quoting ACLU v. McCreary County, 145 F. Supp. opinion. 2d 845, 850 (E.D. Ky. 2001)). In fact, the panel explicitly rejected the district court’s heavy reliance on past conduct, Second, my opinion did not equate the public school and instead concluding that “the history of Defendants’ courthouse settings for all Establishment Clause purposes. involvement with the displays strongly indicated that the Rather, the opinion observed that citizens typically conduct primary purpose was religious.” McCreary County, 354 F.3d business at a courthouse by necessity, many times subject to at 348 (emphasis added; disagreeing with the district court’s the coercive powers of the court, and, therefore, they are a decision “to afford exclusive weight to Defendants’ past captive audience, similar to public school students, who are conduct without addressing the specific content of the revised subject to mandatory attendance requirements. Further, the displays”). Although not dispositive of the issue, Defendants’ fact that a courthouse is so plainly the seat of government prior unconstitutional conduct (initially displaying the Ten requires courts to exercise special care to ensure that a Commandments alone, in clear violation of Stone, then governmental display containing religious symbols is not subsequently displaying the Ten Commandments alongside tantamount to governmental endorsement of those symbols. documents excerpted solely for their religious content), See McCreary County, 354 F.3d at 461. combined with the fact that Defendants added secular material only after this litigation ensued, was relevant Third, my opinion never suggested that the same concerns evidence of their purpose behind the displays’ final iteration.4 about governmental coercion and endorsement apply to all public buildings. As the authorities cited above hold, the inquiry into an alleged Establishment Clause violation is a 4 highly fact-specific inquiry that depends, in part, on the This holding was justified b y San ta Fe Indep. Sch. D ist. v. Do e, 530 particular physical setting of the speech at issue. I expressed U.S. 290, 309, 315 (2000) (looking at the “evolution” of the student-led no opinion about a display containing the Ten prayer policy to determine whether an Establishment Clause violation had occurred ). Commandments outside of a public school or a courthouse. No. 01-5935 ACLU of KY, et al. v. McCreary 9 10 ACLU of KY, et al. v. McCreary No. 01-5935 County, KY, et al. County, KY, et al.

For the foregoing reasons, I concur in the decision of the BOGGS, Chief Judge, dissenting from the denial of en banc Court denying review of the panel opinion. rehearing en banc, joined by Batchelder, J. The core question in this case is whether the district court and the panel majority erred in holding, as a matter of law, that despite the statement of historical and patriotic secular purpose included in each display at issue here, and despite the five separate secular purposes for the displays articulated by the defendants in the district court, they nonetheless have an essentially religious purpose because the Ten Commandments appear beside eight or nine otherwise indisputably secular documents. This court has held that in Establishment Clause cases federal courts must defer to the government’s articulation of a secular purpose unless the stated purpose is shown to be a “sham.” Chaudhuri v. Tenn., 130 F.3d 232, 236 (6th Cir. 1997). That rule has been misapplied by the panel majority. In coming to the conclusion that the defendants’ carefully articulated secular purposes are a sham, the court ignores the First Amendment principles laid out in County of Allegheny v. ACLU, 492 U.S. 573 (1989), and Lynch v. Donnelly, 465 U.S. 668 (1984). It establishes a new and heightened standard of proof, holding that the displays lacked a secular purpose because they “provided the viewer with no analytical or historical connection between the Ten Commandments and the other historical documents.” ACLU of Ky. v. McCreary County, 354 F.3d 438, 453 (6th Cir. 2003). Neither the Supreme Court nor this court has ever adopted such a standard. On the contrary, the Supreme Court has upheld displays of a cross, Capitol Square Review & Advisory Bd. v. Pinette, 515 U.S. 753, 766 (1995) (plurality opinion), a creche, Lynch, 465 U.S. 668, and a menorah, County of Allegheny, 492 U.S. 573, none of which made explicit an “analytical or historical connection” between the religious item and other, secular items in the displays. No. 01-5935 ACLU of KY, et al. v. McCreary 11 12 ACLU of KY, et al. v. McCreary No. 01-5935 County, KY, et al. County, KY, et al.

The implication of the court’s decision is that the presence 1999), we held that the government could close its offices on of the Ten Commandments, in an array containing Good Friday without violating the Establishment Clause by indisputably historical and patriotic secular documents, adopting a “spring weekend” rationale, even though there was converts the whole into a display having a primarily religious evidence that the government’s purpose was originally purpose. The panel majority appears to have drawn this rule religious, including a poster put up by a government from Stone v. Graham, 449 U.S. 39 (1980), a brief, per employee depicting the Crucifixion. We stated that “the fact curiam disposition that preceded both Lynch and Donnelly, that a particular closing was once constitutionally suspect and that bears no meaningful factual resemblance to this case. does not prevent it from being reinstated in a constitutional Stone struck down a Kentucky statute that mandated the form.” Id. at 574. Our holding in Granzeier reflects an posting of the Ten Commandments, standing alone, in every important principle of equal treatment that is slighted by the classroom in the Commonwealth. In dicta, the Court stated panel’s opinion. In general, governmental bodies, like other that the Ten Commandments “may constitutionally be used in litigants, should be free to take instruction from prior an appropriate study of history, civilization, ethics, decisions or arguments, and thus to eschew, or move away comparative religion, or the like.” 449 U.S. at 42 (citing Sch. from, practices that are contrary to law.5 Dist. of Abington Township v. Schempp, 374 U.S. 203, 225 (1963)) (emphasis added). I do not believe this language can Finally, the lead opinion erroneously applies the heightened be read as an attempt to state binding limits on all future Establishment Clause standards for public schools to other constitutionally valid displays. And even if it were to be read public buildings such as courthouses. See McCreary County, in that aggressive fashion, Stone certainly does not suggest 354 F.3d at 461. This ignores the reasons given by the that a display that includes the Ten Commandments as part of Supreme Court for creating a heightened constitutional an array containing eight or nine otherwise secular, historical documents, violates the First Amendment unless the display 5 also provides an explicit analytical or historical connection The holding and reasoning of Granzeier are co nsistent with the between the clearly secular and the arguably religious items. Supreme Court’s dec ision in Santa Fe Independent School District v. Doe, 530 U.S. 290 (2000), relied upon by the panel. While the Santa Fe majo rity considered both the “text and history” of the school policy at Another troubling aspect of the majority opinion concerns issue in that case, which authorized a student-elected speaker to make an its sympathetic treatment of the district court’s conclusion “invocation” to “solemnize ” hom e football gam es, id. at 298 & n.6, 315, that the history of the defendants’ earlier attempts to erect it also made clear tha t the po licy was, in fact, invalid on its face. Id. at “constitutionally invalid displays” had “‘imprinted the 306-07, 314-15; see id. at 315 (“The narrow question before us is whether defendants’ purpose, from the beginning, with an implementation of the October policy insulates the continuation of such unconstitutional taint[.]’” McCreary County, 354 F.3d at 457 prayers from constitutional scrutiny.”). M oreo ver, the e vidence of a “continuous” Establishment Clause violation, as well as other troubling (quoting ACLU of Ky. v, McCreary County, 145 F. Supp. 2d aspects of the case’s history, were far stronger in Santa Fe than in this 845, 850 (E.D. Ky. 2001)). I think the history of the case, where the counties have serio usly retho ught and reo rganiz ed their defendants’ displays is entitled to considerably less weight displays in response to constitutional concerns. Cf. id. at 294-98 than the majority gives it. Our court has previously expressed (detailing variou s cosm etic alterations made to school district’s great reluctance to allow a government’s past actions to taint longstanding policy of pregame and graduation prayers, which were frequently explicitly Christian in nature; also noting that the record its future actions from the standpoint of the Establishment suggested that there had been official harassment and intimidation of the Clause. In Granzeier v. Middleton, 173 F.3d 568 (6th Cir. Santa Fe plaintiffs during the litigation). No. 01-5935 ACLU of KY, et al. v. McCreary 13 County, KY, et al.

standard in public schools, namely that young children are impressionable and that the state exercises coercive power through mandatory school attendance requirements. Edwards v. Aguillard, 482 U.S. 578, 584 (1987). By applying these heightened requirements to courthouses and other public buildings, the lead opinion not only misapplies the law, it also invites a new round of First Amendment challenges to religious texts and symbols that are nearly ubiquitous in non- schoolhouse public buildings throughout the nation, particularly courthouses. The court’s decision, that the Ten Commandments’ text is impermissible as one of ten otherwise secular documents, gives no further guidance. Would it be permissible as one of twenty other texts, or one of one hundred? Would it make a difference if the display involved a pictorial representation, rather than a text? I have seen at one institution what seemed to me a possible solution to some controversies of this type. There was a representation of two tablets, bearing only the Roman numerals from “I” to “X.” This left it to all observers to decide what exact text they wished to impose on that symbol. But under the court’s decision, I have no idea if even this display could pass muster. Believing the panel’s decision to be both draconian and legally unsupported, I would rehear this case, so that the full court could give it more nuanced consideration. I therefore respectfully dissent from the denial of rehearing en banc.