American Civil Liberties Union of Ohio Foundation, Inc. v. Ashbrook ( 2004 )

RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit Rule 206 2 Am. Civil Liberties Union No. 02-3667
ELECTRONIC CITATION: 2004 FED App. 0224P (6th Cir.) v. Ashbrook, et al.
File Name: 04a0224p.06
Decided and Filed: July 14, 2004
UNITED STATES COURT OF APPEALS Before: BATCHELDER and COLE, Circuit Judges;
FOR THE SIXTH CIRCUIT HOOD, District Judge.*
_________________ _________________
AMERICAN CIVIL LIBERTIES X COUNSEL
UNION OF OHIO FOUNDATION, -
- ARGUED: Francis J. Manion, AMERICAN CENTER FOR
INC., LAW AND JUSTICE, New Hope, Kentucky, for Appellant.
- No. 02-3667
Plaintiff-Appellee, - Raymond Vasvari, AMERICAN CIVIL LIBERTIES UNION
> OF OHIO FOUNDATION, Cleveland, Ohio, for Appellee.
,
v. ON BRIEF: Francis J. Manion, AMERICAN CENTER
- FOR LAW AND JUSTICE, New Hope, Kentucky, for
- Appellant. Raymond Vasvari, AMERICAN CIVIL
ROBERT ASHBROOK, Sued - LIBERTIES UNION OF OHIO FOUNDATION, Cleveland,
Here in His Official Capacity - Ohio, for Appellee. David R. Langdon, LAW OFFICE OF
as Richland County - DAVID R. LANGDON, Cincinnati, Ohio, for Amicus Curiae.
-
Commissioner,
- HOOD, D. J., delivered the opinion of the court, in which
Defendant, -
COLE, J., joined. BATCHELDER, J. (pp. 19-42), delivered
- a separate dissenting opinion.
JAMES DE WEESE , Hon., Sued -
Here in His Official Capacity - _________________
as a Judge of the Richland -
- OPINION
County Court of Common - _________________
Pleas, -
Defendant-Appellant. - HOOD, District Judge. Defendant, a judge in the General
- Division of the Court of Common Pleas in Richland County,
N Ohio, appeals the district court’s order granting Plaintiff’s
Appeal from the United States District Court motion for partial summary judgment and denying summary
for the Northern District of Ohio at Cleveland. judgment for Defendant on the issue of whether his courtroom
No. 01-00556—Kathleen McDonald O’Malley,
District Judge.
*
The Honorable Joseph M. Hood, United States District Judge for the
Argued: October 31, 2003 Eastern District of Kentucky, sitting by designation.
1
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v. Ashbrook, et al. v. Ashbrook, et al.
display of the Ten Commandments violated the Establishment plaques accompany these posters to describe or explain their
Clause of the First Amendment. For the reasons set forth purpose or to tie either of the posters together into a unified
below, we AFFIRM the decision of the district court. display with one another or any other items displayed in the
courtroom or in the vicinity of the courtroom.
I. BACKGROUND
Also in the courtroom are three posters featuring portraits
In July 2000, James DeWeese, the elected judge of the of and quotations from Thomas Jefferson, James Madison,
General Division of the Court of Common Pleas in Richland and Alexander Hamilton concerning the virtues of the jury
County, Ohio, hung a poster of the Ten Commandments in a trial system. The posters were hung on the rear wall of the
gilded frame on the wall of his courtroom, Courtroom courtroom in 1993. Above the jury box hangs a portrait of
Number One. The poster hung on a side wall of the Abraham Lincoln already present in the courtroom when
courtroom, near the front of the audience section. Directly DeWeese came onto the bench in 1991. On the front wall
opposite and across the gallery from the poster of the Ten hangs the seal and the motto of the State of Ohio, “With God
Commandments, he hung a similarly styled and framed poster All Things Are Possible.” These items were placed in the
of the Bill of Rights. courtroom in 1991 or 1992.
DeWeese had created both of these posters on his computer
and had them enlarged and framed at a local framing store, all
at his personal expense. The style of the posters is identical.
At the top, in the largest size print on the page, are the words
“the rule of law.” Next, in smaller-sized and all-capital IV. Remember the sabbath d ay, to keep it holy. Six
typeface, one poster bears the words “THE TEN days thou shalt labor, and do all thy work. But the
seventh day is the sabbath of the LORD thy God:
COMMANDMENTS.” In identical typeface, the other poster in it thou shalt not do any work.
bears the words “BILL OF RIGHTS.” Finally, each poster
contains the text of the relevant documents.1 No captions or V. Honor thy father and thy m other: that thy days
may be long upon the land which the LORD God
giveth thee.
1
The text of the T en Comm andments hanging in his courtroom reads VI. Thou sha lt not kill.
as follows:
VII. Thou sha lt not commit adultery.
I. Thou shalt have no other gods before me.
VIII. Thou sha lt not steal.
II. Thou shalt not make unto thee any graven image.
Thou shalt not bow down thyself to them, nor IX. Thou shalt not bear false witness against thy
serve them for I the LORD thy God am a jealous neighbor.
God.
X. Thou shalt not covet thy neighbor’s house, thou
III. Thou shalt not take the name of the LORD they shalt not cove thy neighb or’s wife, nor his
God in vain; for the LORD will not ho ld him manservant, nor his maidservant, nor his ox, nor
guiltless that taketh his name in vain. his ass, nor anything that is thy neighbor’s.
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DeWeese’s courtroom is located on the third floor of the II. STANDARD OF REVIEW
Richland County Courthouse and shares a lobby area with the
three other courtrooms located on that floor. On the third We review district court orders granting summary judgment
floor, there are also several elevators, stairwells, offices, and de novo. Black v. Roadway Express, Inc., 297 F.3d 445, 448
restrooms. There are two displays in the lobby area. The (6th Cir. 2002). More to the point, it is taught that:
first, the “Freedom Shrine,” is a display of twenty-nine
reproductions of historical documents arranged and donated ...in reviewing a district court's grant of a permanent
by the National Exchange Club. The historical documents injunction, we review the district court's conclusions of
include the Mayflower Compact, presidential inaugural law and its findings of constitutional, or ultimate, facts
speeches, and the text of the “Star Spangled Banner,” and de novo. See Grutter v. Bollinger, 288 F.3d 732, 743 (6th
were chosen to memorialize the founding of the country and Cir.2002). We review the district court's findings of
subsequent moments of historical import. The display was subsidiary facts for clear error. Deja Vu v. Metro. Gov't
hung sometime in the 1980s. There is also a separate poster of Nashville, 274 F.3d 377, 389 (6th Cir. 2001).
containing the portraits of nine historical figures and
quotations regarding the history of the jury system. Adland v. Russ, 307 F.3d 471, 477 (6th Cir. 2002).
Plaintiff-Appellee American Civil Liberties Union of Ohio III. DISCUSSION
Foundation, Inc. (“ACLU-Ohio”), brought this action on
behalf of members in Richland County, Ohio, against A. STANDING
DeWeese and the Commissioners of Richland County, Ohio, Standing to sue requires an individual to demonstrate
all in their official capacities.2 ACLU-Ohio asserted that the (1) actual or threatened injury which is (2) fairly traceable to
hanging and continued display of the Ten Commandments the challenged action and (3) a substantial likelihood the relief
violated the Establishment Clause of the First Amendment to requested will redress or prevent the plaintiff's injury.
the United States Constitution and Article I, § 7, of the Ohio Adland, 307 F.3d at 477-78. A voluntary membership
Constitution. ACLU-Ohio requested a permanent injunction organization has standing to sue on behalf of its members
and order directing removal of the Ten Commandments “when (a) its members otherwise have standing to sue in their
poster. The district court granted ACLU-Ohio’s motion for own right; (b) the interests it seeks to protect are germane to
partial summary judgment against DeWeese, denied the organization's purpose; and (c) neither the claim asserted
Defendants’ cross-motion for summary judgment, and nor the relief requested requires participation of individual
ordered DeWeese to remove the poster immediately. This members in the lawsuit.” Hunt v. Washington State Apple
appeal followed. Adver. Comm., 432 U.S. 333, 343 (1977); Adland, 307 F.3d
at 478. Thus, in Adland, the court found standing where
individual plaintiffs frequently traveled to the Kentucky State
Capitol to engage in political advocacy for a variety of
2 organizations and would endure direct and unwelcome
The County Co mmissioners were not the su bjec t of the district
court’s order granting Plaintiff’s motion for partial summary judgment contact as a result of legislation proposing erection of a
and denying De fendant DeW eese’s motion for summary judgment and are
not parties to this appeal.
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proposed Ten Commandments monument there.3 Adland, 307 F.3d at 478. Standing for their co-Plaintiff, the American
Civil Liberties Union, a voluntary membership organization,
followed from their own standing under the test set out above.
3 Id. at 478-79.
Unlike Judge Batchelder, we d o not take the S upreme C ourt’s
decision in Valley Forge Christian College v. Americans United for the
Separation of Church and State to stand for the proposition that
ACLU-Ohio has identified member Bernard Davis, a
psychological injury can never be a sufficient basis for the conferral of lawyer who travels to and must practice law within
Article III standing. See Valley Forge Christian College v. Americans DeWeese’s courtroom from time to time. There, Davis has
United for the Separation of Ch urch and State, 454 U.S. 464 (1982). In and would continue to come into direct, unwelcome contact
that case, the Supreme Court held that the individuals in whose name the with the Ten Commandments display, the removal of which
organization brought suit had failed to establish that they had actually
been injured by the D epartment of Ed ucation’s decision to transfer some
would, no doubt, prevent further injury to him. The interest
of its surplus land to a private, Christian college, operating under the protected by this challenge on his behalf is, no doubt,
auspices of the Assemblies of God Church. Although the Supreme Court germane to the ACLU-Ohio’s stated purpose, the preservation
explicitly stated that injuries that mere ly amount to “the psychological of the constitutional separation of church and state. The
consequence presumably produced by observation of conduct with which declaratory and injunctive relief and attorneys fees sought in
one disagrees” are insufficient to co nfer standing under Article III, we
believe that this statement cannot be read without taking the particular
this matter would not require the direct participation of any
circumstances of that case into account. In fact, the S upreme C ourt’s ACLU-Ohio member. It follows that the ACLU-Ohio has
decision that the Valley Forge plaintiffs lacked stan ding b ecause its standing to assert the instant challenge to DeWeese’s display.
members had suffered no direct injury was based, in large part, on the fact
that although the prope rty transfer o ccurred in C hester C ounty, B. THE LEMON TEST
Pennsylvania, while the named plaintiffs resided in Maryland and
Virginia and “learned of the transfer through a news release.” Id. at 487. The Establishment Clause of the First Amendment, made
Accordingly, this circuit and other circuits have read Valley Forge’s
language as depending in no small part on the directness of the harm applicable to the states by the Fourteenth Amendment, states
alleged. Thus, in Washegesic v. Bloo min gda le Pu blic Scho ols, the court that “Congress shall make no law respecting an establishment
held that a former student had standing to challenge a school’s hanging of religion.” U.S. CONST ., amend. I; Everson v. Bd. of Educ.,
of a picture of Je sus in the school’s hallway. Wa sheg esic v. B loom ingd ale 330 U.S. 1, 8 (1947). Thus, “[t]he Establishment
Public Schools, 33 F.3d 679, 682-83 (6th Cir. 1994). There, the court Clause...prohibits government from appearing to take a
found that the matter was distinguishable from Valley Forge because of
the plaintiff’s “continuing direct contact with the object at issue.” In position on questions of religious beliefs or from ‘making
Adland v. Russ, the court conferred standing on a group of plaintiffs who adherence to a religion relevant in any way to a person’s
challenged the placement of a Ten Comm andments monument on the standing in the political community.’”4 County of Allegheny
capitol grounds. Adland v. R uss, 307 F.3d 471 (6th Cir. 2002). The court
found that the fact that the plaintiffs “frequently travel[ed] to the S tate
Capitol to engage in political advocacy for a variety of organizations and
that they will endure direct and unwelcome contact with the Ten 794 F.2d 265, 268 (7th Cir. 1986); Rabun County, 698 F.2d 1098, 1108
Commandments monument,” was sufficient to m eet the “injury-in-fact” (11th Cir. 1983).
requirement for stand ing. Id. at 478. Contrary to what the dissent deems 4
to be a mis-reading of the Valley Forge precedent, this circuit’s There is a “crucial difference between government speech endorsing
elaboration of Valley Forge is consistent with both the principles religion, which the Establishment Clause forbids, and priva te speech
established therein, and with the articulations of our sister circu its. See endorsing religion, which the Free Speech and Free Exercise Clauses
Murray v. Au stin, 947 F.2d 14 7, 151 (5th Cir. 1991); ACLU v. St. James, protect.” Santa Fe Independent School Dist. v. Doe, 530 U.S. 290, 302
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v. Ashbrook, et al. v. Ashbrook, et al.
v. Am. Civil Liberties Union, 492 U.S. 573, 593-94 (1989) (quoting Santa Fe Indep. Sch. Dist. v. Doe, 530 U.S. 290, 308
(quoting Lynch v. Donnelly, 465 U.S. 668 (1984)), quoted in (2000)). Thus, a plaintiff must show that the predominate
American Civil Liberties Union of Kentucky v. McCreary purpose for a challenged display is religious, although a
County, Kentucky, 354 F.3d 438, 445 (6th Cir. 2003). To totally secular purpose is not required. Id. (citing Adland, 307
determine whether a particular action by the government F.3d at 480). At the end of the day, the display must not
violates the Establishment Clause, we apply the test set forth constitute a “purposeful or surreptitious effort to express
in Lemon v. Kurtzman, asking (1) whether the challenged some kind of subtle governmental advocacy of a particular
government action has secular purpose, (2) whether the religious message.” Id. (quoting Lynch, 465 U.S. at 680).
action’s primary effect advances or inhibits religion, and
(3) whether the action fosters an excessive entanglement with “The Ten Commandments are undeniably a sacred text in
religion.5 Lemon v. Kurtzman, 403 U.S. 602, 612-13 (1971); the Jewish and Christian faiths, and no legislative recitation
Adland, 307 F.3d at 479. of a supposed secular purpose can blind us to that fact[....,]”
but the Supreme Court has established no per se rule that
1. PURPOSE displaying the Ten Commandments in an public setting is
unconstitutional. Stone v. Graham, 449 U.S. 39, 41-42
“Although a government's stated purposes for a challenged (1980); see Edwards v. Aguillard, 482 U.S. 578, 593-94 and
action are to be given some deference, it remains the task of 607-08 (Powell, J., concurring) (1987) . While not holding
the reviewing court to ‘distinguis[h] a sham secular purpose that all displays or uses of the Ten Commandments evinced
from a sincere one.’” McCreary County, 354 F.3d at 446 a sectarian purpose, the Supreme Court has determined that,
as a text:
...the Commandments do not confine themselves to
(2000) (quoting Board of Educ. of Westside Commun ity Schools v. arguably secular matters....Rather, the first part of the
Mergens, 496 U.S. 226 , 250 (1990) (O’C onno r, J., concurring) (emp hasis commandments concerns the religious duties of
in original)). DeW eese’s p osters are situated in a courtroo m, a public
space, and were placed on the wall by a sitting judge charged with the
believers: worshiping the Lord God alone, avoiding
decoration of that space while in office and presiding in the same idolatry, not using the Lord’s name in vain, and
courtroom. As such, we reject Judge DeW eese’s contention that the observing the Sabbath day.
display constitutes private religious expre ssion protected by the Free
Speech Clause, falling beyond the bound s of Establishment Clause Id. at 41-42.
scrutiny. Indeed, they constitute government speech subject to the
strictures of the Establishment Clause. This is to say that, notwithstanding the contents of the text,
5 it would be possible for a government actor to use the
Notwithstanding oft-aired criticism and debate abo ut the Lemon test,
sentime nts shared and vo iced in App ellant’s brief, Lemon remains the
Decalogue in a constitutionally permissible manner where, for
law, providing the framework in Establishment Clause cases such as the example, it is “integrated into the school curriculum, where
instant matter and binding this interm ediate federal court until such time the Bible may constitutionally be used in an appropriate study
as it is explicitly overruled or ab andoned by the Supreme Court. ACLU of history, civilization, ethics, comparative religion, or the
of Oh io v. Capital Square Review & Advisory Bd., 243 F.3d 289, 306 & like.” Stone, 449 U.S. at 42. see Aguillard, 482 U.S. at 594
n. 15 (6th Cir. 2001) (en banc); Adland, 307 F.3d at 479 (6th Cir. 2002) (“[Stone] did not mean that no use could ever be made of the
(citing Grutter v. Bollinger, 288 F.3d 73 2, 743) (6th Cir. 2002)).
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Ten Commandments, or that the Ten Commandments played ...(1) to instruct individuals that our legal system is based
an exclusively religious role in the history of Western on moral absolutes from divine law handed down by God
Civilization.”). This was not the case in Stone, where the through the Ten Commandments and (2) to help foster
Supreme Court was faced with a Kentucky statute requiring debate between the philosophical position of moral
that the Ten Commandments be posted in each classroom absolutism (as set forth in the Ten Commandments) and
with a notation indicating the secular application of the Ten moral relativism in order to address what he perceives to
Commandments as it was incorporated into the “fundamental be a moral crisis in this country.
legal code of Western Civilization and the Common Law of
the United States.” Stone v. Graham, 449 U.S. 39, 41 (1980); American Civil Liberties Union of Ohio Foundation, Inc. v.
see Lynch, 465 U.S. at 679 (“The Court [in Stone] carefully Ashbrook, 211 F. Supp. 2d 873, 888 (N.D. Ohio 2002). The
pointed out that the Commandments were posted purely as a district court concluded that “[a] state actor officially
religious admonition, not integrated into the school sanctioning a view of moral absolutism in his courtroom by
curriculum.”). particularly referring to the Ten Commandments espouses an
innately religious view and, thus, crosses the line created by
Accordingly and considering the facts in the instant matter, the Establishment Clause.” Id. at 889 (emphasis in original).
we agree with the district court that DeWeese has not posted
his display with a permissible secular purpose. DeWeese has Despite his stated intent to use the display for educational
testified that: purposes, DeWeese has not described a role for the Ten
Commandments poster in his educational errand other than to
My intent in posting these documents was to use them admonish participants in talks or programs in his courtroom
occasionally in educational efforts when community to look to the Commandments as a source of law. His own
groups come to the courtroom and ask me to speak to testimony belies the secular purpose he wishes to ascribe to
them. These documents are useful in talking about the it, and, as he acted alone in posting the display, his stated
origins of law and legal philosophy and about the rule of purpose for the display must guide the decision in this matter.
law as opposed to the rule of man. Accordingly, we find that the district court properly applied
the first prong of the Lemon test and did not misapply the
J.A. at 75. He continued, stating that he chose the Ten teaching of Stone v. Graham, as Appellant contends.
Commandments because they were emblematic of moral DeWeese wore his “heart” on his shirt sleeve during his
absolutism and that he chose them to express the belief that deposition, and the district court properly relied upon his
law comes either from God or man, and to express his belief testimony when it determined that DeWeese’s purpose in
that the law of God is the “ultimate authority.” J.A. at 135- posting the Ten Commandments revealed a predominate non-
37. He explained that in the course of his educational efforts secular purpose for the display. The display fails the first
he would point to the Ten Commandments as an example of prong of the test and constitutes a violation of the
God as the ultimate authority in law. J.A. at 153. Establishment Clause of the First Amendment.
As a result, the district court noted that DeWeese’s purpose
was:
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2. ENDORSEMENT Id. at 598, n. 48. It refused to equate this creche display with
another located in the midst of contemporaneously erected
In order to ascertain the primary effect of the action under secular holiday symbols.
the second prong of the Lemon test, we apply the
“endorsement” test, asking whether or not a reasonable In determining what constitutes a constitutionally
observer would believe that a particular action constitutes an permissible display of the Ten Commandments in a
endorsement of religion by the government. Baker v. Adams government building, the McCreary County court stated that
County/Ohio Valley Sch. Bd., 310 F.3d 927, 929 (6th Cir. “the symbols must be interconnected in a manner that is
2002); Adland, 307 F.3d at 479. We ask whether a reasonable facially apparent to the observer[,] and...the interconnection
observer “acquainted with the text,...history, and must be secular in nature.” McCreary County, 354 F.3d at
implementation” of DeWeese’s display of the Ten 459. When secular and non-secular items are displayed
Commandments in his courtroom would view it as a state together, we consider whether the secular image “detracts
endorsement of religion. Santa Fe Indep., Sch. Dist., 530 from the message of endorsement; [or if] rather, it specifically
U.S. at 308; McCreary County, 354 F.3d at 458. “[T]he links religion ... and civil government.” Books, 235 F.3d at
inquiry must be viewed under the ‘totality of the 307. In the case of a single religious symbol or document
circumstances surrounding the display....[,]’” including the placed alongside symbols of patriotic or political importance,
contents and the presentation of the display, because the it is understood that:
effect of the government’s use of religious symbolism
depends on context. McCreary County, 354 F.3d at 458 the reasonable observer will see one religious code
(quoting Books v. City of Elkhart, Indiana, 235 F.3d 292, 304 placed alongside...political or patriotic documents, and
(7th Cir. 2000)). will understand that the [government actor] promote[s]
that one religious code as being on a par with our
In identifying the appropriate context in which to consider nation’s most cherished secular symbols and documents.
a religious symbol, the Supreme Court has rejected expansive This is endorsement....
notions of context in decisions involving Christmas-time
creche displays, demonstrating how the failure to integrate American Civil Liberties Union of Kentucky v. McCreary
religious symbols with an overall secular theme can result in County, Kentucky, 145 F. Supp. 2d 845, 851 (E.D. Ky. 2001),
the endorsement of religion. County of Allegheny, 492 U.S. quoted in McCreary County, 354 F.3d at 459.
at 598. In Allegheny, the Supreme Court determined that
secular holiday symbols located elsewhere in the courthouse Thus, this Court has condemned transparent attempts to
and at a distance from what it deemed to be an impermissible “secularize” displays of the Ten Commandments by
creche display could not: surrounding them with other patriotic documents and
symbols. McCreary County, 354 F.3d at 460 (citing Indiana
...negate the endorsement effect of the creche. The Civil Liberties Union v. O'Bannon, 259 F.3d 766, 773 (7th
record demonstrates clearly that the creche, with its floral Cir.2001) (holding that a display consisting of Bill of Rights,
frame, was its own display distinct from any other Preamble to Indiana Constitution and Ten Commandments
decorations or exhibitions in the building. would signal to reasonable observer that “the state approved
of such a link, and was sending a message of endorsement.”)).
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Similarly, the Seventh Circuit Court of Appeals found in one another on otherwise blank walls in DeWeese’s
Books that a Ten Commandments monument topped with an courtroom. Insofar as there is a cohesiveness suggesting a
American eagle gripping the national colors had the unified display, the Bill of Rights poster does nothing to
impermissible effect of linking religion and civil government. negate the endorsement effect of the Ten Commandments
Books, 235 F.3d at 304, cited in McCreary County, 354 F.3d poster, and the joint display affords Appellant no relief.
at 460, and Adland, 307 F.3d at 486-87. DeWeese’s display conveys a message of religious
endorsement because of the complete lack of any analytical
The Ten Commandments display in DeWeese’s courtroom connection between the Ten Commandments and the Bill of
is certainly separate and distinct from the items contained in Rights that could yield “a unifying historical or cultural theme
the Freedom Shrine in the adjacent lobby, notwithstanding his that is also secular” for a reasonable observer. McCreary
argument that one must pass through that lobby to reach his County, 354 F.3d at 460. The Bill of Rights is not only a
courtroom. Beyond noting the distance between the items in cherished secular document – it is a legal document securing
his courtroom and the items in the lobby, we note that the the rights of parties appearing in DeWeese’s courtroom and
items in each display were posted at different times, by binding DeWeese as a jurist. “The Ten Commandments are
different parties, and are not even displayed in a similar several thousands of years old, [are] not a product of
aesthetic fashion. There has been no attempt, such as the ...American culture and, many believe, are the word of God.”
posting of a sign, to create a connection between the two Id. They bind no jurist and are not “law” in any courtroom,
displays for observers. Similarly, the Ten Commandments notwithstanding any similarities or historical associations
display is divorced from the other items displayed in between the Decalogue and our Constitution, the Bill of
DeWeese’s courtroom – the portrait of President Abraham Rights, statutes, and common law.
Lincoln, posters extolling the jury system, the Ohio seal, and
the Ohio state motto – each posted at different times, in Thus, even though the Ten Commandments poster is posted
different portions of the courtroom, by various parties, and opposite the Bill of Rights, a “reasonable person will think
without any apparent concern for their connection, aesthetic religion, not history.” Indiana Civil Liberties Union, 259
or otherwise, to the other items displayed. Any argument that F.3d at 773 (holding that reasonable observer would not be
DeWeese’s display of the Ten Commandments must be able to make an analytical connection between Ten
considered in the context of these other items posted in the Commandments, Bill of Rights and Preamble to Indiana
courthouse is contrived at best. The relative placement of the Constitution), cited in McCreary County, 354 F.3d at 460.
items simply does not suggest a cohesive display, theme, or By placing the Decalogue in apparent equipoise with the Bill
secular message that could mitigate any message of of Rights in this manner, DeWeese has created the effect of an
endorsement on the part of DeWeese in posting the Ten endorsement of a particular religious code, vis à vis the Ten
Commandments in his courtroom. Commandments, by the government.6 Thus, even had
Appellant’s non-secular purpose not been announced so
Accordingly, we are left to consider the Ten clearly in his deposition testimony, we could still find that
Commandments display in context with DeWeese’s Bill of
Rights poster, contemporaneously created and placed on
display by DeWeese. Demonstrating a unity of typeface, font 6
As noted earlier in this opinion, D eW eese’s own testimony certainly
size, and framing, these two items have been placed opposite suggests that he intended nothing less.
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v. Ashbrook, et al. v. Ashbrook, et al.
this particular display of the Ten Commandments constitutes Advisory Board, 243 F.3d 289, 299-300 (6th Cir. 2001). The
an impermissible government endorsement of religion in Sixth Circuit determined that:
violation of the Establishment Clause of the First
Amendment. Nonetheless, as a government action “violates The motto is merely a broadly worded expression of a
the Establishment Clause if it fails to satisfy any of [the religious/philosophical sentiment that happens to be
Lemon test] prongs,” we limit our holding under the Lemon widely shared by the citizens of Ohio. As such, we
test to the conclusion that the district court did not err in believe, the motto fits comfortably within this country’s
determining that DeWeese demonstrated a non-secular long and deeply entrenched tradition of civic piety, or
purpose in posting the Ten Commandments in his courtroom. “ceremonial deism”...
Aguillard, 482 U.S. at 583; McCreary County, 354 F.3d at
462 (Gibbons, J., concurring). Id. The same cannot be said of the Ten Commandments. As
discussed in Stone, they necessarily serve as an
C. HISTORICAL PRECEDENT AND CEREMONIAL admonishment to an observer because the first part of the
DEISM commandments “concerns the religious duties of believers:
worshiping the Lord God alone, avoiding idolatry, not using
DeWeese proposes that his Ten Commandments poster the Lord’s name in vain, and observing the Sabbath day.”
should not be considered impermissible by virtue of Lemon Stone, 449 U.S. at 41-41. This prescriptive quality is distinct
analysis for it is supported by historical precedent. He from the type of ceremonial deism described in Capitol
suggests that it is similar to a constitutionally permissible Square and cannot redeem this display.
invocation recited at the beginning of state legislative
sessions, addressed in Marsh v. Chambers as “part of the IV. CONCLUSION
fabric of our society.” Marsh v. Chambers, 463 U.S. 783
(1983). While he argues that his poster is nothing more than For the reasons stated above, we find that Judge DeWeese’s
a similar “tolerable acknowledgment of beliefs widely held display of the Ten Commandments violates the Establishment
among the people of this country....,” his comparison is Clause of the First Amendment. Accordingly, we AFFIRM
inappropriate as he has identified no long standing national the decision of the district court.
practice or tradition of posting the Ten Commandments in
county courthouses. Id. at 792.
Finally, DeWeese also relies heavily on the recent decision
in ACLU of Ohio v. Capitol Square Review & Advisory Board
to suggest that the Decalogue is more or less like the state
motto of Ohio, “With God All Things Are Possible” because
it does not “purport to compel belief or acquiescence....[,]
command participation in any form of religious exercise....[,]
assert a preference for one religious denomination or sect over
others,...[or] involve the state in the governance of any
church.” ACLU of Ohio v. Capitol Square Review &
No. 02-3667 Am. Civil Liberties Union 19 20 Am. Civil Liberties Union No. 02-3667
v. Ashbrook, et al. v. Ashbrook, et al.
______________ The ACLU and Davis have alleged no injury other than the
“psychological consequence presumably produced by
DISSENT observation of conduct with which one disagrees” - an injury
______________ that the Supreme Court has specifically found insufficient to
give standing under Article III. See Valley Forge Christian
ALICE M. BATCHELDER, Circuit Judge, dissenting. I College v. Americans United for Separation of Church and
respectfully dissent. I question whether the ACLU has State, Inc., 454 U.S. 464, 485 (1982). Despite being
standing to bring this action, but certainly that issue is worthy “distinguished” by a number of district and circuit courts,
of more discussion than the majority opinion devotes to it. Valley Forge remains good law, and has been cited by the
Assuming that the ACLU does have standing, I disagree with Supreme Court more than three dozen times without so much
the district court’s and the majority’s applications of the as a hint of disapproval. The ACLU nonetheless relies upon
Lemon test. The facts of this case clearly indicate that Judge several decisions of this Court that have found standing in
DeWeese’s purpose in posting the Ten Commandments was similar circumstances. In my view, these cases can and
sufficiently secular to survive this Establishment Clause should be distinguished from the present case.
challenge.
In order to have standing under Article III, a party must
I. show (1) an actual or threatened injury which is (2) fairly
traceable to the challenged action, and (3) a substantial
I believe that the issue of standing is an open question, and likelihood that the relief requested will redress or prevent the
one deserving of significant discussion. The majority is plaintiff’s injury. Adland, 307 F.3d at 477-78. The first
correct in noting that the ACLU, as a voluntary membership prong of this test is most important for our purposes. In Steel
organization, has standing to bring a case by virtue of an Co. v. Citizens for a Better Environment, 523 U.S. 83 (1998),
alleged injury on behalf of one of its members. A voluntary the Supreme Court elaborated on the actual injury
membership organization has standing to sue on behalf of its requirement, stating that the injury must not only be alleged,
members when “(a) its members would otherwise have but ultimately proven, and the injury must be “concrete” or
standing to sue in their own right; (b) the interests it seeks to “actual or imminent, not ‘conjectural’ or ‘hypothetical.’” Id.
protect are germane to the organization’s purpose; and at 103.
(c) neither the claim asserted nor the relief requested requires
the participation of individual members in the lawsuit.” Hunt In Valley Forge, the Supreme Court found insufficient
v. Washington State Apple Adver. Comm., 432 U.S. 333, 343 injury to confer standing where plaintiffs “fail[ed] to identify
(1977); see also Adland v. Russ, 307 F.3d 471, 478 (2002). any personal injury suffered by them as a consequence of the
Assuming that the ACLU has properly brought the lawsuit to alleged constitutional error, other than the psychological
protect interests that are germane to its member Bernard consequence presumably produced by observation of conduct
Davis, the question remains whether Mr. Davis would have with which one disagrees.” Valley Forge, 454 U.S. at 485.
standing to sue in his own right. It appears to me that, under “That is not an injury sufficient to confer standing under Art.
the plain holdings of the United States Supreme Court, he III, even though the disagreement is phrased in constitutional
does not. terms.” Id. at 485-86 (emphasis added). This was plainly
reiterated in Steel Co., where the Supreme Court stated that
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v. Ashbrook, et al. v. Ashbrook, et al.
“psychic satisfaction is not an acceptable Article III remedy “‘unwelcome’ direct contact with the offensive object” is. Id.
because it does not redress a cognizable Article III injury.” (citation omitted). Because the plaintiff had “continuing
Steel Co., 523 U.S. at 107. As Judge DeWeese quite aptly direct contact with the object at issue,” we found that his
argued to this Court, the Supreme Court has not carved out grievance was not “remote . . . or generalized as in Valley
any special exceptions to the rules governing standing for Forge.” Id. at 683. The district court relied on both
Establishment Clause claims.1 “It does not become more Washegesic and Hawley v. City of Cleveland, in which this
palatable when the underlying merits concern the Court found that the injury that conferred standing was the
Establishment Clause.” Valley Forge, 454 U.S. at 489. “impairment of [plaintiffs’] beneficial use of a public facility
Various other federal courts, including this Court, have long which they frequently use.” Hawley v. City of Cleveland, 773
attempted to redefine this rule by “distinguishing” the cases F.2d 736, 740 (6th Cir. 1985).2 In Hawley, citizens
that come before them. The Supreme Court, however, has not challenged the lease of public space for a chapel at the
merely failed to reverse Valley Forge, but in fact regularly Cleveland airport. Taxpayer standing was denied, but we
cites it with approval. found that plaintiffs had standing to sue for their actual injury
when they used the airport. Similarly, in Adland v. Russ we
The ACLU countered that this Court has held that in First found standing where individual plaintiffs frequently traveled
Amendment, and especially Establishment Clause cases, the to the Kentucky State Capitol to engage in political advocacy,
injury can be non-economic. In Washegesic v. Bloomingdale and would endure unwelcome contact as a result of legislation
Public Schools, 33 F.3d 679 (6th Cir. 1994), a high school proposing erection of a Ten Commandments monument there.
senior brought suit to remove a portrait of Christ from a Adland, 307 F.3d at 478.
hallway outside of the Bloomingdale Secondary School
gymnasium. In cases such as this, we have held that “[t]he I believe that the above cases are inconsistent with the
use of governmental authority to encourage a sectarian holdings in Valley Forge and Steel Co., and in that regard
religious view is a sufficient injury if directed toward the were wrongly decided.3 Assuming arguendo that they were
plaintiff.” Id. at 682. While abstract offense at a religious adequately distinguished from those Supreme Court cases,
display may not be enough to confer standing, repeated however, their rule is applicable to the present case only to
1 2
Indeed, in Valley Forge the Suprem e Co urt harshly criticized the Unlike the district court, the majo rity of this panel does not address
Establishment Clause exceptions to the taxpayer-standing rules that had the issue o f “impairment of beneficial use of a public facility” at all.
been read into the Court’s decisions in Frothingham v. Mellon, 262 U.S. 3
447 (1923) and Flast v. Cohen, 292 U.S. 83 (1 968 ). See Valley Forge, In addition to ignoring binding Supreme Court preced ent, this Court
454 U.S. at 484-85 n.20 (“Justice Brennan’s dissent is premised on a has also at times disregarded even the most basic jurisdictional rules. In
revisionist reading of our precedents . . . . [T]he dissent must shoulder the Adland we ruled on the constitutionality of a proposed historical and
burden of exp laining why taxpayers with standing have no ‘lega l interest’ cultural display that had not yet been erected. In my view, the claim in
in congressional expenditures except when it is possible to allege a Adland was no t ripe for adjudicatio n, and we therefore lacked subject
violation of the Establishment Clause . . . . [B]oth claims have been matter jurisdiction. Adland, 307 F.3d at 490-91 (Batchelder, J.,
rejected, precisely because Art. III requires a dem onstration of re dressable dissenting); see Bigelow v . Mic h. Dep ’t of Natura l Res., 970 F.2d 154,
injury that is not satisfied b y a claim that tax moneys have been spent 157 (6th Cir. 199 2) (“If a claim is unripe, federal co urts lack subject
unlawfully.”) matter jurisdiction and the complaint must be dismissed.”).
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v. Ashbrook, et al. v. Ashbrook, et al.
the extent that this case too can be distinguished from the Clock. The Resolution authorizing the display’s creation
Supreme Court precedent. The present case is in fact much specifically referenced the United States as a “Christian
more easily differentiated from this Court’s precedents than nation.” Id. at 476. We held that the monument, as a part of
those of the Supreme Court. As I will discuss below, the this collection of seemingly unrelated objects, would not
posting of the Ten Commandments in Judge DeWeese’s serve a secular purpose. Id. at 482-83.
courtroom does not constitute the use of governmental
authority to encourage a sectarian religious view, as did the In contrast to the proposed display in Adland, the
portrait of Christ in Washegesic. It is either part of a display Decalogue in Judge DeWeese’s courtroom is not a large
including nearly forty other posters and objects or, at a granite monument but a poster whose text is so small that it
minimum, coexistent with the items in that display. It can, cannot be read from the jury box, the witness stand, or the
and does, serve a function other than encouraging a sectarian bench. The poster is not surrounded by unrelated objects such
religious view. The portrait of Christ in Washagesic did not as those found in Adland. Instead, the poster hangs in a
and, standing alone as it did, arguably could not serve another courtroom that also displays a poster of the Bill of Rights;
purpose. Importantly, the government action complained of three framed posters of Jefferson, Hamilton, and Madison that
in Hawley—the leasing of public space for a chapel—could praise the jury system; the seal of the State of Ohio and the
also have served no purpose other than encouraging a state motto “With God All Things Are Possible”; a portrait of
sectarian religious view, and is therefore also easily Lincoln; and the United States and Ohio state flags. Visitors
distinguished from the present case. Even a cursory reading to Judge DeWeese’s courtroom also observe other documents
of the facts indicates that this case is quite dissimilar from and portrayals in the hall outside the courtroom. Judge
Washegesic and Hawley. DeWeese testified that he displayed these items so that he
could use them in addressing community groups that come to
Adland is the case most directly on point, and is also the courtroom to learn about the origins of the law and legal
distinguishable. In that case, the Ten Commandments philosophy.
monument would have been part of a proposed historical and
cultural display. The extent and contents of the display had I think it strains both logic and common sense to find that
not been made final, but the plan contemplated the inclusion DeWeese’s poster, like the stand-alone Christ portrait in
of a series of unrelated objects, including—but not limited Washegesic, constitutes “the use of governmental authority to
to—a large granite statue on which the Decalogue was posted; encourage a sectarian religious view” that is “directed toward
a memorial sign commemorating “A Civil War Reprisal”; a the plaintiff.” Washegesic, 33 F.3d at 682. The portrait of
“Welcome to Kentucky” bronze plaque; the Kentucky Coffee Christ was prominent, conspicuous and unmistakably
Tree Marker commemorating author Joe Cross Creason; the Christian in its message. In contrast, the poster at issue here
Freedom Tree Marker memorializing Kentucky Vietnam is small, difficult to read from plaintiff’s location in the
Prisoners of War; a stone marker in memory of Charles courtroom, and — according to the only person who knows
Wickliffe; a plaque in memory of Governor Bert Combs; a for sure—is not directed toward plaintiff but toward the
memorial for John Stony Spicer; and Kentucky’s Floral educational efforts of the Judge when he is engaged by
Clock, one of the largest such clocks in the world. Adland, community groups. Nor does the presence of this poster
307 F.3d at 476-77. The Ten Commandments monument was constitute the kind of repeated “‘unwelcome’ direct contact
to be the largest monument in the area, except for the Floral
No. 02-3667 Am. Civil Liberties Union 25 26 Am. Civil Liberties Union No. 02-3667
v. Ashbrook, et al. v. Ashbrook, et al.
with the offensive object” that conferred standing in Valley Forge, 454 U.S. at 487 (emphasis added). And yet,
Washegesic. See id. (emphasis added). that is exactly what has occurred here. It is quite obvious
from the filings that the ACLU in fact “roamed the country in
It is somewhat instructive that the ACLU did not, in its search of wrongdoing,” filed suit in the present case, and
initial filing, even allege a specific injury to one of its later, only after being prompted to do so, produced the
members. Rather, when later prompted to identify a member affidavit of a member claiming to be offended by the display.
who was personally offended by the display, the ACLU
produced an affidavit of one Bernard Davis, who claimed that The tension between the cases cited by the district court and
the display offended him, diminished his enjoyment of a the plain statements of the Supreme Court is clear.
public facility, and made him feel as though a religious creed Furthermore, the facts of the present case are distinguishable
was being forced on him. Davis’ claim is little more than a from those of the precedents cited by the district court. They
statement that he is offended by something a government are also distinguishable from a great many other “Ten
representative is doing because he disagrees with it. This is Commandments” cases nationwide, which often involve facts
explicitly the type of injury that the Supreme Court held much more similar to Washegesic or Adland. I do not agree
insufficient to confer standing in Valley Forge. See 454 U.S. with the majority that the facts of this case give the ACLU
at 485-86. Furthermore, although it may be exactly what is standing to pursue this claim. In any event, this issue was
required for standing under this Court’s precedents, that is worthy of more discussion than the short shrift that it has
true only because it is a mere recitation of the language from received, both from the district court and the majority here
applicable case law, utilized here to make out a colorable today. Irrespective of standing, moreover, Judge DeWeese’s
claim of standing. See Washegesic, 33 F.3d at 682; Hawley, display of the Ten Commandments in his courtroom—as part
773 F.3d at 740. of an educational display also that also contained nearly forty
other objects—plainly did not violate the Establishment
In its efforts to gloss over Davis’ lack of standing, and its Clause.
own, the ACLU argued to the district court that the group “is
a perennial litigant in Establishment Clause cases” and that II.
“nothing about this suit [] requires the direct participation of
ACLU members in this litigation.” To the contrary, however, As an en banc panel of this Court recently stated in ACLU
the Supreme Court has specifically rejected the idea that the v. Capitol Square Review and Advisory Board, 243 F.3d 289
Constitution permits federal courts to adjudicate claims (6th Cir. 2001), the drafters of the Establishment Clause never
brought by, as Judge DeWeese has called them, the “self- intended to banish all mention of religion from the public
appointed Establishment Clause police”: square. “The provision was not understood as prohibiting the
state from merely giving voice, in general terms, to religious
Their claim that the Government has violated the sentiments widely shared by those of its citizens who profess
Establishment Clause does not provide a special license a belief in God.” Id. at 293. Indeed, as we also recognized,
to roam the country in search of governmental the Supreme Court has explicitly made this same point.
wrongdoing and to reveal their discoveries in federal “[T]here is an unbroken history of official acknowledgment
court. The federal courts were simply not constituted as by all three branches of government of the role of religion in
ombudsmen of the general welfare. American life from at least 1789.” Id. (quoting Lynch v.
No. 02-3667 Am. Civil Liberties Union 27 28 Am. Civil Liberties Union No. 02-3667
v. Ashbrook, et al. v. Ashbrook, et al.
Donnelly, 465 U.S. 668, 674 (1984)). As Judge DeWeese and below, however, I believe that Judge DeWeese’s display
amicus curiae Judge Randy T. Rogers pointed out at length in survives both prongs of the Lemon analysis.
their briefs, and we discussed at length in Capitol Square, this
nation’s history is replete with examples of government actors A. Judge DeWeese’s display of the Decalogue had a
expressing religious sentiments without offending the secular purpose
Constitution. See id. at 293-99.
In my view, the district court committed reversible error in
The Supreme Court has developed a number of tests for finding that the display did not have a secular purpose. The
evaluating the constitutionality of governmental action under Supreme Court has stated that the first prong of Lemon may
the Establishment Clause. First is the so-called “Lemon test,” be satisfied if “a” secular purpose can be articulated. “The
from the Supreme Court’s opinion in Lemon v. Kurtzman, 403 Court has invalidated legislation or governmental action on
U.S. 602, 612-13 (1971). This test was itself modified by the the ground that a secular purpose was lacking, but only when
“endorsement test” in Lynch v. Donnelly, 465 U.S. 668, 688 it has concluded there was no question that the statute or
(1984), which I use in analyzing this case under the Lemon activity was motivated wholly by religious considerations.”
test. Last is the “historical precedent test” from Marsh v. Lynch, 465 U.S. at 680 (emphasis added). In addition to the
Chambers, 463 U.S. 783 (1983), which I will discuss procedural requirement that the district court view factual
separately. evidence in the light most favorable to the non-moving party,
this Court has held that “the government’s assertion of a
1. The Lemon test legitimate secular purpose is entitled to deference.” Brooks
v. City of Oak Ridge, 222 F.3d 259, 265 (6th Cir. 2000);
The Lemon test requires a court to determine (1) that the Chaudhuri v. Tennessee, 130 F.3d 232, 236 (6th Cir. 1997).
challenged government action has a secular purpose; (2) that The district court should defer to the government’s assertion
the action’s primary effect neither advances nor inhibits of a legitimate secular purpose unless the assertion is a
religion; and (3) that the action does not foster an excessive “sham.” Chaudhuri, 130 F.3d at 236. In the absence of clear
entanglement with religion. Lemon, 403 U.S. at 612-13. The evidence to the contrary, Judge DeWeese’s stated reason
government action “violates the Establishment Clause if it should stand. See Lynch, 465 U.S. at 680.
fails to satisfy any of these prongs.” Edwards v. Aguillard,
482 U.S. 578, 583 (1987). Plaintiffs have not made an In contrast to the majority opinion, which today holds that
excessive entanglement claim, so only the first two prongs are Judge DeWeese’s stated objective in putting up the display
relevant to our analysis. Although the majority suggests that was a “sham” that constituted a “purposeful or surreptitious
Judge DeWeese’s display of the Ten Commandments could effort to express [] governmental advocacy of a particular
constitute an impermissible endorsement of religion, it religious message,” I do not believe that a court viewing the
affirms the district court based on the first prong of the factual evidence in the light most favorable to DeWeese
analysis, and limits its holding to the conclusion that the (remembering that this matter was before the district court on
district court did not err in determining that DeWeese motion for summary judgment) could have concluded that his
demonstrated a non-secular purpose in posting the Ten posting of the Ten Commandments was motivated wholly, or
Commandments in his courtroom. For the reasons discussed even predominantly, by religious considerations. The only
competent evidence as to DeWeese’s purpose is his own
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v. Ashbrook, et al. v. Ashbrook, et al.
assertion, in his affidavit, that his “intent in posting these some religious purpose is not the same as a finding that the
documents was to use them occasionally in educational Decalogue serves a wholly religious purpose, the finding
efforts when community groups come to the courtroom and upon which a violation of the first prong of the Lemon test
ask [him] to speak to them.” This is not a statement of must rest. See Lynch, 465 U.S. at 680. As the Supreme Court
religious consideration, and there is nothing unconstitutional later clarified, the Ten Commandments can serve both
about it. religious and secular purposes. “[Stone] did not mean that no
use could ever be made of the Ten Commandments, or that
The ACLU asserted—and both the district court and the the Ten Commandments played an exclusively religious role
majority opinion today have found— that Judge DeWeese’s in the history of Western Civilization.” Aguillard, 482 U.S.
stated purpose is a sham and that he has an ulterior purpose at 593-94. Even the Stone court itself noted that the
that is predominantly religious in nature. The district court Decalogue could be “integrated into the school curriculum,
rejected DeWeese’s proffered motive for two reasons. First, where the Bible may constitutionally be used in an
the court relied heavily upon selected quotes from Stone v. appropriate study of history, civilization . . . or the like.”
Graham, 449 U.S. 39 (1980), to find a presumption against a Stone, 449 U.S. at 42. Those are precisely the kinds of
secular purpose in Ten Commandments cases. Second, the activities, albeit not within the physical confines of a school,
court carefully parsed statements in DeWeese’s deposition for which DeWeese uses the display when talking to
testimony concerning his privately-held beliefs to divine an community groups about the origins of the law and legal
additional, unstated religious purpose for the display that is philosophy. The district court’s interpretation of Stone is
not apparent from the testimony taken as a whole. The flawed, and its conclusion that the Decalogue’s display is
majority opinion summarily adopts these errors. only constitutional where “diluted” directly conflicts with the
Supreme Court’s interpretation of Lemon in Lynch. A secular
In Stone the Supreme Court was faced with a Kentucky purpose need not be the only purpose, nor even the primary
statute that required the Ten Commandments to be posted in one. It simply must be a purpose which prevents the display
each classroom. The Court invalidated the statute, noting in from being motivated wholly by religious considerations.
the process that “[t]he Ten Commandments are undeniably a Lynch, 465 U.S. at 680.
sacred text in the Jewish and Christian faiths, and no
legislative recitation of a supposed secular purpose can blind Judge DeWeese has stated his purpose for the display, and
us to that fact.” 449 U.S. at 42. From this statement the he has suggested only the educational purposes for the display
district court concluded that “[g]iven the religious that have been explicitly endorsed by the Supreme Court.
significance of the text of the Ten Commandments, their The ACLU has presented portions of DeWeese’s deposition
display may be considered constitutional where, but only testimony as evidence that “DeWeese did not have a purely
where, a state or governmental body attempts to and does secular philosophical purpose in displaying the
dilute the religious aspect of the display in favor of a secular Commandments in his courtroom, nor a strictly secular
message or purpose.” ACLU of Ohio Found., Inc. v. understanding of the meaning of their display.” But it is
Ashbrook, 211 F. Supp. 2d 873, 884 (2002). patently unnecessary for DeWeese to have had a purely
secular purpose. He merely needed not to have a purely
It is clear that the district court’s conclusion is not required religious purpose. The majority circumvents this principle
by Stone. First, a finding that the Decalogue necessarily has by relying on this Court’s decision in ACLU of Kentucky v.
No. 02-3667 Am. Civil Liberties Union 31 32 Am. Civil Liberties Union No. 02-3667
v. Ashbrook, et al. v. Ashbrook, et al.
McCreary County, 354 F.3d 438, 446 (2003), for the motives for the display. Even if this were a correct reading of
erroneous proposition that DeWeese’s display should be DeWeese’s testimony, however, it would merely demonstrate
found unconstitutional if the ACLU can “show that the that one of his purposes was religious. It proves neither that
predominate [sic] purpose for a challenged display is DeWeese did not have a secular purpose nor that his stated
religious.” That is also an erroneous statement of the proper secular purpose was not the predominant purpose for the
standard. The Supreme Court has spoken clearly on this display. Nor do I agree with the majority’s incredible
issue, and it is not the prerogative of this Court to continue to assumption that fostering debate between the philosophical
chip away at the proper analysis by applying selective positions of moral absolutism and moral relativism “crosses
readings of only those precedents with which we agree. the line created by the Establishment Clause.” A great many
state educational institutions will be shocked, I suspect, to
Even applying McCreary County’s erroneous “predominate learn that fostering debate between philosophical positions is
[sic] purpose” standard, however, DeWeese’s display easily now unconstitutional in the Sixth Circuit.
passes muster. Although DeWeese concedes that the
Commandments are emblematic of moral absolutes, and that The majority opinion finds that DeWeese has described no
“there are limits in the philosophy of law beyond which role for the Ten Commandments poster in his educational
people are not permitted to go,” there is nothing in his errand other than as an admonition that listeners or
testimony that can be fairly construed as proving that his participants in his programs look to them as a source of law.
purpose was predominantly religious. Judge DeWeese In my view, the majority seriously errs in its apparent
specifically stated that he put up the display “as a matter of assumption that the Constitution forbids all governmental
jurisprudence and legal philosophy”—some of the specific recognition of the Decalogue’s important historical role in the
matters that he discusses in his educational talks with development of Western and American law and legal
community groups. Nonetheless, the district court and the philosophy.
majority opinion today have relied on DeWeese’s deposition
testimony to conclude that DeWeese’s purpose was: The district court erred in finding that there was no secular
purpose for DeWeese’s posting of the Ten Commandments in
(1) to instruct individuals that our legal system is based his courtroom. The court was required to view factual
on moral absolutes from divine law handed down by God evidence in the light most favorable to DeWeese, as well as
through the Ten Commandments and (2) to help foster to show substantial deference to DeWeese’s assertion that he
debate between the philosophical positions of moral had a legitimate secular purpose for the display. It did neither
absolutism (as set forth in the Ten Commandments) and of these things. The majority opinion’s subsequent
moral relativism in order to address what he perceives to determination that DeWeese’s assertion of secular purpose
be a moral crisis in this country. was a “sham” also evinces a failure to show the proper
deference to that assertion. Like the court in McCreary
Ashbrook, 211 F. Supp. 2d at 888. County, 354 F.3d at 446, the majority today imposes a higher
bar than that either required or permitted by the Supreme
Having read DeWeese’s deposition, I believe this Court, and demands either an entirely secular purpose or a
pronouncement appreciably overstates his testimony, and in primarily secular purpose for the display, where as a matter of
fact blurs the distinction between his personal beliefs and his law only an ascertainable secular purpose is required. Lynch,
No. 02-3667 Am. Civil Liberties Union 33 34 Am. Civil Liberties Union No. 02-3667
v. Ashbrook, et al. v. Ashbrook, et al.
465 U.S. at 680. The district court’s finding that DeWeese’s posters is too small to be read from the jury box, the witness
actions lacked a secular purpose should be reversed. stand, or the bench. At the top of each of the posters, in much
larger type than the main text, appears the legend: “the rule
B. A reasonable observer would not deem the display of law.” Also hanging in the spectator section of the
to be an endorsement of religion courtroom are three framed posters in which Jefferson,
Hamilton, and Madison praise the jury trial system. In front
In evaluating the “effects” prong of the Lemon test, I apply of the bar, flanking the judge’s bench, are the United States
the “endorsement test” first explicated by Justice O’Connor and Ohio state flags. A portrait of Lincoln hangs on one side
in her concurring opinion in Lynch, 465 U.S. at 690, and later of the bench. Directly behind the bench and above the
embraced by the Supreme Court’s decision in County of judge’s chair is the seal of the State of Ohio, with a ribbon-
Allegheny v. ACLU, 492 U.S. 573 (1989). As we have noted, like device bearing the words of Ohio’s motto: “With God All
the key question is “whether a reasonable observer would Things Are Possible.”
conclude that the government endorses religion” by allowing
the challenged practice. Hawley, 24 F.3d at 822; see Visitors arriving at Judge DeWeese’s courtroom no doubt
Allegheny, 492 U.S. at 592-94. Endorsement is to be judged observe in the hall outside the courtroom the “Freedom
by a “reasonable observer” standard, and the reasonable Shrine,” donated by the Exchange Club of Mansfield “to
observer is deemed to be aware of the history and context of strengthen citizen appreciation of our American heritage.”
the community and forum in which the religious display This “Shrine” displays the texts or excerpts from more than
appears. See Capitol Square Review and Advisory Board v. two dozen noteworthy orations in American history, including
Pinette, 515 U.S. 753, 780 (1995) (O’Connor, J., concurring) various Presidents’ inaugural addresses. At least half of these
[hereinafter “Pinette”]. While there is always someone who texts contain explicit references to the connection between
might perceive a particular action as an endorsement of religion and civic order. See, e.g., John F. Kennedy’s
religion, that person does not personify the reasonable Inaugural Address (“And yet the same revolutionary beliefs
observer. “A State has not made religion relevant to standing for which our forbears fought are still at issue around the
in the political community simply because a particular viewer globe - the belief that the rights of man come not from the
of a display might feel uncomfortable.” Id. generosity of the state, but from the hand of God.”). Except
for the posters of the Decalogue and the Bill of Rights, all of
The endorsement test is a fact-intensive inquiry that the display (or displays, if, like plaintiffs, one believes the
requires us to analyze fully the nature of the display and its courtroom display is completely separate from the lobby
relationship to the surrounding displays. DeWeese has argued display) was in the courtroom, hallway, and lobby in the fall
that the totality of the circumstances surrounding the display of 2000. DeWeese added these posters at that time, for the
at issue here would not lead a reasonable observer to conclude purpose of using them in conjunction with the other items in
that the presence of the Ten Commandments in his courtroom the display in his educational efforts when community groups
constitutes government endorsement of religion. The Ten come to the courtroom.
Commandments themselves are printed on a poster that Judge
DeWeese hung in the spectator section of his courtroom. The The district court went to great lengths to demonstrate that
Bill of Rights is found on an identical poster, hung on the the poster of the Decalogue was “prominent and relatively
opposite wall of that area of the courtroom. The text of these isolated,” and concluded that because the “Freedom Shrine”
No. 02-3667 Am. Civil Liberties Union 35 36 Am. Civil Liberties Union No. 02-3667
v. Ashbrook, et al. v. Ashbrook, et al.
and the portrayals inside the courtroom were erected at While there will always be someone, such as Bernard
different times and are geographically distinct, there is no Davis, who might perceive a particular action as an
cohesive display, theme, or secular message. Ashbrook, 211 endorsement of religion and lacking any secular purpose, that
F. Supp. 2d at 892. The majority opinion adopts this flawed person does not personify the reasonable observer. See
reasoning. It is certainly true that the Decalogue poster Pinette, 515 U.S. at 780. To the contrary, “[the] proper
appears on the wall by itself; however, focusing on this fact application of First Amendment principles demands a sense
ignores the overall context in which the poster appears. As of proportion.” Van Orden v. Perry, 351 F.3d 173, 178 (5th
DeWeese argued in his brief, “no one is simply ‘beamed up’ Cir. 2003). In Lynch, the Supreme Court upheld Pawtucket,
into DeWeese’s courtroom; visitors must pass by the Freedom Rhode Island’s display of a purely religious symbol—a
Shrine in order to get there.” In reviewing Establishment creche—against an Establishment Clause challenge. The
Clause challenges, courts have employed much more majority found that the district court erred in holding that the
expansive contexts than the two-room context urged here by inclusion of a creche in an overall Christmas display had no
DeWeese. See Books v. City of Elkhart, 235 F.3d 292 (7th secular purpose. Lynch, 465 U.S. at 680. The Court further
Cir. 2000), cert. denied, 121 S. Ct. 2209 (2001) (context rejected the contention that the primary effect of the creche
considered was the entire lawn of Elkhart city building, was to confer a substantial and impermissible benefit on
including Decalogue monument and two other monuments, religion. Id. at 681-82. In her concurrence, Justice O’Connor
all of which had been placed at different times); State v. developed the endorsement test and found “clearly erroneous”
Freedom from Religion Found, 898 P.2d 1013 (Colo. 1995), the district court’s holding that “the city’s use of an
cert. denied, 516 U.S. 1111 (context considered sprawled unarguably religious symbol ‘raises an inference’ of intent to
over three blocks). endorse.” Id. at 691. Even though the sectarian significance
of the creche was not neutralized by the setting, the
Taken as a part of the larger display both within the composition of the overall display made the government’s use
courtroom and extending into the hallway and lobby, the of the creche no more an endorsement of religion than such
Decalogue poster is merely one part of a forty-piece display acknowledgments of religion as legislative prayers or the
that “signal[s] respect not for great proselytizers but for great opening of court sessions with “God save the United States
lawgivers.” See ACLU of Kentucky v. McCreary County, 145 and this honorable court.” Id. at 693.
F. Supp. 2d 845, 853 (E.D. Ky. 2001) (quotation omitted).
The majority ignores DeWeese’s stated purpose for the The majority relies on portions of Allegheny for the
display and suggests that it is a “transparent attempt” to proposition that the Supreme Court has rejected expansive
“secularize” a display of the Ten Commandments. I have notions of context when analyzing displays challenged under
seen no evidence that this is the case, and I believe that Judge the Establishment Clause. Although the Allegheny Court
DeWeese presented the Ten Commandments objectively and invalidated the government’s display of a creche on a
integrated them with a secular message. See McCreary courthouse staircase, the circumstances surrounding that
County, 354 F.3d 449. Even if we were to exclude the display were completely dissimilar from those of the present
Freedom Shrine, I believe that the ten-object display within case. Secular holiday symbols were located in other parts of
the courtroom itself provides sufficient context for the poster. the building, but the creche—a purely religious symbol—was
alone on the staircase. In this case, the Ten
Commandments—a religious text that may also have a
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v. Ashbrook, et al. v. Ashbrook, et al.
secular purpose within a larger display—is posted in a room practice of opening legislative sessions with prayer has
with nine other objects that share some relation. become part of the fabric of our society.” Id. at 792. The
Court described the practice as “simply a tolerable
Importantly, the Allegheny Court decided a second case, not acknowledgment of beliefs widely held among the people of
discussed by the majority opinion, that seems more applicable this country.” Id.
to the facts before us now. The Court allowed the public
display of a menorah as part of a larger “Salute to Liberty” The majority finds that this type of comparison is
display. See Allegheny, 492 U.S. at 582. The Court inappropriate because DeWeese “has identified no long
specifically noted that the menorah had both religious and standing national practice or tradition of posting the Ten
secular aspects: “The menorah, one must recognize, is a Commandments in county courthouses.” But DeWeese is
religious symbol . . . But the menorah’s message is not clearly correct in arguing that government acknowledgment
exclusively religious.” Id. at 613. In the present case, the of the important foundational role of the Ten Commandments
Ten Commandments were posted in a room with nine other is indeed part of the fabric of our society. DeWeese pointed
depictions related to law and government, and were used by us to a multitude of depictions of the Decalogue found in our
DeWeese as part of his educational presentations. The public buildings, including the United States Supreme Court,
reasonable observer defined by the Supreme Court would not which itself has no fewer than three depictions of Moses
conclude that DeWeese’s inclusion of the Decalogue in a and/or the Ten Commandments; the U.S. Capitol; various
display that also includes the Bill of Rights, a portrait of state capitols; and numerous federal courthouses. This
Abraham Lincoln, accolades to the jury system, the Great includes, ironically, the district courthouse in Cleveland
Seal of Ohio, and the items comprising the Freedom Shrine, where this case was decided, which is adorned with a large,
constitutes the government’s endorsement of religion. “To magnificent mural of the Ten Commandments flanked by
say otherwise retreats from the objective test of an informed angels.
person to the heckler’s veto of the unreasonable or ill-
informed—replacing the sense of proportion and fit with DeWeese’s position is also reinforced by the proliferation
uncompromising rigidity at a costly price to the values of the of lawsuits exactly like this one— at least a dozen of which
First Amendment.” Van Orden, 351 F.3d at 182. have been decided in the past five years. See, e.g., McCreary,
354 F.3d 438; Freethought Society v. Chester County, 334
2. Marsh and “Historical Precedent” F.3d 247 (3d Cir. 2003); Turner v. Habersham County, 290
F. Supp. 2d 1362 (N.D. Ga., 2003); ACLU v. Mercer County,
The majority opinion also rejects DeWeese’s contention 219 F. Supp. 2d 777 (E.D. Ky., 2002); ACLU of Tenn. v.
that his posting of the Ten Commandments is similar to the Rutherford County, 219 F. Supp. 2d 799 (M.D. Tenn., 2002);
constitutionally permissible invocation addressed in Marsh v. ACLU of Tenn. v. Hamilton County, 202 F. Supp. 2d 757
Chambers, 463 U.S. 783 (1983). In that case the Supreme (E.D. Tenn., 2002); Kimbley v. Lawrence County, 119 F.
Court upheld the Nebraska legislature’s practice of opening Supp. 2d 856 (S.D. Ind., 2000); Suhre v. Haywood County, 55
each legislative day with a prayer by a chaplain paid by the F. Supp. 2d 384 (W.D. N.C., 1999). This may not prove that
state. The Marsh Court simply ignored the Lemon test, there is a tradition of posting the Decalogue in county
finding that “[i]n light of the unambiguous and unbroken courthouses, but it certainly counsels against the majority’s
history of more than 200 years, there can be no doubt that the dismissive attitude toward DeWeese’s “historical precedent”
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v. Ashbrook, et al. v. Ashbrook, et al.
argument. Nor am I convinced that such an analysis should witnesses and government officials swear to tell the truth or
be limited merely to county courthouses, as opposed to all uphold the law “so help me God.” In any event, that
courthouses, or government buildings in general. Commandment played an undeniable role in early American
law, which even included prohibitions against, and
The majority makes what is, at best, an unconvincing prosecutions for, the crime of blasphemy. See, e.g., State v.
attempt to distinguish between the present case and our Chandler, 2 Del. (2 Harr.) 553 (Del. 1837) (affirming
holding in Capitol Square, where we noted that the state defendant’s conviction for blasphemy); People v. Ruggles,
motto of Ohio, “With God All Things Are Possible,” does not 8 Johns. 290, 293 (N.Y. 1811) (same). Nor can one discount
“purport to compel belief or acquiescence . . . . [,] command even the Commandment against worshipping idols, which
participation in any form of religious exercise . . . . [,] assert was offered in the Revolutionary era as a reason for fighting
a preference for one religious denomination or sect over the British monarchy. See THOMAS PAINE, COMMON SENSE
others, . . . [or] involve the state in the governance of any 73 (Isaac Kramnick ed., Penguin Books 1976) (“And when a
church.” Capitol Square, 243 F.3d at 299-300. Judge man seriously reflects on the idolatrous homage which is paid
DeWeese’s display does none of these things either, despite to the persons of the Kings, he need not wonder that the
the majority opinion’s claim that the Decalogue serves as an Almighty . . . should disapprove a form of government which
admonishment to observers because the first part of the so impiously invades the prerogative of heaven.”).
Commandments concerns only the religious duties of
believers. As a historical matter, the Stone Court’s oft-repeated truism
that the first three or four Commandments are “exclusively
No one can seriously oppugn the importance of the Ten religious” is simply not true. Including these rules as part of
Commandments in the development of the law in our secular a historical display about the development of American law
society. Whether palatable to plaintiffs or not, is accurate, appropriate, and, until today, legally permissible.
“[i]nnumerable civil regulations enforce conduct which
harmonizes with religious canons. State prohibitions . . . III.
reinforce commands of the decalogue.” McGowan v.
Maryland, 366 U.S. 420, 462 (1961) (Frankfurter, J., Judge DeWeese began his brief by pointing out the
concurring). As a historical matter, this has been true of all absurdity of this case, wherein a federal judge, sitting beneath
of the Commandments and not, as the majority seems to “a magnificent mural of the Ten Commandments flanked by
imply, merely the latter ones. Consider, for example, the two angels,” has ordered a state judge to remove from his
myriad of states’ “Blue Laws” or “Sunday Closing Laws” that courtroom a poster containing the plain text of the same Ten
have their roots in the Decalogue’s command to “remember Commandments. The ACLU responded that this was a mere
the Sabbath day, to keep it holy.” The Supreme Court has “ironic curiosity,” and nothing more. Indeed, the ACLU
even upheld such laws despite recognizing their original argued that “[t]he courts speak through their journals, and not
purpose. See id. at 446 (noting that the predecessors of their frescos. Their judgments are recorded in the [] reporters,
modern Sunday laws “are undeniably religious in origin”). and not on their walls.” In the latter observation, the ACLU
is entirely correct. The irony lies in the fact that the ACLU
The Commandment against “using the Lord’s name in does not dispute that DeWeese, in resolving the cases that
vain” is still applied in daily secular life, most notably where come before him and whose judgments are entered in the
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v. Ashbrook, et al. v. Ashbrook, et al.
reporters, does not use and has not used these documents. v. Schempp, 374 U.S. 203, 306 (1962) (Goldberg, J.,
Ashbrook, 211 F. Supp. 2d at 888. concurring). It seems to me that the majority today does
exactly that.
As Justice Thomas has so aptly noted:
I respectfully dissent.
For nearly half a century, [the Supreme] Court has
extended First Amendment protection to a multitude of
forms of “speech,” such as making false defamatory
statements, filing lawsuits, dancing nude, exhibiting
drive-in movies with nudity, burning flags, and wearing
military uniforms . . . . [T]he Courts of Appeals have []
concluded that the First Amendment protects, for
example, begging, shouting obscenities, erecting tables
on a sidewalk, and refusing to wear a necktie.
Nixon v. Shrink Missouri Gov’t PAC, 528 U.S. 377, 411-12
(2000) (Thomas, J., dissenting). But the majority opinion
holds today that that same First Amendment does not protect
the posting, in a historical display used for educational
purposes, of a set of rules that has played an undeniable role
in the formation of this nation’s laws.
I cannot join the majority in finding that the Establishment
Clause is so inelastic as to not “permit[] government some
latitude in recognizing and accommodating the central role
religion plays in our society.” Allegheny, 492 U.S. at 657
(Kennedy, J., concurring in part and dissenting in part) (citing
Lynch, 465 U.S. at 678)). In the matter before us, Judge
DeWeese displayed a small, unobtrusive copy of the Ten
Commandments in his courtroom, as part of a series of
documents and depictions that he uses for the express purpose
of educating community groups on the history and philosophy
of the law. It is not unconstitutional to make observations of
historical fact. As Justice Goldberg wisely reminded us more
than four decades ago, “[n]either government nor this Court
can or should ignore the significance of the fact that . . . many
of our legal, political and personal values derive historically
from religious teachings.” School Dist. of Abington Township