Reverend Daniel King, E. Ronald Garnett, and Shirley Fencl v. Richmond County, Georgia and Elaine Johnson

[PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR TH E ELEV ENTH C IRCUIT FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
No. 02-14146 MAY 30, 2003
THOMAS K. KAHN
________________________
CLERK
D.C. Docket No. 00-00100-CV -1
REVEREND DANIEL KING,
E. RONALD GARNET T, and
SHIRLEY FENCL,
Plaintiffs-Appellants,
versus
RICHMON D COUN TY, GEORG IA and
ELAINE JOHNS ON, in her individual
capacity and in her official capacity as
Clerk of the Superior Court of Richmond
County, Georgia,
Defendants-Ap pellees.
__________________________
Appeal from the United States District Court for the
South ern Dis trict of G eorgia
_________________________
(May 30, 2003)
Before EDMONDSON, Chief Judge, and KRAVITCH and GIBSON *, Circuit
Judges.
KRAV ITCH, Circuit Judge:
The question presented is whether the use of a court clerk’s seal violates
the Establishment Clause of the First Amendment when the seal contains an
outline of the Ten Commandments, a sword, and the name of the court and is
used so lely to auth enticate do cumen ts. We co nclude th at it does n ot.
I. BACKGROUND
Since 1852, a Georgia statute has required clerks of the state superior
courts to have a “substantial seal of office” with the name of the county and
court inscribed thereon.1 In conformance with the statute, the Clerk of the
Superior Court of Richmond County has maintained an official seal (the “Seal”)
for more than 130 years. Records found in the Richmond County clerk’s office
indicate that the Seal has been used on documents at least since 1872.
*
Honorable John R. Gibson, United States Circuit Judge for the Eighth Circuit, sitting by
designation.
1
Acts of the General Assembly of the State of Georgia, 1851S1852, No. 46, Title VII, Section 1
& 2, approved January 12, 1852 (making it the duty of clerks, with failure punishable as a
misdemeanor, “to buy a good and Substantial Seal of Office”); O.C.G.A. § 15-6-61(a)(7) (2001)
(requiring the clerk of the superior court “[t]o procure a substantial seal of office with the name
of the court and the county inscribed thereon”).
2
The Seal is circular, with the words “SUPERIOR COURT RICHMOND
COUNTY, GA” inscribed around the perimeter. The center of the Seal contains
a depiction of a hilt and tip of a sword, the center of which is overlaid by two
rectangular tablets with rounded tops. Roman numerals I though V are listed
vertically on the left tablet; the right lists numerals VI to X. The Seal is placed
on docum ents in on e of three ways: w ith ink from a rubber stamp, by
embossment into paper, or by embossment into a gold seal on paper. The ink-
stamped version of the seal is approximately one-and-a-half inches in diameter,
with the center portion depicting the tablets measuring approximately one inch.
The embossed version is smaller, approx imately one-and-a-fourth inches in
diameter, with the center portion measuring less than three-fourths of an inch.
The Seal’s only function is to authenticate legal documents. In one of the
forms describe d abov e, the Seal is affixed to all certified copies of court
docum ents and real- estate records, witness subpoenas, certifications of juror
service, notary certificates of appointment, and attorney licenses.
Approximately 24,000 documents bore the Seal in 1999. The Seal does not
appear on the office of the clerk’s letterhead or on its website, nor is it
displayed in the clerk’s office, in the courtroom, or anywhere else in the
3
Richmond County Courthouse. The office of the clerk’s letterhead and
envelopes bear the seal of the state of Georgia instead.
Richmond County displays another object relevant to this case. A statue
of Justice, entitled “M iss Justice,” stands in the park ing lot of the city-co unty
municipal building and courthouse.2 The statue depicts Justice as a woman
holding a swor d in her r ight han d and th e scales of justice in h er left.
Appe llants Reverend Daniel King, E. Ronald Garnett, and Shirley Fencl
filed suit in federal district court under 42 U.S.C. § 1983, contending that the
Seal violates the E stablishm ent Clau se of the F irst Am endme nt. App ellants
sought injunctive and declaratory relief as well as nominal damag es against
Richmond Coun ty and E laine Joh nson, C lerk of the Superior Court, in both her
individual and official capacities. According to the complaint, the Seal
“promin ently displays the Ten Commandments, a sacred text in the Judeo-
Christian religious traditions,” in violation of the Establishment Clause and
Article I, section I I, paragr aph V II of the G eorgia C onstitutio n. In resp onse, the
Appellees conceded that the pictograph in the center of the Seal resembles
2
The statue, dating from 1820, was originally placed on the cupola of the Augusta City Hall,
which became the Richmond County Courthouse. When the previous courthouse was
demolished, the county restored the statue and in 1962 placed it at its current location.
4
depictions of the Ten Com mandments, 3 but argued that the use of the Seal is not
unconstitutional under any of the Su preme Court’s Establishmen t Clause tests.
After a summary bench trial, the District Court concluded that although
the tablets dep icted on th e Seal rep resented the Ten Comm andments, and th at a
reasona ble observer could view them as such, there was no Establishment
Clause violation . The D istrict Cou rt found , and both parties a greed, th at the
Seal had been in use for more than 130 years but that there was no evidence of
the purpose for the Seal’s design or when it was adopted by the clerk of the
superio r court.
Employing the Supreme Court’s test in Lemon v. Kurtzman, 403 U.S.
602 (1971), the District Court examined the facts to determine (1) whether the
Seal had a secular purpose, (2) whether its primary effect was to advance
religion, and (3) whether it fostered excessive entanglement between
government and religion. O n the first of these questions, the District Court
found that the pu rpose o f the Sea l’s design was “los t in the mists of history” but
that pictographs of the Ten Commandments represented “both religious virtue
and the rule of law .” Secon d, the cou rt held tha t the Seal’s primary effect was
3
Appellees’ br. at 4. Appellees observe that the “figure has a sword, which appears to either
pierce it or go behind it” and that to their knowledge “there is no representation of the Ten
Commandments with a sword such as in the Superior Court seal . . . .” Id.5
not to advance religion. The court reasoned that the outline of the Ten
Comm andme nts was distinguishable from cases in which the text was
displayed, indicating that a depiction without the text “would not lead a
reasona ble observer to conclude that religion was endorsed.” The court
concluded that, given the Ten Commandments’ “role in the secular
development of our society” and le gal system , a reason able obs erver w ould
view the Seal as “conveying the image of a widely recognized legal code used
merely to notify the reader that the stamped documents are court documents.”
The court em phasized that the us e of the S eal was lim ited to the authentication
of documents and was inconspicuous when compared to the governmental
displays described in other cases. Third, the court found that the use of the Seal
had not caused an excessive entanglement between government and religion.
Finally, it h eld that the claims un der Ge orgia’s co nstitution were w ithout m erit.
On appeal, Appellants argue that the District Court erred in finding that
the Seal did not violate the Establishment Clause because (1) the Seal has a
religious purpose and (2) the use of the Seal has the primary effect of endorsing
religion. Appellants do not challenge the District Court’s conclusions as to the
lack of excessive entanglement or their claims under the Georgia Constitution.
6
II. STANDARD OF REVIEW
We review the Distr ict Court’s factual findings for clear error and review
de novo its legal con clusions . See ACLU of Ga. v. Rabun County Chamber of
Commerce, Inc., 698 F.2d 1098, 1110 (11th Cir. 1983) (per curiam).
III. ANAL YSIS
The issue presented is whether the use of the Seal violates the
Establishment Clause o f the Firs t Amendment. The Establishment Clause
prohib its Congress from making any law “respecting the establishment of
religion, or prohibiting the free exercise thereof . . . .” U.S. Const., Ame nd. I.
The prohib ition against the establishment of religion applies to the states
through the Fourteenth A mendm ent. See Cantwell v. Connecticut, 310 U.S.
296 (1940).
In religious-symbols cases, the Supreme Court has applied th e analysis
outlined in Lemon v. Kurtzman, 403 U .S. 602 (1971 ). See, e.g., County of
Allegheny v. ACLU, Greater Pittsburgh Chapter, 492 U.S. 573, 592 (1989);
Lynch v. Don nelly, 465 U .S. 668 , 679 (1 984); Stone v. Graham, 449 U.S. 39,
40 S 41 (1980) (per cur iam). Under the Lemon analysis, a governmental practice
violates the Estab lishmen t Clause if it does no t have a secular p urpose , if its
7
primary effect is to advance or inhibit religion, or if it fosters excessive
govern ment en tanglem ent with religion. Lynch, 465 U.S. at 679.
Despite the Supreme Court’s reliance on these three “tests,” it has
emphasized that there is no bright-line rule for evaluating Establishment Clause
challenges and that each cha llenge calls for line-d rawing based o n a fact-
specific, case-by-ca se analysis . Id.; see also County of Allegheny, 492 U.S. at
592. In recent years, the Court has “paid particularly close attention” to
whether the challenged governmental practice has either “the purpose or effect
of ‘endorsing religion.’” County of Allegheny, 492 U .S. at 592 . Even though
some Justices an d comm entators h ave stron gly criticized Lemon,4 both the
Supreme Court and this circuit continue to use Lemon’s three-pronged analysis.
See id.; Adler v. Duval County Sch. Bd., 206 F.3d 1070, 1075 (11th Cir. 2000)
(en banc), vacated by 531 U .S. 801 , opinion and judgment reinstated by 250
F.3d 1 330 (1 1th Cir. 2 001); Rabun Coun ty, 698 F.2d at 1098.
Here, Appellants argue that the use of the Seal violates the purpose and
effect prongs of the Lemon analysis; they do not contend that use of the Seal
4
See, e.g., Lamb’s Chapel v. Center Moriches Union Free Sch. Dist., 508 U.S. 384, 397 (1993)
(Scalia, J., concurring); County of Allegheny v. ACLU, Greater Pittsburgh Chapter, 492 U.S.
573, 660 (1989) (Kennedy, J., concurring in part and dissenting in part); Jesse H. Choper, The
Establishment Clause and Aid to Parochial Schools—An Update, 75 CAL. L. REV . 5, 6S8 (1987);
William P. Marshall, “We Know It When We See It”: The Supreme Court and Establishment, 59
S. CAL. L. REV . 495, 496S98 (1986); Michael W. McConnell, Accommodation of Religion, 1985
S. CT . REV . 1, 1S3, 6.
8
implicates excessive government entanglement with religion. Accordingly, for
Appe llants to prevail, they mu st show that, given the particu lar facts of this
case, the use of the Seal violates either the purpose test or the effect test of
Lemon.
A. Purpose Prong
“Under the Lemon analysis, a s tatute or practice which touches upon
religion, if it is to be permissible under the Establishment Clause, must have a
secular purpose.” County of Allegheny, 492 U .S. at 592 . Accor ding to
Appellants, our analysis of this prong could begin and end with Stone v.
Graham, 449 U .S. 39 (1 980) (p er curiam ). Although inf ormativ e, Stone does
not foreclose our inquiry.
In Stone, the Sup reme C ourt inv alidated a K entucky statute that required
the posting of the text of the Ten Commandm ents on the wall of every public-
school classroom. 449 U.S. at 41. Describing the Ten Commandments as an
“undeniably sacred text,” the Court found that the “pre-eminent purpose for
posting the Ten Comm andments on schoo lroom walls is plainly religiou s in
nature.” Id. Stone, howe ver, does not stand for the proposition that there can
never be a permissible secular use of the Ten Commandments. The opinion
9
distinguishes Kentucky’s posting the text of the Ten Commandments on
schoolroom walls fro m cons titutionally a pprop riate uses o f the Co mman dments
and other parts of the B ible in a public-sch ool curriculum , such as “an
approp riate study of history, civ ilization, ethics, comparative religion, or the
like.” Id. at 42. Accordingly, because governmental use of the Ten
Commandments is not a per se violation of the purpose prong, we must
continue our inquiry and determine whether the Seal’s depiction of the Ten
Commandments and sword h as a secular purpose.
Lemon’s first prong requires us to ascertain the purpose of the relevant
governmental practice. Appellees argue that the first prong of Lemon is
satisfied because state law requires the superior court’s cle rk to hav e a seal. See
O.C.G.A. § 15-6-61(a)(7) (2001). Appellees’ assertion, however, misperceives
the true inquiry. Under the purpose test, the relevant inquiry is not whether
there was a secular purpose for creating and using a legal seal; it is to determine
the government’s purpose for adopting this particular seal, one that depicts the
Ten Commandments and sword.
As stated previously, the District Court found, and b oth parties concede,
that there was no evidence regarding the original purpose for adopting the
design of the Seal and that the Seal has existed in its current form since at least
10
1872. The District Court hypothesized that, because approximately thirty-five
percent of Georgia’s population in 1872 was illiterate, the then-clerk of the
court may have chosen the Ten Commandments and the sword as pictographs
that were easily recognizable symbols of the law. Additionally, the District
Court found that a pictograph of the Ten Commandments w as, in add ition to
being a religiou s symbo l, a secular s ymbol f or the ru le of law . Nevertheless,
the court admitted that the purpose for adop ting this particular seal design has
been “los t in the mis ts of histo ry.”
This case, there fore, presents the issue of how to apply the pu rpose test
when there is no evidence of the government’s intent for adopting a particular
practice. No de cision fro m the S uprem e Cour t or the E leventh Circu it
addresses this issue d irectly, but p receden ts do give som e guidan ce. In Rabun
Coun ty we stated, “At the core of the Establishment Clause is the requirement
that a government justify in secular terms its purpose for engaging in activities
which may appear to endorse the beliefs of a particular religion.” Rabun
Coun ty, 698 F.2d at 1110. Hence, it seems that the government always has the
obligation to prop ose a secu lar justificatio n for the challeng ed practic e. This
does not mean, however, that the g overnm ent fails the purpo se pron g in cases in
11
which there is no available evidence of the original intent for adopting a
practice.
When there is no evidence of the original purpose for adopting a practice,
the government may propose possible secular justifications for the challenged
practice. In Mueller v. Allen, 463 U.S. 388 (1983), the Supreme Court
explained that it was reluctant to attribute an unconstitutional motive to the
government where a “plausible secular purpose” may be discerned from the
statute. Id. at 394S 95; see also Adler, 206 F.3d at 1075. The fact that the
government articulates a possible legitimate secular purpose for the practice,
however, does not mean that it has satisfied the purp ose pro ng. Alth ough c ourts
should be “deferential to a State’s articulation of a secular purpose,” Edwards v.
Aguillard, 482 U .S. 578 , 586 (1 987), th e party ch allenging the governmental
practice can prevail under the purpose prong if it can show that the
governm ent’s articulated secular purpose is insincere or a “sham.” Id. at 587;
cf. Stone, 449 U.S. at 41 (explaining that an “avowed” secular purpose that is
“self-serving” is “not suf ficient to avoid conflict with the First Amendment”).
Therefore, once the government proposes a possible secular purpose for the
challenged practice, the party ch allenging the practic e has the o pportu nity to
rebut the stated secular purpose with evidence showing that the articulated
12
purpose is insincere or a sham. See id.; cf. Lynch, 465 U.S. at 679 (“The Court
has invalidated legislation or governmental action on the ground that a secular
purpose was lacking, but only when it has concluded that there was no question
that the statute or activity was motivated wholly by religious considerations.”).
Apply ing this approach to the present case, Appellees have articulated a
plausible secular purpose for the design of the Seal. They claim that, in the
context of authenticating legal documents, using a pictograph of the Ten
Comm andme nts intertwined with the sword helps viewers recognize the legal
validity of documents. 5 The District Court’s findings support A ppellees’
proposed justification. The court found that during the 1870s the outline of the
Ten Comm andme nts presu mably w ould ha ve enab led illiterate citiz ens to
recognize the legal validity of documents displaying the Seal. Appellees’
proffered secular justification satisfies the initial burden under the purp ose
prong. Because there is no evidence of the purpose in adopting the Seal’s
design and because Appellants have not shown that the articulated secular
purpose is implausible, we conclude that App ellees have satisfied the first
prong of the Lemon test.
5
Appellees’ br. at 19S21.
13
Of course, this analysis applies only when there is no evidence of
governmental intent for adopting a practice. When evidence shows that
endorsement or promotion of religion was a primary purpose for the challenged
practice, the inquiry ends, as the practice violates the Establishme nt Claus e.
See Edwards, 482 U.S. at 585 (holding that Louisiana’s Balanced Treatment for
Creation-Science and Evolution-Science in Public School Instruction Act was
unconstitutional because the act’s primary purpose was the promotion of a
particular religious belief); Wallace v. Jaffree, 472 U.S. 38, 57S 59 (1985)
(holding that Alabam a’s moment-of-silence statute was unconstitutional
because legislative history showed that the statute’s primary purpose was to
promote prayer and religion).
B. Effect Prong
The second inquiry of the Lemon test, the effect prong, is whether the
“principal or primary effect” of a challenged law or conduct is “to advance or
inhibit religion.” Lynch, 465 U .S. at 679. The Court has explained the effect
prong to mean that, even when evidenc e of religious purpose is lacking, the
Establishment Clause prohibits the government from “appearing to take a
position on questions of religious belief or from ‘making adherence to a religion
14
relevant in any way to a person’s stan ding in the po litical commun ity.’”
Coun ty of Allegheny, 492 U.S. at 594 (quoting Lynch, 465 U.S. at 687
(O’Connor, J., concurring)). Two of the Court’s most recent religious -symbo ls
cases give guidance in applying Lemon’s effect prong.
1. Prior Precedent
a. Lynch v. Don nelly
In Lynch v. Don nelly, 465 U.S. 668 (1984 ), the Supreme Court held that
the City of P awtuck et, Rhod e Island did not violate the Establishment Clause
when it displayed a crèche a s part of its annual C hristmas display. In addition
to the crèche, which is a representation of the Nativity scene, the display
included a Santa Clause house, reindeer, candy-striped poles, a Christmas tree,
carolers, hundreds of colored lights, and a large banner with the words “Seasons
Greetings.” Id. at 671.
Rejecting a strict wa ll-of-separation theory of the Establishment Clause,
the Court cited numerous examples of “the Government’s acknowledgment of
our religious heritage and governmental sponsorship of that heritage,” id. at
677, to demo nstrate that the Constitution does not prevent government from
ever using re ligious sy mbols o r referen ces to div inity. See id. at 673–78. The
15
Court explaine d, “In eve ry Estab lishmen t Clause case, we must reconcile the
inescapa ble tension between the objective of preventing unnecessary intrusion
of either the church or the state upon the other, and the reality that, as the Court
has so often noted, total separation of the two is not possible.” Id. at 672. The
Court continu ed, “In eac h case, the inquiry c alls for line drawin g; no fix ed, per
se rule can be framed.” Id. at 678.
Repeating the three “useful” “inquiries” of the Lemon test, the Court
emphasized that the constitutionality of the government’s use of a
predom inantly religious symbo l depend s on the c ontext in which it appe ars. Id.
at 679. Hence, the Court instructed that in deciding the constitutionality of
Pawtuck et’s display, the “focus of our inquiry must be on the crèche in the
context of the Christmas season.” Id. (emph asis adde d). Fur thermo re, in
reviewing precedent, the Court explained that the state practices in Stone v.
Graham, 449 U .S. 39 (1 980) (p er curiam ), and Abington School District v.
Schempp, 374 U.S. 203 (1963) (Bible study in public schools), were
impermissible because the government did not use the religious writings in a
context s ufficiently related to a secular p urpose. See Lynch, 465 U .S. at 679 .
Applying these principles, the Court held that the district court erred
when it found that the crèche display served no secular purpose. Celebrating
16
the Christmas holiday season and depicting the origins of that holiday, the
Court explained, were “legitimate secular purposes.” Id. at 681. Furthermore,
the Court applied Lemon’s effect test a nd con cluded th at the use o f the nativ ity
scene, at least in the context of a Christmas display that included both religious
and nonreligious symbols, did not have the primary effect of advancing or
endors ing religio n. See id. at 683, 685–86.
In a concurring opinion that has influenced subsequent religious-symbol
cases, Justice O’Connor framed the central issue in the case as “whether
Pawtucket has endorsed Chris tianity by its display of the crèche.” Id. at 690
(O’Connor, J., concu rring). “T o answ er that question, w e must ex amine b oth
what Pawtucket intended to communicate in displaying the crèche and what
message the City’s display actually conveyed. The purpose and effect prongs
of the Lemon test represent these tw o aspects of the meaning o f the City’s
action.” Id. (O’Connor, J., concurring). According to the concurrence, “[t]he
meaning of a statement to its audience depends both on the intention of the
speaker and on the ‘objective’ meaning of th e statement in the community.” Id.
(O’Connor, J., concurring). Thus, the test has both a subjective and an
objective compo nent. A govern mental sta tement o r action fails Lemon’s
purpose prong if, despite the existence of a stated secular purpose, the
17
“government intends to convey a message of endorsement or disapproval of
religion.” Id. at 691 (O’Connor, J., concurring). The effect prong asks
whether, irrespectiv e of government’s actual purposes, the practice under
review in fact w ould co nvey a m essage o f endor sement o r disapp roval to an
inform ed, reaso nable ob server. Id. at 690 (O’Connor, J., concurring).
In applying the effect prong, Justice O’Connor reasoned that “[a]lthough
the religious and ind eed sectar ian signif icance of the crèch e . . . [was] not
neutralized by the setting, the overall holiday setting change[d] what viewers
[would] fairly understand to be the purpose of the display . . . .” Id. at 692
(O’Connor, J., concurring). “Every government practice,” she stated, “must be
judged in its unique circumstances and context to determine whether it
constitutes an endorsement or disapproval of religion.” Id. at 694 (O’Connor,
J., concur ring) (em phasis added). Because governmental celebrations of the
holiday season are so common, Justice O’Connor concluded that a reason able
person would not perceive a crèche that is accompanied by purely secular
symbo ls of the se ason to b e a gove rnmen tal endor sement o f religion .
b. County of Allegheny v. American Civil Liberties Union
18
A more recent religious-symbol case is Coun ty of Allegheny v. ACLU,
Greater Pittsburgh Chapter, 492 U.S. 573 (1989). That case involved tw o
holiday displays located on public property. The first was a crèche displayed
on the Grand Staircase of the county courthouse during the Christmas season.
The crèche “include[d] figures of the infant Jesus, Mary, Josep h, farm animals,
shepherds, and wise men, all placed in or before a wooden representation of a
manger, which ha[d] at its crest an angel bearing a banner that proclaim[ed]
‘Gloria in Excelsis Deo!’” Id. at 580. A fence and a backdrop of greenery and
poinsettias surrounded the Nativity scene, and a sign indicated the name of the
donor, but no other secular symbols or decorations accompanied the display.
“Altogether, the crèche, the fence, the poinsettias, and the trees occupied a
substantial amoun t of space on the G rand S taircase,” w hich was “the ‘main ,’
‘most beautiful,’ and ‘most public’ part of the courthouse . . . .” Id. at 579S 80.
The second holiday display was located at the entrance to the main office
building for the city and coun ty. The d isplay con tained an 18-foo t-tall
Chanukah menorah 6 standing next to a 45-fo ot-tall ever green C hristmas tree. A
6
“Menorah” is Hebrew for “candelabrum,” County of Allegheny, 492 U.S. at 583 n.14 (quoting
11 Encyclopaedia Judaica, “Menorah,” at 1356), and traditionally is used to celebrate Chanukah,
a religious holiday. For a discussion of the Chanukah menorah and its history, see id. at 583S85.
19
sign referred to the display as a “Salu te to Liberty.” The ACLU argued that the
use of the crèche and the menorah violated the Establishment Clause.
A splintered Court h eld that the crèche d isplay vio lated the E stablishment
Clause but that the use of the menorah did not. Justice Kennedy, joined by
Chief Justice Rehnquist and Justices White and Scalia, believe d that bo th
displays were co nstitution al; Justice B rennan , joined b y Justices M arshall and
Stevens, would have found both to be unconstitutional. Only Justices
Blackmun and O’Connor believed that the menorah display was constitutional
and that the crèche display was not, but, as they were the “swing votes” in the
case, their view prevailed.
In holding the crèche display unconstitutional, the Court focused on the
display’s effect. The Court began its analysis by explaining that “[u]nder the
Court’s holding in Lynch, the effect of a crèche turns on its s etting” an d that,
unlike the display in Lynch, the crèche in this case stood alone as “the sin gle
element of the display on the Grand Staircase.” Id. at 598. “[N]othing in the
context of the display detract[ed] from the crèche’s religious message.” Id.Furthermore, because the crèche sat on the Grand Staircase, which was “the
‘main’ and ‘most beautifu l part’ of th e buildin g that is the seat of co unty
govern ment,” the Court reasoned that “[n]o viewer could reasonably think that
20
it occupie[d] this location without the support and approval of government.” Id.
at 599. The Court explain ed that “by permittin g the ‘disp lay of the c rèche in
this particular physical setting,’ the county sends an unmistakable message that
it supports and promotes the Christian praise to God that is the crèche’s
religious message.” Id. at 600 (internal citation omitted). The Court concluded,
“The display of the crèche in this context, therefore, must be perma nently
enjoined .” Id. at 602 (emphasis added). In short, the Court assessed the
crèche’s “endors ement ef fect” by analyzing the display’s overall context and
the displa y’s likely im pact on r easonab le viewe rs. Id. at 598S 602.
As part of its dis cussion of the crè che disp lay, the Co urt explicitly
rejected the “proselytization” approach, which Justice Kennedy had proposed as
an alternative to the Court’s endorsement inquiry. Id. at 602. Furthermore, the
Court declined Justice Kennedy’s reading of Marsh v. Chambers, 463 U.S. 783(1983), explaining that “history cannot legitimate practices that demonstrate the
governm ent’s allegiance to a particular sect or creed.” Allegheny County, 492
U.S. at 603.
The Court did not agree on the reason for upholding the menorah display,
so it issued only a judgment declaring that the menorah display was
constitutio nal. Justices B lackmu n and O ’Conn or, the sw ing vote s, focuse d their
21
individual opinions on the importance of context when applying the effect
prong, just as the Court had done in its opinion regarding the crèche display.
See id. at 595S 97, 613S 21 (op inion of Blackm un, J.); id. at 624–27 (O’Connor,
J., concurring).7
Supreme Court precedent in the most recent religious-symbols cases
makes one thing clear: when applying Lemon’s effect test, the co nstitution ality
of the government’s use of a predominantly religious symbol depends upon the
context in which it appears. In religious-symbols cases, context is the
7
Relying on Justice O’Connor’s Lynch concurrence, Justice Blackmun explained, “The effect
of the display depends upon the message that the government’s practice communicates: the
question is ‘what viewers may fairly understand to be the purpose of the display.’” Id. at 595(opinion of Blackmun, J.). “That inquiry, of necessity, turns upon the context in which the
contested object appears: ‘[A] typical museum setting, though not neutralizing the religious
content of a religious painting, negates any message of endorsement of that content.’” Id.(opinion of Blackmun, J.) (quoting Lynch, 465 U.S. at 692 (O’Connor, J., concurring)).
Explaining the result in Lynch, Justice Blackmun noted that “despite divergence in the bottom
line, the five Justices in concurrence and dissent . . . agreed upon the relevant constitutional
principles: the government’s use of religious symbolism is unconstitutional if it has the effect of
endorsing religious beliefs, and the effect of the government’s use of religious symbolism
depends upon its context.” County of Allegheny, 492 U.S. at 597 (opinion of Blackmun, J.).
Applying these principles, Justice Blackmun recognized the menorah as a religious
symbol, but concluded that “the menorah’s message is not exclusively religious” and “has both
religious and secular dimensions.” Id. at 613–14 (opinion of Blackmun, J.). Given the
menorah’s “particular physical setting,” which included a large Christmas tree and a sign
saluting liberty, Justice Blackmun reasoned that “the city’s overall display must be understood as
conveying the city’s secular recognition of different traditions for celebrating the winter-holiday
season.” Id. at 620 (opinion of Blackmun, J.).
Justice O’Connor wrote separately from Justice Blackmun on the effect-prong analysis
and concluded that “[a] reasonable observer would . . . appreciate that the combined display is an
effort to acknowledge the cultural diversity of our country and to convey tolerance of different
choices in matters of religious belief or nonbelief by recognizing that the winter holiday season
is celebrated in diverse ways by our citizens.” Id. at 635 (O’Connor, J., concurring).
22
touchstone; we therefor e must in quire w hether o bserver s wou ld reason ably
believe that the government’s use of a predominantly religious symbol send s a
message of governmental endorsement of religion. See Allegh eny Co unty, 492
U.S. at 598 S 600; Adler, 206 F .3d at 11 01; Chabad-Lubavitch of Ga. v. Miller, 5
F.3d 1383, 1391 n .11 (11 th Cir. 19 93) (en banc). C ourts m ust evalu ate
challenged governmental practices on a case-by-case basis, judging each
practice in its unique circumstances and in its particular physical setting.
2. Application of the Effect Prong
Appe llants argue that using a symbol of the Ten Commandments on the
Seal violates the effect prong because it gives the appearance of governmental
endorsement of religion. As the Supreme Court has recognized, the Ten
Comm andme nts are “undeniably a sacred text in the Jewish and Christian faiths
. . . .” Stone, 449 U .S. at 41. In many contexts, governmental use of the text of
the Ten Commandments would convey a message of endorsement and thereby
violate the Establish ment C lause. See id.Yet, as the Supreme Court explained in Lynch, it is improper to “[f]ocus
exclusiv ely on the religious com ponen t of any ac tivity,” as do ing so “w ould
inevitably lead to its in validation under th e Establishmen t Clause.” Lynch, 465
23
U.S. at 680. Indeed, the Court in Stone noted th at, in the co ntext of p ublic
education, the Ten Commandments “may constitutionally be used in an
appropriate study of history, civilization, ethics, comparative religion, or the
like.” Stone, 449 U .S. at 42. T he issue under the effect p rong in this case is
whether, given the context in which the Seal is used and the Seal’s overall
appearance, the pictograph representing the Ten Commandments conveys a
messag e of religio us endo rsemen t.
Although the Ten Commandments are a predomin antly religio us symb ol,
they also possess a secular dimension. As Stone pointed out, the first four
Comm andme nts concern an individual’s relationship with God and “the
religious duties of believers : worsh iping the Lord G od alon e, avoidin g idolatry,
not using the Lord’s name in vain, and observing the Sabbath Day.” Id. For
this reason, having the text prominently displayed on schoolroom walls implies
a governmental endorsement of religion. The final six comman dments,
however, deal with honoring one’s parents, killing or murder, adultery, stealing,
bearing false witness, and covetousness; 8 all of these prescribe rules of conduct
for dealing with other people. Much of our private and public law derives from
these final six co mman dments . See Stone, 449 U .S. at 45 ( Rehnq uist, J.,
8
Exodus 20:12–17.
24
dissenting) (noting the “undeniable” and “significant” impact that the Ten
Comm andme nts have had on “the development of legal codes of the Western
World”). For this reason, although primarily having a religious connotation, the
Ten Comm andme nts can, in certain co ntexts, ha ve a secu lar significance. See
Coun ty of Allegheny, 492 U.S. at 615 (opinion of Blackmun, J.) (noting that
some holidays have “both religious and secular dimensions”).
The proper inquiry in this case is which of these tw o messa ges the S eal is
most likely to communicate to a reasonable observer. In making th is
determination, we have considere d four factors.
a. Limited Context
First, the Seal is solely limite d to the very narrow context of
authenticating legal doc uments . There is a tight nexu s betwe en a legitim ate
secular purpose for using the pictograph of the Ten Commandments and sword
(using recognizable symbols of secular law, ones that suggest the force of law)
and the context in which the Seal is used (authentication of legal documents).
Even when the govern ment’s motives are permissible, if there is not a tight
nexus between the secular purpose for using a symbol and the context in which
the symbol appears, a reasonable observer may suspect that the true reason for
25
adopting the symb ol was to endors e religion . Cf. Edwards, 482 U.S. at 586
(applying Lemon’s purpose prong to strike down Louisiana’s creation-science
and evolution-science act b ecause, inter alia, there was not a tight fit between
the act’s stated p urpose of prom oting aca demic fr eedom and the act’s effect,
which limited teachers’ autonomy in decidin g how to teach sc ience). In this
case, a reasonable observer has no reason to h arbor such suspicions, 9 as the use
of this recognizable legal symbol promotes the secular purpose of enabling
individuals to recognize the legal validity of documents.
In addition to using the Seal in a manner that promotes a secular purpose,
the clerk of th e superio r court h as not us ed the S eal in con texts in w hich a
reasona ble observer might not und erstand the relationship b etween the S eal’s
symbo ls and its secular purpose. Courts have held the use of religious symbols
to be unconstitutional when the symbols have appeared in contexts in which the
links between the symbols and their suppo sed secu lar purp oses are n ot readily
apparen t. Cf. Friedman v. Bd. of County C omm’r s of Ber nalillo Co unty, 781
F.2d 777 (10th Cir. 1985) (applying Lemon’s effect test a nd hold ing that a
county-wide seal with religious imagery was unconstitutional). Here, however,
the Seal has not proliferated to contexts unrelated to document authentication.
9
Again, under the effect prong, the inquiry is what effect the tablets and sword has in this
context and setting. County of Allegheny, 492 U.S. at 598.
26
As stated previously, with the exception of the embossing instruments
themselves, no representations of the Ten Commandments or other religious
symbo ls appear in the office of the court clerk; the Seal is not displayed in the
superio r court’s courtro om or a nywh ere else in th e courth ouse; an d the Se al is
not used on official stationery or envelopes. Rather, the seal of the state of
Georg ia appears on the office’s official stationery. The clerk of the court has
confined the use of the Seal to the very limited context of authenticating legal
documents, where reasonable observers would logically perceive it as a symbol
of the force of law.
b. Use of Other Symbols in the Seal
Second, the outline of the Ten Com mandments is not the only s ymbol in
the Seal; the Seal also has a depiction of a sword intertwined with the tablets.
The presence of this additional symbol increases the probability that observers
will associate the Seal with secular law rather than with religion.
Appellants argue that the sword is a Christian symbol that enhances the
religious effect of the seal. We conclude, how ever, that the superior court’s use
of the sword cuts the other way when applying the effect test. Although the
sword might occasionally serve as a symbol of Christianity, the sword is among
27
the most recognizable symbols of the secular legal system. For example,
numerous depictions of the female figure Justice are located on the grounds, in
the courtroom, and in the frieze sculptu res of the United States S uprem e Cour t,
usually holding a sword in her right hand and scales in her left.10 The sw ord, in
this context, symbolizes the power of law, which Justice stands re ady to us e in
“the allegorical story of the battle of Good Versus Evil.”11 In fact, another
representation of Justice with a sw ord in h er hand , a statue en titled “Mis s
Justice,” is located in the parking lot of the A ugusta- Richm ond C ounty
municipal building , which houses the supe rior cou rt. This sta tute prob ably
predates the Seal’s inception, and it is likely that most members of the
comm unity who transact business with the county and the superior court have
seen this statue and understand the statue’s sword to be a symbol of the law.
Given the strong symbolic associations between the sword and the power
of law, a reasonable observer is likely to understand the Seal’s depiction of the
Ten Commandments intertwined with the sword as a symbol of the secular legal
system. Like the secular decorations surrounding the crèche in Lynch or the
other lawgivers who acco mpany Mo ses and the Ten Commandments on the
10
See Figures of Justice, Information Sheet, Office of the Curator, Supreme Court of the United
States, at http://www.supremecourtus.gov/about/figuresofjustice.pdf.
11
Id.28
south wall frieze of the Supreme Court building,12 the Seal’s sword and the
words “SUPERIOR COURT RICHMON D COUN TY, GA” contextualize the
Ten Comm andme nts pictog raph. Cf. County of Allegheny, 492 U.S. at 598(“Here, unlike in Lynch, nothing in the context of the display detracts from the
crèche’s religious message.”).
c. Size and Placement of the Seal
Third, the Seal is relatively small, and because it is generally placed near
the bottom or on the last page of legal documents, it is also discreet. In
assessing the effect that a symbol has on a reasonable observer, courts often
analyze the size an d placem ent of the challeng ed practic e. For ex ample, in
Allegheny Coun ty, the Supreme Cou rt noted the crèche display’s special
placement in the Grand Staircase, “the ‘main’ and ‘most beautiful” part of the
building that is the seat of county government.” Allegheny County, 492 U.S. at
600; see also id. at 626 (O’Connor, J., concurring) (“The display of religious
symbols in public areas of core government buildings runs a special risk of
making religion relevant, in reality or public perception, to status in the political
community.”) In Stone, the Court observed that the text of the Ten
12
See Courtroom Friezes: North and South Walls, Information Sheet, Office of the Curator,
Supreme Court of the United States, at http://www.supremecourtus.gov/about/north&
southwalls.pdf.
29
Comm andme nts appeared on the wall of “each public elementary and secondary
school classroom in the Commonwealth,” where “[i]f the posted copies of the
Ten Comm andme nts [we re] to hav e any effe ct at all, it [would] be to induce the
schoolchildren to read, meditate upon,” and perhaps “venerate and obey” the
Comm andme nts. Stone, 449 U.S. at 39 n.1, 42.
Two circuit cou rts of app eals have dealt with Ten Com mandm ents
monu ments that were located or that were to be loca ted on th e groun ds of state
capitols. Adland v. Russ , 307 F.3d 471 (6th Cir . 2002) ; Ind. Civil Liberties
Union v. O’Bannon, 259 F.3d 766 (7th Cir. 2001). In both cases, the
monu ments were “prominently located” at “the heart of state government” and
displayed the text of the Ten Commandments in “large lettering.” Adland, 307
F.3d at 486; see also Ind. Civil Liberties Union, 259 F.3d at 772S 73. Although
the monument in Adland also contained text from other sources of secular law,
the Ten Commandments “occup[ied] the bulk of the surface area and
accordin gly plainly do minate[d ] the mon ument.” Adland, 307 F .3d at 48 6; see
also Ind. Civ il Liberties Union, 259 F.3d at 772S 73 (affirming the grant of a
preliminary injunctio n against constructing the monument because the
monument was larg e and the lettering for the Commandments was larger than
the lettering for the Bill of Rights). The Adland court found that a reason able
30
observer would infer religious endorsement, because the “Ten Commandments
monument physically domin ate[d] the ‘h istorical an d cultural display’ in the
Capitol garden area” and its “sheer dimensions . . . dwarf[ed] all the other
memorials” in the area.
All of these cases found the use of the religious symbols to be
uncon stitutional, and all but the Stone opinion specifically analyzed the effect
that the symbols would have on a reasonable observer. All of the cases
involved displays that were large or “in your face” and occupied a place of
prominence or special honor, often dominating the other objects surrounding
them.13 In contrast, the pictograph of the tablets and sword is at most only one
inch in diame ter and is n ot the foc al point o f any go vernm ental display in an
important public building. Consequently, the Seal’s size and placement make it
less likely that a reasonable observer would believe that the government
intended to send a messag e of religio us endo rsemen t.14
When assessing the effect that a governmental practice would have on a
reasona ble observer, we recognize that it would be improper to rely solely on
any single factor. The fact that a symbol is small or inconspicuous, alone, is not
13
Referring to the size and placement of the Seal, the District Court found that the display of the
Seal was not “pervasive.” Order at 13S15.
14
One plaintiff, Shirley Fencl, acknowledged that although she had possessed documents
bearing the Seal, she had not noticed the pictograph of the tablets and sword until seeing it in the
newspapers and “agree[ing] to this lawsuit.” Fencl Dep. at 12S14.
31
dispositive. The caselaw show s that exclusively religious symbols, such as a
cross, will almost always render a governmental seal unconstitutional, no matter
how small the religio us symb ol is. See, e.g., Robinson v. City of Edmond, 68
F.3d 1226 ( 10th C ir. 1995 ); Harris v . City of Z ion, Lak e Coun ty, Ill., 927 F.2d
1401 (7th Cir. 1991); Friedman, 781 F .2d at 777. Size and placement are,
howe ver, facto rs to con sider in th e overall e ffect-pro ng analy sis.
d. Fact that Seal Does Not Contain the Ten Command ments’ Text
Finally, unlike the depiction of the Ten Commandments in the Stone
case, the text of th e Com mandm ents doe s not app ear on th e Seal. This
distinction is material under the effect test. Because the words “Lord thy God”
and the purely religious mandates (commandments one through four) do not
appear on the Seal, a reasonable observer is less likely to focus on the religious
aspects of the Ten Com mandments. Un like the textual posting in Stone, the
Seal does not “induce [observers] to read, meditate upon, perhap s to vene rate
and obey, the Commandments.” Stone, 449 U.S. at 42. The fact that the Seal
does not show the Commandments’ text distinguishes this case from the
monu ments held to be unconstitutional in Adland v. Russ, 307 F .3d 471 (6th
Cir. 2002), and Indiana Civil Liberties Union v. O’Bannon, 259 F .3d 766 (7th
32
Cir. 2001), where the text appeared in large lettering. Instead, the use of Roman
numer als rather tha n text on the tablets— together with the other factors already
discussed—allows a reasonable observer to infer that the government is using
the Ten Commandments to symbolize the force of law.
Although none of the above factors, standing alone, would be sufficient
to satisfy the e ffect test, in this case the combination of these four factors favors
Appellees’ position. Furthermore, we note that the Seal has been in use for at
least 130 years, a fact th at arguab ly suppo rts App ellees und er the effe ct test. 15
Like all holdings interpreting the Establishment Clause, our holding applies
only to the particular facts of th is case. See Lynch, 465 U.S. at 678S 79. Just as
there is no per se rule that a crèche is constitutional when placed in a display
celebrating the holid ay season , compare id. at 685, with Allegh eny Co unty, 492
U.S. at 601 S 02, there is no per se rule tha t the use o f the Ten Comm andme nts
will be constitutional when used in the context of the legal system.
15
Appellees’ argument that the long use of the Seal affects our analysis under the effect prong,
see Appellees’ br. at 38, implicates Justice O’Connor’s observations about the effect of “the
history and ubiquity of a practice.” See County of Allegheny, 492 U.S. at 630–31 (O’Connor,
J., concurring) (discussing, inter alia, the reason for upholding the practice of legislative prayer
in Marsh v. Chambers, 463 U.S. 783 (1983)). Yet, because the combination of the four factors
already discussed supports our conclusion under the effect test, we need not address what effect,
if any, the “history and ubiquity” of the Seal would have in applying the effect prong.
33
IV. CONCLUSION
Because the use of the Seal does not have the purpose or primary effect
of endo rsing relig ion, we AFF IRM the Distr ict Cour t.
34
EDM OND SON , Chief Ju dge, con curring in the jud gment:
I concur in today’s judgment of the Court. I agree that the pertinent seal
does not violate the Establish ment C lause. I write separately because I am
uncom fortable with the character ization and the manner of application of some
of the precedents discussed as the Court explains its decision. I, however,
readily agree that no precedent comes close to compelling the conclusion that
Defen dants vio late the Fe deral Co nstitution by use o f the seal.
35