Rhetoric 2000 The Case
UNITED STATES COURT OF APPEALS FOR THE CIRCUIT OF OLYMPIA SITTING AT ATHENS, OLYMPIA
CARL LEWIS; ALBERT OERTER; and On behalf of themselves And all others similarly situated: Plaintiffs – Appellants.
Case No. LA84-R60-B36
CITY OF ATHENS, OLYMPIA; Hon. PIERRE De COUBERTAIN, in his official capacity of Mayor: Defendants – Appellees.
Opinion of the Court
Owens, J., Circuit Judge
In May, 1958, members of the Sororital Assembly of Ladies presented a monument to the City of Athens inscribed with, among other things, verses from the book of Exodus in the Old Testament of the Bible commonly called the Ten Commandments. The City accepted the monument and it was placed in an unobtrusive location north of the entrance of City Hall without opposition or complaint. At that time, no one contended that the City's action was unconstitutional. Now, on the basis of what some describe as a "Living Constitution," that action of nearly half a century is being challenged on constitutional grounds.
This cause is currently before the Court on appeal. The Plaintiffs, Carl Lewis and Albert Oerter, filed a complaint with the District Court asking for a declaration that the Defendant City of Athens' display of a monument of the Ten Commandments on publicly owned property violates the Establishment Clause of the First Amendment to the United States Constitution as applied to the states under the Fourteenth Amendment. The Plaintiffs also asked that the City be permanently enjoined from placing the Ten Commandments monument on public property. The District Court denied the request and this appeal followed.
The facts in this case are largely undisputed, however, they are essential to a complete understanding and correct determination of this case. Recent Supreme Court decisions under the Establishment Clause have involved a highly fact sensitive, case-by-case analysis to determine whether a government practice violates the First Amendment to the Constitution. Therefore, this Court will recount the facts with considerable detail for the record.
A large monument containing the text of the Ten Commandments sits outside of the City Municipal Building in Athens. This monument was given to the City of Athens (the "City") in 1958 by the Sororital Association of Ladies (the "SAL") as part of its America's Leading of the Young Program. The Program was initiated by a juvenile court judge (Judge Nurmi) to address what he discerned to be a need common to many of the youth he encountered in court to have some code of conduct or standards by which to govern their actions. He thought that "they could benefit from exposure to one of mankind's earliest codes of conduct, the Ten Commandments."
The judge's purpose was not to provide religious instruction of any kind, but "to show these youngsters that there were such recognized codes of behavior to guide them." He had the idea of posting a copy of the Ten Commandments in juvenile courtrooms around the country. To help fund the program, the judge contacted the SAL seeking their support. The SAL is not a religious organization, but rather a service organization dedicated to promoting "Liberty, Truth, Justice, and Equality." Their main mottoes are "Sororities Are Good Things" and "People Helping Other People is Helpful."
At first, the idea was rejected by the SAL because they felt it might be seen as coercive or sectarian. However, after representatives of the Jewish, Protestant, and Catholic faiths worked together to develop a version which "was not identified with any one religious group," the SAL agreed to support such a youth guidance program.
At this time, the juvenile judge was contacted by motion picture producer Cecille B. DeMille, who was then producing the movie, "The Ten Commandments." Mr. DeMille "thought the program was a wonderful idea," and suggested that something more durable be used for the project like bronze plaques, which could be distributed around the country. Because "the original Ten Commandments were on granite," the judge suggested, and DeMille agreed, that granite monuments would be more suitable. Local chapters, or "provinces," of the SAL paid for the stone monuments and donated them to their local communities. Athens Province No. 1896 dedicated the monument that is the subject matter of the current litigation to the City of Athens pursuant to the purposes of the SAL. Many similar monuments were donated to state and local governments around the country.
The Ten Commandments monument is made of granite and is approximately six feet high and three and one-half feet wide. It is sculpted in the form of two tablets. At the top of each tablet is a floral design that surrounds the representation of two other tablets. Inside the small tablets are letters identified by the Plaintiffs' expert as an ancient Hebrew script, but for which he offers no translation. Between the two small tablets is an eye within a pyramid -- an "all-seeing eye" similar to that depicted on the one-dollar bill. Immediately below this symbol is an American Eagle grasping an American flag.
The largest portion of the monument is taken up with the text that was put together through the collaborative effort mentioned above. It is written in an old English font and reads as follows:
The Ten Commandments
- I AM the LORD thy God.
- Thou shalt have no other gods before me.
- Thou shalt not make to thyself any graven images.
- Though shalt not take the name of the Lord thy God in vain.
- Remember the Sabbath day, to keep it holy.
- Honor thy father and thy mother, that thy days may be long upon the land which thy Lord thy God giveth thee.
- Thou shalt not kill.
- Thou shalt not commit adultery.
- Thou shalt not steal.
- Thou shalt not bear false witness against thy neighbor.
- Thou shalt not covet thy neighbor's house.
- Thou shalt not covet thy neighbor's wife, nor his manservant, nor his maidservant, nor his cattle, nor anything that is thy neighbors.
Below this text, there are two stars of David, symbols associated with the Jewish religion, similar to the star on the Israeli flag. In the center between the two stars of David are two Greek letters, Chi and Rho, one superimposed upon the other. These are the first two letters in the name "Jesus Christ" and this symbol was developed in the early church and is still seen in some Catholic Churches. At the base of the monument, a small scroll appears with these words:
THE CITY OF ATHENS
SAL PROVINCE 1896
SORORITAL ASSOCIATION LADIES
This inscription is in type that is larger than in the main text of the Ten Commandments, but smaller than the text in the title.
The Municipal Building for the City is in the downtown district and is located on the northwest corner of Second and High Streets. The Municipal Building houses a variety of city offices including the mayor's office, the legal department, the human relations department, the city court, the prosecutor's office, the offices of the court clerk, the city clerk's office, the planning and development office, and the offices of the common council, among others. The City also owns property on two of the other three corners at this intersection which are occupied by the Athens Public Library and the County Courts Building.
Most of Municipal Building lot is taken up by the building itself, the sidewalks, and the parking lot. However, the City maintains a grass lawn approximately 25 feet wide between the building and the sidewalks along Second and High Street. On the southeast corner of the lawn, the corner nearest the intersection, is a war memorial composed of two monuments. One was donated by the Daughters of the American Revolution to commemorate Revolutionary War Veteran's buried in Athens County. It consists of a large stone with a plaque that states:
"ERECTED BY THE WILLIAM TUFFS CHAPTER OF THE DAUGHTERS OF THE AMERICAN REVOLUTION IN HONOR Of THE REVOLUTIONARY SOLDIERS BURIED IN GRECIAN COUNTY. WILLIAMS TUFFS. WALTER DENNY. JOHN PROCTOR. JULY 4, 1932."
Behind the stone is a brick pillar, also with a plaque, that states: "Behold Friend, You Are Now On Hallowed Ground For Here Burns Freedom's Holy Light" (hereinafter referred to collectively as the "War Memorials"). On the northeast corner, the corner nearest the parking lot, is the larger Ten Commandments monument. Approximately in the center between the two memorials is the main entrance to the Municipal Building. The building also has two other entrances, a public entrance on the south side and one on the northwest side that is primarily used for employees. Over the main entrance to the Municipal Building is a bas relief of an olive branch flanked on one side by the word "DEDICATVM" and "INCORPORATED 1875" on the other side by the word "JVSTITIAM" and "ERECTED 1915" with the letters "AD" directly above the olive branch.
The two memorials are approximately the same distance from the entrance, one is forty-six feet, the other forty-eight. They are also about the same distance from the sidewalks, approximately ten feet. The City landscapes both memorials in such a way that from the front they create a balanced effect. Both are partially shaded by trees, and can be seen but not read by a person walking up the sidewalk to the main entrance.
A person walking along the sidewalk towards the intersection could read the text on the Revolutionary War Memorial. A person walking from the main entrance to the parking lot could read the text on the Ten Commandments monument. Both monuments can be seen by a person driving on Second Street, but the text of the Ten Commandments is larger and can be read from further away, with the first two lines visible from approximately sixty feet away. The City maintains numerous other displays of historical significance in and around its public buildings, as well as other memorials dedicated to war veterans, including inside the Municipal Building itself, but none are visible at the same time as the challenged monument.
Plaintiff Carl Lewis is a resident of Athens who first noticed the Ten Commandments monument around 1990, when he was "driving real slow in a delivery truck." In November, 1997, he wrote a letter to the American Civil Liberties Union (the "ACLU") about the monument. In 1998, the Olympia Civil Liberties Union (the "OCLU") contacted the Mayor on behalf of Lewis and asked the City to remove the monument or they would file a lawsuit. The City, after considering the request, passed the following resolution:
WHEREAS, the issue of the Ten Commandments Monument outside Athens City Hall has been raised by a person who is represented by the Olympia Civil Liberties Union. The Olympia Civil Liberties Union has contacted the Mayor of the City of Athens and has stated that a lawsuit will be filed if the Ten Commandment Monument is not removed.
WHEREAS, in recognition of the historical significance of the Ten Commandments, the Fraternal Order of SAL presented the Ten Commandment monument to the City of Athens in May, 1958. In addition to the Ten Commandments, the Monument contains symbols that reflect the cross cultural and historical significance of the Ten Commandments.
WHEREAS, the Ten Commandments Monument has stood outside in an unobtrusive location to the north of the entrance of City Hall since 1958. There are numerous other historical and cultural plaques, memorials, and monuments located south of the entrance of city hall, in the foyer just inside the city hall entrance, at the first floor open area of city hall, and at the second and third floor open areas of city hall; and
WHEREAS, the Ten Commandments have had a significant impact on the development of the fundamental legal principles of Western Civilization.
NOW, THEREFORE, BE IT RESOLVED BY THE COMMON COUNCIL OF THE CITY OF ATHENS THAT:
The Ten Commandments Monument is a historical and cultural monument that reflects one of the earliest codes of human conduct. It is proper for the Ten Commandments Monument to remain and the defense of this position is strongly endorsed.
This resolution was passed and adopted by the Common Council May 4, 1998. As promised, attorneys for Lewis and Oerter, (whose involvement is discussed below) in conjunction with the OCLU, immediately filed this suit in federal district court.
Lewis contends that he must come into direct and unwelcome contact with the monument in order to participate as a citizen of Athens, since it is "by the main entrance to the Municipal Building." At times, he must pass the monument to conduct business in the Municipal Building, such as to attend a City Council meeting and to talk to the City Council's Clerk. In addition, Lewis states that he must pass the monument when driving home from work. Lewis states that he believes that placing the monument near the entrance of the Municipal Building is an endorsement by government, and that it discriminates against atheists. He states that he does not always look at the monument, but says, "Even if I don't see it, I certainly know it is there. It offends me if I think about it." Lewis stated that it would be offensive should any acknowledgment of religious history by a governmental entity be given in a display.
Albert Oerter has lived in Athens approximately six years. He stated in his deposition that he learned about the lawsuit when he read about the OCLU's demand to the City to remove the Monument. He too is offended by the monument. Oerter states that he too must come into direct and unwelcome contact with the monument in order to participate as a citizen of Athens. In addition, he says that he must frequently pass the monument in his daily activities, such as when riding his bicycle, going to the library across the street or conducting business in the area. However, he states that he has never altered his route or made any changes in his ordinary routine in order to avoid the monument. He states that he is deeply offended by the monument and believes it to be an illegal endorsement of religion by the City.
The issue before the Court is whether the City's display of a monument on public property containing, among other things, a message that has both religious and historical significance, is prohibited by the First Amendment to the Constitution. That amendment reads, "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof." These sixteen words, elegant in their simplicity, have engendered endless litigation as courts have attempted to find in them guidelines for the appropriate relationship between religion and the state.
This steady stream of litigation started in 1947 when Justice Black adopted Thomas Jefferson's metaphor for the relationship between church and state and built it into a "high and impregnable wall" of separation. Everson v. Board of Education, 330 U.S. 1, 67 S.Ct. 504, 91 L.Ed. 711 (1947). The metaphor raised more questions than it answered, and has led to the development of no less than five tests for determining when government action passes the wall and becomes a law "respecting an establishment of religion." Despite this wealth of different approaches to this issue, and despite the fact that litigants can find useful and persuasive arguments from all the different tests, this Court will use the test which prevails in this Circuit, the test of Lemon v. Kurtzman to judge Athens' Ten Commandments problem.
The Lemon test was first developed by Chief Justice Burger in Lemon v. Kurtzman, a school case challenging the constitutionality of state aid to nonpublic schools. Lemon v. Kurtzman, 403 U.S. 602, 612-613, 91 S.Ct. 2105, 29 L.Ed.2d 745 (1971). It used to be that the Lemon v. Kurtzman test required a three part analysis for determining whether a challenged statute is permissible under the Establishment Clause:
1) the statute must have a secular purpose;
2) its primary effect must be one that neither advances nor inhibits religion; and
3) the statute must not foster an excessive entanglement with religion. Id.
Now, the second and third portions of the test are discussed together, so this Court will consider them together as well.
However the Lemon analysis is shaped, it remains clear that, "If a statute violates any of these three principles, it must be struck down under the Establishment clause." Stone v. Graham, 449 U.S. 39, 41, 101 S.Ct. 192, 66 L.Ed.2d 199 (1980).
A. The Secular Purpose Prong
The first prong of Lemon tells the Court that in order to be constitutional, government action must have a secular purpose. As a general rule, courts are deferential to decisions of the other branches of government and accept their stated purpose. Edwards v. Aguillard, 482 U.S. 578, 586-87, 107 S.Ct. 2573 (1987). Where the government asserts a secular justification for its actions, it bears the burden of producing evidence to support that justification. A secular purpose need not be an exclusive one; it is sufficient if the government has a secular purpose. However, the stated purpose must be sincere and cannot be a sham. Bridenbaugh v. O'Bannon, 185 F.3d 796, 797 (7th Cir. 1999).
The Supreme Court applied the Lemon test in Stone v. Graham, 449 U.S. 39, 101 S.Ct. 192, 66 L.Ed.2d 199 (1980). In Stone, the Court held that Kentucky's statute requiring every public school classroom to display a copy of the Ten Commandments violated the Establishment Clause. The Court ruled that the statute failed on the first prong of the test because the pre-eminent purpose for posting the Ten Commandments on schoolroom walls is plainly religious in nature.
The key evidence in determining the intent of the SAL was a copy of the same letter written by the juvenile justice judge who originated the program. This Court attributes the intent of the donor, SAL via Judge Nurmi, to the donee, the City of Athens. The City's purpose, promoting morality among its youth, is a legitimate aim of government and traditionally part of the police powers of the state. Therefore, the Court determines that the City of Athens had a secular purpose originally in accepting the Ten Commandments monument, and that it has successfully stated a secular purpose for continuing to display the monument on City property.
An important consideration is the pronouncement from this year's Olympia legislature. The Olympia General Assembly enacted two statutes, one of which permits the Ten Commandments to be displayed on state property. The other statute permits the practice on local property (such as that of Athens):
An object containing the words of the Ten Commandments may be displayed on real property owned by a political subdivision along with other documents of historical significance that have formed and influenced the United States legal or governmental system. Such display of an object containing the words of the Ten Commandments shall be in the same manner and appearance generally as other documents and objects displayed, and shall not be presented or displayed in any fashion that results in calling attention to it apart from the other displayed documents and objects.
Olympia Revised Statutes, M56-H52.
Neither party argues that the statute answers the case of "secular purpose" completely. Neither party suggests that this Court's analysis should change, in the year 2000, to determine intent in 1958. Despite these caveats, the Court nonetheless finds the statute persuasive as evidence of legislative intent and significant, influential reasoning that the intent as it exists now is permissible under Lemon.
B. Primary Effect of Advancing Religion.
As noted previously, this section will discuss the second and third prongs together, since the Supreme Court recently collapsed these two parts of the Lemon analysis into one. See Agostini v. Felton, 521 U.S. 203, 117 S.Ct. 1997, 138 L.Ed.2d 391 (1997). Really, for purposes of this case, the portion of the Lemon analysis that is relevant is whether the City's placement of the Ten Commandments monument on the Municipal Building lawn has the prohibited effect of advancing religion. No one seriously contends that the Ten Commandments, by themselves, create an "excessive entanglement" between government and religion. The Ten Commandments will rise and fall, then (and only analytically speaking) with the advancement question.
Bridenbaugh is instructive. There, the plaintiff challenged the constitutionality of Indiana's Good Friday holiday for State employees. The plaintiff claimed the Good Friday holiday advances religion because it makes it easier for Christians to practice their faith by having the day off. This argument failed because the Supreme Court has made clear that "not every law that confers an Ôindirect, remote, or incidental' benefit upon religion is for that reason invalid." Bridenbaugh, quoting Lynch, 465 U.S. at 683, 104 S.Ct. 1355. The Court pointed out that no court has ever invalidated a state holiday merely because it has the indirect effect of making it easier for people to practice their faith. Id. at 801-02.
Bridenbaugh is not, however, a Ten Commandments case. In such a case, courts and commentators alike frequently base their analysis of the context on Justice Stevens' concurring opinion in Allegheny, in which he discussed the frieze on the south wall of the United States Supreme Court building, and in which he advocated application of a strong presumption against the public use of religious symbols. County of Allegheny v. American Civil Liberties Union, 492 U.S. 573, 109 S.Ct. 3086, 106 L.Ed.2d 472 (1989). Justice Stevens was joined by Justice Brennan and Justice Marshall, concurring in part and dissenting in part. Id. at 646, 109 S.Ct. 3086. This strong presumption would prohibit a display only when its message is nonsecular when evaluated in the context in which it is presented. Id. Justice Stevens goes on to say:
For example, a carving of Moses holding the Ten Commandments, if that is the only adornment on a courtroom wall, conveys an equivocal message, perhaps of respect for Judaism, for religion in general, or for law. The addition of carvings depicting Confucius and Mohammed may honor religion, or particular religions, to an extent that the First Amendment does not tolerate any more than it does "the permanent erection of a large Latin cross on the roof of city hall." Placement of secular figures such as Caesar Augustus, William Blackstone, Napoleon Bonaparte, and John Marshall alongside these three religious leaders, however, signals respect not for great proselytizers but for great lawgivers. It would be absurd to exclude such a fitting message from a courtroom, as it would be to exclude religious paintings by Italian Renaissance masters from a public museum.
Id. (citations omitted).
It is self-evident that if a person stands close enough to a religious symbol, it will not appear to be in the context of a larger display. The question, then, is whether a reasonable observer, familiar with the content of the Ten Commandments monument and its context, would believe that the City of Athens was endorsing a particular religious belief. In examining the content, the Court must consider everything on the face of the monument and the historical and cultural importance of those items. In evaluating the context, the Court must look beyond the immediate location of the monument and determine if it is part of a larger display by the City of various items of historical and cultural importance, as the City claims. Finally, the Court must determine if the monument's location near the seat of power tips the scales towards finding that a reasonable observer might think the City is endorsing religion.
Regarding the content of the monument, other courts have had before them more substantial evidence as to the meaning of each of the symbols. The monument contains various religious symbols that express a desire to include something for everyone, although as is frequently the case, it is possible that they have managed to offend everyone in the process. It includes an "all-seeing eye" inside of a pyramid, which has both a religious meaning based on the religions of ancient Egypt, and a nonsecular meaning as one of the symbols used on the one-dollar bill. It includes two Jewish symbols, the stars of David, and a symbol used in the early Catholic Church. Besides these religious symbols, it contains an eagle and a flag, both generally accepted as patriotic symbols. Finally, the monument contains an inscription at the bottom stating that is was donated by the SAL.
Although the text of the Ten Commandments dominates the monument, it cannot be said that the message of the monument is exclusively religious. A neutral observer looking at the monument, presumed to have an awareness of its history, would know that the Ten Commandments has both religious and historical significance in this nation. The observer should be able to tell by looking at the monument that it attempts to acknowledge equally the significance of the major religions represented in this country at the time of its donation to the City. In addition, the observer would know that the City has included the monument as part of its overall collection of displays of historical and cultural significance. The lawn in front of the Municipal Building is small, and the City could not be expected to put all of its displays in one place. Local municipalities should be granted some latitude by the federal courts in how they arrange artistic displays in the space they have available.
The question of the monuments' location near the seat of government is a difficult one. If the City had a large park nearby where it could place the monument with others, the case would be easier. However, the City has pointed to other monuments at least an equal distance from the courthouse door, with additional displays inside. In any event, this Court holds that it is not an unconstitutional endorsement of religion for the City of Athens to acknowledge the importance of the Ten Commandments in the legal and moral development of this nation by displaying this monument in its present location on the lawn of the Municipal Building.
The Ten Commandments monument in the City passes constitutional muster. The monument was a gift from the SAL, and Plaintiffs have not alleged that the City expends taxpayers' money in maintaining it. Any money spent on landscaping and maintenance would probably be spent whether the monument was there or not. Nor do they allege that anyone is forced to stand in front of the monument and read its religious message. In other words, the presence of the statue completely lacks the necessary element of coercion which is inherent in the concept of "advancing" a religion.
If one accepts the view that the First Amendment's purpose was to prevent people from being coerced into contributing to religions with which they disagree, or to participate in unwelcome religious exercises, then the passive acceptance and continued display of a monument containing the Ten Commandments does not violate the Establishment Clause.
There is a labyrinth of decisional law on the Religion Clauses of the First Amendment. However, in this Circuit, the Lemon test reigns supreme. Under that test, the Plaintiffs fall far short of establishing that they are entitled to an injunction in their favor. This Court is will not compel Athens to tear down the monument. The Plaintiffs' requested relief was properly DENIED.
Circuit Judge Rafer Johnson concurs.
UNITED STATES COURT OF APPEALS
FOR THE CIRCUIT OF OLYMPIA
SITTING AT ATHENS, OLYMPIA
CARL LEWIS; )
ALBERT OERTER; and )
On behalf of themselves )
And all others similarly situated )
Plaintiffs - Appellants, )
v. ) Cause No. LA84-R60-B36
CITY OF ATHENS, OLYMPIA; )
Hon. PIERRE De COUBERTAIN; )
in his official capacity of Mayor )
Defendants – Appellees. )
Wilma Rudolph, Circuit Judge.
I agree that government actions challenged under the Establishment Clause are reviewed under what is really a two-part test set forth in Lemon v. Kurtzman, 403 U.S. 602, 91 S.Ct. 2105, 29 L.Ed.2d 745 (1971). I also agree with the majority that, under Lemon in this case, the governmental action must first have a secular purpose and second neither advance nor inhibit religion.
Because the government's use of a religious reference or of an object with religious meaning may be appropriate under some circumstances but not others, the Court must assess the constitutionality of government conduct with careful attention to the manner and context of the action.
I part company with my colleagues, however, on the results of both inquiries in this case.
A. Secular Purpose
The purpose prong of the Lemon analysis asks whether a secular purpose actually motivated the government's action.
In considering the purpose prong ... the focus of the inquiry is on the intentions of the government. Namely, did the government intend to convey a message of endorsement or disapproval of religion when it implemented the challenged policy. Courts should generally be deferential to the government's articulation of a secular purpose. The government's secular purpose, however, must be sincere and not a mere sham. Although the government's purpose need not be exclusively secular, a practice will violate the Establishment Clause if it is entirely motivated by a purpose to advance religion.
Coles v. Cleveland Bd. of Educ., 171 F.3d 369, 384 (6th Cir.1999), citing Edwards v. Aguillard, 482 U.S. 578, 585-86, 107 S.Ct. 2573, 96 L.Ed.2d 510 (1987); Lynch, 465 U.S. at 681 n. 6, 104 S.Ct. 1355; Wallace v. Jaffree, 472 U.S. 38, 56, 105 S.Ct. 2479, 86 L.Ed.2d 29 (1985).
I simply do not accord as much deference as does the majority to the City's proffered purpose.
I begin from the premise that, on the face of it, a display of the Ten Commandments, consisting only of the Commandments unaccompanied by any other documents, would lack any secular purpose whatsoever. The Ten Commandments are a distinctly religious document, believed by many Christians and Jews to be the direct and revealed word of God, and their very nature precludes a finding of a prevailingly secular purpose here. Indeed, "the pre-eminent purpose for posting the Ten Commandments ... is plainly religious in nature." Stone v. Graham, 449 U.S. 39, 41, 101 S.Ct. 192, 66 L.Ed.2d 199 (1980).
The Commandments do not confine themselves to arguably secular matters, such as honoring one's parents, killing or murder, adultery, stealing, false witness, and covetousness. See Exodus 20:12-17; Deuteronomy 5:16-21. Rather, the first part of the Commandments concerns the religious duties of believers: worshiping the Lord God alone, avoiding idolatry, not using the Lord's name in vain, and observing the Sabbath Day. See Exodus 20:1-11; Deuteronomy 5:6-15. Id. at 41-42, 101 S.Ct. 192.
The Defendants suggest that the Ten Commandments were posted in order to teach people about "fundamental legal principles of Western Civilization," as the City's resolution states it, or, supposedly, youth about American religious history and the foundations of the modern state. First, I question this intent as it was stated with the equivalent of twenty-twenty hindsight: Athens developed this intent only after it was clear that the ACLU and OCLU were threatening suit. Moreover, I think the City's stated intent is contrary to the overall nature of the presentation. The Ten Commandments are presented effectively only as a religious text virtually unaccompanied by any interpretation explaining its role as a foundational document in Western Civilization. That can hardly be said to present meaningfully the story of this country's religious, historical or legal traditions, and for the majority to conclude that the original displays had a secular purpose belies reason.
The challenged displays do include other monuments or documents which the Defendants argue illustrate the displays' secular purpose: the education of youth in moral matters or history. However, as the Supreme Court has made abundantly clear, the court must examine the actual purpose of the use of the religious objects and should not blindly accept an allegedly secular purpose which is contrary to the facts of the case. Furthermore, the requirement of a secular purpose "is not satisfied ... by the mere existence of some secular purpose, however dominated by religious purposes." Lynch, 465 U.S. at 691, 104 S.Ct. 1355 (O'Connor, J., concurring). While the government's stated purpose may be entitled to some deference, the history of the displays here and the choice of documents in those displays contradict the County's assertion.
The Ten Commandments were posted for moral guidance – even assuming that the intent of the donor (the SAL) can be attributed to the donee (the City). However, it remains clear that the Ten Commandments repeated references to religion and religious matters. It is a simple, logical step to conclude that religious matters, and the Judeo-Christian tradition in general, are being lauded. That, in my view, constitutes an impermissible purpose. How it is possible that the symbols of the star of David and the Chi and Rho are included without the intent of honoring, and thereby promoting, those religious traditions?
Simply put, the displays do not appear to have been intended to educate students, in a balanced or accurate manner, about the traditions and texts that were drawn upon by this nation's founders or about the complex role religion has played in this country's history. In short, as shown by the facts of the case and the displays themselves, the Ten Commandments and related paraphernalia serve no secular purpose, nor were they ever intended to do so.
As a final note on this matter, I must equally part company with my colleagues on the use of Olympia's legislative announcement that the Ten Commandments are permissibly placed as "historical[ly] significant." Olympia Revised Statutes, M56-H52. I must do so for three reasons. First, it is the intent of the City of Athens, not Olympia as a state, into which the Court should inquire. Second, a legislative pronouncement forty-plus years after the fact is not germane, in my view. Third, and most important: the Olympian statute states a conflicting – and contradictory – purpose to that which the majority has subscribed. The original intent is stated to be moral instruction. Olympia's justification is historical in nature. I find the equivocation on intent (both by the City and through the state of Olympia) to make the determination of a secular purpose turn against that of the majority opinion in this case.
As the displays clearly lack a secular purpose, they violate the First Amendment and the Court's analysis should not go further. See Wallace, 472 U.S. at 56, 105 S.Ct. 2479. Because I part company with the majority, however, on both issues, I will complete the Lemon analysis to determine whether the effect of the displays also violates the Establishment Clause.
In determining such an effect, the court must ask whether an objective observer acquainted with the displays would perceive them as a governmental endorsement of religion. See ACLU v. Capitol Square Review and Advisory Bd., 210 F.3d 703 (6th Cir. 2000). The objective-observer standard parallels the reasonable-person standard in torts law; the question is not whether one particular, subjective, uninformed observer would view the displays as an endorsement of religion but whether an objective, reasonable, knowledgeable observer would do so. Here, the prevailing effect of the displays is one of governmental endorsement of religion.
The overriding theme of each individual document as presented in the displays as a whole is one of religion and more specifically of Christianity and Judaism. Among the many monuments referenced by the majority (the War Memorials) are two which include text excerpts. One is from the Declaration of Independence, "All men ... are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness." The other is from the Constitution of Olympia, "We, the people of the Commonwealth of Olympia, grateful to Almighty God for the civil, political and religious liberties we enjoy, and invoking the continuance of these blessings, do ordain and establish this Constitution."
Let me make clear the point here: I do not take the position that the seat of government must be a barren place, bereft of all references to religion. At the same time, it is apparent to me that, when the monument texts referring to the Declaration of Independence and the Olympia state constitution are considered, in their context as they must be, there can be no doubt that there is an impermissible advancement of religion. The tying element between the two is the reference to the burning of "Freedom's Holy Light." (emphasis added). The use of documents at the very foundation of the nation's and the state's government in context with the Ten Commandments must be held to be impermissible. The linkage is too close for the conclusion to be anything but an advancement of religion.
The Defendants counter, understandably, that the Ten Commandments cannot be held to violate the First Amendment because of the use of text or displays which have been held to be constitutional despite references to God or religion. They point specifically to this nation's motto of "In God We Trust" and the phrase "one nation under God" found in the Pledge of Allegiance. The Defendants' argument, however, fails in my view. I again reiterate the fact that the City's display does not include the entire text or even a meaningful section of each text. Rather, the extraction of language was so narrow as to be only of a religious nature. This is, of course, consistent with the originally stated intent of moral guidance and teaching. I cannot escape that originally understood intention in reviewing the phraseology of the other memorials or presentations at the City's buildings.
Second, and more generally, in upholding examples of ceremonial deism, such as the phrase "In God We Trust," courts have pointed to the long-standing existence of such phrases as well as their non-sectarian nature, concluding that "a reasonable observer, aware of the purpose, context, and history of the phrase ... would not consider its use ... to be an endorsement of religion." ACLU v. Capitol Square Review and Advisory Bd., 210 F.3d at 721, (quoting Gaylor v. United States, 74 F.3d 214, 217 (10th Cir.1996)). See Allegheny, 492 U.S. at 602-04, 109 S.Ct. 3086. Here, there is neither a long-standing tradition of posting the Ten Commandments nor any secular purpose for doing so. A reasonable observer should conclude that the Ten Commandments displays represent a governmental endorsement of religion, rather than merely a traditional manner of solemnizing a government meeting or giving a stamp of legitimacy to national currency. I do not believe the majority has held that the posting of the Ten Commandments should be viewed as only another example of ceremonial deism. Any efforts toward this should be declined.
Admittedly, a display of some of these documents may not have the effect of endorsing religion in another context. Here, however, they collectively have the overwhelming effect of endorsing religion within the context of these displays. No reasonable observer of the displays could conclude otherwise. Virtually every monument contains, in some fashion, a reference to religion. The excerpted portions of the Declaration and the Olympia constitution have highlighted religious references. Again, the monuments, in my view, lack an explanation of historical significance or of the reasons for their references to religion. Removed from their historical context and placed in this context, the monuments collectively and the Ten Commandments specifically have the undeniable effect of endorsing religion.
Notably, the Defendants did not post a Hebrew version of the Ten Commandments and in selecting a version of the Ten Commandments had to choose among several differing translations, some favored by particular Christian sects over others. To the extent that the displayed version of the Ten Commandments may be favored by one sect over another, the monument run further afoul of the Establishment Clause because they infringe upon the "sectarian differences among various Christian denominations [that] were central to the origins of our Republic." Allegheny, 492 U.S. at 589, 109 S.Ct. 3086.
The First Amendment will not permit religious endorsement, as "it sends a message to nonadherents that they are outsiders, not full members of the political community, and an accompanying message to adherents that they are insiders, favored members of the political community." Allegheny, 492 U.S. at 595, 109 S.Ct. 3086, quoting Lynch, 465 U.S. at 688, 104 S.Ct. 1355. If the governmental display endorses religion then the constitutionally impermissible message must be removed, as it attacks this nation's "history and tradition of religious diversity that dates from the settlement of the North American Continent" and "the religious diversity that is our national heritage." Id. at 589, 109 S.Ct. 3086. Here, the displays communicate a governmental endorsement not only of religion over non-religion, but of the particular religions, Judaism and Christianity, whose message is contained within the display. Both in the impetus for their creation and the manner in which they were assembled, the Ten Commandments display evidences a governmental purpose and effect of endorsing Judaism and Christianity, and therefore the displays violate the Establishment Clause of the First Amendment.
For these reasons, I dissent.
OF THE UNITED STATES
CARL LEWIS; )
ALBERT OERTER; and )
On behalf of themselves )
And all others similarly situated )
Petitioners - Plaintiffs )
v. ) Cause No. LA84-R60-B36
CITY OF ATHENS, OLYMPIA; )
Hon. PIERRE De COUBERTAIN; )
in his official capacity of Mayor )
Respondents -Defendants )
Order on Petition for Writ of Certiorari
The Petitioners' petition for writ of certiorari is hereby GRANTED. The case is scheduled for oral argument in Crawfordsville, Indiana, on October 21, 2000. The matter shall be argued upon the following issues:
- Does Athens' display have a secular purpose; and
- Does Athens' display advance religion impermissibly.
The Petitioners shall open and close the argument.
/s/ F. Shorter
F. Shorter, Clerk, United States Supreme Court
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