STEPHEN R. GLASSROTH, BEVERLY J. HOWARD, Plаintiffs-Appellees, v. ROY S. MOORE, Chief Justice of the Alabama Supreme Court, Defendant-Appellant. MELINDA MADDOX, Plaintiff-Appellee, v. ROY S. MOORE, in his official capacity as Administrative Head of the Alabama Judicial System, Defendant-Appellant.
Nos. 02-16708 & 02-16949
United States Court of Appeals, Eleventh Circuit
July 1, 2003
D. C. Docket Nos. 01-01268-CV-T-N 01-01269-CV-T-N; [PUBLISH]
(July 1, 2003)
Before EDMONDSON, Chief Judge, CARNES, Circuit Judge, and STORY*, District Judge.
CARNES, Circuit Judge:
The Chief Justice of the Alabama Supreme Court installed a two-and-one-half ton monument to the Ten Commandments as the centerpiece of the rotunda in the Alabama State Judicial Building. He did so in order to remind all Alabama citizens of, among other things, his belief in the sovereignty of the Judeo-Christian God over both the state and the church. And he rejected a request to permit a monument displaying a historically significant speech in the same space on the grounds that “[t]he placement of a speech of any man alongside the revealed law of God would tend in consequence to diminish the very purpose of the Ten Commandments monument.” Glassroth v. Moore, 229 F. Supp. 2d 1290, 1297 (M.D. Ala. 2002).
*Honorable Richard W. Story, United States District Judge for the Northern District of Georgia, sitting by designation.
I.
Because “[i]n religious-symbols cases, context is the touchstone,” King v. Richmond County, No. 02-14146, slip op. 2541, at 2552 (11th Cir. May 30, 2003), we set out the relevant facts in some detail, most of which are pulled from the district court‘s opinion, but a few of which we have drawn from undisputed testimony or other evidence in the record.
Chief Justice Moore began his judicial career as a judge on the Circuit Court of Etowah County, Alabama. After taking office he hung a hand-carved, wooden plaque depicting the Ten Commandments behind the bench in his courtroom and routinely invited clergy to lead prayer at jury organizing sessions. Those actions
During his campaign for the Chief Justice position in the November 2000 election, then-Judge Moore‘s campaign committee, capitalizing on name recognition from the lawsuits, decided to refer to him as the “Ten Commandments Judge.” Although the Chief Justice says he never described himself that way, he did not disagree with his campaign committee‘s decision. As a result, most of his campaign materials, including billboards, television and radio commercials, telephone scripts, and mailings, described him as the “Ten Commandments Judge” or otherwise referred to the Ten Commandments. The central platform of his campaign was a promise “to restore the moral foundation of law.” Glassroth, 229 F. Supp. 2d at 1294.
After he was elected, Chief Justice Moore fulfilled his campaign promise by installing the Ten Commandments monument in the rotunda of the Alabama State
Thousands of people enter the Judicial Building each year. In addition to attorneys, parties, judges, and employees, every fourth grader in the state is brought on a tour of the building as part of a field trip to the state capital. No one who enters the building through the main entrance can miss the monument. It is in the rotunda, directly across from the main entrance, in front of a plate-glass window with a courtyard and waterfall behind it. After entering the building, members of the public must pass through the rotunda to access the public elevator or stairs, to enter the law library, or to use the public restrooms. A person walking
The 5280-pound granite monument is “approximately three feet wide by three feet deep by four feet tall.” Id. Two tablets with rounded tops are carved into thе sloping top of the monument. Excerpts from
I AM THE LORD THY GOD
THOU SHALT HAVE NO OTHER GODS BEFORE ME
THOU SHALT NOT MAKE UNTO THEE ANY GRAVEN IMAGE
THOU SHALT NOT TAKE THE NAME OF THE LORD THY GOD IN VAIN
REMEMBER THE SABBATH DAY, TO KEEP IT HOLY
The right one reads:
HONOUR THY FATHER AND THY MOTHER
THOU SHALT NOT KILL
THOU SHALT NOT COMMIT ADULTERY
THOU SHALT NOT STEAL
THOU SHALT NOT BEAR FALSE WITNESS
THOU SHALT NOT COVET1
Glassroth, 229 F. Supp. 2d at 1294-95; id. at 1320 (App. A - photograph of the monument).
Below the Ten Commandments, each side of the monument contains one large-sized and several smaller-sized quotations. The quotations are excerpted from various historical documents and authorities. They are described and set out in full in the district court‘s opinion. Id. at 1295; id. at 1320-21 (App. B - providing full quotations of the monument‘s text). The quotations from secular sources were placed below the Ten Commandments because of Chief Justice Moore‘s belief that the words of mere men could not be placed on the same plane as the Word of God. Id. at 1295.
“Due to the slope of the monument‘s top and the religious appearance of the tablets, the tablets call to mind an open Bible resting on a lectern.” Id. The
The monument was installed after the close of business during the evening of July 31, 2001. The Chief Justice has explained that it was done at night to avoid interrupting the normal business of the building. The installation of the monument that night was filmed by Coral Ridge Ministries, an evangelical Christian media outreach organization. Id. at 1294. The organization has used its exclusive footage of the installation to raise funds for its own purpose and for Chief Justice Moore‘s legal defense, which it has underwritten. Id. at 1304 n.2.
At the public unveiling of the monument the day after its installation, Chief Justice Moore delivered a speech commemorating the event, and in that speech he talked about why he had placed the monument, which he described as one “depicting the moral foundation of our law,” where he did. He explained that the location of the monument was “fitting and proper” because:
this monument will serve to remind the appellate courts and judges of the circuit and district courts of this state, the members of the bar who appear before them, as well as the people who visit the Alabama Judicial Building, of the truth stated in the preamble of the Alabama
Constitution, that in order to establish justice, we must invoke “the favor and guidance of Almighty God.”2
Id. at 1321-24 (App. C - reproducing the full text of Chief Justice Moore‘s remarks at the unveiling cerеmony). During that speech, the Chief Justice criticized government officials who “forbid teaching your children that they are created in the image of Almighty God” and who “purport all the while that it is a government and not God who gave us our rights,” because they have “turned away from those absolute standards which form the basis of our morality and the moral foundation of our law” and “divorced the Constitution and the Bill of Rights from these principles.” Id. at 1322. Recalling his campaign “pledge to restore the moral foundation of law,” he noted that “[i]t is axiomatic that to restore morality, we must first recognize the source of that morality,” and that “our forefathers recognized the sovereignty of God.” Id. He noted during the speech that no government funds had been expended on the monument.
The Chief Justice described various acknowledgments of God throughout this country‘s history, some of which, he pointed out, are inscribed on the monument. He proclaimed that the unveiling of the monument that day “mark[ed]
During the trial the Chief Justice testified candidly about why he had placed the monument in the rotunda. The following exchanges between him and one of the plaintiffs’ attorneys establish that purpose:
Q [W]as your purpose in putting the Ten Commandments monument in the Supreme Court rotunda to acknowledge GOD‘s law and GOD‘s sovereignty? . . .
A Yes.
1st Supp. Rec. Vol. 2 at 100.
Q . . . Do you agree that the monument, the Ten Commandments monument, reflects the sovereignty of GOD over the affairs of men?
A Yes.
Q And the monument is also intended to acknowledge GOD‘s overruling power over the affairs of men, would that be correct? . . .
A Yes.
Q . . . [W]hen you say “GOD” you mean GOD of the Holy Scripture?
1st Supp. Rec. Vol. 3 at 34.
The rotunda is open to the public, but it is not a public forum where citizens can place their own displays. Glassroth, 229 F. Supp. 2d at 1303. Chief Justice Moore has denied the two requests that have been made to place other displays in the rotunda. He did so because he believed that those displays would have been inconsistent with the rotunda‘s theme of the moral foundation of law. An Alabama State Representative asked the Chief Justice if a monument containing the Rev. Dr. Martin Luther King Jr.‘s famous “I Have a Dream” speech could be placed in the rotunda. The Chief Justice dеnied the request in a letter, stating that, “The placement of a speech of any man alongside the revealed law of God would tend in consequence to diminish the very purpose of the Ten Commandments monument.” Id. at 1297. He also denied an atheist group‘s request to display a symbol of atheism in the rotunda. Id.
The Chief Justice did add two smaller displays to the rotunda at some point after the Ten Commandments monument was installed. The first, a plaque entitled “Moral Foundation of Law,” contains a quotation from the Rev. Dr. Martin Luther King Jr.‘s letter from the Birmingham jail speaking of just laws and “the moral law or law of God,” and a quotation from Frederick Douglass speaking of slavery as
The three plaintiffs are practicing attorneys in the Alabama courts. As a result of their professional obligations, each of them has entered, and will in the future have to enter, the Judicial Building. Because of its location, they necessarily come in contact with the monument. The monument offends each of them and makes them feel like “outsiders.” Because of the monument, two of the plaintiffs have chosen to visit the Judicial Building less often and enjoy the rotunda less when they are there. One of those two has avoided the building to the extent of purchasing law books and online research services instead of using the library, and
II.
Pursuant to
After a seven-day bench trial, the district court concluded that Chief Justice Moore‘s actions violated the Establishment Clause because his purpose in displaying the monument was non-secular and because the monument‘s primary effect is to advance religion. Id. at 1299, 1304. The court entered judgment to that effect and gave the Chief Justice thirty days to remove the monument voluntarily. After he declined to do so, the district court entered an order enjoining him from
III.
As this Court recently explained, Establishment Clause challenges are not decided by bright-line rules, but on a case-by-case basis with the result turning on the specific facts. King v. Richmond County, No. 02-14146, slip op. 2541 (11th Cir. May 30, 2003). As we have already noted, the facts set out in this opinion are taken largely from the district court‘s findings. The Chief Justice attacks those findings on several bases.
A.
First, he contends that the district court judge should not have made any factfindings based upon his viewing of the monument and its surrounds. The judge unquestionably made important factfindings as a result of what he saw when he viewed the monument and the rotunda in which it is located. That was error, the Chief Justice argues, because he had thought that the only purpose of the district court‘s view of the monument and the area around it was to provide the court with a physical context within which to assess the evidence admitted in the courtroom.
The district court told the attorneys early in the status conference that if the case was decided on summary judgment motions, the court would not be making any findings of fact from its view. That is, of course, correct. Courts do not find facts when deciding summary judgment motions, but this case was not decided on summary judgment. As we will point out shortly, counsel for both sides fully expected that the district court judge would be considering the facts and circumstances he observed during the view if the case was decided by trial, as it was, instead of on summary judgment.
In any event, “[i]t is a cardinal rule of appellate review that a party may not challenge as error a ruling or other trial proceeding invited by that party.” United States v. Ross, 131 F.3d 970, 988 (11th Cir. 1997) (quoting Crockett v. Uniroyal, Inc., 772 F.2d 1524, 1530 n.4 (11th Cir. 1985)). Counsel for Chief Justice Moore urged the district court judge to undertake a view. When the judge said at a status conference that if summary judgment was granted the issue of looking at the monument would be moot, counsel for the Chief Justice disagreed, protesting that: “I believe it‘s almost incumbent upon the Court to walk into the Judicial Building,” and “I still think it‘s almost necessary to take a look at this yourself because of the proximity and also because of just the manner in which the facts play out here.” Rec. Vol. 12 at 15.
The district court judge asked if the lawyers were going to make arrangements for him to see the monument and point out what he was to see. Counsel for the plaintiffs answered, without objection, that both sides had agreed:
“you just walk in the front door and everything in the rotunda is fair game. And we believe that the lawyers shouldn‘t speak unless you‘ve got a question for us. And the lawyers would be there, none of their clients would be there, and that would be it.” Rec. Vol. 12 at 17.
Counsel for the Chief Justice agreed with that statement about how the view should be conducted, and he made clear that the whole point was for the district court judge to be able to gather facts about the monument and its setting, saying:
But I think with either the summary judgment motion or response, and/or the pretrial briefs, that there‘s going to be a lot of facts in there that will probably give each side‘s impression of how they interpret the inside of the rotunda. But I agree with [plaintiffs’ counsel] that you‘re a jury. You have to walk in and see what you see and then [sic] just like a juror would.
Rec. Vol. 12 at 16-17.
During argument about the cross-motions for summary judgment, and before the view took place, counsel for the Chief Justice contended that summary judgment was improper because the district court needed to view the monument as part of the necessary “inquiry into the facts and circumstances“:
[T]he issue with regard to how a reasonable person would view the monument would require an examination of what you might call social facts, which would require at least an examination of the monument itself. This is why we believe it‘s important for you to go into the rotunda and view that monument and view the setting itself. Unless you see it yourself, and since the reasonable person test is a test that‘s supposed to be applied by the judge, it would be difficult
for the judge to apply that particular test unless there was an inquiry into the facts and circumstances with regard to this matter.
Rec. Vol. 13 at 43-44. So eager was he to have the district court judge conduct the view “just like a juror would,” that counsel for the Chief Justice volunteered his help in arranging parking for the district court judge at the Judicial Building. Any conceivable error was not just invited error, but invited error with a parking space.
B.
The Chief Justice also complains that the district court did not state its findings from the view into the record so that the parties would have had an opportunity to challenge thеm before the court issued its opinion. He never asked the court to do that, and factfinders traditionally do not state facts into the record before deciding the case; juries never do. The parties were on notice that the court might make factfindings from what it saw during the view, and if either side had wanted those findings stated into the record before a decision was made, it should have requested that extraordinary procedure. Since neither side asked for that procedure, we need not decide whether it would have been necessary or appropriate if requested.
C.
In a related challenge to the district court‘s findings, the Chief Justice argues that the district court judge should not have relied upon his subjective impressions
D.
Apart from the factfinding issues arising from the view, Chief Justice Moore also argues that the district court made factfindings not supported by the record. We review district court factfindings only for clear error, and as we have explained, “[w]e cannot hold a district court‘s finding of fact clearly erroneous unless, in view of the entire record, we are ‘left with a definite and firm conviction that a mistake has been committed.‘” Eng‘g Contractors Ass‘n v. Metropolitan Dade County, 122 F.3d 895, 904 (11th Cir. 1997) (quoting Anderson v. City of Bessemer City, 470 U.S. 564, 573, 105 S. Ct. 1504, 1511 (1985)). We cannot
The specific factfinding relating to the merits of the constitutional issue that the Chief Justice challenges is the district court‘s finding that “visitors and building employees consider the monument an appropriate, and even compelling, place for prayer.” Glassroth, 299 F. Supp. 2d at 1295. That is at least a plausible view of the evidence in light of the testimony of one of the plaintiffs that she had witnessed a group in prayer around the monument, and the testimony of a building employee that on several occasions he had prayed in front of the monument by himself and with other employees, silently and out loud.
IV.
The applicable principles are well-settled:
To satisfy the “case” or “controversy” requirement of
Article III , which is the “irreducible constitutional minimum” of standing, a plaintiff must, generally speaking, demonstrate that he has suffered “injury in fact,” that the injury is “fairly traceable” to the actions of the defendant, and that the injury will likely be redressed by a favorable decision.
Bennett v. Spear, 520 U.S. 154, 162, 117 S. Ct. 1154, 1161 (1997) (citations omitted). For Establishment Clause claims based on non-economic harm, the plaintiffs must identify a “personal injury suffered by them as a consequence of the alleged constitutional error, other than the psychological consequence presumably produced by observation of conduct with which one disagrees.” Valley Forge Christian Coll. v. Ams. United for Sep. of Church & State, Inc., 454 U.S. 464, 485, 102 S. Ct. 752, 765 (1982). In this type of case, plaintiffs have standing if they are “‘directly affected by the laws and practices against [which] their complaints are directed,‘” Saladin v. City of Milledgeville, 812 F.2d 687, 692 (11th Cir. 1987) (quoting Sch. Dist. of Abington Township v. Schempp, 374 U.S. 203, 224 n.9, 83 S. Ct. 1560, 1572 n.9 (1963)), such as where the plaintiffs are “‘forced to assume special burdens’ to avoid ‘unwelcome religious exercises,‘” ACLU v. Rabun County Chamber of Commerce, Inc., 698 F.2d 1098, 1107 (11th Cir. 1983) (per curiam) (quoting Valley Forge, 454 U.S. at 487 n.22, 102 S. Ct. at 766 n.22).
Under these facts, the two plaintiffs who have altered their behavior as a result of the monument have suffered and will continue to suffer injuries in fact sufficient for standing purposes. See Schempp, 374 U.S. at 224 n.9, 83 S. Ct. at 1572 n.9 (holding that school children and parents had standing to challenge a state law requiring the Bible to be read every morning in public schools); Saladin, 812 F.2d at 692-93 (holding that city residents had standing to challenge the city‘s placement of the word “Christianity” on its official seal because they regularly received correspondence bearing the seal and the seal made them feel like “second class citizens“); Rabun County, 698 F.2d at 1107-08 (holding that state residents who used public parks had standing to challenge the placement of a lighted Latin cross in a public park where they were unwilling to camp in that park because of the “physical and metaphysical impact of the cross“). Further, a favorable decision will likely redress their injuries. If Chief Justice Moore is required to remove the monument from the public area of the Judicial Building, the plaintiffs will no longer have to observе it or take actions to avoid going into the building.
V.
Because of this country‘s “history and tradition of religious diversity that dates from the settlement of the North American Continent,” the Founders included in the Bill of Rights an Establishment Clause which prоhibits any law “respecting an establishment of religion.” County of Allegheny v. ACLU, 492 U.S. 573, 589, 109 S. Ct. 3086, 3099 (1989). In the more than two centuries since that clause became part of our Constitution, the Supreme Court has arrived at an understanding of its general meaning, which is that “government may not promote or affiliate itself with any religious doctrine or organization, may not discriminate
A.
The
The breadth of the Chief Justice‘s position is illustrated by his counsel‘s concession at oral argument that if we adopted his position, the Chief Justice would be free to adorn the walls of the Alabama Supreme Court‘s courtroom with sectarian religious murals and have decidedly religious quotations painted above the bench. Every government building could be topped with a cross, or a menorah, or a statue of Buddha, depending upon the views of the officials with authority over the premises. A crèche could occupy the place of honor in the lobby or rotunda of every municipal, county, state, and federal building. Proselytizing religious messages could be played over the public address system in every government building at the whim of the official in charge of the premises.
However appealing those prospects may be to some, the position Chief Justice Moore takes is foreclosed by Supreme Court precedent. County of Allegheny, 492 U.S. at 612, 109 S. Ct. at 3110, which held unconstitutional the placement of a crèche in the lobby of a courthouse, stands foursquare against the notion that the Establishment Clause permits government to promote religion so long as it does not command or prohibit conduct. Id., 109 S. Ct. at 3110 (“To be
B.
Another of the Chief Justice‘s broad-based attacks on the application of the Establishment Clause to his conduct involves the definition of religion. He insists that for
The Supreme Court has instructed us that for
As for the other essential premise of Chief Justice Moore‘s argument – that the Ten Commandments monument depicts only the moral foundation of secular duties – the Supreme Court has instructed us that “[t]he Ten Commandments are undeniably a sacred text in the Jewish and Christian faiths, and no legislative recitation of a supposed secular purpose can blind us to that fact.” Stone v. Graham, 449 U.S. 39, 41, 101 S. Ct. 192, 194 (1980) (footnote omitted). The Stone decision did not hold that all government uses of the Ten Commandments are impermissible; they may be used, for example, in a secular study of history, civilization, or comparative religion. Id. at 42, 101 S. Ct. at 194. Use of the Ten Commandments for a secular purpose, however, does not change their inherently religious nature, and a particular governmental use of them is permissible under the Establishment Clause only if it withstands scrutiny under the prevailing legal test. As we discuss next, the use to which Chief Justice Moore, acting as a government official, has put the Ten Commandments in this case fails that test.
C.
We follow the tradition in this area by beginning with the almost obligatory observation that the Lemon test is often maligned. See, e.g., Lamb‘s Chapel v. Ctr. Moriches Union Free Sch. Dist., 508 U.S. 384, 398, 113 S. Ct. 2141, 2150 (1993) (Scalia, J., concurring) (“[N]o fewer than five of the currently sitting Justices have, in their own opinions, personally driven pencils through the [Lemon test‘s] heart (the author of today‘s opinion repeatedly), and a sixth has joined an opinion doing so.“); Wallace v. Jaffree, 472 U.S. at 110, 105 S. Ct. at 2517 (Rehnquist, J., dissenting) (“The three-part test has simply not provided adequate standards for deciding Establishment Clause cases, as this Court has slowly come to realize.“); Elenore Cotter Klingler, Case Comment, Constitutional Law: Endorsing a New Test for Establishment Clause Cases, 53 Fla. L. Rev. 995 (2001). But it is even more often applied.
What the Supreme Court said ten years ago remains true today: “Lemon, however frightening it might be to some, has not been overruled.” Lamb‘s Chapel,
Applying Lemon, the district court concluded that Chief Justice Moore‘s purpose in displaying the monument was not secular. It based that conclusion on the Chief Justice‘s own words, on the monument itself, and on the physical context in which it appears. Glassroth, 229 F. Supp. 2d at 1299-1300. The court found the case not as difficult as those in which the Ten Commandments display had “an arguably secular, historical purpose, for the evidence here does not even begin to support that conclusion, nor does the evidence support the conclusion that the Ten Commandments were displayed as sort of a secular moral code.” Id. at 1301. Instead, “[t]he Chief Justice‘s words unequivocally belie such purposes.” Id.
Citing Justice O‘Connor‘s concurring opinion in Wallace v. Jaffree, 472 U.S. at 74, 105 S. Ct. at 2499 (O‘Connor, J., concurring), Chief Justice Moore argues that the district court erred by psychoanalyzing him and, as he puts it,
Chief Justice Moore testified candidly that his purpose in placing the monument in the Judicial Building was to acknowledge the law and sovereignty of the God of the Holy Scriptures, and that it was intended to acknowledge “God‘s overruling power over the affairs of men.” 1st Supp. Rec. Vol. 2 at 100; 1st Supp. Rec. Vol. 3 at 34. In his unveiling speech, the Chief Justice described his purpose as being to remind all who enter the building that “we must invoke the favor and guidance of Almighty God.” Glassroth, 229 F. Supp. 2d at 1297, 1322 (App. C). And he said that the monument marked “the return to the knowledge of God in our land.” Id. at 1323. He refused a request to give a famous speech equal position and prominence because, he said, placing “a speech of any man alongside the revealed law of God would tend to diminish the very purpose of the Ten Commandments monument.” Id. at 1297.
Against the weight of all this evidence, Chief Justice Moore‘s insistence in his briefs and argument, and in part of his testimony, that the Ten Commandments
Under our circuit law, the purpose inquiry is a factual one, see ACLU v. Rabun County Chamber of Commerce, 698 F.2d 1098, 1110-11 (11th Cir. 1983), and on appeal we are obligated to accept the district court‘s findings of fact unless they are clearly erroneous, Anderson v. City of Bessemer City, 470 U.S. 564, 573, 105 S. Ct. 1504, 1511 (1985). Clearly erroneous they are not. Moreover, even if we were free to review the determination de novo, having examined the record ourselves, we agree with the district court that it is “self-evident” that Chief Justice Moore‘s purpose in displaying the monument was non-secular. Given all of the
Our inquiry could end there, because “[w]hen evidence shows that endorsement or promotion of religion was a primary purpose for the challenged practice . . . the practice violates the Establishment Clause.” King, No. 02-14146, slip op. at 2548. But in the interest of completeness, we will also review the district court‘s additional holding that the monument had the primary effect of advancing religion.
“The effect prong asks whether . . . the practice under review in fact would convey a message of endorsement or disapproval to an informed, reasonable observer.” Id. at 2549. The district court concluded that a reasonable observer would view the monument‘s primary effect as an endorsement of religion. Glassroth, 229 F. Supp. 2d at 1302-03. It based that conclusion on: the appearance of the monument itself; its location and setting in the rotunda; the selection and location of the quotations on its sides; and the inclusion on its face of the text of the Ten Commandments, which is an “undeniably . . . sacred text,” Stone, 449 U.S. at 41, 101 S. Ct. at 194, all of which contributed to “the ineffable but still overwhelming holy aura of the monument,” Glassroth, 229 F. Supp. 2d at 1303-04. The court also considered: the fact that the Chief Justice campaigned as
The parties agree that our review of the district court‘s effect ruling is plenary. Having reviewed the matter de novo, and aided by the district court‘s meticulous findings of fact, we reach the same conclusion the district court did, which is to say that we also agree with the concession that Chief Justice Moore made in his testimony when he said that the monument “reflects the sovereignty of God over men.” 1st Supp. Rec. Vol. 3 at 34. The monument fails two of Lemon‘s three prongs. It violates the Establishment Clause.
D.
Chief Justice Moore contends that even if it cannot clear the Lemon test, the monument is saved by the Supreme Court‘s decision in Marsh v. Chambers, 463 U.S. 783, 103 S. Ct. 3330 (1983). In that case, the Supreme Court considered a challenge to the Nebraska Legislature‘s practice of employing a chaplain to lead it in prayer at the beginning of each session. Id. at 784-85, 103 S. Ct. at 3332-33. Applying the Lemon test to the practice, the court of appeals concluded that the
The Court recounted the history of the practice, finding that “[f]rom colonial times through the founding of the Republic and ever since, the practice of legislative prayer has coexisted with the principles of disestablishment and religious freedom.” Id. at 786, 103 S. Ct. at 3333. The Court further noted that Congress authorized the appointment of paid chaplains just days before a final agreement on the language of the Bill of Rights was reached. Id. at 787-88, 103 S. Ct. at 3333-34. “Clearly the men who wrote the First Amendment Religion Clauses did not view paid legislative chaplains and opening prayers as a violation of that Amendment, for the practice of opening sessions with prayer has continued without interruption ever since that early session of Congress.” Id. at 788, 103 S. Ct. at 3334 (footnote omitted). The Court concluded that “[i]n light of the unambiguous and unbroken history of more than 200 years, there can be no doubt that the practice of opening legislative sessions with prayer has become part of the fabric of our society.” Id. at 792, 103 S. Ct. at 3336.
Chief Justice Moore has pointed to no evidence that the Ten Commandments in any form were publicly displayed in any state or federal courthouse, much less that the practice of displaying them was widespread at the time the Bill of Rights was proposed and adopted. However it may be applied in any other context and
E.
The result we reach in this case is not inconsistent with our recent decision in King, No. 02-14146, slip op. 2541. In that case, we applied the Lemon test and concluded that the Seal of the Richmond County Superior Court did not violate the Establishment Clause despite its inclusion of a depiction of the Ten Commandments. Id. at 2556. The Seal included an image of two tablets, the first with Roman numerals I through V and the second with numerals VI through X. Id. at 2543. The Seal had been in use for more than one hundred thirty years, and there was no evidence about why the pictograph of the Commandments was originally included. The county proffered a plausible secular purpose, which was that the Commandments allowed illiterate Georgians to recognize the Seal as a symbol of law, and in the absence of any showing that the proffered secular purpose was implausible, we concluded that the County had satisfied the purpose prong of the Lemon test. Id. at 2546-48.
On the effect prong, we noted in King that the constitutionality of a government‘s use of a predominantly religious symbol depends on the context in which it appears, id. at 2548-52, and we concluded that given the context in which
In King, we also gave weight to the small size of the tablets: “[T]he pictograph of the tablets and sword is at most only one inch in diameter and is not the focal point of any governmental display in an important public building.” Id. at 2555. Finally we noted that the tablets did not include the text of the Ten Commandments, and that a reasonable observer would therefore be less likely to focus on the religious aspects of the Commandments. Id. at 2555-56.
The distinctions between that case and this one are clear. In King, there was no evidence of a non-secular purpose; in this case, there is an abundance of evidence, including parts of the Chief Justice‘s own testimony, that his purpose in installing the monument was not secular. In King, the image was in the context of
another symbol of law; in this case the monument sits prominently and alone in the rotunda of the Judicial Building. In King, the image was approximately one-inch in size and not a focal point; in this case the monument is an unavoidable two-and-one-half ton centerpiece of the rotunda. Finally, there was no text of the Commandments on the Seal in King; in this case the monument contains text from the King James version of the Bible.3Nor is our decision today inconsistent with those from any other circuits in recent years involving the Ten Commandments. The Third Circuit issued an
As the Third Circuit noted in the Freethought Society case, “a new display of the Ten Commandments is much more likely to be perceived as an endorsement of religion” by the government than one in which there is a legitimate “preservationist perspective.” Id. at 31, 32; see also id. at 33 (“[I]t is highly significant that there is no evidence that the County has taken any action involving the plaque since it was erected 80 years ago.”); id. at 39 (Bright, J., concurring) (noting the “crucial facts” that the location of the plaque was not changed when the
This case on its facts is closer to those in which the Sixth and Seventh Circuits have held prominent displays of the Ten Commandments on government grounds to violate the Establishment Clause. See Adland v. Russ, 307 F.3d 471 (6th Cir. 2002) (returning a large, granite Ten Commandments monument from storage to a prominent position on the capitol grounds would violate the Establishment Clause), cert. denied, 123 S. Ct. 1909 (2003); Ind. Civil Liberties Union v. O‘Bannon, 259 F.3d 766 (7th Cir. 2001) (еrecting a seven-foot tall, 11,500-pound limestone monument, one side of which contained the Ten Commandments, on statehouse grounds would violate the Establishment Clause) cert. denied, 534 U.S. 1162 (2002); Books v. City of Elkhart, 235 F.3d 292 (7th Cir. 2000) (displaying a Ten Commandments monument, identical to the one involved in Adland, on the lawn of the municipal building violated the Establishment Clause), cert. denied, 532 U.S. 1058 (2001).
The difference in results between the King and Freethought Society decisions on the one hand, and the Adland, Books, and O‘Bannon decisions on the other hand, illustrates that factual specifics and context are nearly everything when it comes to applying the Establishment Clause to religious symbols and displays.4 Our decision is necessarily limited to the case before us. It implies nothing about different cases involving other facts. We do not say, for example, that all recognitions of God by government are per se impermissible. Several Supreme Court Justices have said that some acknowledgments of religion such as the
VI.
Finally, we turn to a position of Chief Justice Moore‘s that aims beyond First Amendment law to target a corе principle of the rule of law in this country. He contends that the district court‘s order and injunction in this case contravene the right and authority he claims under his oath of office to follow the state and federal constitutions “as he best understands them, not as understood by others.” Brief of Appellant at 51. He asserts that “courts are bound by the Constitution, not by another court‘s interpretation of that instrument,” and insists that he, as Chief Justice is “not a ministerial officer; nor is he answerable to a higher judicial
The Chief Justice‘s brief reminds us that he is “the highest officer of one of the three branches of government in the State of Alabama,” and claims that because of his important position, “Chief Justice Moore possesses discretionary power to determine whether a court order commanding him to exercise of [sic] his duties as administrative head is consistent with his oath of office to support the federal and state constitution.” Brief of Appellant at 54.
The clear implication of Chief Justice Moore‘s argument is that no government official who heads one of the three branches of any state or of the federal government, and takes an oath of office to defend the Constitution, as all of them do, is subject to the order of any court, at least not of any federal court below the Supreme Court. In the regime he champions, each high government official can decide whether the Constitution requires or permits a federal court order and can act accordingly. That, of course, is the same position taken by those southern governors who attempted to defy federal court orders during an earlier era. See generally, e.g., Meredith v. Fair, 328 F.2d 586, 589-90 (5th Cir. 1962) (en banc) (enjoining Mississippi Governor Ross Barnett from interfering with the district court‘s order to admit a black student to the University of Mississippi); Williams v. Wallace, 240 F. Supp. 100, 110 (M.D. Ala. 1965) (Johnson, J.) (enjoining Alabama Governor George C. Wallace from intеrfering with and failing to provide police protection for plaintiffs’ march from Selma to Montgomery); cf. United States v. Barnett, 376 U.S. 681, 84 S. Ct. 984 (1964) (holding that the Governor of Mississippi was not entitled to a jury trial on a charge of criminal contempt for willfully disobeying a temporary restraining order of a federal district court).
In the final analysis, the concept of law and order, the very essence of a republican form of government, embraces the notion that when the judicial process of a state or federal court, acting within the sphere of its competence, has been exhausted and has resulted in a final judgment, all persons affected thereby are obliged to obey it.
United States v. Wallace, 218 F. Supp. 290, 292 (N.D. Ala. 1963) (enjoining Governor George C. Wallace from interfering with the court-ordered desegregation of the University of Alabama); accord, e.g., Cooper v. Aaron, 358 U.S. 1, 78 S. Ct. 1401 (1958); Sterling v. Constantin, 287 U.S. 378, 397-98, 53 S. Ct. 190, 195 (1932) (stating that if a state Govеrnor could nullify a federal court order “that the fiat of a state Governor, and not the Constitution of the United States, would be the supreme law of the land; that the restrictions of the Federal Constitution upon the exercise of state power would be but impotent phrases”).
The rule of law does require that every person obey judicial orders when all available means of appealing them have been exhausted. The chief justice of a
VII.
AFFIRMED.
EDMONDSON, Chief Judge, concurs in the result.
Notes
“The clearest command of the Establishment Clause is that one religious denomination cannot be officially preferred over another.” Larson v. Valente, 456 U.S. 228, 244, 102 S. Ct. 1673, 1683 (1982). Several amici in this case have pointed out that Chief Justice Moore chose the excerpts of the Ten Commandments from the King James Version of the Bible, which is a Protestant version. Jewish, Catholic, Lutheran, and Eastern Orthodox faiths use different parts of their holy texts as the authoritative Ten Commandments. “In some casеs the differences among them might seem trivial or semantic, but lurking behind the disparate accounts are deep theological disputes.” Steven Lubet, The Ten Commandments in Alabama, 15 Const. Comment. 471, 474-76 & n. 18 (1998); cf. Lemon, 403 U.S. at 628-29, 91 S. Ct. at 2119 (noting the conflict between Catholics and Protestants over the use of the King James Version of the Bible in nineteenth century public schools).
To give but one example, the Hebrew translation of the Sixth Commandment prohibits only murder, not all killings as the King James Version does (and in the Lutheran and Catholic versions it is the Fifth Commandment, not the Sixth). See Brief of Amicus Curiae The American Jewish Congress at 15 (citing Gerald Blidstein, Capital Punishment: The Classic Jewish Discussion, in 14 Judaism 159 (1965)); Brief of Amicus Curiae Ala. Clergy, et al. at 14; Brief of Amicus Curiae Am.-Arab Anti-Discrimination Comm. at 13 n.4; see also Harvey v. Cobb County, 811 F. Supp. 669, 677 (N.D. Ga. 1993) (“As Rabbi Lewis testified, this [‘Thou shalt not kill’] version of the Sixth Commandment is a mistranslation of the original Hebrew, which prohibits murder, and frequently appears in Christian versions of the Ten Commandments.”), aff‘d mem., 15 F.3d 1097 (11th Cir. 1994). The point is that choosing which version of the Ten Commandments to display can have religious endorsement implications under the Establishment Clause.
Chief Justice Moore contends that under the district court‘s reasoning, the sculpture of “Themis,” the Greek goddess of justice, which is part of the fountain in front of the courthouse where the trial in this case took place, would also be unconstitutional. Brief of Appellant at 15 n.4. His contеntion ignores the clear factual and contextual distinctions between that sculpture and the Ten Commandments monument. There is no evidence that the sculpture has had the effect of furthering religion, or that its purpose was to do so.
While we are on the subject of what the decision in this case does not mean, we reject Chief Justice Moore‘s argument that this decision means that the Establishment Clause requires “the purging of all ‘religious’ sources from any opinions that the Chief Justice might write such as the one in Yates v. El Bethel Primitive Baptist Church, [No. 1001913, (Ala. Oct. 11, 2002) (Moore, C.J., dissenting)].” Brief of Appellant at 28. It means no such thing.
A critical distinction is worth mentioning here. While all state and federal courts are bound to follow decisions of the United States Supreme Court, state courts when acting judicially, which they do when deciding cases brought before them by litigants, are not bound to agree with or apply the decisions of federal district courts and courts of appeal. See Arizonans for Official English v. Arizona, 520 U.S. 43, 58 n.11, 117 S. Ct. 1055, 1064 n.11 (1997); Powell v. Powell, 80 F.3d 464, 467 (11th Cir. 1996). That is different from what we have here. At issue here is not a judicial decision of the Alabama Supreme Court, eight-ninths of which had nothing to do with the challenged action. At issue here is the conduct of a party, who concedes he acted not judicially but as the administrative head of a state government department, and in that capacity his conduct is subject to as much scrutiny as that of any head of any government department.