JAMES W. GREEN, аn individual; AMERICAN CIVIL LIBERTIES UNION OF OKLAHOMA, a non-profit corporation v. HASKELL COUNTY BOARD OF COMMISSIONERS, also known as Board of County Commissioners of Haskell County, Oklahoma; KENNY SHORT, in his official capacity as Chairman of the Haskell County Board of Commissioners
No. 06-7098
UNITED STATES COURT OF APPEALS TENTH CIRCUIT
July 30, 2009
July 30, 2009
PUBLISH
Before HENRY, Chief Circuit Judge, TACHA, KELLY, BRISCOE, LUCERO, MURPHY, HARTZ, O‘BRIEN, McCONNELL, TYMKOVICH, GORSUCH, and HOLMES, Circuit Judges.
Defendants-Appellees’ Petition for Rehearing En Banc is denied. A poll was requested. On a vote of six to six of the active members of the Court, rehearing en banc was denied.
Entered for the Court,
ELISABETH A. SHUMAKER, Clerk
KELLY, Circuit Judge, dissenting from the denial of rehearing en banc, with whom TACHA and TYMKOVICH, Circuit Judges, join.
The court‘s decision in this case perpetuates a regrettable misapprehension of the Establishment Clause: that recognition of the role of religion in this country‘s founding, history, traditions, and laws is to be strictly excluded from the civic sphere. The court‘s analysis misconstrues—and in so doing multiplies the errors inherent in—the Supreme Court‘s already-questionable “tests”1 used to analyze passive acknowledgments of religion such as Ten Commandments monuments. The opinion strongly suggests that Ten Commandments displays authorized by small-town commissioners who harbor personal religious beliefs are unconstitutional establishments of religion. Such a conclusion is not only inconsistent with the original meaning of the Establishment Clause,2 but is also
In accord with our precedent in O‘Connor v. Washburn University, 416 F.3d 1216, 1223-24 (10th Cir. 2005), the court analyzed the constitutionality of the Ten Commandments display at issue in this case in light of Lemon v. Kurtzman, 403 U.S. 602 (1971), as modified by Justice O‘Connor‘s endorsement analysis. While not advocating that test, I am satisfied, for present purposes, to remain within the Lemon framework despite the plentiful—and meritorious—criticism of it.3 See Lamb‘s Chapel v. Ctr. Moriches Union Free Sch. Dist., 508 U.S. 384, 398-99 (1993) (Scalia, J., concurring) (collecting
This court‘s opinion contravenes Van Orden and misconstrues the endorsement analysis by (1) improperly creating a per se rule that new Ten Commandments displays are unconstitutional as long as someone files suit quickly; (2) placing too much emphasis on the fact that this was a small town, thereby making the effect of the Establishment Clause depend on the size of the community; and (3) conducting a subjective analysis rather than an objective analysis. Under a proper application of the Supreme Court‘s precedent, this Ten Commandments display is constitutional.
I. The Conflict with Van Orden
A. Factual Similarities
The court protests, perhaps too much, that the critical factor here is not mere aesthetics, but rather the failure to have a “unifying, cohesive secular theme.” Id. at 806 n.16. That, too, is in the eye of the beholder; as I suggest below, the collection of monuments does have a theme—celebration of Haskell County‘s history and moral ideals. The display of monuments does not have to be comprehensive; it is enough that the display celebrates a selection of events, people, and ideals that mark and measure the lives of Haskell County‘s citizens. Morеover, the court‘s opinion has created a catch-22: the commissioners could
The only legally relevant consideration is whether there are sufficient other monuments such that, taken as a whole, the display conveys a secular moral and historical message. See Van Orden, 545 U.S. at 701 (Breyer, J., concurring) (“In certain contexts, a display of the tablets of the Ten Commandments can convey not simply a religious message but also a secular moral . . . [a]nd . . . historical message.“); see also Pleasant Grove City v. Summum, 129 S. Ct. 1125, 1140 (2009) (Scalia, J., concurring) (engaging in a Van Orden inquiry and noting the presence of fifteen permanent displays without inquiring as to their “integration” or aesthetic quality). This display most certainly does so—after all, the monument sits with other monuments celebrating Haskell County‘s history and honoring (among others) those who have made the moral sacrifice of giving their lives for the rights and liberties we hold dear. The setting clearly establishes that the monument exists in a “context of history and moral ideals.” Van Orden, 545 U.S. at 701 (Breyer, J., concurring).
The setting of the monument and the presence of a clear historical and moral message are “strong” indications that the monument “conveys a predominantly secular message” and is therefore constitutional. Id. at 702 (Breyer, J., concurring). It is clear, of course, that the Ten Commandments display also conveys a religious message. See id. at 690 (plurality opinion). This alone raises no concern. “Simply having religious content or promoting a message consistent with a religious doctrine does not run afoul of the
B. Heckler‘s Veto
In the face of these similarities, the court relies on questionable grounds to distinguish this case from Van Orden. The court emphasizes “the sharp contrast between the timing of the legal challenges” in Van Orden and this case. Green,
The Supreme Court has, in a slightly different Establishment Clause context, refused to allow hecklers to exercise a veto, and we should not permit such a veto here. See Good News Club v. Milford Cent. Sch., 533 U.S. 98, 119 (2001) (“We decline to employ Establishment Clause jurisprudence using a modified heckler‘s veto . . . .“). According to the Court, “[a] litigant cannot, by the very act of commencing a lawsuit . . . create the appearancе of divisiveness and then exploit it as evidence of entanglement.” Lynch, 465 U.S. at 684-85. Just as the act of commencing a lawsuit cannot provide probative evidence of entanglement, it cannot provide evidence that the government action had the effect of endorsing religion either. The absence of litigation might suggest that there was no endorsement of religion, but a great many factors motivate lawsuits;
II. Flawed Endorsement Analysis
In addition to ignoring Van Orden, the court‘s endorsement analysis is wanting. Under the Lemon test as modified by Justice O‘Connor, the government violates the Establishment Clause by impermissibly endorsing religion “if its conduct has either (1) the purpose or (2) the effect of conveying a message that religion or a particular religious belief is favored or preferred.”7 Bauchman v.
A. Improper Reliance on the Motivations of a Private Citizen
The court erroneously imputes the motives of a private citizen to the commissioners for the purpose of finding a government endorsement of religion, placing considerable importance on the fact that the “reasonable observer would be aware of [the private donor‘s] religious motivation for seeking the erection of the Monument.” Green, 568 F.3d at 800. However, a truly objective inquiry would not impute a private citizen‘s motivations to the commissioners simply because they accepted his proposal. While the reasonable observer might have been aware that Mr. Bush had religious motivations in proposing the monument, the reasonable observer would not make the logical leap that the commissioners must therefore have shared his religious motives. Such a leap needlessly imputes a religious motive to the government, as it ignores the fact that the commissioners discussed the historic importance of the display and stated that the monument should be permitted based on the county‘s policy of neutrality in accepting displays. See Green, 450 F. Supp. 2d at 1275-76, 1292-94.
Moreover, the court comes perilously close to engaging in a subjective inquiry that penalizes private citizens for their religious beliefs, improperly using the Establishment Clause “as a sword to justify repression of religion [and] its
The court suggests that, while the motivation of a private citizen is irrelevant under the purpose prong of the endorsement test, it is significant for the effect it has on the reasonable observer‘s view of the monument. Green, 568 F.3d at 801 n.10. This is a distinction without a difference. Under the purpose prong, “we must scrutinize the government‘s intent; thus, where the challenged conduct is the selection or display of artwork, the artist‘s inspiration or intent is irrelevant.” Weinbaum v. City of Las Cruces, 541 F.3d 1017, 1031 (10th Cir. 2008). Similarly, under the effect prong, what counts is whether the reasonable observer would conclude that the government‘s objective act has the effect of advancing religion. Accordingly, whether a private citizen subjectively intends
B. Erroneous Emphasis on Community Size
The court also construes the endorsement test so as to disadvantage small communities. The panel opinion relies on the fact that “Haskell County is a place where everyone knows each other.” Green, 568 F.3d at 801 (internal quotation marks and brackets omitted). According to the court, Haskell County‘s small size means that the reasonable observer would conclude that the commissioners’ statements of support for the monument “reflect a government endorsement of religiоn.” Id. at 802. By reaching this conclusion, the court all but creates a presumption that small-town commissioners’ statements are official statements, and having done so, treats them as indicative of an endorsement of religion.
Such reasoning leads to a completely untenable result: that the Establishment Clause means one thing in small-town America and something different in a metropolitan area. This cannot be correct—not only from a First Amendment perspective, but also from the standpoint of announcing law that is uniform and predictable. It is telling that the court cited no legal authority or evidence for the proposition that members of a small community are more likely to view an elected representative‘s statement to be official speech. It is just as likely that a commissioner‘s neighbors in a small town would realize that the
Even if the small size of Haskell County should create a presumption that all statements by county officials reflect government policy, that presumption is rebutted by the facts of this case. The court relies upon religious statements by a commissioner as well as the presence of the commissioners at a dedication ceremony and a rally for the Ten Commandments monument to demonstrate a sectarian purpose on the part of the government. Green, 568 F.3d at 801-02. However, neither the statements nor the commissioners’ presence at the ceremonies should be controlling considerations.
First, while the court places great emphasis on the religious statements of the “commissioners,” only one commissioner actually made religious statements. Green, 568 F.3d at 802. Further, these statements were phrased in the first person, suggesting that the statements merely reflected that commissioner‘s personal beliefs—which, of course, are irrelevant to our inquiry. See McCreary County, 545 U.S. at 863 (“Establishment Clause analysis does not look to the
Second, the commissioners’ presence at the dedication ceremony and rally does nothing to demonstrate a sectarian effect. Commissioners can be expected to attend most any public function, especially in a small town. Attendance does not necessarily indicate endorsement; rather, it reflects what elected officials
While the court relies on this tenuous evidence of endorsement, it conspicuously neglects other contrary considerations. The commissioners never said that they were approving the monument for religious reasons. To the contrary, the record reflects that the commissioners discussed the historical aspect of the monument at the meeting where the monumеnt was accepted. The county also had an informal policy regarding the erection of monuments that was perfectly neutral. Green, 450 F. Supp. 2d at 1275-76. This neutral policy warrants further mention as it, combined with the wide variety of monuments displayed at the courthouse, does much to negate any possible message of
III. Conclusion
The court has gone much further than the Supreme Court‘s precedent mandates in looking for that ever-pernicious “endorsement” of religion. The Establishment Clause does not require government to avoid any action that
06-7098, Green v. Haskell County Board of County CommissionersGORSUCH, Circuit Judge, joined by TACHA, KELLY, and TYMKOVICH, Circuit Judges, dissenting from the denial of rehearing en banc.
Respectfully, I believe we should have reheard this case for at least three reasons. First, by applying the Lemon test to a Ten Commandments display after Van Orden, the panel‘s analysis conflicts with the views of several of our sister circuits. Second, by then focusing on the perceptions of an unreasonable and mistake-prone observer, the panel‘s analysis conflicts with the Supreme Court‘s explanation of Lemon‘s endorsement test and our sister circuits’ application of it. Finally, by making us apparently the first court of appeals since Van Orden to strike down an inclusive display of the Ten Commandments, the panel opinion mistakes the Supreme Court‘s clear message that displays of the decalogue alongside other markers of our nation‘s legal and cultural history do not threaten an establishment of religion.
I
In Lemon v. Kurtzman, 403 U.S. 602 (1971), the Supreme Court announced a tripartite test for deciding Establishment Clause disputes. Since then, Lemon has been criticized by many members of the Court,1 and a variety of legal
McCreary and Van Orden‘s mixed messages have left the circuits divided over whether Lemon continues to control the Establishment Clause analysis of public displays. Shortly after McCreary and Van Orden, we held that Lemon continues to govern this domain, O‘Connor v. Washburn University, 416 F.3d 1216, 1224 (10th Cir. 2005), and the panel in this case understandably felt obliged to follow O‘Connor‘s course. See also Staley v. Harris County, Texas, 461 F.3d 504, 508 n.6 (5th Cir. 2006); Skoros v. City of New York, 437 F.3d 1, 17 (2d Cir. 2006); American Civil Liberties Union of Kentucky v. Mercer County,Kentucky, 432 F.3d 624, 636 (6th Cir. 2005).
But as time has marched on, a numbеr of other circuits giving careful consideration to Van Orden and McCreary have come to a different view. These circuits have held that the “legal judgment” test Justice Breyer discussed in his Van Orden concurrence supplants Lemon at least in some areas. For example, the Ninth Circuit has held that Van Orden “carv[es] out an exception” from Lemon for displays of the decalogue. Card v. City of Everett, 520 F.3d 1009, 1018 (9th Cir. 2008). And the en banc Eighth Circuit, “[t]aking [its] cue from Chief Justice Rehnquist‘s opinion for the Court and Justice Breyer‘s concurring opinion in Van Orden,” has said that it will “not apply the Lemon test” to passive displays of the Ten Commandments. ACLU Nebraska Foundation v. City of Plattsmouth, Nebraska, 419 F.3d 772, 778 n.8 (8th Cir. 2005) (en banc). The Fourth Circuit has reached much the same conclusion, jettisoning Lemon in a case concerning the voluntary recitation of the Pledge of Allegiance in public schools. Myers v. Loudon County Public Schs., 418 F.3d 395, 402 (4th Cir. 2005).
We should have reheard this case to reconsider O‘Connor in light of these more recent developments in our sister circuits. This is not to fault O‘Connor or the panel: intermediate appellate judges seeking to identify the rule of law that governs Establishment Clause challenges to public monuments surely have their hands full after McCreary and Van Orden. At the same time, our sister circuits
2
Even if Lemon‘s test does control, the panel‘s opinion misconstrues it in a manner that yields another split between us and our sister courts. Until today, the premise of Lemon‘s endorsement test was that the reasonable observer, through whose eyes an alleged endorsement is evaluated, was someone who got things right. A cousin of the “reasonable man” of tort law, the reasonable observer sees things as they really are. He is not the sort of person “‘who might occasionally do unreasonable things,’ but is ‘rather a personification of a community ideal of reasonable behavior, determined by the [collective] social judgment.‘” Capitol Square Review and Advisory Bd. v. Pinette, 515 U.S. 753, 779-80 (1995) (O‘Connor, J., concurring) (alteration in original) (quoting W. Page Keeton et al., Prosser & Keeton on Law of Torts 175 (5th ed. 1984)). He foсuses on “the ‘objective’ meaning of the [government‘s] statement in the community,” informed by the “history and context of the community and forum in which the religious display appears,” as well as the “the general history of the place in which the
Employing such a reasonable person, our sister circuits that have applied Lemon to public displays similar to Haskell County‘s have upheld them. In Mercer, the Sixth Circuit sustained a display that included the Ten Commandments, the Bill of Rights, the Declaration of Independence, the Mayflower Compact, Magna Carta, the Star-Spangled Banner, the motto “In God We Trust,” the Preamble to the Kentucky Constitution, and Lady Justice. Mercer, 432 F.3d at 626. The court found that these items together conveyed the “unmistakable message of the County‘s acknowledgment of legal history.” Id. at 638 (internal quotation omitted). Similarly, just before McCreary and Van Orden were decided, the Seventh Circuit upheld a nearly identical display in Indiana, finding that, in such a context, the Ten Commandments were celebrated “for their historical contribution to the development of American legal and political traditions.” Books v. Elkhart County, 401 F.3d 857, 868 (7th Cir. 2005).
The panel in our case reached the opposite conclusion because its observer is not the reasonable observer of Justice O‘Connor‘s description, but rather an admittedly unreasonable one. He just gets things wrong. For example, while the reasonable observer‘s job under Lemon‘s second prong is to evaluate the monument‘s “objective meaning of the [government‘s] statement in the
Not only does our observer do the wrong job, he does it poorly. One of his chief skills, at least according to Justice O‘Connor, is the ability to distinguish between private and governmental speech. See Pinette, 515 U.S. at 782 (O‘Connor, J., concurring) (“The reasonable observer would recognize the distinction between speech the government supports and speech that it merely allows in a place that traditionally has been open to a range of private speakers accompanied, if necessary, by an appropriate disclaimer.“). Our observer is able to keep this distinction in mind for awhile: when it comes to the donor himself, our observer recognizes that Mr. Bush‘s comments do not represent the government‘s views. But he promptly forgets the distinction when he reads in the newspapers that a single county commissioner has made religious remarks, all phrased in the first person. As the panel opinion acknowledges, these statements were made in the commissioner‘s private capacity, and he was under no obligation to censor his personal views. Panel Op. at 34. Nevertheless, our observer erroneously attributes these remarks to the county government. Id. at 34-35.
Next, our observer considers the speech of a different commissioner at the monument‘s unveiling, looking again for some untoward governmental purpose. This commissioner says nothing religious. Still, our observer leaps to the conclusion that, because the commissioner did not specifically disclaim any religious motivation, he must have shared the private donor‘s religious purposes.
Mistake piles on mistake as our observer suspects that the government harbors some nefarious intent because it refused to raze the monument when this lawsuit was threatened. Hearing that some lawyers have presented some “clearly voiced Establishment Clause concerns,” Panel Op. at 36-37, our observer does not pause to evaluate whether these concerns are meritorious, or wait for the resolution of the litigation. Instead, he assumes that when local governments say they intend to defend a lawsuit and leave the monument standing unless ordered to do otherwise, that indicates an endorsement of religion.
Finally, our observer is something of an art critic. He complains that the Haskell County‘s courthouse lawn display does not have “a unifying, cohesive secular theme,” resemble a “unified exhibit in a ‘typical museum setting,‘” or at least appear to be “associated with intellectual experimentation.” Panel Op. at 40-41 & n.16. But here, too, our observer is mistaken. The display does have a unifying theme: it memorializes and celebrates people and ideals important to
One can‘t help but ask wonder other familiar public memorials would fail our observer‘s aesthetic standards. What is, say, the unifying theme behind the Congress‘s collection of monuments in Statuary Hall, which includes likenesses of George Washington (Virginia), Brigham Young (Utah), and Father Junipero Serra (California)? It is only that the Congress has invited the States to donate two monuments of their choosing. These individuals, some of whom were religious figures, are commemorated only because they are important to the people оf the States; the lack of any other unifying theme hardly renders it difficult to understand the secular importance of the latter two men.
Exactly the same should hold true here. Rather than focusing on the aesthetic qualities of Haskell County‘s display, it should be enough that there is no indication that county officials had any sort of policy by which they
What the majority calls “the very significant magnitude of the evidence indicating an impermissible endorsement,” Panel Op. 47, consists of the facts I have just recounted: the private donor‘s intent, the statements of a single commissioner in his concededly private capacity, the county‘s refusal to buckle to litigation pressure, and the county‘s perceived lack of artistic taste. None of this, of course, is evidence that the Constitution was violated. But to our observer, apparently it can be mistaken for such evidence. And the only thing keeping the veil over our observer‘s eyes is the novel view that in “the context of the small community of Haskell County,” reasonable observers make unreasonable mistakes. Panel Op. at 47, see also id. at 32, 35. The result is not simply a misapplication of the reasonable observer test: it is a rewriting of that test in a
3
Whatever test we are supposed to apply, or the number of its prongs, the Supreme Court‘s central message in McCreary and Van Orden was that public displays focusing on the ideals and history of a locality do not run afoul of the Establishment Clause just because they include the Ten Commandments. The panel‘s decision denies the precedential force of this holding and makes us the first circuit court since McCreary and Van Orden to strike down such an inclusive display.
While problems may arise when the Ten Commandments are displayed alone, or as part of a patent attempt to advance a religious message, McCreary, 545 U.S. at 867; Stone v. Graham, 449 U.S. 39 (1980) (per curiam), the Supreme Court has made clear that the decalogue‘s influence isn‘t just religious. In inclusive displays on places like courthouse lawns, the Ten Commandments can convey a “secular moral message” about the primacy and authority of law, as well as the “history and moral ideals” of our society and legal tradition. Van Orden, 545 U.S. at 701-02 (Breyer, J., concurring in the judgment). Neither is this surprising. Though their influence may be indirect, it is “undeniable” that “the Ten Commandments have had a significant impact on the development of secular legal codes of the Western World.” Stone, 449 U.S. at 45 (Rehnquist, J.,
While I would prefer to rehear this case to determine whether and how Lemon applies, the fact remains that regardless of all this the panel‘s opinion is simply inconsistent with the most analоgous decision of the Supreme Court. Even if we can‘t be sure anymore what legal rule controls Establishment Clause analysis in these cases, we should all be able to agree at least that cases like Van Orden should come out like Van Orden. If this seems facile, that‘s because it is. But the most elemental dictate of legal reasoning always has been and remains:
I respectfully dissent from the denial of rehearing en banc.
Here, the court failed to maintain that balance by completely eliding the fact that there is a genuine secular purpose for the display and by straining to avoid the conclusion that the primary effect of the monument was not the endorsement of religion. It is more likely, given the facts of this case, that a reasonable observer will perceive from the razing of this monument a message of disapproval of religion. At the very least, removing this monument demonstrates a “callous indifference” toward religion neither required nor permitted by the Establishment Clause. Zorach, 343 U.S. at 314. In sum, I fear that the breadth of the court‘s opinion will have far-reaching effects that tend to unnecessarily undermine communities’ ability to display Ten Commandments monuments, particularly small communities. I therefore respectfully dissent from the denial of rehearing en banc.