RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit Rule 206
File Name: 10a0167p.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
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AMERICAN CIVIL LIBERTIES UNION OF
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KENTUCKY; LOUANNE WALKER; DAVID
HOWE; SARAH DOE and THOMAS DOE, on -
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No. 08-6069
behalf of themselves and their minor child,
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Plaintiffs-Appellees, -
JANE DOE; LAWRENCE DURHAM; PAUL LEE,
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v.
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MCCREARY COUNTY, KENTUCKY; PULASKI
Defendants-Appellants. -
COUNTY, KENTUCKY,
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Appeal from the United States District Court
for the Eastern District of Kentucky at London.
No. 99-00507—Jennifer B. Coffman, Chief District Judge.
Argued: October 20, 2009
Decided and Filed: June 9, 2010
Before: RYAN, CLAY, and GIBBONS, Circuit Judges.
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COUNSEL
ARGUED: Mathew D. Staver, LIBERTY COUNSEL, Orlando, Florida, for Appellants.
David A. Friedman, AMERICAN CIVIL LIBERTIES UNION OF KENTUCKY, Louisville,
Kentucky, for Appellees. ON BRIEF: Mathew D. Staver, LIBERTY COUNSEL, Orlando,
Florida, Stephen M. Crampton, Mary E. McAlister, LIBERTY COUNSEL, Lynchburg,
Virginia, for Appellants. David A. Friedman, William E. Sharp, AMERICAN CIVIL
LIBERTIES UNION OF KENTUCKY, Louisville, Kentucky, for Appellees. John A.
Eidsmoe, FOUNDATION FOR MORAL LAW, Montgomery, Alabama, for Amicus Curiae.
CLAY, J., delivered the opinion of the court. GIBBONS, J. (p. 18), delivered a
separate concurring opinion. RYAN, J. (pp. 19-20), delivered a separate dissenting opinion.
1
No. 08-6069 ACLU, et al. v. McCreary County, Kentucky, et al. Page 2
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OPINION
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CLAY, Circuit Judge. Defendants, McCreary County, Kentucky, Pulaski County,
Kentucky, and officials from these counties, appeal from the district court order granting
Plaintiffs’ motion to alter or amend judgment, granting a permanent injunction prohibiting
Defendants from displaying the three contested Ten Commandments displays, and
construing Defendants’ renewed motion for summary judgment as one for relief from final
judgment. For the reasons set forth below, we AFFIRM the district court’s order.
BACKGROUND
In 1999, McCreary County and Pulaski County, Kentucky erected displays
1
consisting of framed copies of the Ten Commandments in their county courthouses. In
response, Plaintiffs filed lawsuits, seeking preliminary injunctions that would require the
removal of the displays based on violations of the Establishment Clause of the First
Amendment.2
Shortly after the complaint was filed and prior to a ruling in the district court on
Plaintiffs’ request for a preliminary injunction, Defendants altered their displays “in an
attempt to bring the display[s] within the parameters of the First Amendment and to
insulate themselves from suit.” ACLU of Ky. v. McCreary County, Ky., 96 F. Supp. 2d
679, 684 (E.D. Ky. 2000) (“McCreary I”). The second set of displays posted in the
courthouses included large copies of the Ten Commandments along with smaller copies
of eight other documents, which were religious in nature.
1
In addition, Harlan County, Kentucky erected displays of the Ten Commandments in the
classrooms of its schools. However, the classroom displays are no longer at issue in this case. For a full
recitation of the facts and history of this litigation, see ACLU of Ky. v. McCreary County, Ky., 145 F. Supp.
2d 845 (E.D. Ky. 2001) (“McCreary II”), aff’d, 354 F.3d 438 (6th Cir. 2003) (“McCreary III”), aff’d, 545
U.S. 844 (2005) (“McCreary IV”).
2
Plaintiffs initially filed three lawsuits, but they were consolidated and treated as one by the
district court and this Court on the initial appeal. We continue to treat them as one lawsuit for purposes
of this appeal.
No. 08-6069 ACLU, et al. v. McCreary County, Kentucky, et al. Page 3
Specifically, the Courthouse displays were modified to consist of: (1) an
excerpt from the Declaration of Independence; (2) the Preamble to the
Constitution of Kentucky; (3) the national motto of “In God We Trust”;
(4) a page from the Congressional Record of Wednesday, February 2,
1983, Vol. 129, No. 8, declaring it the Year of the Bible and including a
copy of the Ten Commandments; (5) a proclamation by President
Abraham Lincoln designating April 30, 1863 a National Day of Prayer
and Humiliation; (6) an excerpt from President Lincoln’s “Reply to
Loyal Colored People of Baltimore upon Presentation of a Bible”
reading, “The Bible is the best gift God has ever given to man.”; (7) a
proclamation by President Ronald Reagan marking 1983 the Year of the
Bible; and (8) the Mayflower Compact.
McCreary III, 354 F.3d at 442. Defendants also passed new resolutions authorizing the
second set of displays (“the 1999 resolutions”), which emphasized the importance of
religion in historical documents of the United States and encouraged the County-Judge
Executive to “post the Ten Commandments as the precedent legal code upon which the
civil and criminal codes of the Commonwealth of Kentucky are founded.” (Dist. Ct.
R.E. 119 Ex. B). On May 5, 2000, the district court granted Plaintiffs’ motion for a
preliminary injunction, ordering that Defendants remove the second displays
“immediately” and not erect “similar displays” in the future. McCreary I, 96 F. Supp.
2d at 691.
In response to the district court’s ruling, the counties removed the second set of
displays, voluntarily dismissed an appeal from the initial preliminary injunction, and
posted a third set of displays entitled the Foundations of Law and Government Displays
(“Foundations Displays”). The third displays contained nine documents of equal size,
including the Ten Commandments, along with one page of explanatory phrases to
accompany each of the nine other documents. Specifically,
[t]he new courthouse displays consisted of the entire Star Spangled
Banner, the Declaration of Independence, the Mayflower Compact, the
Bill of Rights, the Magna Carta, the National Motto, the Preamble to the
Kentucky Constitution, the Ten Commandments, Lady Justice and a
one-page prefatory document entitled “The Foundations of American
Law and Government Display.” . . . The prefatory description states that
the “display contains documents that played a significant role in the
No. 08-6069 ACLU, et al. v. McCreary County, Kentucky, et al. Page 4
foundation of our system of law and government.” . . . With regard to the
Ten Commandments, the prefatory description states:
The Ten Commandments have profoundly influenced the
formation of Western legal thought and the formation of
our country. That influence is clearly seen in the
Declaration of Independence, which declared that, “We
hold these truths to be self-evident, that all men are
created equal, that they are endowed by their Creator with
certain unalienable Rights, that among these are Life,
Liberty, and the pursuit of Happiness.” The Ten
Commandments provide the moral background of the
Declaration of Independence and the foundation of our
legal tradition.
There is no other discussion of the Ten Commandments and how it
purportedly relates to any of the other documents in the display.
McCreary III, 354 F.3d at 443. At the time the Foundations Displays were erected, the
counties did not repeal the 1999 resolutions, which were passed just months earlier, or
pass new resolutions authorizing the third displays. On June 22, 2001, the district court
granted Plaintiffs’ motion for a supplemental preliminary injunction to include the third
displays. On December 18, 2003, this Court affirmed.
On October 12, 2004, the Supreme Court granted Defendants’ petition for
certiorari.3 On March 8 and March 10, 2005, after oral argument but before the Supreme
3
Defendants sought certiorari on the following issues:
1. Whether the Establishment Clause is violated by a privately
donated display on government property that includes eleven equal
size frames containing an explanation of the display along with nine
historical documents and symbols that played a role in the
development of American law and government where only one of the
framed documents is the Ten Commandments and the remaining
documents and symbols are secular.
2. Whether a prior display by the government in a courthouse
containing the Ten Commandments that was enjoined by a court
permanently taints and thereby precludes any future display by the
same government when the subsequent display articulates a secular
purpose and where the Ten Commandments is a minority among
numerous other secular historical documents and symbols.
3. Whether the Lemon test should be overruled since the test is
unworkable and has fostered excessive confusion in Establishment
Clause jurisprudence.
4. Whether a new test for Establishment Clause purposes should be
No. 08-6069 ACLU, et al. v. McCreary County, Kentucky, et al. Page 5
Court issued a decision, the counties passed new resolutions (“the 2005 resolutions”),
which repealed and repudiated the 1999 resolutions authorizing the second displays. On
June 27, 2005, the Supreme Court upheld the preliminary injunction on the basis that
Defendants exhibited an unconstitutional religious purpose in posting the Foundations
Displays. The Supreme Court viewed the repeal of the 1999 resolutions as “acts of
obviously minimal significance in the evolution of the evidence.” McCreary IV, 545
U.S. at 872 n.19.
After the Supreme Court issued its opinion, the case returned to the district court
for further proceedings. The district court entered a scheduling order containing, among
other things, discovery and dispositive motion deadlines. After discovery closed, both
sides submitted motions for summary judgment. Between the Supreme Court decision
in June of 2005 and the filing of the motions for summary judgment in January and
February of 2007, the parties merely conducted discovery as to the factual details and
motivation for the sequence of the displays. Defendants made no changes to the
Foundation Displays, nor did they pass any new resolutions concerning the purpose of
the displays.
On September 28, 2007, the district court denied both Plaintiffs’ and Defendants’
motions for summary judgment. In denying Plaintiffs’ motion for a permanent
injunction against the Foundation Displays, the district court held that the constitutional
violation is not “continuing” as required by the standard for a permanent injunction
because “it is possible to purge the taint of the impermissible religious purpose.” (Dist.
Ct. R.E. 153 at 10). However, the district court also denied Defendants’ motion for
summary judgment, holding that the counties had not taken any actions since the
Supreme Court decision that showed a change in their predominantly religious purpose;
thus, Defendants’ actions in posting the Foundations Displays continued to violate the
Establishment Clause. Despite the district court’s holding that neither Plaintiffs nor
set forth by this Court when the government displays or recognizes
historical expressions of religion.
Petition for Writ of Certiorari, McCreary IV, 2004 WL 1427470, at *i (June 21, 2004).
No. 08-6069 ACLU, et al. v. McCreary County, Kentucky, et al. Page 6
Defendants were entitled to judgment as a matter of law, the court also found that no
triable issues of fact remained and referred the case to the magistrate judge for a
settlement conference.
On October 9, 2007, in response to the district court’s finding that Defendants
continued to violate the Establishment Clause, Defendants enacted new resolutions
regarding the Foundations Displays (“the 2007 resolutions”). The 2007 resolutions
stated the educational and historical purpose of the Foundations Displays and expressly
disclaimed any attempt to endorse religion. On October 15, 2007, Plaintiffs filed a
timely motion under Federal Rules of Civil Procedure 59 and 60 to alter or amend the
court’s September 28, 2007 judgment denying Plaintiffs’ motion for summary judgment.
On October 30, 2007, Defendants filed a renewed motion for summary judgment in light
of the 2007 resolutions. Plaintiffs moved to strike Defendants’ renewed motion on
November 19, 2007, because Defendants had filed the motion more than one year after
the dispositive motion deadline and had attempted to admit new evidence more than one
year after the close of discovery.
On August 4, 2008, the district court: (1) granted Plaintiffs’ motion to alter or
amend judgment, (2) denied Plaintiffs’ motion to strike Defendants’ motion for summary
judgment and directed Plaintiffs to file a response, and (3) construed Defendants’ motion
for summary judgment as one of relief from final judgment. In altering its judgment
under Rule 59(e), the district court declared the Foundation Displays unconstitutional
and permanently enjoined Defendants from displaying all three displays in the county
courthouses based on the court’s finding that the Foundations Displays continued to
violate the Establishment Clause as of its September 28, 2007 order. The district court
also ruled that its order was final and appealable. On September 2, 2008, Defendants
filed their timely notice of appeal from the district court’s final judgment. On September
30, 2008, the district court dismissed without prejudice what it deemed to be Defendants’
motion for relief from judgment on the ground that the court had lost jurisdiction over
the motion when Defendants filed their appeal. Defendants filed no notice of appeal
from the district court’s denial of their relief from judgment.
No. 08-6069 ACLU, et al. v. McCreary County, Kentucky, et al. Page 7
DISCUSSION
I. Permanent Injunction Standard
This appeal differs from the last time we heard this case in that we are reviewing
the district court’s grant of a permanent injunction rather than a preliminary injunction.
In evaluating a district court’s grant of a permanent injunction, we review its
factual findings under a clearly erroneous standard, its legal conclusions de novo, and
the scope of injunctive relief under an abuse of discretion standard. Women’s Med.
Prof’l Corp. v. Baird, 438 F.3d 595, 602 (6th Cir. 2006).
In general, “[t]he standard for a preliminary injunction is essentially the same as
for a permanent injunction with the exception that [for a preliminary injunction] the
plaintiff must show a likelihood of success on the merits rather than actual success.”
Amoco Prod. Co. v. Village of Gambell, 480 U.S. 531, 546 n.12 (1987) (internal citations
omitted). In the context of this case, “a party is entitled to a permanent injunction if it
can establish that it suffered a constitutional violation and will suffer ‘continuing
irreparable injury’ for which there is no adequate remedy at law.” Baird, 438 F.3d at
602 (citing Kallstrom v. City of Columbus, 136 F.3d 1055, 1067 (6th Cir. 1998)).
II. Disposition of Permanent Injunction
As was true the last time we heard this matter, the governing standard for
determining whether a particular government action violates the Establishment Clause
remains Lemon v. Kurtzman, 403 U.S. 602 (1971). Despite Defendants’ attempts to
persuade the Supreme Court to abandon the inquiry into legislative purpose, the Supreme
Court confirmed that the Lemon test remains the appropriate inquiry. See McCreary IV,
545 U.S. at 861-64. Under the Lemon test, as originally formulated, reviewing courts
must consider whether (1) the government activity in question has a secular purpose,
(2) the activity’s primary effect advances or inhibits religion, and (3) the governmental
activity fosters an excessive entanglement with religion. Lemon, 403 U.S. at 612-13.
No. 08-6069 ACLU, et al. v. McCreary County, Kentucky, et al. Page 8
The touchstone of a reviewing court’s analysis under the Establishment Clause
requires “government neutrality between religion and religion, and between religion and
nonreligion.” McCreary IV, 545 U.S. at 860 (quoting Epperson v. Arkansas, 393 U.S.
97, 104 (1968)).
In analyzing purpose under the first prong of the Lemon test, “[t]he eyes that look
to purpose belong to an ‘“objective observer,”’ one who takes account of the traditional
external signs that show up in the ‘“text, legislative history, and implementation of the
statute,”’ or comparable official act.” Id. at 862 (quoting Sante Fe Indep. Sch. Dist. v.
Doe, 530 U.S. 290, 308 (2000) (quoting Wallace v. Jaffree, 472 U.S. 38, 76 (1985))).
See also Edwards v. Aguillard, 482 U.S. 578, 594-95 (1987). “[A]lthough a legislature’s
stated reasons will generally get deference, the secular purpose required has to be
genuine, not a sham, and not merely secondary to a religious objective.” McCreary IV,
545 U.S. at 864. Thus, the government violates the Establishment Clause when it acts
with the “predominant purpose of advancing religion.” Id. at 860.
Furthermore, the objective observer is considered to have “reasonable
memories,” and Supreme Court precedents “sensibly forbid an observer ‘to turn a blind
eye to the context in which [the] policy arose.’” Id. at 866 (quoting Santa Fe, 530 U.S.
at 315). Thus, reviewing courts must look with the eye of an observer “familiar with the
history of the government’s actions and competent to learn was history has to show.”
Id. (citing Santa Fe, 530 U.S. at 308). As a consequence, “the same governmental action
may be constitutional if taken in the first instance and unconstitutional if it has a
sectarian heritage.” Id. at 866 n.14 (“where one display has a history manifesting
sectarian purpose that the other lacks, it is appropriate that they be treated differently,
for the one display will be properly understood as demonstrating a preference for one
group of religious believers as against another”).
As an initial matter, given that Defendants’ brief challenges only the permanent
injunction against the Foundations Display, we affirm the permanent injunction as to the
first and second displays. We further find that the district court did not err in
permanently enjoining the Foundations Displays based on its finding that Defendants’
No. 08-6069 ACLU, et al. v. McCreary County, Kentucky, et al. Page 9
actions in posting these displays continued to violate the Establishment Clause as of its
September 28, 2007 order.
The district court properly found that no facts affecting the purpose analysis had
changed between the Supreme Court decision finding an improper religious purpose in
June of 2005 and the filing of the motions for summary judgment on remand in January
and February of 2007. In that time, Defendants made no changes to the content or
context of the Foundation Displays, nor did they pass any new resolutions concerning
the purpose of the displays. The Supreme Court found the content of the Foundation
Displays, in conjunction the evolution of evidence, to reveal Defendants’ religious
purpose in posting the displays. According to the Court, the puzzling choices that the
counties made concerning which documents to include in the displays and which
documents to omit would probably lead an objective observer to “suspect that the
Counties were simply reaching for any way to keep a religious document on the walls
of courthouses constitutionally required to embody religious neutrality.” McCreary IV,
545 U.S. at 873.4 Likewise, on remand, the “objective observer” who has reasonable
memories would have seen the same Foundations Displays posted in the courthouses
with the same set of resolutions authorizing the displays, and would have instantly
recognized the same religious purpose that Defendants articulated during the previous
round of litigation. See also Santa Fe, 530 U.S. at 315 (holding that a school district’s
4
According to the Supreme Court:
the selection of posted material [does not] suggest a clear theme that
might prevail over evidence of the continuing religious object. In a
collection of documents said to be “foundational” to American
government, it is at least odd to include a patriotic anthem, but to
omit the Fourteenth Amendment, the most significant structural
provision adopted since the original Framing. And it is no less
baffling to leave out the original Constitution of 1787 while quoting
the 1215 Magna Carta even to the point of its declaration that
“fish-weirs shall be removed from the Thames.” Id., at 205a, ¶ 33.
If an observer found these choices and omissions perplexing in
isolation, he would be puzzled for a different reason when he read the
Declaration of Independence seeking confirmation for the Counties’
posted explanation that the Ten Commandments’ “influence is clearly
seen in the Declaration,” id., at 180a; in fact the observer would find
that the Commandments are sanctioned as divine imperatives, while
the Declaration of Independence holds that the authority of
government to enforce the law derives “from the consent of the
governed,” id., at 190a.
McCreary IV, 545 U.S. at 872-73.
No. 08-6069 ACLU, et al. v. McCreary County, Kentucky, et al. Page 10
history of non-compliance with the Establishment Clause must be considered in
determining whether the school district’s latest iteration of the challenged policy was
constitutional).
Defendants attempt to argue that because the 2005 resolutions, which adopted
educational purposes for the Foundations Displays and repealed the 1999 resolutions
containing explicit religious purpose statements, were passed after the Supreme Court
heard oral arguments, the Supreme Court did not have a chance to adequately consider
the context of the 2005 resolutions or their effect in eradicating the improper religious
purpose. However, despite the fact that the counties passed these resolutions after
briefing and oral argument, the Supreme Court still considered them in deciding that the
counties had not eliminated the improper religious purpose. In the context of the overall
evolution of the displays, the Supreme Court found that the counties’ new unwritten
statements of purpose “were presented only as a litigating position” and that the new
2005 written resolutions were “acts of obviously minimal significance in the evolution
of the evidence.” McCreary IV, 545 U.S. at 871, 872 n.19. See also Adland v. Russ, 307
F.3d 471, 481 (6th Cir. 2002) (finding that Kentucky’s clarification of its Ten
Commandments display only after it was in the midst of litigation was probative of the
Commonwealth’s religious purpose).
In support of their argument that the 2005 resolutions evince a secular purpose,
Defendants argue that the Supreme Court merely mentioned the 2005 resolutions in a
footnote and that a reviewing court should generally defer to a legislature’s stated intent
unless it is determined to be a “sham.” But Defendants have failed to show why the
district court should have attributed more significance to the 2005 resolutions than did
the Supreme Court in determining the purpose of the displays. The Supreme Court
considered the 2005 resolutions when the Court made its decision, and the Supreme
Court’s assessment of the 2005 resolutions became the law of the case, which we are
obligated to follow. See Niemi v. NHK Spring Co., Ltd., 543 F.3d 294, 308 (6th Cir.
2008) (citing Scott v. Churchill, 377 F.3d 565, 569 (6th Cir. 2004); Rouse v.
DaimlerChrysler Corp. UAW, 300 F.3d 711, 715 (6th Cir. 2002)) (“[u]nder the
No. 08-6069 ACLU, et al. v. McCreary County, Kentucky, et al. Page 11
law-of-the-case doctrine, rulings made at one point in the litigation should continue to
govern in subsequent stages of that litigation”).
The district court was in no position on remand to assume that the Supreme Court
did not do its job and did not afford the resolutions the proper weight. The district court
was correct to take its direction from the Supreme Court, not from Defendants’ bare
assertion that the 2005 resolutions eradicated the improper religious purpose. Lower
courts are “obligated to follow Supreme Court dicta, particularly where there is not
substantial reason for disregarding it, such as age or subsequent statements undermining
its rationale.” United States v. Marlow, 278 F.3d 581, 588 n.7 (6th Cir. 2002) (citing
Gaylor v. United States, 74 F.3d 214, 217 (10th Cir. 1996) (“this court considers itself
bound by Supreme Court dicta almost as firmly as by the Court’s outright holdings,
particularly when the dicta is recent and not enfeebled by later statements”); McCoy v.
Mass. Inst. of Tech., 950 F.2d 13, 19 (1st Cir. 1991) (“federal appellate courts are bound
by the Supreme Court’s considered dicta almost as firmly as by the Court’s outright
holdings . . .”)).
Although the Supreme Court made clear that the counties’ past actions do not
“forever taint any effort on their part to deal with the subject matter,” McCreary IV at
874, Defendants offered no new facts on remand that show that their purpose had
changed from the one that the Supreme Court found to violate the Establishment Clause.
The four changes cited by Defendants are not “genuine changes in constitutionally
significant conditions.” Id. First, Defendants’ distinction between the content of the
second and third displays does not govern whether the legislators had an improper
purpose in hanging the displays and, in any event, those distinctions existed before the
Supreme Court issued its decision. Second, the fact that more time has passed since the
Supreme Court decision is meaningless in this case, because Defendants have spent the
time since the Supreme Court decision continuously seeking to accomplish their initial
purpose of posting the Ten Commandments as a religious document. Unlike a case in
which the passage of time might have some significance, there has been no dormant
period here; Defendants have continuously sought to defend their actions and accomplish
No. 08-6069 ACLU, et al. v. McCreary County, Kentucky, et al. Page 12
what they initially set out to do. Third, the change in government personnel is irrelevant,
because the “objective observer” test does not encompass “judicial psychoanalysis of a
drafter’s heart of hearts.” Id. at 862. Finally, the two sets of “new” government
resolutions are not new: the 2005 resolutions were enacted before the Supreme Court’s
decision and deemed of minimal significance by the Court, and the 2007 resolutions
were passed more than a year after the close of discovery in response to the district
court’s finding that the posting of the Foundations Displays continued to violate the
Establishment Clause. Thus, the district court properly found that no facts changed on
remand that would affect the Supreme Court’s analysis.
Furthermore, even if this Court were to consider the 2007 resolutions, which
were adopted after and in direct response to the district court’s finding that Defendants
continued to advance a religious purpose and more than a year after the close of
discovery, it is clear that these resolutions, like the previous statements of purpose, were
adopted only as a litigating position. These resolutions represent Defendants’ latest
effort in a long line of attempts to conform their conduct to the requirements of the
Constitution after adverse court rulings. See Santa Fe, 530 U.S. at 315 (noting that the
case at issue was “the latest step in developing litigation” and “refus[ing] to turn a blind
eye to the context in which [the policy of prayer at football games] arose” in finding that
“this policy was implemented with the purpose of endorsing [religion]”). Thus, like the
2005 resolutions, the 2007 resolutions provide little evidence that Defendant’s actual
purpose has changed and are of minimal significance in light of the evolution of the
evidence. See McCreary IV, 545 U.S. at 872 n.19.
The fact that this Court has found–since the Supreme Court decided
McCreary–that two counties did not have an impermissible religious purpose in posting
displays identical to the Foundations Displays at issue does not affect our finding that
the counties in this case have still not presented a valid secular purpose. See ACLU of
Ky. v. Grayson County, Ky., 591 F.3d 837 (6th Cir. 2010); ACLU of Ky. v. Mercer
County, Ky., 432 F.3d 624 (6th Cir. 2005). The Supreme Court in McCreary noted that
“the same government action may be constitutional if taken in the first instance and
No. 08-6069 ACLU, et al. v. McCreary County, Kentucky, et al. Page 13
unconstitutional if it has a sectarian heritage.” McCreary IV, 545 U.S. at 866 n.14.
Unlike the extended history of sectarian purpose here, in Mercer “there was only one
display, one authorizing measure, and one implementation, all of which demonstrate a
secular purpose.” 432 F.3d at 631. Likewise, the majority in Grayson characterized the
history of the display as evidencing a predominantly secular purpose. See Grayson, 591
F.3d at 849 (“As in Mercer County, the approval of the display in Grayson County was
not attended by a history evidencing a predominantly religious purpose. There were no
earlier displays nor were there any earlier resolutions indicating an avowedly religious
purpose.”). While there is significant evidence in the Grayson record that Defendants’
predominant purpose, as observed by an objective observer, was to post the Ten
Commandments as a religious text, we are bound to interpret Grayson in a manner that
does not conflict with the Supreme Court’s decision in McCreary.5 Thus, given the lack
of the same type of extended sectarian history in Mercer and Grayson, these cases are
distinguishable from the instant case. Further, unlike in Grayson and Mercer, the
Supreme Court in McCreary has definitively found that the display at issue violates the
Establishment Clause, and we are obligated to follow that precedent if no
constitutionally significant facts have changed.
Because the Supreme Court found that Defendants acted with the predominant
purpose of advancing religion in displaying each of their three Ten Commandment
displays in the county courthouses and Defendants continued to exhibit the same purpose
when the district court issued its September 28, 2007 order, Defendants’ action in
posting these displays violated the Establishment Clause. Thus, Plaintiffs have
established that they suffered a constitutional violation and will suffer continuing
irreparable injury if the violation continues. The fact that Defendants seek to minimize
5
However, we also note that the Mercer and Grayson opinions essentially ignore the Supreme
Court’s reliance in McCreary on both the content of the display and the evolution of the evidence in
determining that Defendants had a religious purpose in posting the Foundations Display. The Mercer and
Grayson panels would have us believe that the Supreme Court approved of the content of the Foundations
Displays and relied exclusively on the existence of prior displays and past conduct of McCreary County
officials in rejecting Defendants’ stated purpose as a sham. In fact, the Supreme Court in McCreary noted
that the puzzling choices that the counties made concerning the content of the Foundations Displays would
probably lead an objective observer to “suspect that the Counties were simply reaching for any way to keep
a religious document on the walls of courthouses constitutionally required to embody religious neutrality.”
McCreary IV, 545 U.S. at 873.
No. 08-6069 ACLU, et al. v. McCreary County, Kentucky, et al. Page 14
the residue of religious purpose does not mean that Plaintiffs do not suffer continuing
irreparable injury so long as the display remains on the walls of the county courthouses.
Thus, there is no adequate remedy at law, and Plaintiffs have demonstrated that they are
entitled to a permanent injunction.
Accordingly, the district court erred in declining to enter a permanent injunction
against Defendants in its September 28, 2007 order after finding that Defendants had
violated the Establishment Clause. However, the district court rectified that error by
properly enjoining Defendants from posting the displays in its August 4, 2008 order.
III. Disposition of Procedural Claims
A. Plaintiffs’ Motion to Amend or Alter Judgment
1. Standard of Review
Although we generally review a grant or denial of a motion to alter or amend a
judgment under Rule 59(e) for abuse of discretion, when the Rule 59(e) motion seeks
review of a grant of summary judgment, we apply a de novo standard of review. Cockrel
v. Shelby County Sch. Dist., 270 F.3d 1036, 1047 (6th Cir. 2001). In granting Plaintiffs’
Rule 59(e) motion, the district court essentially reconsidered and granted summary
judgment in favor of Plaintiffs. Accordingly, we apply a de novo standard of review.
“A motion to alter or amend a judgment must be filed no later than 10 days after
the entry of the judgment.” Fed. R. Civ. P. Rule 59(e) (emphasis added). A court may
grant a motion to alter or amend judgment only if there was “(1) a clear error of law;
(2) newly discovered evidence; (3) an intervening change in controlling law; or (4) a
need to prevent manifest injustice.” Intera Corp. v. Henderson, 428 F.3d 605, 620 (6th
Cir. 2005) (citing GenCorp, Inc. v. Am. Int’l Underwriters, 178 F.3d 804, 834 (6th Cir.
1999)).
No. 08-6069 ACLU, et al. v. McCreary County, Kentucky, et al. Page 15
2. Analysis
Because the district court erroneously denied Plaintiffs’ summary judgment
motions after finding that Defendants continued to violate the Establishment Clause and
that no triable issues of fact remained, the district court had not yet entered judgment
when it granted Plaintiffs’ motion to alter or amend judgment. Thus, Plaintiffs’ motion
was effectively a motion for reconsideration of summary judgment and “[t]he district
court was therefore free to reconsider or reverse its decision for any reason.” Cameron
v. Ohio, 344 F. App’x 115, 118 (6th Cir. 2009) (citing Russell v. GTE Gov't Sys. Corp.,
141 F. App’x 429, 436 (6th Cir. 2005)). However, this Court has also found that it may
be “proper for the [d]istrict [c]ourt to entertain a motion to alter or amend a judgment
under Rule 59(e) even though it was filed prior to the actual entry of judgment.” Smith
v. Hudson, 600 F.2d 60, 62 (6th Cir. 1979). Under the stricter Rule 59(e) standard,
Plaintiffs were entitled to have the judgment altered in view of the district court’s clear
error of law in declining to enter a permanent injunction in its September 28, 2007 order.
Thus, regardless of whether Plantiffs’ motion should have been classified under
Rule 59(e) or Rule 54(b), the district court did not err in reconsidering its earlier decision
and determining that Plaintiffs were entitled to a permanent injunction.
B. Defendant’s Renewed Motion for Summary Judgment
1. Standard of Review
We generally review a district court’s denial of a motion for relief from judgment
pursuant to Rule 60(b) only for an abuse of discretion. Massi v. Walgreen Co., 337 F.
App’x 542, 545 (6th Cir. 2009) (citing Davis v. Jellico Cmty. Hosp., Inc., 912 F.2d 129,
133 (6th Cir. 1990)). When this Court reviews for abuse of discretion, it will reverse
only when it “is firmly convinced that a mistake has been made.” Bush v. Rauch, 38
F.3d 842, 848 (6th Cir. 1994) (internal citations omitted).
To overcome this deferential standard of review over a motion for relief from
judgment, a party must demonstrate that the district court committed “a clear error of
judgment, such as applying the incorrect legal standard, misapplying the correct legal
No. 08-6069 ACLU, et al. v. McCreary County, Kentucky, et al. Page 16
standard, or relying upon clearly erroneous findings of fact.” In re Ferro Corp.
Derivative Litig., 511 F.3d 611, 623 (6th Cir. 2008).
2. Analysis
Because the district court entered judgment in the same decision that it construed
Defendants’ renewed motion for summary judgment as one for relief from judgment
under Rule 60(b), it was reasonable for the district court to construe the entry of
judgment as coming before the conversion of Defendants’ motion.
Furthermore, a district court has broad discretion to manage its docket. Reed v.
Rhodes, 179 F.3d 453, 471 (6th Cir. 1999). A district court’s decision whether a late
filing results from “excusable neglect” is subject to review for abuse of discretion. Allen
v. Murph, 194 F.3d 722, 723-24 (6th Cir. 1999). Defendants filed their renewed motion
for summary judgment more than one year after the deadline for dispositive motions had
passed without seeking leave to file. Defendants sought to introduce new facts–the 2007
resolutions that were passed after and in response to the district court’s summary
judgment decision–more than one year after the close of discovery. Accordingly, based
on the district court’s power to manage its own docket, the court had ample discretion
to strike Defendants’ late renewed motion for summary judgment. By converting
Defendants’ renewed summary judgment motion to a Rule 60(b) motion for relief from
judgment and considering Defendants’ new facts and arguments, the district court was
giving Defendants the benefit of the doubt.
Finally, we decline to review the district court’s subsequent denial of
Defendants’ motion for relief from final judgment because we lack jurisdiction.
Defendants filed their notice of appeal on September 2, 2008 from the district court’s
order of August 4, 2008, in which it converted Defendants’ motion. The district court
did not deny Defendants’ Rule 60(b) motion until September 30, 2008. Thus, this order
denying relief from judgment was not and could not have been appealed pursuant to
Defendants’ September 2, 2008 notice of appeal. After the district court’s September
30, 2008 denial of relief from judgment, Defendants had 30 days under Fed. R. App. P.
No. 08-6069 ACLU, et al. v. McCreary County, Kentucky, et al. Page 17
4(a)(1)(A) to file a notice of appeal of that order. However, Defendants failed to do so.
This failure deprives this Court of jurisdiction over Defendants’ attempt to appeal from
the September 30, 2008 order.
CONCLUSION
For the reasons set forth above, we AFFIRM the district court’s order
permanently enjoining Defendants from erecting each of their three Ten Commandment
displays in the McCreary County and Pulaski County courthouses.
No. 08-6069 ACLU, et al. v. McCreary County, Kentucky, et al. Page 18
______________________
CONCURRENCE
______________________
JULIA SMITH GIBBONS, Circuit Judge, concurring. I concur with the majority
opinion’s thoughtful resolution of the constitutional issues surrounding the 2005
Resolutions and its conclusions on the procedural issues in this case but write to
emphasize one point. Given that we lack jurisdiction to consider the counties’ appeal
from the district court’s denial of their motion for relief from judgment under Federal
Rule of Civil Procedure 60(b), in which they first brought the 2007 Resolutions to the
court’s attention, I would not reach the issue of whether the 2007 Resolutions evince a
religious or secular purpose for the Foundations Displays. In light of the Supreme
Court’s cautioning that the counties’ past actions need not “forever taint any effort on
their part to deal with the subject matter,” McCreary County v. ACLU, 545 U.S. 844,
873–74 (2005), I would leave this issue to the district court in the first instance. See
Jordon v. Gilligan, 500 F.2d 701, 707 (6th Cir. 1974) (noting that appellate court dicta
has persuasive precedential effect only).
No. 08-6069 ACLU, et al. v. McCreary County, Kentucky, et al. Page 19
________________
DISSENT
________________
RYAN, Circuit Judge, dissenting. This appeal is essentially a rerun of what the
parties argued and our panel majority decided in ACLU v. McCreary County, 354 F.3d
438 (6th Cir. 2003) (McCreary III), and the Supreme Court affirmed in McCreary
County v. ACLU, 545 U.S. 844 (2005) (McCreary IV). The only real difference is that
this appeal presents the question whether the defendants have “purged” the “Foundations
of Law and Government Displays” of the religious “taint” of the Ten Commandments.
My colleagues think they have not. I think they could not because there was no “taint”
to be “purged,” and even if there were, the defendants’ effort to do so has been
disqualified as a mere “litigating position.”
The merits and demerits of the vitally important First Amendment Establishment
Clause issues that are at the heart of this case were thoroughly discussed in Judge Clay’s
opinion for the panel and my dissenting opinion in McCreary III, and in Justice Souter’s
opinion for the Supreme Court and Justice Scalia’s dissent in McCreary IV.
My colleagues have deftly foreclosed consideration of the issue whether the
counties’ 2007 resolutions expressly disclaiming any intention to endorse religion may
have “purged the taint” of religion from the third set of displays with the dismissive
observation that the 2007 resolutions were “adopted only as a litigating position.” With
that nearly Clausewitz-perfect blocking action, I am left with nothing to add to what I
wrote in McCreary III, except the following:
1. I humbly associate myself with Justice Scalia’s powerful and logically
compelling explanation in McCreary IV that the displays in question do not violate the
First Amendment and never did.
2. I cannot be too critical of my panel colleagues who feel stare decisis-
bound by the Supreme Court majority’s persistent hostility to religion and its refusal to
acknowledge the historical evidence that religion, religious symbols, and the support of
No. 08-6069 ACLU, et al. v. McCreary County, Kentucky, et al. Page 20
religious devotion were of the very essence of the values the Constitution’s authors and
the ratifying legislators thought they were preserving in the language of the First
Amendment.
The result, I fear, is that federal courts will continue to close the Public Square
to the display of religious symbols as fundamental as the Ten Commandments, at least
until the Supreme Court rediscovers the history and meaning of the words of the religion
clauses of the First Amendment and jettisons the flawed reasoning of Lemon v.
Kurtzman, 403 U.S. 602 (1971).
3. Perhaps the panel’s decision in this case, taken together with this court’s
decisions in ACLU v. Mercer County, 432 F.3d 624 (6th Cir. 2005), and ACLU v.
Grayson County, 591 F.3d 837 (6th Cir. 2010), will move our court to reconsider en
banc what my colleagues have held today, from which I strongly dissent. See McCreary
III and McCreary IV.