United States Court of Appeals
Fifth Circuit
REVISED JUNE 6, 2003
F I L E D
June 3, 2003
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT Charles R. Fulbruge III
Clerk
No. 02-60737
Summary Calendar
JOHN ELLIS BRIGGS,
Plaintiff-Appellant,
versus
STATE OF MISSISSIPPI,
Defendant-Appellee.
Appeal from the United States District Court
for the Southern District of Mississippi
Before GARWOOD, JOLLY and SMITH, Circuit Judges.
GARWOOD, Circuit Judge:
Appellant Briggs’s pro se complaint, filed June 29, 2001,
alleged that Mississippi violated the Establishment Clause of the
First Amendment by using public property and funds to fly the state
flag in that the flag’s union or canton square is the Confederate
battle flag which displays “the St. Andrew’s Cross (or Southern
Cross), long regarded by many to reflect a particular religious
heritage,” and this was offensive to Briggs as he was “a Miracle
Muslim.” The only defendant mentioned in the complaint is the
State of Mississippi. The relief requested was that “a just
inquiry be made to determine whether a religious symbol, namely the
St. Andrew’s Cross, should be removed from display on public
property” and that “the State of Mississippi . . . be made to
compensate me by paying punitive damages not to exceed $77.77
million (US).”
The State moved to dismiss on the basis of the Eleventh
Amendment and because the complaint did not state a constitutional
violation.
On November 14, 2001, Briggs, through counsel, filed a
response to the motion to dismiss.
On December 19, 2001, Briggs, through counsel, filed a motion
for leave to amend the complaint. The tendered amended complaint
names as defendants only the State of Mississippi and “Ronnie
Musgrove.” The only allegation concerning Musgrove is that he “is
the governor for the State of Mississippi.” All other allegations
are as to the state defendant, e.g., “Defendant, State of
Mississippi, has willfully and maliciously used public property and
public funds to display a religious symbol, namely, the St.
Andrew’s (or Southern Cross), long regarded by many to reflect a
particular religious heritage.” The amended complaint alleges that
“the display of the St. Andrew’s Cross in the canton of the
Mississippi State flag is a violation of his [plaintiff’s]
Constitutional rights.” The relief sought is “a declaratory
judgment mandating that the religious symbol, namely the St.
2
Andrew’s Cross, be removed from display in public places,” “a
declaratory judgment mandating that the Defendant, State of
Mississippi, found to be in violation of the First Amendment,”
“compensatory damages in the amount not to exceed 77.77 Million
Dollars,” and reasonable attorney fees and costs.
On August 12, 2002, the district court entered its memorandum
opinion and final judgment, granting the State’s motion to dismiss,
denying Briggs’s motion for leave to amend, and dismissing the
case.
Discussion
Briggs appeals, raising three issues.
Eleventh Amendment
Briggs first argues that the district court erred in
determining that the Eleventh Amendment barred him from seeking
damages and equitable relief against Mississippi. We reject that
contention. Pennhurst State School & Hospital v. Halderman, 104
S.Ct. 900, 908-09 (1984). As we said in Voisin’s Oyster House,
Inc. v. Guidry, 799 F.2d 183 (5th Cir. 1986), the Eleventh
Amendment bars suit against a state or “state entity, as opposed to
a state official, regardless of whether money damages or injunctive
relief is sought” and section 1983 does not override the Eleventh
Amendment.
Establishment Clause
Second, Briggs argues that the district court erred in holding
3
that Mississippi’s use of the St. Andrew’s Cross on the state flag
does not constitute a violation of the Establishment Clause.
The Mississippi state flag indisputably has the Confederate
battle flag as its union or canton corner or square. See, e.g.,
Mississippi Division of United Sons v. Ms. NAACP, 774 So.2d 388,
390 (Miss. 2000) (“While the State Flag is not simply a Confederate
Battle Flag, the part of the State Flag found objectionable by the
NAACP and others is the depiction of such Confederate flag in the
State Flag’s canton corner”). The flag was adopted in 1894, when
the Mississippi legislature approved the committee report which
“. . . recommend for the flag one with width two-thirds
of its length; with the union square , in width two-
thirds of the width of the flag; the ground of the union
to be red and broad blue saltier1 thereon, bordered with
white and emblazoned with thirteen (13) [mullets]2 or
five-pointed stars, corresponding with the number of the
original States of the Union; the field to be divided
into three bars of equal width, the upper one blue, the
center one white and the lower one, extending the whole
length of the flag, red-the national colors; the staff
surmounted with a spear head and a battle-axe below; the
flag to be fringed with gold and the staff gilded with
gold.” Id. at 391 (emphasis added).
However, in 1906 that 1894 legislation adopting the flag was
1
Webster’s Third New International Dictionary (1981 Ed.)
states that “saltier” is the archaic of “saltire” (id. at 2005).
It defines the adjective “saltire” as “shaped like an X”. Id. For
the noun “saltire” the first two meanings given are: “. . . 1
heraldry: an ordinary consisting of a cross formed by a bend dexter
and a bend sinister crossing in the center of the field 2: an X-
shaped cross; esp: SAINT ANDREW’S CROSS . . .” Id.
2
See Daniels v. Harrison County Bd. of Supervisors, 722 So.2d
136, 139 n.1 (Miss. 1998) (Banks, J., concurring).
4
(apparently inadvertently) repealed by the general repeal of all
laws not included in the then enacted codification. Id.
Nevertheless the 1894 flag continued to be flown as the state flag
of Mississippi “by custom and usage.” Id. at 391-92.
As reflected by, inter alia, the decisions in Mississippi Div.
of United Sons and Daniels v. Harrison County Bd. of Supervisors,
722 So.2d 136 (Miss. 1998), the flying of the Confederate Battle
Flag (alone or as incorporated in the canton square of what was
assumed to be the official state flag) aroused heated controversy
between those for whom it “commemorate[d] the sacrifice made in
support of the cause of the Confederacy” and those for whom it was
an offensive “symbol of white supremacy” or oppression. Daniels at
139 (Banks, J., concurring); see also id. at 141. Following the
decision in Mississippi Div. of United Sons that there was no
official state flag, the controversy became more active and public.
In January 2001 the Mississippi Legislature enacted legislation
providing that the state flag would be determined by an election to
be held April 17, 2001, at which the voters would choose between
two described flags, one being the identical 1894 flag and the
other being a flag similar in all respects to that of 1894 except
for its canton corner which would consist entirely of a blue ground
(white bordered on its bottom and fly sides) with a circle of
thirteen stars containing an inner circle of six stars with one
5
large star in its middle.3 The voters chose the 1894 flag.4
While nothing in the 1894 legislation or the 2001 legislation,
and nothing in their legislative histories of which we are aware,
nor anything in any of the cited decisions of the Mississippi
courts, refers to the St. Andrew’s Cross, we recognize that the
Confederate Battle Flag has frequently been described as containing
a St. Andrew’s Cross. See, e.g., Coleman v. Miller, 885 F.Supp.
1561, 1564 (N.D. Ga. 1995) (“During the Civil War, the Confederacy
adopted a square battle flag depicting a blue St. Andrew’s Cross on
a red field;” with picture of flag). We also recognize that St.
Andrew is a religious figure, he, along with his brother Peter,
being one of the twelve apostles of Christ and whose Christian
ministry is recounted in the New Testament. The connection between
the emblem on the Confederate Battle flag and St. Andrew is,
however, another matter. Material attached to Briggs’s complaint
3
2001 General Laws of Mississippi, Ch. 301.
4
As a result, and as provided in the legislation, § 3-3-16 of
the Mississippi Code was enacted to read:
“The official flag of the State of Mississippi shall have
the following design: with width two-thirds (2/3) of its
length; with the union (canton) to be square, in width
two-thirds (2/3) of the width of the flag; the ground of
the union to be red and a broad blue saltire thereon,
bordered with white and emblazoned with thirteen (13)
mullets or five-pointed stars, corresponding with the
number of the original States of the Union; the field to
be divided into three (3) bars of equal width, the upper
one blue, the center one white, and the lower one,
extending the whole length of the flag, red (the national
colors); this being the flag adopted by the Mississippi
Legislature in the 1894 Special Session.”
6
states the following (none of which we dispute):
“The letter ‘X’ when positioned on its side is commonly
known as the Cross of St. Andrew and dates back to early
Christian history.
As recorded in the Holy Scriptures, Andrew was born in
the city of Bethsaida on the north shore of Galilee (John
1:44), but lived in nearby Capernaum (Mark 1:21, 29). He
worked with his brother Simon Peter as a fisherman. . .
. Later on, Jesus called both Andrew and his brother
Simon Peter to leave their fishing business and become
His disciples (Mark 1:16-18). Andrew became one of the
twelve apostles of our Lord and was active in the
establishment of the early Christian Church in Palestine
(Acts 1:13).
Tradition says that Andrew was responsible for spreading
the Christian Faith throughout Asia Minor and Greece.
For his fervent preaching and testimony of Jesus Christ,
he was put to death by the Romans when he was around 85
years old in AD 69 in the city of Patras, Greece by being
pinned to a cross. At his own request, the cross was
turned on its side because he felt he was not worthy to
be crucified like his Lord. . . . Legend says that either
a Greek monk or an Irish assistant of St. Columba called
St. Rule was warned in a dream to remove the remains of
St. Andrew to the ‘ends of the earth’ for safekeeping.
This he did and was shipwrecked on the east coast of
Scotland at the location which is now known as St.
Andrews.
Another legend says that Acca, the Bishop of Hexham, a
collector of relics brought the bones of St. Andrew to an
existing religious center at St. Andrews, Scotland in AD
733. This became Scotland’s first association with St.
Andrew. After the battle with the Northumbrians of
England in AD 832, the Scots adopted him as their patron
Saint and the saltire as the symbol for their national
flag. For hundreds of years, brave Scottish warriors
have fought under this noble banner.
This same symbol is also known as Jacob’s Cross. It
represents the blessing of the patriarch Jacob/Israel
when he crossed his arms and blessed the two sons of
Joseph (Genesis 48:8-22).
Around 600 BC, the Greeks designated ‘X’ as the letter
‘chi’ in their alphabet which in New Testament times came
to represent Christ. Therefore, the letter X, when used
alone or in combination with other letters, often stands
for the word Christ, as in Xmas.” (italics added).
7
We are unable to accept, however, that every X, or every X the
straight-line connection of whose four points would form a square,
is predominately a religious symbol.5
We have noted three different tests used to determine whether
governmental action violates the Establishment Clause. See Freiler
v. Tangipahoa Parish Bd., 185 F.3d 337, 343 (5th Cir. 1999).
One of these tests is “the coercion test” which “analyzes
school-sponsored religious activity in terms of the coercive effect
that the activity has on students.” Id. That test is facially
inapplicable here. Moreover, the mere display on public property
of the state flag, or the use of public funds for that purpose, is
in no meaningful sense either a religious activity or coercive.
See, e.g., Coleman v. Miller, 117 F.3d 527 (11th Cir. 1997)
(Georgia state flag incorporating the Confederate Battle flag);
N.A.A.C.P. v. Hunt, 891 F.2d 1555 (11th Cir. 1990) (Confederate
flag flown on Alabama capitol dome); Mississippi Div. of United
Sons; Daniels. See also, e.g., Murray v. City of Austin, 947 F.2d
147 (5th Cir. 1991).
The tests more relevant here are those of Lemon v. Kurtzman,
5
Moreover, nothing in the religious aspect of the St. Andrew’s
Cross consists of anything other than a cross on its side. Neither
color nor the presence of stars is a part of that. The Scottish
flag, for example, is a rectangle with a blue field on which is an
unadorned white cross whose points end at each of the rectangle’s
corners. The Confederate Battle flag is a square, with a red field
on which is set a white bordered blue cross reaching each corner of
the square and containing 13 white stars.
8
91 S.Ct. 2105 (1971), and the “endorsement test.” Freiler at 343.
Under the former, “a state practice is unconstitutional if (1) it
lacks a secular purpose; (2) its primary effect either advances or
inhibits religion; or (3) it excessively entangles government with
religion.” Id. “[T]he endorsement” test “seeks to determine
whether the government endorses religion by means of the challenged
action.” Id.
Plainly, Lemon’s first prong is fully satisfied here. To the
extent that a religious symbol–the St. Andrew’s Cross–is displayed,
it is displayed only insofar as it is included within the
Confederate Battle flag which forms the union or canton corner of
the Mississippi state flag. It is obvious–and Briggs does not
allege otherwise–that at least a purpose of having the Confederate
Battle flag as the canton corner of the Mississippi state flag is
and was secular.6 As stated in Hunt, “[i]t is clear that whether
the [Confederate] flag was hoisted to decry integration or the
recognize history, the purpose of its hoisting was secular.” Id.
at 1564. It is similarly clear that Lemon’s third prong–that the
challenged action not excessively entangle government with
religion–is likewise satisfied here. As reflected by materials
attached to Briggs’s complaint, the State of Mississippi did not
6
“Lemon’s first prong does not require that challenged state
action have been enacted in furtherance of exclusively, or even
predominately, secular objectives.” Freiler at 344. See also,
e.g., Lynch v. Donnelly, 104 S.Ct. 1355, 1362-63 & n.6 (1984).
9
design the Confederate Battle flag. In 1894 (and again in 2001,
when the State, in essence, declined to change the flag it had
consistently flown for over a century), Mississippi merely
prescribed as the canton corner of the State flag the identical
design which had been created by Confederate generals Beauregard
and Joseph E. Johnson in 1861, and thereafter had been used by
Confederate forces throughout the Civil War and became well known
at least throughout the South. These one time, isolated decisions,
and the flying of the state flag pursuant thereto, do not
comprehend, require or lead to any involvement by the government
with any religious institution or group or any interaction between
the government and any such institution or group.
We turn now to the second prong of the Lemon test and to the
related endorsement test. We have suggested that these tests are
similar. Freiler at 346. As the Eleventh Circuit stated in
respect to Alabama’s flying of the Confederate flag “[ i]t is also
clear that the primary effect of the flag is not to promote
religion; rather it is to remind citizens, albeit offensively to
some, of a controversial era in American history.” Hunt at 1564.
It is common knowledge that public reaction to and the debate over
the flying of the Confederate Battle flag, or its being a part of
a state flag, has been virtually exclusively in relation to its
symbolism of the Confederacy and the valor of its troops and
whether or to what extent this symbolism extols or excuses slavery,
10
racial oppression or resistance to racial equality. None of this
concerns any religious symbolism related to any presence of the St.
Andrew’s Cross in the flag.7 Neither the endorsement test nor the
second prong of Lemon is violated where any endorsement of or
benefit to religion by the challenged governmental action is merely
“indirect, remote, or incidental.” Lynch v. Donnelly 104 S.Ct.
1355, 1364 (1984) (internal quotation marks omitted). In making
this determination we focus on the display as an entirety, and on
its contextual history, not merely on the portion of the display
claimed to constitute a religious symbol. Lynch at 1360-61, 1364;
Murray at 154-55. Merely because “some observers may perceive that
the” government “has aligned itself with the Christian faith by”
the presence of a St. Andrew’s Cross within the flag does not
suffice to make out a Lemon or endorsement test violation. Lynch
at 1364; Capitol Square Review And Advisory Bd. v. Pinette, 115
S.Ct. 2440, 2455 (1995) (O’Connor, J., concurring) (rejecting view
that “a religious display is necessarily precluded so long as some
7
See, e.g., Coleman v. Miller, 885 F. Supp. 1561, 1569 (N.D.
Ga. 1995) (concerning the Georgia state flag, adopted in 1956 to
include the Confederate Battle flag, “[t]o some, it represents the
undeniable fact that Georgia was a member of the Confederacy and
did secede from the Union. The flag may also represent southern
heritage, the old South, or values of independence. Undeniably, to
others it represents white supremacy, rebellion, and
discrimination”); Coleman v. Miller, 912 F. Supp. 522, 530 (N.D.
Ga. 1996), aff’d, 117 F.3d 527, 530 (11th Cir. 1997) (“the Georgia
flag conveys mixed meanings: to some it honors those who fought in
the Civil War and to others it flies as a symbol of [racial]
oppression”); Daniels at 139-40 (Banks, J., concurring);
Mississippi Div. of United Sons at 390.
11
passerby would perceive a governmental endorsement” of religion).
As Justice O’Connor explained in Capitol Square:
“. . . the endorsement test creates a more collective
standard to gauge ‘the “objective” meaning of the
[government’s] statement in the community,’ Lynch, supra,
at 690, 104 S.Ct., at 1368 (O’CONNOR, J., concurring).
In this respect, the applicable observer is similar to
the ‘reasonable person’ in tort law, who ‘is not to be
identified with any ordinary individual, who might
occasionally do unreasonable things,’ but is ‘rather a
personification of a community ideal of reasonable
behavior, determined by the [collective] social
judgment.’ W. Keeton, D. Dobbs, R. Keeton, & D. Owen,
Prosser and Keeton on Law of Torts 175 (5th ed. 1984).
Thus, ‘we do not ask whether there is any person who
could find an endorsement of religion, whether some
people may be offended by the display, or whether some
reasonable person might think [the State] endorses
religion.’ Americans United, 980 F.2d at 1544. . . .
There is always someone who, with a particular quantum of
knowledge, reasonably might perceive a particular action
as an endorsement of religion. A State has not made
religion relevant to standing in the political community
simply because a particular viewer of a display might
feel uncomfortable.
It is for this reason that the reasonable observer
in the endorsement inquiry must be deemed aware of the
history and context of the community and forum in which
the religious display appears. . . . Nor can the
knowledge attributed to the reasonable observer be
limited to the information gleaned simply from viewing
the challenged display.” Id. at 2455 (O’Connor, J.,
concurring).
It is clear to us that, as a matter of law, despite what
Briggs himself or some others might perceive, the objective meaning
in the community of Mississippi’s display of its flag is not the
State’s endorsement of religion or any particular religion, and
that any endorsement of or benefit to religion from that display is
at most indirect, remote and incidental. The flag fails neither
12
the second prong of Lemon nor the endorsement test.
We have held that governmental display of symbols which were
more obviously and directly religious did not violate the
Establishment Clause. In Murray we sustained summary judgment
dismissal of an Establishment Clause claim predicated on Austin’s
official insignia (displayed on its vehicles, letterhead, uniforms
and some of its buildings) containing the coat of arms of its
founder, Stephen F. Austin, which included the Christian cross used
only by the Roman Catholic denomination and which is in a far more
unique form than the objected to X form within the Confederate
Battle flag. See id. at 150, 159.8 See also, e.g., O’Hair v.
Blumental, 588 F.2d 1144 (5th Cir. 1979), in which we affirmed, on
the basis of the district court’s opinion, O’Hair v. Blumenthal,
462 F. Supp. 19 (W.D. Tex. 1978), the grant of a motion to dismiss
8
In rejecting the Establishment Clause claim in Murray we
stated:
“. . . in considering the Establishment Clause challenge
to Austin’s insignia, we must recognize the reason for
the cross originally being in the coat of arms; that
Austin did not have an improper purpose in adopting the
insignia; its long and unchallenged use; its non-
proselytizing effect; that in its context, it does not
endorse religion in any true or meaningful sense of the
word “endorsement”; and that requiring the City to remove
all displays of the insignia, arguably evinces not
neutrality, but instead hostility, to religion.” Id. at
158.
All these factors are present here in favor of Mississippi, and
indeed the here challenged symbol, to the extent that it is
religious, is certainly less overtly and obviously so than the
Christian cross in Murray. See id. at 149, 150, 159.
13
for failure to state a claim of a suit raising an Establishment
Clause challenge to our national motto “In God We Trust” and its
appearance on our coins. The same holding was made by the Tenth
Circuit in Gaylor v. United States, 74 F.3d 214 (10th Cir. 1996).
We hold that the Mississippi flag does not violate the
Establishment Clause.
Leave to Amend
Finally, Briggs asserts that the district court abused its
discretion in denying his motion for leave to amend his complaint.
The district court did not abuse its discretion because, for the
reasons above stated, the proposed amended complaint could not
survive a FED. R. CIV. P. 12(b)(6) motion and allowing Briggs to
amend the complaint would be futile. See Lewis v. Fresne, 252 F.2d
352, 360 n.7 (5th Cir. 2001).9
AFFIRMED.
9
We also note that the proposed amended complaint insofar as
it named the State of Mississippi as a defendant was still subject
to dismissal under the Eleventh Amendment. Insofar as the proposed
amended complaint named Governor Musgrove it fails to allege action
(or inaction) on his part or any relationship he has or had to the
flying of the flag.
14