[PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
No. 03-15005 March 5, 2004
Non-Argument Calendar THOMAS K. KAHN
CLERK
________________________
D. C. Docket No. 93-00895-CV-T-N
KELLY M CGINLEY,
RICHARD C. DORLEY,
DEBRA GILES,
Plaintiffs-Appellants,
versus
GORMAN HOUSTON,
Senior Associate Justice of the
Alabama Supreme Court,
HAROLD SEE,
Associate Justice of the
Alabama Supreme Court,
CHAM P LYONS, JR.,
Associate Justice of the
Alabama Supreme Court,
JEAN W ILLIAMS BROWN,
Associate Justice of the
Alabama Supreme Court,
BERNARD HARWOOD,
Associate Justice of the
Alabama Supreme Court, et al.,
Defendants-Appellees.
________________________
Appeal from the United States District Court
for the Middle District of Alabama
_________________________
(March 5, 2004)
Before BIRCH, DUBINA and GODBOLD, Circuit Judges.
PER CURIAM:
This suit arises from the removal of a monument depicting the Ten
Commandments from the rotunda of the Alabama State Judicial Building in
Montgomery, Alabama. Appellants brought suit against the Associate Justices of
the Alabama Supreme Court under the Establishment Clause of the First
Amendment to the United States Constitution, made binding upon the States by the
Fourteenth Amendment and enforced through 42 U.S.C. §1983 . The appellants
alleged that the appellees had violated the Establishment Clause by ordering the
removal of the monument. The United States District Court for the Middle District
of Alabama granted appellees’ motion to dismiss, holding that as a matter of law
the removal of the Ten Commandments monument did not constitute an
establishment of religion, therefore the appellants could not prove a set of facts that
would support the relief requested. Appellants now appeal, alleging first, that the
district court erred in dismissing the case on the ground that the court was bound
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by Glassroth v. Moore, 229 F.Supp.2d 1290 (M.D. Ala. 2002) and, second, that the
removal of the Ten Commandments monument violated the Establishment Clause
by favoring “a nontheistic religion/faith”. Neither ground has merit. We affirm.
We review de novo a district court’s order granting a motion to dismiss.
Lotierzo v. A Woman’s World Medical Center, Inc., 278 F.3d 1180, 1182 (11th
Cir. 2002). “All well-pleaded facts in plaintiff’s complaint and all reasonable
inferences drawn from those facts are taken as true.” Oladeinde v. City of
Birmingham, 963 F.2d 1481, 1485 (11th Cir. 1992). Thus, “’unsupported
conclusions of law or of mixed fact and law have long been recognized not to
prevent a Rule 12(b)(6) dismissal.’” Dalrymple v. Reno, 334 F.3d 991, 996 (11th
Cir. 2003) (quoting Marsh v. Butler County, 268 F.3d 1014, 1036 n.16 (11th Cir.
2001).
As noted by the district court, the Ten Commandments monument has been
the subject of significant public attention and litigation. This court will assume
that the reader is familiar with that history, as set forth in Glassroth v. Moore, 229
F.Supp.2d 1290 (M.D. Ala. 2002), aff’d, Glassroth v. Moore, 335 F.3d 1282 (11th
Cir. 2003), recall of mandate denied, In re Roy Moore, 124 S.Ct. 30, 2003 WL
21978095 (Aug. 20, 2003); Glassroth v. Moore, 275 F.Supp.2d 1347 (M.D. Ala.
2003); and Glassroth v. Moore, 278 F.Supp.2d 1272 (M.D. Ala. 2003). Thus we
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will only briefly recount it here.
On July 31, 2001, Chief Justice Moore of the Alabama Supreme Court
installed in the public rotunda of the Alabama State Judicial Building a 5,280-
pound monument depicting the Ten Commandments. Three attorneys who
practice law in Alabama courts brought suit against Moore claiming that the
monument constituted an impermissible establishment of religion.
The district court held that the Chief Justice’s action violated the First and
Fourteenth Amendments. Glassroth v. Moore, 229 F.Supp.2d 1290 (M.D. Ala.
2002). This court affirmed. Glassroth v. Moore, 335 F.3d 1282 (11th Cir. 2003).
In accordance with our decision the district court entered an injunction requiring
that the monument be removed from the public areas of the Judicial Building.
Glassroth v. Moore, 275 F.Supp.2d 1347 (M.D. Ala. 2003). The district court
noted that “it is the obligation of the State of Alabama (acting through the Chief
Justice and, should he fail or be incapable of carrying out his duty under the law,
some other appropriate state official) to remove [the monument].” Id at 1349.
Moore failed to comply with the federal injunction, and the eight associate justices,
the appellees in this case, complied with the court’s injunction and ordered the
monument removed. In the Matter of Compliance, etc., Order No. 03-01 (Ala.
2003).
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The appellants, who were not parties in Glassroth, 229 F.Supp.2d 1290 and
its progeny then brought this case, alleging two counts: (1) the appellees’ removal
of the Ten Commandments monument constituted an impermissible endorsement
of the “religion of nontheistic belief by the state,” and (2) the removal “creates
hostility against religion by the government pitting and favoring the religion of
nontheistic beliefs over the Judeo-Christian faith.” The appellants sought an
injunction to compel the appellees to return the monument to the rotunda of the
Alabama State Judicial Building. The district court granted appellees’ motion to
dismiss, finding that neither count states a claim upon which relief may be granted.
There are two issues on appeal. First, whether the trial court correctly found
that this court’s ruling in Glassroth v. Moore, 335 F.3d 1282 (11th Cir. 2003)
controls and frames the analysis of the issues presented in this case, thus, requiring
that the present case be dismissed with prejudice. Second, whether the removal of
the Ten Commandments monument violated the Establishment Clause, and thus
discriminated against “the Christian-Judeo faith” in favor of establishing “a
nontheistic religion/faith”.
Stare Decisis
The United States federal legal system is structured as a common law
system. This system embodies the rule of stare decisis that “courts should not
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lightly overrule past decisions . . .” Moragne v. States Marine Lines, Inc., 398 U.S.
375, 403 (1970) because “[s]tability and predictability are essential factors in the
proper operation of the rule of law.” Bonner v. City of Prichard, 661 F.2d 1206,
1209 (11th Cir. 1981).
The rule of law requires “fair and expeditious adjudication by eliminating
the need to relitigate every relevant proposition in every case; and the necessity of
maintaining public faith in the judiciary as a source of impersonal and reasoned
judgments.” Moragne, 398 U.S. at 403. The Eleventh Circuit follows the absolute
rule of the Fifth Circuit that “a prior decision of the circuit (panel or en banc)
[cannot] be overruled by a panel but only by the court sitting en banc.” Bonner,
661 F.2d at 1209.
In cases involving questions of federal law the doctrine of stare decisis also
implicates the binding nature of decisions rendered by one federal court over
another. The general rule is that a district judge’s decision neither binds another
district judge nor binds him, although a judge ought to give great weight to his own
prior decisions. 18-134 MOORE’S F EDERAL P RACTICE – C IVIL §134.02 (Matthew
Bender & Co., Inc. 2003). A circuit court’s decision binds the district courts
sitting within its jurisdiction while a decision by the Supreme Court binds all
circuit and district courts. Id.
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In this case, the appellants sought to return the Ten Commandments
monument to the rotunda of the Alabama State Judicial Building in M ontgomery,
Alabama. District Judge Myron Thompson, who presided over the present case,
had also presided over Glassroth, 229 F.Supp.2d 1290 (affirmed by Glassroth, 335
F.3d 1282), Glassroth, 275 F.Supp.2d 1347), and Glassroth, 278 F.Supp.2d 1272.
In these previous cases, he had correctly found that the Ten Commandments
monument violated the Establishment Clause and, in accordance with this court’s
affirmance, he ordered the monument removed. The appellants, by asking the
district court to mandate the return of the Ten Commandments monument, seek to
accomplish two things. First, they seek to compel Judge Thompson to ignore his
prior rulings and to defy this court’s ruling that the Ten Commandments
monument violated the Establishment Clause. Second, they seek to collaterally
attack the decisions rendered by both the district court and this court by attempting
to effectively overturn the decisions rendered in Glassroth v. Moore, 229
F.Supp.2d 1290 and its progeny. This attack is in violation of prior decisions and
is not open to the appellants, and the district court held accordingly.
Establishment Clause
The Establishment Clause provides that government “shall make no law
respecting an establishment of religion.” U.S. C ONST. amend. I. By this the
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Establishment Clause seeks “to afford protection [against] ‘sponsorship, financial
support, and active involvement of the sovereign in religious activities.’” Lemon
v. Kurtzman, 403 U.S. 602, 612 (1971). The Supreme Court has established a
three-tier test to be used in determining whether a state action violates the
Establishment Clause. Id. “[A] statute or practice which touches upon religion, if
it is to be permissible under the Establishment Clause, must [1] have a secular
purpose; [2] it must neither advance nor inhibit religion in its principal or primary
effect; and [3] it must not foster an excessive entanglement with religion.” County
of Allegheny v. Am. Civil Liberties Union Greater Pittsburgh Chapter, 492 U.S.
573, 592 (1989).
In this case the appellants contend that the removal of the Ten
Commandments monument created empty space, and that this empty space violates
the Establishment Clause because it is an endorsement of religion, or in this
instance, nontheism. This argument is without merit. If the appellants were
correct in their assertion an Establishment Clause violation could never be cured
because every time a violation is found and cured by the removal of the statute or
practice that cure itself would violate the Establishment Clause by leaving behind
empty space.
As this court noted in Smith v. Bd. of School Comm’rs of Mobile County,
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“[t]he Supreme Court has never established a comprehensive test for determining
the ‘delicate question’ of what constitutes a religious belief for purposes of the first
amendment . . . .” 827 F.2d 684, 689 (11th Cir. 1987). Moreover, neither the
Supreme Court nor this court has determined that “secular humanism is a religion
for purposes of the establishment clause.” Id. The argument used by the
appellants is similar to the one used by the appellees in Smith, 827 F.2d 684. In
that case, appellees contended that if school prayer violated the Establishment
Clause, then all mention of ‘secular humanism’, must be stricken from the school
textbooks. Id at 688. They sought to exclude home economics textbooks from the
curriculum because the books “impl[ied] strongly that a person uses the same
process in deciding a moral issue that he uses in choosing one pair of shoes over
another . . .” Id at 690-1, and in choosing history and social science textbooks
because the “books failed to include a sufficient discussion of the role of religion
in history and culture.” Id at 693. This court, without finding that “secular
humanism is a religion for purposes of the establishment clause,” Id at 689, held
that these textbooks do not violate the Establishment Clause because their purpose
is purely secular and the Establishment Clause does not require “equal time” for
religion. Id at 694-5.
The district court correctly found that it was bound by the rulings in
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Glassroth, 229 F.Supp.2d 1290 and its progeny; therefore its dismissal with
prejudice must be affirmed, and it correctly held that the removal of the Ten
Commandments monument neither violates the Establishment Clause nor
discriminates against “the Christian-Judeo Faith” in favor of establishing “a
nontheistic religion/faith.” The judgment of the district court is AFFIRMED.
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