Kelly McGinley v. Gorman Houston

[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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