FILE D
United States Court of Appeals
Tenth Circuit
PU B L ISH July 30, 2009
Elisabeth A. Shumaker
U N IT E D STA T E S C O U R T O F A PPE A L S Clerk of Court
T E N T H C IR C U IT
JAM ES W . GREEN, an individual;
AM ERICAN CIVIL LIBERTIES
UNION OF OKLAHOM A, a
non-profit corporation,
Plaintiffs - Appellants,
v.
No. 06-7098
HASKELL COUNTY BOARD OF
COM M ISSIONERS, 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,
Defendants - Appellees,
M AINSTREAM BAPTIST
NETW ORK; OKLAHOM A
M AINSTREAM BAPTISTS;
AM ERICANS UNITED FOR
SEPARATION OF CHURCH AND
STATE; AM ERICAN CENTER FOR
LAW AND JUSTICE; THE
NATIONAL LEGAL FOUNDATION;
AM ERICAN LEGION # 182; and
FOUNDATION FOR M ORAL LAW ,
Amici Curiae.
ORDER
Before H E N R Y , Chief Circuit Judge, T A C H A , K E LL Y , B R ISC O E , L U C E R O ,
M U R PH Y , H A R T Z, O ’B R IE N , M cC O N N E L L , TY M K O V IC H , G O R SU C H ,
and H O L M E S, 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. Fed. R. App. P. 35(a). Judges Tacha, Kelly,
O’Brien, M cConnell, Tymkovich, and Gorsuch would grant rehearing en banc.
Entered
for the Court,
ELISABETH A. SHUM AKER, Clerk
06-7098, Green v. Haskell County Board of County Commissioners
K E L L Y , Circuit Judge, dissenting from the denial of rehearing en banc, with
whom T A C H A and TY M K O V IC H , 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
1
W hether Lemon v. Kurtzman, 403 U.S. 602 (1971), and its progeny
actually create discernible “tests,” rather than a mere ad hoc patchwork, is
debatable. The judicial morass resulting from the Supreme Court’s opinions
“raises the . . . concern that, either in appearance or in fact, adjudication of
Establishment Clause challenges turns on judicial predilections.” Van Orden v.
Perry, 545 U.S. 677, 697 (2005) (Thomas, J., concurring).
2
Public acknowledgments of religion at the founding and continuing to this
day have been well-documented. See Van Orden, 545 U.S. at 686-90 (plurality
opinion); M cCreary County v. ACLU, 545 U.S. 844, 885-89, 895-900 (2005)
(Scalia, J., dissenting); Lynch v. Donnelly, 465 U.S. 668, 672-678 (1984). In
short, “[t]here is an unbroken history of official acknowledgment by all three
(continued...)
plainly contrary to the Supreme Court’s precedent in Van Orden v. Perry, 545
U.S. 677 (2005).
In accord with our precedent in O’Connor v. W ashburn 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. W hile 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. M oriches Union Free
Sch. Dist., 508 U.S. 384, 398-99 (1993) (Scalia, J., concurring) (collecting
2
(...continued)
branches of government of the role of religion in American life from at least
1789.” Lynch, 465 U.S. at 674. The acknowledgment of the role of religion in
our public institutions “follows the best of our traditions” and “respects the
religious nature of our people.” Zorach v. Clauson, 343 U.S. 306, 314 (1952). A
mode of analysis that ignores this tradition of acknowledgment, and the original
understanding of the Establishment Clause that it suggests, is suspect at best. See
M arsh v. Chambers, 463 U.S. 783, 790 (1983) (“[H]istorical evidence sheds light
. . . on what the draftsmen intended the Establishment Clause to mean.”).
3
Though not yet adopted by a majority opinion from the Supreme Court, a
test focusing on actual legal coercion, rather than endorsement, appears the most
faithful to the original meaning of the Establishment Clause. See Van Orden, 545
U.S. at 693 (Thomas, J., concurring); Lee v. W eisman, 505 U.S. 577, 640-43
(1992) (Scalia, J., dissenting); M ichael W . M cConnell, Coercion: The Lost
Element of Establishment, 27 W m. & M ary L. Rev. 933 (1987). Of course, under
this standard, the display at issue would survive scrutiny. See County of
Allegheny v. ACLU, 492 U.S. 573, 664 (1989) (Kennedy, J., concurring in part
and dissenting in part).
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criticism of Lemon); County of Allegheny v. ACLU, 492 U.S. 573, 669-76 (1989)
(Kennedy, J., concurring in part and dissenting in part) (critiquing the
endorsement test); M ichael Stokes Paulsen, Lemon Is Dead, 43 Case W . Res. L.
Rev. 795, 800-25 (1993). W hat is troubling, however, is the court’s inflexible
adherence to Lemon and the endorsement test despite Van Orden, given that
Lemon has been rejected by a majority of justices while Justice Breyer’s
controlling concurrence in Van Orden remains good law. See M cCreary County
v. ACLU, 545 U.S. 844, 890 (2005) (Scalia, J., dissenting) (recounting criticism
of Lemon by various justices); M arks v. United States, 430 U.S. 188, 193 (1977)
(stating that the concurrence on the narrowest grounds controls).
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
-3-
The disposition in this case cannot be reconciled with Van Orden, which
ought to control given the substantial similarities between the operative facts in
the two cases. As in Van Orden, this Ten Commandments display is located
outside, on the grounds of a public building— here a county courthouse— along
with other secular displays. These displays include a war memorial for W orld
W ars I and II (the largest monument on the lawn); smaller monuments for
Vietnam and Korea, the Choctaw Nation, the unmarked graves in Haskell County,
and the Classes of 1954 and 1955; as well as a sidewalk composed partly of
“personal message bricks” commemorating various individuals and groups. Green
v. Bd. of County Comm’rs of County of Haskell, 450 F. Supp. 2d 1273, 1274-75
(E.D. Okla. 2006), rev’d, 568 F.3d 784 (10th Cir. 2009). All of these monuments
are within seventy-five feet of each other, and thus can all be considered to be a
single group of monuments. Furthermore, the Ten Commandments display was
not in the most prominent place on the courthouse lawn. 4 “The physical setting of
the monument,” therefore, “suggests little or nothing of the sacred.” Van Orden,
545 U.S. at 702 (Breyer, J., concurring).
4
The district court stated, “Quite simply, the M onument is not particularly
large, and is not in a clearly high traffic area. It may face a busy street, but so do
almost all the monuments on the lawn. Furthermore, the M onument does not
appear to be placed in an area that is the most frequented route taken to the
courthouse by citizens going there to undertake business.” Green, 450 F. Supp.
2d at 1294 (footnote omitted).
-4-
The fact that the monument is surrounded by other secular displays is of
considerable importance under existing precedent. See id.; County of Allegheny,
492 U.S. at 595-96, 598-600, 616-19 (plurality opinion); Lynch v. Donnelly, 465
U.S. 668, 692 (1984); O’Connor, 416 F.3d at 1228; cf. ACLU v. City of
Plattsmouth, 419 F.3d 772, 779 (8th Cir. 2005) (en banc) (Bye, J., dissenting)
(noting that the court upheld a display standing alone). And yet, the court
dismisses this consideration out-of-hand, reasoning that the collection is less
cohesive, integrated, and artistic than the collection in Van Orden. Green, 568
F.3d at 805-06. How an aesthetic critique of the monuments distinguishes this
case in any meaningful way from Van Orden is puzzling. Federal courts do not
sit as landscape architects or arbiters of style to decide whether small-town
commissioners have sufficiently sophisticated taste.
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.
M oreover, the court’s opinion has created a catch-22: the commissioners could
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either exercise direct control over the creation of monuments (rendering the
message more likely to be identified with the government), or they could take a
hands-off, neutral approach (creating the possibility of a disunified theme).
Either way, under the court’s opinion, the commissioners lose. Accordingly, we
should not rely on such an easily manipulated rationale as “cohesiveness” to
distinguish this case from Van Orden.
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).
-6-
M oreover, the message conveyed by the collection of monuments is
reemphasized by the display itself, as the monument contains not only the Ten
Commandments, but also the M ayflower Compact. Green, 450 F. Supp. 2d at
1276. Until the court’s opinion suggested otherwise, Green, 568 F.3d at 807-08,
who would have suspected that the M ayflower Compact primarily contributes to a
religious message by being paired with the Ten Commandments? At the risk of
stating the obvious, the Compact pertains to the founding of our country (which is
of some historical significance), and nothing suggests that the Compact’s
religious aspects were meant to predominate. If anything, the Compact
demonstrates that the historical aspect of the Ten Commandments predominated.
In any event, it is clear that the monument is “part of a display that communicates
not simply a religious message, but a secular message as well.” 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
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Establishment Clause.” Id. (plurality opinion). It is also worth noting that the
County did not pay for the monument. Additionally, as in Van Orden, the
government “further distance[d] . . . itself from the religious aspect of the
Commandments’ message,” id. at 701-02 (Breyer, J., concurring), in that the
monument bore the inscription “Erected by Citizens of Haskell County,” 5 Green,
450 F. Supp. 2d at 1277. See Capitol Square Review & Advisory Bd. v. Pinette,
515 U.S. 753, 776 (1995) (O’Connor, J., concurring) (“In context, a disclaimer
helps remove doubt about state approval of [a] religious message.”). This
inscription, combined with the context of the display, leaves little doubt that the
government itself did not communicate a predominantly religious message, but
rather was merely providing space for yet another donated monument related to
Haskell County’s history.
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,
5
The court dismisses this consideration, citing M cCreary County, 545 U.S.
at 871-72, because the inscription was added after litigation had begun. Green,
568 F.3d at 809. That is irrelevant. Unlike M cCreary County, this notation was
not a false, post-hoc rationalization; instead, it was quite true. As such, it serves
to underscore the reasonable observer’s view that the government did not intend
to endorse religion.
-8-
568 F.3d at 806-07. The court correctly notes that Justice Breyer relied upon the
absence of litigation as an indication of the display’s constitutionality in his Van
Orden concurrence, Van Orden, 545 U.S. at 702-03, but then reasons that the
presence of litigation demonstrates that the government’s display had the effect of
endorsing religion. By treating the presence of litigation as having controlling
weight, the court comes perilously close to creating a new bright-line rule: all
new Ten Commandments displays are unconstitutional as long as someone is
willing to exercise a heckler’s veto by filing suit— and, assuredly, there will be
someone. This position is untenable.
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. M ilford Cent. Sch., 533 U.S. 98, 119
(2001) (“W e 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 appearance 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;
-9-
allowing this latter variable to act as a proxy for division of the community is
neither factually nor logically warranted in every case. 6 As the district court
stated, lawsuits over Ten Commandments displays are “not so much evidence of
government establishing religion as they are evidence of jurisprudence provoking
litigiousness.” Green, 450 F. Supp. 2d at 1289. Legitimizing a heckler’s veto
would create the peculiar result that all new Ten Commandments displays will be
deemed unconstitutional, whereas old ones will (generally) be deemed
constitutional. Such a result is absolutely arbitrary and cannot be the result
mandated by the Establishment Clause.
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.
6
This assumes, for present purposes, that divisiveness is actually a useful
metric in the Establishment Clause context. W hether it actually is useful is open
to question. See Richard W . Garnett, Religion, Division, and the First
Amendment, 94 Geo. L.J. 1667 (2006). In any event, there would have to be
some sign of divisiveness other than this litigation. See Zelman v. Simmons-
Harris, 536 U.S. 639, 662 n.7 (2002).
7
W e need only consider the effect prong of the endorsement test, as the
court declined to decide the case on the purpose prong. The court was wise to do
(continued...)
-10-
W est High Sch., 132 F.3d 542, 551 (10th Cir. 1997) (internal quotation marks
omitted); see Lynch, 465 U.S. at 687-94 (O’Connor, J., concurring).
Significantly, the endorsement inquiry is conducted from the point of view of a
reasonable observer “similar to the ‘reasonable person’ in tort law, who is not to
be identified with any ordinary individual.” Capitol Square Review & Advisory
Bd., 515 U.S. at 779 (O’Connor, J., concurring) (internal quotation marks
omitted). “Thus, we do not ask if 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.” Id. at
780 (internal quotation marks omitted) (brackets in original). Rather, we ask
whether a reasonable observer undertaking an objective inquiry would conclude
that the government’s action had the effect of endorsing religion. See id. at 779
(“[T]he endorsement test creates a more collective standard to gauge the
‘objective’ meaning of the [government’s] statement in the community.” (internal
quotation marks omitted) (brackets in original)). The panel opinion departs from
7
(...continued)
so, as we have previously concluded that the purpose inquiry “is an unworkable
standard that offers no useful guidance to courts, legislators or other government
actors.” Bauchman v. W est High Sch., 132 F.3d 542, 552 (10th Cir. 1997). The
Supreme Court has also concluded that the purpose prong is rarely determinative.
M cCreary County, 545 U.S. at 859. Unfortunately, because the court relied
almost entirely on indicators of purpose to determine the effect of the monument
in this case, we also must consider matters usually reserved to the purpose prong
of the endorsement test.
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this objective analysis and engages in a subjective inquiry that takes all the facts
in the light of an ultra-sensitive observer rather than a reasonable observer.
A. Improper Reliance on the M otivations 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 M onument.” 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. W hile the reasonable observer might have
been aware that M r. 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.
M oreover, 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
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adherents from any aspect of public life.” M cDaniel v. Paty, 435 U.S. 618, 641
(1978) (Brennan, J., concurring). W e should not be using the fact that the private
donor had an “unalloyed religious motivation,” Green, 568 F.3d at 801 n.10, as
proof certain that the Establishment Clause has been violated. Sadly, we seem to
have reached the day where we construe the Establishment Clause, meant to
protect religion, so as to discourage people of faith from participating in the civic
arena. See M ichael W . M cConnell, Establishment and Disestablishment at the
Founding, Part I: Establishment of Religion, 44 W m. & M ary L. Rev. 2105, 2206
(2003) (“[O]ne of the principal arguments against establishment was that it was
harmful to religion. . . . Disestablishment ‘advanced’ religion.”).
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.” W einbaum 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
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that the monument have the effect of advancing religion is irrelevant to an
objective effect inquiry.
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
religion.” 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
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commissioner was simply speaking for himself. Certainly, context is important to
an Establishment Clause inquiry, see M cCreary County, 545 U.S. at 866, but there
is no reason in the law to create a presumption that all statements by small-town
commissioners arise in their official capacity, any more than we should attribute a
sectarian purpose to the commissioners’ actions without proof more compelling
than this case offers.
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 M cCreary
County, 545 U.S. at 863 (“Establishment Clause analysis does not look to the
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veiled psyche of government officers.”); Clayton v. Place, 884 F.2d 376, 380 (8th
Cir. 1989) (“W e simply do not believe elected government officials are required
to check at the door whatever religious background (or lack of it) they carry with
them before they act on rules that are otherwise unobjectionable.”). It does not
follow, then, that the personal statements of one commissioner shed any light
whatsoever on the government’s policy. Even assuming that one commissioner
voted for the monument for religious reasons (which is by no means clear), that
commissioner’s statements are not probative of whether the other two
commissioners voted to accept the placement of the monument in order to endorse
religion. Quite simply, the purpose of the government cannot be divined from one
commissioner’s personal statements when there are three commissioners. 8 A truly
reasonable observer would not assume otherwise.
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
8
The court also relies on the fact that the commissioners made non-
religious statements expressing their support for defending the monument in
litigation. Green, 568 F.3d at 801-02. However, these statements are perfectly
innocuous, and indeed can be expected of any official in relation to litigation
brought against the government. That the commissioners did not immediately
buckle to threats of litigation or issue disclaimers hardly suffices for proof of
endorsement of religion.
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do— including attending functions and representing the constituency. The
reasonable observer would not conclude that the mere presence of the
commissioners at the ceremonies suggests an endorsement of religion. That is
why other courts confronting a similar situation have not found the mere presence
of public officials at commissioning ceremonies to be particularly relevant to the
endorsement inquiry. See Van Orden, 545 U.S. at 682 (plurality opinion) (two
state legislators presided over dedication ceremony of Ten Commandments
monument); Card v. City of Everett, 520 F.3d 1009, 1012 (9th Cir. 2008) (mayor
accepted Ten Commandments monument at ceremony); cf. M cCreary County, 545
U.S. at 851 (judge-executive not only attended the dedication ceremony for the
Ten Commandments monument but also delivered a religious address).
W hile 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 monument 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
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endorsement. The fact that there were monuments for the Classes of 1954 and
1955 does not mean that the County preferred those classes over those graduating
in 1957 or any other year. Nor does the presence of a monument for the Choctaw
mean that the County approved of that tribe more than any other. If some other
group feels lonely or neglected, they can donate a monument too under County
policy. So it is with the Ten Commandments monument. These considerations
dispel any notion that the display of this Ten Commandments monument violated
the Establishment Clause by endorsing religion. See Capitol Square Review &
Advisory Bd., 515 U.S. at 781 (O’Connor, J., concurring) (stating that a
reasonable observer would know that many displays had been permitted at the
park). I note that this conclusion, unlike that of the court, is consistent with the
decisions reached by the other circuits that have considered Ten Commandments
displays since Van Orden. This case is an outlier. See Card, 520 F.3d at 1020-21
(monument on government property); City of Plattsmouth, 419 F.3d at 776-77
(same); see also ACLU v. M ercer County, 432 F.3d 624, 636-40 (6th Cir. 2005)
(display in a courthouse).
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
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acknowledges religion. See Van Orden, 545 U.S. at 683-84; Lynch, 465 U.S. at
672-78. To the contrary, “[g]overnment must inevitably take cognizance of the
existence of religion,” Abington Sch. Dist. v. Schempp, 374 U.S. 203, 306 (1963)
(Goldberg, J., concurring), and, I might add, its role in our history. Accordingly,
the courts must walk a delicate balance, enforcing the Establishment Clause while
avoiding the “risk [of] fostering a pervasive bias or hostility to religion.”
Rosenberger v. Rector & Visitors of Univ. of Va., 515 U.S. 819, 845-46 (1995).
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.
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06-7098, Green v. Haskell County Board of County Commissioners
G O R SU C H , Circuit Judge, joined by T A C H A , K E L L Y , and TY M K O V IC H ,
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.
1
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
1
See, e.g., M cCreary County, Kentucky v. American Civil Liberties Union
of Kentucky, 545 U.S. 844, 890 (2005) (Scalia, J., dissenting) (collecting
(continued...)
scholars.2 The resulting confusion about whether and to what extent Lemon
continues to control Establishment Clause analysis was exacerbated by a pair of
cases handed down the same day several years ago— M cCreary County, Kentucky
v. American Civil Liberties Union of Kentucky, 545 U.S. 844 (2005), and Van
Orden v. Perry, 545 U.S. 677 (2005). In the former case, the Court held that local
government officials in Kentucky erected their display with the undeniable
purpose of advancing religion, in apparent violation of the first part of Lemon’s
multi-pronged test, see M cCreary, 545 U.S. at 860-63, and then engaged in
1
(...continued)
criticisms of Lemon by various members of the Court); Van Orden v. Perry, 545
U.S. 677, 697 (2005) (Thomas, J., dissenting); County of Allegheny v. American
Civil Liberties Union, Greater Pittsburgh Chapter, 492 U.S. 573, 655-56 (1989)
(Kennedy, J., concurring in judgment in part and dissenting in part); Corporation
of Presiding Bishop of Church of Jesus Christ of Latter-day Saints v. Amos, 483
U.S. 327, 346-49 (1987) (O’Connor, J., concurring in the judgment); Wallace v.
Jaffree, 472 U.S. 38, 112 (1985) (Rehnquist, J., dissenting); Committee for Public
Ed. and Religious Liberty v. Regan, 444 U.S. 646, 671 (1980) (Stevens, J.,
dissenting).
2
See, e.g., Gerard V. Bradley, Protecting Religious Liberty: Judicial and
Legislative Responsibilities, 42 DePaul L. Rev. 253, 261 (1992); Richard W .
Garnett, Religion, Division, and the First Amendment, 94 Geo. L.J. 1667 (2006);
Douglas Laycock, Towards a General Theory of the Religion Clauses: The Case
of Church Labor Relations and the Right to Church Autonomy, 81 Colum. L. Rev.
1373, 1380-88 (1981); M ichael W . M cConnell, Religious Freedom at a
Crossroads, 59 U. Chi. L. Rev. 115, 118-20 (1992) (noting the inconsistencies of
the “aptly named ‘Lemon’ test”); M ichael Stokes Paulsen, Lemon Is Dead, 43
Case W . Res. L. Rev. 795 (1993); Kenneth F. Ripple, The Entanglement Test of
the Religion Clauses— A Ten Year Assessment, 27 U.C.L.A. L. Rev. 1195,
1216-24 (1979); Gary J. Simson, The Establishment Clause in the Supreme Court:
Rethinking The Court's Approach, 72 Cornell L. Rev. 905 (1987).
-2-
various shenanigans designed to obscure that fact, see id. at 855-57, 866. By
contrast, in the latter case, Justice Breyer’s controlling concurrence upheld a
display on the grounds of the Texas State Capitol because he concluded the
monument in that case advanced the secular purpose of illustrating the ideals of
Texans. See Van Orden, 545 U.S. at 702 (Breyer, J., concurring in the judgment).
Neither the plurality nor Justice Breyer relied on Lemon to uphold the monument
in Van Orden; indeed, they seemed to eschew it. See id. at 686 (plurality op.)
(“W hatever may be the fate of the Lemon test in the larger scheme of
Establishment Clause jurisprudence, we think it not useful in dealing with the sort
of passive monument that Texas has erected on its Capitol grounds.”); id. at 700
(Breyer, J., concurring in the judgment) (“I see no test-related substitute for the
exercise of legal judgment.”).
M cCreary 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 M cCreary 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. M ercer County,
-3-
Kentucky, 432 F.3d 624, 636 (6th Cir. 2005).
But as time has marched on, a number of other circuits giving careful
consideration to Van Orden and M cCreary 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. M yers v.
Loudon County Public Schs., 418 F.3d 395, 402 (4th Cir. 2005).
W e 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 M cCreary and Van Orden. At the same time, our sister circuits
-4-
have offered us much new learning since O’Connor and we should have taken this
opportunity at least to consider it. By failing to rehear this case en banc, we
decline the opportunity to begin aligning the circuits ourselves; as a result, at
least until our superiors speak, we leave the state of the law “in Establishment
Clause purgatory.” M ercer, 432 F.3d at 636.
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 focuses 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
-5-
[religious message] is displayed.” Id. at 779-81 (first alteration in original)
(internal quotations omitted).
Employing such a reasonable person, our sister circuits that have applied
Lemon to public displays similar to Haskell County’s have upheld them. In
M ercer, the Sixth Circuit sustained a display that included the Ten
Commandments, the Bill of Rights, the Declaration of Independence, the
M ayflower Compact, M agna Carta, the Star-Spangled Banner, the motto “In God
W e Trust,” the Preamble to the Kentucky Constitution, and Lady Justice. M ercer,
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 M cCreary 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
-6-
community,” our observer spends most of his time doing something entirely
different— speculating about whether the government might have secretly shared
the private intent of the monument’s donor. (And does so even after the panel
holds that the display does not offend Lemon’s first, purpose prong. Panel Op. at
25.)
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 M r. 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.
-7-
W hy does the panel’s reasonable observer make such mistakes of law? It is
because, the panel tells us, our observer is from a small town, where such errors
cannot be helped. Even though— in contrast to denizens of Austin, Texas or
Denver, Colorado— he probably knows his local government officials as friends
and not as magistrates, the panel’s small-town observer is somehow less likely to
know when the official in question is speaking his own mind rather than giving an
official address. The panel offers no authority or evidence in support of its
sociological conjecture, yet uses it to overrule the district court’s contrary factual
finding. 3
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.
3
Like the district court, I would have thought that, if anything, Haskell
County’s size cuts in the opposite direction. I would have expected that, in small
communities, people may already know a public official’s private opinions and
often realize their friends and acquaintances are speaking for themselves (“There
goes Johnny again spouting off....”). By contrast, if a city councilman in New
York is quoted in the local paper, the only thing most readers are likely to know
about her is that she is a government official. At the very least, I see no reason
based in law or the record to prefer the one or the other guess about the import of
Haskell County’s size to the reasonable observer’s perception about a single
commissioner’s two brief statements to the media.
-8-
Panel Op. at 35. This even though the commissioner never endorsed the private
donor’s religious statements. And even though the county’s display itself
supplied an indication of its secular meaning by including the decalogue not just
in a larger display celebrating cultural and historical influences but also on a
stone bearing an inscription of another important piece of our legal tradition, the
M ayflower Compact.
M istake 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
-9-
Haskell County. Our observer’s real problem seems to be with the lack of any
central planning behind the courthouse display. He would have felt better if
someone in county government had sat down and made a list of those things
important to people in Haskell County, and then commissioned thematically
consistent monuments reflecting the items on the list. Haskell County’s mistake
was to leave it up to the people of the county to determine the content of its
“mélange,” Panel Op. at 39, by allowing them to donate monuments of their
choosing.
One can’t help but ask wonder other familiar public memorials would fail
our observer’s aesthetic standards. W hat is, say, the unifying theme behind the
Congress’s collection of monuments in Statuary Hall, which includes likenesses
of George W ashington (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 of 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
-10-
discriminated among proposed monuments based on the message they
communicate. The history of the courthouse lawn suggests the county approved
most any donated monument that had some connection to the history and people
of Haskell County. If the class of 1955 wanted to donate a bench, so be it; as
Judge Kelly indicates, it doesn’t mean the county dislikes the class of 1956. If
the Choctaw Nation wanted a commemorative monument, so be it; there’s no
indication other Indian nations can’t also donate one. And if a group wanted a
monument with the decalogue and M ayflower Compact, the natural inference is
that county government thought, ‘so be it.’
W hat 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
-11-
manner inconsistent with our sister circuits’ application of it.
3
W hatever test we are supposed to apply, or the number of its prongs, the
Supreme Court’s central message in M cCreary 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 M cCreary and Van Orden to strike down such an inclusive
display.
W hile problems may arise when the Ten Commandments are displayed
alone, or as part of a patent attempt to advance a religious message, M cCreary,
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 W estern W orld.” Stone, 449 U.S. at 45 (Rehnquist, J.,
-12-
dissenting); see also Edwards v. Aguillard, 482 U.S. 578, 594 (1987) (rejecting
the suggestion that “the Ten Commandments played an exclusively religious role
in the history of W estern Civilization”); State v. Freedom from Religion
Foundation, Inc., 898 P.2d 1013, 1024 (Colo. 1995) (noting that “at least to the
extent that the Commandments established ethical or moral principles, they were
expressions of universal standards” of conduct later embodied in law). And quite
apart from their content, M oses’ tablets have become an archetypal symbol for
law itself, what other courts have called “a secular symbol for the rule of law.”
King v. Richmond County, Georgia, 331 F.3d 1271, 1277 (11th Cir. 2003). 4
4
Each House of Congress apparently agrees, having passed concurrent
resolutions in 1997 affirming that “the Ten Commandments have had a significant
impact on the development of the fundamental legal principles of W estern
Civilization”; that they “set forth a code of moral conduct, observance of which is
universally acknowledged to promote respect for our system of laws and the good
of society”; and that they “are a declaration of fundamental principles that are the
cornerstone of a fair and just society.” Brief of the United States as Amicus
Curiae Supporting Respondents at 9, Van Orden v. Perry, 545 U.S. 677 (citing S.
Con. Res. 13, 105th Cong., 1st Sess. (1997); H.R. Con. Res. 31, 105th Cong., 1st
Sess. (1997)). As President John Quincy Adams put it, “[t]he law given from
Sinai was a civil and municipal as well as a moral and religious code; it contained
many statutes . . . of universal application— laws essential to the existence of men
in society, and most of which have been enacted by every nation which ever
professed any code of laws.” Id. (quoting Letters of John Quincy Adams, to His
Son, on the Bible and its Teachings 61 (James M . Alden ed., 1850)). Even in
Stone, while invalidating a state law requiring that the Ten Commandments be
posted by themselves in public school classrooms, the Court took pains to
emphasize that they may be “integrated into . . . the school curriculum . . . in an
appropriate study of history, civilization, ethics, comparative religion, or the
like.” Stone, 449 U.S. at 42.
-13-
For just such reasons, we are long accustomed to seeing the
decalogue— sometimes alongside the M ayflower Compact, the M agna Carta, or
the Declaration of Independence— in and around courthouses and other public
buildings associated with the administration of law. The Ten Commandments
appear in displays at the State Capitol and in front of a city hall in Colorado, in
front of a Kansas municipal building, before a county courthouse in New M exico,
and in public parks in Utah and W yoming— just to mention some examples in our
own circuit. Our Nation’s capital practically abounds with the Commandments:
at the Library of Congress, outside the (relatively new) Ronald Reagan
International Trade Building, at the National Archives, inside and outside the
Supreme Court building and even on its doors. See generally Van Orden, 545
U.S. at 688-89 (plurality opinion) (providing examples). The upshot of M cCreary
and Van Orden is that this reality does not violate the First Amendment.
W hile 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 analogous 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:
-14-
like cases should be treated alike. W hatever else might be said, if an inclusive
display where the decalogue makes an appearance was acceptable to the Supreme
Court in Van Orden, similar displays should be acceptable to us.
I respectfully dissent from the denial of rehearing en banc.
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