American Civil Liberties Union of Ohio Foundation, Inc. v. DeWeese

RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit Rule 206
File Name: 11a0029p.06

UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
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AMERICAN CIVIL LIBERTIES UNION OF OHIO

Plaintiff-Appellee, --
FOUNDATION, INC.,

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No. 09-4256

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v.

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Defendant-Appellant. --
JAMES DEWEESE,

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Appeal from the United States District Court
for the Northern District of Ohio at Cleveland.
No. 08-02372—Patricia A. Gaughan, District Judge.
Argued: December 1, 2010
Decided and Filed: February 2, 2011
Before: SILER, CLAY, and GIBBONS, Circuit Judges.

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COUNSEL
ARGUED: Francis J. Manion, AMERICAN CENTER FOR LAW AND JUSTICE,
New Hope, Kentucky, for Appellant. Michael T. Honohan, LAW OFFICE, Rocky
River, Ohio, for Appellee. ON BRIEF: Francis J. Manion, Geoffrey Richard Surtees,
AMERICAN CENTER FOR LAW AND JUSTICE, New Hope, Kentucky, Edward
Lawrence White, AMERICAN CENTER FOR LAW AND JUSTICE, Ann Arbor,
Michigan, for Appellant. Michael T. Honohan, LAW OFFICE, Rocky River, Ohio,
Carrie L. Davis, AMERICAN CIVIL LIBERTIES UNION OF OHIO, Cleveland, Ohio,
for Appellee. Benjamin D. DuPre, FOUNDATION FOR MORAL LAW, Montgomery,
Alabama, for Amicus Curiae.

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OPINION
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CLAY, Circuit Judge. Defendant James Deweese appeals from a judgment
entered on October 6, 2009 by the United States District Court for the Northern District

1
No. 09-4256 American Civil Liberties Union v. Deweese Page 2

of Ohio. The district court granted Plaintiff American Civil Liberties Union of Ohio
Foundation, Inc.’s summary judgment motion for declaratory and injunctive relief,
holding that the poster Defendant hung in his Richland County, Ohio courtroom violated
the Establishment Clauses of the United States and Ohio Constitutions. For the reasons
stated below we AFFIRM the district court’s judgment.

STATEMENT OF FACTS

In July of 2000, Defendant James DeWeese, a duly elected judge in the General
Division of the Common Pleas Court in Richland County, Ohio, created and hung two
posters in his courtroom, one of the Bill of Rights and one of the Ten Commandments.
The American Civil Liberties Union (“ACLU”) brought an action against Judge
DeWeese in the United States District Court for the Northern District of Ohio seeking
a declaration that the Ten Commandments poster violated the Establishment Clause, and
requesting an injunction preventing Judge DeWeese from continuing to hang the poster
in his courtroom. Both the district court and the United States Court of Appeals for the
Sixth Circuit ruled in favor of the ACLU, declaring the hanging of the poster in the
courtroom unconstitutional and enjoining Judge DeWeese from continuing to display it
in his courtroom. ACLU of Ohio v. Ashbrook, 211 F. Supp. 2d 873 (N.D. Ohio 2002);
ACLU of Ohio Found., Inc. v. Ashbrook, 375 F.3d 484 (6th Cir. 2004). Judge DeWeese
thereafter removed the Ten Commandments poster from his courtroom.

In June 2006, Defendant created a second poster (“the poster”) which he hung
in his courtroom containing the Ten Commandments entitled “Philosophies of Law in
Conflict.” Immediately under the title on the poster are three numbered comments:

1. There is a conflict of legal and moral philosophies raging in the United
States. That conflict is between moral relativism and moral absolutism.
We are moving towards moral relativism.
2. All law is legislated morality. The only question is whose morality.
Because morality is based on faith, there is no such thing as religious
neutrality in law or morality.
3. Ultimately, there are only two views: Either God is the final authority,
and we acknowledge His unchanging standards of behavior. Or man is
No. 09-4256 American Civil Liberties Union v. Deweese Page 3

the final authority, and standards of behavior change at the whim of
individuals or societies. Here are examples.

(R. 17, Def. Opp’n to Mot. for Summ. J., Ex. A-3.)

Below these three comments are two columns covering the majority of the poster,
one entitled “Moral Absolutes: The Ten Commandments,” and the other entitled “Moral
Relatives: Humanist Precepts.” Id. Under the “Moral Absolutes” column are listed the
following:

I am the LORD your God. . .
I. You shall have no other gods before Me.
II. You shall not make for yourself an idol.
III. You shall not take the name of the LORD your God in vain.
IV. Remember the Sabbath day, to keep it holy.
V. Honor your father and your mother.
VI. You shall not murder.
VII. You shall not commit adultery.
VIII. You shall not steal.
IX. You shall not bear false witness against your neighbor.
X. You shall not covet anything that is your neighbor’s.

Id. Under the second, “Moral Relatives,” column, set up in opposition to the first, are
listed seven statements:

I. The universe is self-existent and not created. Man is a product of
cosmic accidents, and there is nothing higher than man. (Humanist
Manifesto I)
II. Ethics depend on the person and the situation. Ethics need no
religious or ideological justification. (Humanist Manifesto II)
III. There is no absolute truth. What’s true for you may not be true for
me. (Humanist John Dewey)
No. 09-4256 American Civil Liberties Union v. Deweese Page 4

IV. The meaning of law evolves. “We are under a Constitution, but the
Constitution is what the judges say it is.” (U.S. Sup. Ct. Justice Chas.
Hughes)
V. “At the heart of liberty is the right to define one’s own concept of
existence, of meaning, of the universe and of the mystery of human life.”
(Planned Parenthood v. Casey)
VI. Personal autonomy is a higher good than responsibility to your
neighbor or obedience to fixed moral duties. (Humanist Manifesto II)
VII. Quality-of-life decisions justify assisting the death of a fetus,
defective infant, profoundly disabled or terminally ill person. (Princeton
U. Prof. Peter Singer)

Id.

At the bottom of the poster, below the two columns, is a fourth comment by
Defendant:

4. The cases passing through this courtroom demonstrate we are paying
a high cost in increased crime and other social ills for moving from moral
absolutism to moral relativism since the mid 20th century. Our Founders
saw the necessity of moral absolutes. President John Adams said, “We
have no government armed with power capable of contending with
human passions unbridled by morality and religion. Our Constitution
was made for a moral and religious people. It is wholly inadequate for
the government of any other.” The Declaration of Independence
acknowledges God as Creator, Lawgiver, “Supreme Judge of the World,”
and the One who providentially superintends the affairs of men. Ohio’s
Constitution acknowledges Almighty God as the source of our freedom.
I join the Founders in personally acknowledging the importance of
Almighty God’s fixed moral standards for restoring the moral fabric of
this nation. Judge James DeWeese.

Id. Finally, in the lower right hand corner of the frame, readers are invited to obtain
from the court receptionist a pamphlet further explaining Defendant’s philosophy. Id.

In 2008 Plaintiff filed a motion to show cause against Defendant, arguing that
Defendant violated the district court’s order enjoining the first poster by displaying this
poster. The district court, however, found that as the two posters were not identical,
Defendant was not in contempt of the court’s order to remove the previous poster.
No. 09-4256 American Civil Liberties Union v. Deweese Page 5

ACLU v. DeWeese, No. 08–2372, slip op. at 2 (N.D. Ohio Oct 8, 2009) (memorandum
and order).

Plaintiff then filed a new suit against Defendant in the United States District
Court for the Northern District of Ohio. Count One of Plaintiff’s new suit was a claim
for declaratory relief contending that Defendant’s display of the poster violated the First
and Fourteenth Amendments of the United States Constitution and 42 U.S.C. § 1983.
Count Two of Plaintiff’s suit requested an injunction against Defendant’s continued
display of the poster. Count Three requested a declaration that Defendant’s display of
the poster violated the Ohio Constitution. Id. at 3.

The parties cross-moved for summary judgment, and the district court granted
Plaintiff’s summary judgment motion, and denied Defendant’s motion. The district
court found that Defendant’s display of the poster in his courtroom violated the First and
Fourteenth Amendments of the United States Constitution as well as the Ohio
Constitution. The district court enjoined Defendant from continuing to display the
poster in his courtroom. Id. at 23.

Defendant appealed the district court’s decision.

DISCUSSION

I. Standard of Review

We review the district court’s award of summary judgment de novo. Binay v.
Bettendorf, 601 F.3d 640, 646 (6th Cir. 2010). The moving party is entitled to summary
judgment “if the pleadings, the discovery and the disclosure materials on file, and any
affidavits show there is no genuine issue as to any material fact and that the movant is
entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(c). The moving party bears
the initial burden of demonstrating the absence of a material issue of fact. “[A] party
seeking summary judgment always bears the initial responsibility of informing the
[court] of the basis for its motion, and identifying those portions of the ‘pleadings,
depositions, answers to interrogatories, and admissions on file, together with the
No. 09-4256 American Civil Liberties Union v. Deweese Page 6

affidavits, if any,’ which it believes demonstrate the absence of a genuine issue of
material fact.” Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986).

II. Standing

A. Analysis

To sue in federal court a plaintiff must demonstrate that he or she has standing
under Article III of the Constitution. Steel Co. v. Citizens for a Better Env’t, 523 U.S.
83, 103 (1998). “Standing to sue requires an individual to demonstrate (1) actual or
threatened injury which is (2) fairly traceable to the challenged action and (3) a
substantial likelihood the relief requested will redress or prevent the plaintiff’s injury.”
ACLU v. Ashbrook, 375 F.3d 484, 489 (6th Cir. 2004). See also Steel Co., 523 U.S. at
103. Moreover, the ACLU, as a “voluntary membership organization has standing to sue
on behalf of its members when (a) its members otherwise have standing to sue in their
own right; (b) the interests it seeks to protect are germane to the organization’s purpose;
and (c) neither the claim asserted nor the relief requested requires participation of
individual members in the lawsuit.” Id. at 489 (internal citations omitted).

In suits bought under the Establishment Clause, “direct and unwelcome” contact
with the contested object demonstrates psychological injury in fact sufficient to confer
standing. Id. at 489-90 (finding that plaintiff had sufficiently demonstrated standing to
challenge Ten Commandments poster in defendant’s courtroom when “ACLU-Ohio . . .
identified member Bernard Davis, a lawyer who travels to and must practice law within
DeWeese’s courtroom from time to time. There, Davis has and would continue to come
into direct, unwelcome contact with the Ten Commandments display.”); Washegesic v.
Bloomingdale Pub. Schs., 33 F.3d 679, 681-82 (6th Cir. 1994) (holding that plaintiff had
standing to challenge a portrait of Jesus in the hallway of his high school, even after
graduation. As plaintiff “still visite[d] the school and will confront the portrait whenever
he is in the hall . . . plaintiff claime[d] that . . . he continued to suffer actual injury.”);
Adland v. Russ, 307 F.3d 471, 478 (6th Cir. 2002) (holding that plaintiffs had standing
to challenge a Ten Commandments display at the state capitol as plaintiffs “frequently
No. 09-4256 American Civil Liberties Union v. Deweese Page 7

travel to the State Capitol to engage in political advocacy for a variety of organizations
and that they will endure direct and unwelcome contact with the Ten Commandments
Monument.”).1 In this case, Plaintiff demonstrates injury through the affidavit of
Bernard Davis, a member of the ACLU whose affidavit also supported the ACLU’s
standing in its prior case against Defendant. Ashbrook, 375 F.3d at 489-90. The Davis
affidavit states that he is,

an attorney licensed to practice law in the State of Ohio . . . . As an
attorney in Richland County I frequently and routinely appear in
Richland County Common Pleas Court, and in the courtroom of Judge
James DeWeese. I have witnessed on many occasions the poster
displayed entitled “Philosophies of Law in Conflict” containing a version
of the Ten Commandments . . . and the expressed espousal of a legal
philosophy which is, in my opinion, clearly a religious message. The
display offends me personally, in that I perceive it as an inappropriate
expression of a religious viewpoint as well as a display of a sacred text
in a public building.

(R. 16, Pl.’s Mot. for Summ. J., Ex. 4.)

The Davis affidavit supports the ACLU’s standing. Davis states that he
personally has and does come in direct contact with Defendant’s poster in the course of
his professional work, and that this contact is unwelcome due to the poster’s allegedly
religious content.2 Furthermore, the Establishment Clause violation of which Davis
complains is germane to the interests that the ACLU seeks to protect, as Davis’ civil

1
In raising the issue of standing, Defendant argues that in Valley Forge Christian Coll. v. Ams.
United for Separation of Church and State, 454 U.S. 464 (1982), the Supreme Court held that
psychological injury can never be the basis for Article III standing. (Br. of Appellant at 14.) This Court
has consistently rejected this argument. Ashbrook, 375 F.3d at 489 n.3 (“we do not take the Supreme
Court’s decision in Valley Forge Christian College v. Americans United for the Separation of Church and
State to stand for the proposition that psychological injury can never be a sufficient basis for the conferral
of Article III Standing.”); Washegesic, 33 F.3d at 682 (stating that whether plaintiffs have standing based
on psychological injury “depends on the directness of the harm. Valley Forge was a citizens suit . . . .
Their grievance had a vicarious quality . . . . They had no direct contact with the dispute.”); Hawley v. City
of Cleveland, 773 F.2d 736, 740 (6th Cir. 1985).
2
Defendant argues that whether Davis suffered actual injury sufficient to confer standing is a
question of material fact that should not be resolved on summary judgment. However, although “[t]he
party invoking federal jurisdiction bears the burden of establishing” the elements of standing, to support
standing at the summary judgment stage a plaintiff must only “set forth by affidavit or other evidence
specific facts which for purposes of the summary judgment motion will be taken as true.” Lujan v.
Defenders of Wildlife, 504 U.S. 555, 561 (1992). Davis’ affidavit averring psychological injury is
sufficient to establish injury in fact for the purposes of determining standing in this suit.
No. 09-4256 American Civil Liberties Union v. Deweese Page 8

liberties are at issue, and “the ACLU-Ohio’s stated purpose [is] the preservation of the
constitutional separation of church and state.” Ashbrook, 375 F.3d at 490. Finally,
Davis’ participation is not required to pursue this suit.

B. Summary

Plaintiff has standing to sue under the Establishment Clause. Therefore, we
AFFIRM the district court’s decision with respect to standing, and address the merits
of Plaintiff’s complaint.

III. Establishment Clause of the First Amendment

The Establishment Clause of the First Amendment, applied to the states by
incorporation into the Fourteenth Amendment, Everson v. Bd. of Educ., 330 U.S. 1
(1947), states, “Congress shall make no law respecting an establishment of religion.”
U.S. Const. amend. I, cl. 1. This language is “at best opaque,” Lemon v. Kurtzman, 403
U.S. 602, 612 (1971) , and far from self-defining. Courts are, therefore, in need of some
interpretive help in determining the bounds of the Establishment Clause. See McCreary
Cnty. v. ACLU of Ky., 545 U.S. 844, 859 n.10 (2005) (“McCreary”).3

In Lemon the Supreme Court set out a three part test for determining whether
government conduct violated the Establishment Clause. The test “ask[s] (1) [whether]
the challenged government action has a secular purpose; (2) [whether] the action’s
primary effect neither advances nor inhibits religion; and (3) [whether] the action fosters
an excessive entanglement with religion.” Ashbrook, 375 F.3d at 490 (quoting Lemon,
403 U.S. a 612-13). See also McCreary, 545 U.S. at 859; Stone v. Graham, 449 U.S. 39,
40 (1980); ACLU v. McCreary Cnty., 607 F.3d 439, 455-56 (6th Cir. 2010) (“McCreary

3
Defendant’s appellate brief includes several quotes and facts from American history to justify
hanging the poster in his courtroom. However, the Supreme Court has stated that “[t]here have been
breaches of this command [separating church and state] throughout this Nation’s history, but they cannot
diminish in any way the force of the command.” Cnty. of Allegheny v. ACLU, 492 U.S. 573, 604-05
(1989). Moreover, the Supreme Court’s more recent decision in McCreary discounted the value of
historical evidence relating to the Establishment Clause’s parameters. The Supreme Court stated that
historical evidence shows that “there was no common understanding about the limits of the establishment
prohibition . . . . What the evidence does show is a group of statesmen, like others before and after them,
who proposed a guarantee with contours not wholly worked out, leaving the Establishment Clause with
edges still to be determined.” McCreary, 545 U.S. at 879-81.
No. 09-4256 American Civil Liberties Union v. Deweese Page 9

II”); ACLU v. Mercer Cnty., 432 F.3d 624, 635 (6th Cir. 2005); ACLU v. McCreary
Cnty., 354 F.3d 438, 446 (6th Cir. 2003) (“McCreary I”); Adland, 307 F.3d at 479;
Baker v. Adams Cnty., 310 F.3d 927, 929 (6th Cir. 2002); Washegesic, 33 F.3d at 683.
Both this Court and the Supreme Court have questioned the Lemon test’s utility in
Establishment Clause cases. Van Orden v. Perry, 545 U.S. 677, 685-86 (2005); Lynch
v. Donnelly, 465 U.S. 668, 679 (1984); Mercer, 432 F.3d at 635-36. Indeed,
Establishment Clause cases do not readily lend themselves to neat disposition through
categorical bright line tests, Van Orden, 545 U.S. at 683 (“Our cases, Janus-like, point
in two directions in applying the Establishment Clause.”); Waltz v. Tax Comm’n of the
City of New York, 397 U.S. 664, 668 (1970) (“In attempting to articulate the scope of the
two religion Clauses, the Court’s opinions reflect the limitations inherent in formulating
general principles on a case-by-case basis.”), and have often produced inconsistent
holdings. Compare, e.g., Van Orden, 545 U.S. at 684 n.3 (“Despite Justice Stevens’
recitation of occasional language to the contrary, we have not, and do not, adhere to the
principle that the Establishment Clause bars any and all governmental preference for
religion over irreligion.”), with McCreary, 545 U.S. at 860 (“The touchstone for our
analysis is the principle that the First Amendment mandates governmental neutrality
between religion and religion, and between religion and nonreligion.”). Nevertheless,
Lemon remains the law governing Establishment Clause cases. McCreary II, 607 F.3d
at 445 (“As was true the last time we heard this matter, the governing standard for
determining whether a particular government action violates the Establishment Clause
remains Lemon v. Kurtzman.”).

In the years since the Supreme Court announced the Lemon test, the Supreme
Court has refined its first two prongs. Lemon’s purpose prong “is now the predominant
purpose test.” Mercer, 432 F.3d at 635. Lemon’s second prong, reformulated as the
“endorsement test, asks whether the government action has the purpose or effect of
endorsing religion.” Id. Lemon’s third prong remains the excessive entanglement test.
Failure under any of Lemon’s three prongs “deems governmental action violative of the
Establishment Clause.” McCreary I, 354 F.3d at 458.
No. 09-4256 American Civil Liberties Union v. Deweese Page 10

A. Purpose Test

In determining the government’s purpose under the first prong of the Lemon test,
“a [government actor’s] stated reasons will generally get deference.” McCreary II, 607
F.3d at 445 (quoting McCreary, 545 U.S. at 864). However, “the secular purpose
required has to be genuine, not a sham, and not merely secondary to a religious
objective.” Id. Thus, “[t]he eyes that look to purpose belong to an objective observer,
one who takes account of the traditional external signs that show up in the . . . official
act,” from “readily discoverable fact.” McCreary, 545 U.S. at 862. “[T]he objective
observer is considered to have reasonable memories, and Supreme Court precedents
sensibly forbid an observer to turn a blind eye to . . . context . . . . [R]eviewing courts
must look with the eye of an observer familiar with the history of the government’s
actions and competent to learn [what] history has to show.” McCreary II, 607 F.3d at
446.

Under the Lemon purpose inquiry, courts have consistently found the history and
context of the action significant. “The [purpose] inquiry, of necessity, turns upon the
context in which the contested object appears.” McCreary, 545 U.S. at 868 (internal
quotations omitted). In evaluating the purpose of posting a religious text, “it will matter
to [the] objective observer[] whether posting the Commandments follows on the heels
of displays motivated by sectarianism, or whether it lacks a history demonstrating that
purpose.” Id. at 866 n. 14. See also McCreary II, 607 F.3d at 446-49 (finding that the
displays’ extended sectarian history in which counties reformulated displays on several
occasions “would probably lead an objective observer to suspect that the Counties were
simply reaching for any way to keep a religious document on the walls of courthouses
constitutionally required to embody neutrality.”) (internal citations omitted). This Court
is “compel[led] to consider the government’s past violations of the Establishment Clause
when evaluating its present conduct.” McCreary I, 354 F.3d at 457 (finding “it
significant that Defendants’ original displays, containing only the Ten Commandments,
were erected in violation of the Supreme Court’s clear ruling in Stone. This defiance . . .
No. 09-4256 American Civil Liberties Union v. Deweese Page 11

imprinted the Defendants’ purpose, from the beginning with an unconstitutional taint.”)
(internal citations and quotations omitted).

Defendant’s stated purpose for hanging the poster is “to express [his] views about
two warring legal philosophies that motivate behavior and the consequences that [he]
ha[s] personally witnessed in [his] 18 years as a trial judge of moving to a moral
relativist philosophy and abandoning a moral absolutist legal philosophy.” (R. 17, Def.
Opp’n to Mot. for Summ. J., Ex. A, ¶ 2.) It is questionable whether Defendant has
articulated a facially secular purpose. However, assuming for the sake of argument that
Defendant has stated a facially secular purpose, and giving that stated purpose its due
deference, the history of Defendant’s actions demonstrates that any purported secular
purpose is a sham.

In 2000, Defendant hung a Ten Commandments poster in his courtroom. Judge
DeWeese’s stated purpose in hanging this poster was:

to use [it] occasionally in educational efforts when community groups
come to the courtroom and ask [him] to speak to them. These documents
are useful in talking about the origins of law and legal philosophy and
about the rule of law as opposed to the rule of man. [DeWeese] . . .
chose the Ten Commandments because they were emblematic of moral
absolutism and [Deweese] chose them to express the belief that law
comes either from God or man, and to express his belief that God is the
ultimate authority.

Ashbrook, 375 F.3d at 491. This Court agreed with the district court in Ashbrook that
DeWeese’s purpose in posting this first Ten Commandments poster was:

(1) to instruct individuals that our legal system is based on moral
absolutes from divine law handed down by God through the Ten
Commandments and (2) to help foster debate between the philosophical
position of moral absolutism (as set forth in the Ten Commandments)
and moral relativism in order to address what he perceives to be a moral
crisis in this country.

Id. at 492. Therefore, “[d]espite his stated intent to use the display for educational
purposes,” this Court concluded that “DeWeese has not described a role for the Ten
Commandments poster in his educational errand other than to admonish participants in
No. 09-4256 American Civil Liberties Union v. Deweese Page 12

talks or programs in his courtroom to look to the Commandments as a source of law. His
own testimony belie[d] the secular purpose he wishe[d] to ascribe to it.” Id. Finding
that “DeWeese’s purpose in posting the Ten Commandments revealed a predominate
non-secular purpose for the display,” this Court stated that “Judge DeWeese’s display
of the Ten Commandments violate[d] the Establishment Clause of the First
Amendment.” Id. This Court thus affirmed an order of the district court ordering Judge
DeWeese to remove the poster of the Ten Commandments from his courtroom.
Ashbrook, 375 F.3d at 495. Defendant complied with this injunction. However, in 2006
Defendant created the poster at issue in this case, which includes the text of the Ten
Commandments as well as religious editorial commentary.

Defendant’s history of Establishment Clause violation casts aspersions on his
purportedly secular purpose in hanging the poster in his courtroom. So too do the
similarities between Defendant’s stated purpose in this case, and his unconstitutional
purpose in Ashbrook. Defendant attempts to distinguish his purpose in hanging the
poster from his purpose in hanging the poster in Ashbrook. He states that his “purpose
was not clear from looking at the display [in Ashbrook] and was misinterpreted by the
district court as a religious purpose. Consequently, [he] was careful in the new 2006
display to explain his philosophical purpose in the text of the poster.” (R. 17, Def.
Opp’n to Mot. for Summ. J., Ex. A, ¶ 2.). However, Defendant’s statements are
unconvincing. As borne out by this Court’s decision in Ashbrook, Defendant’s “views
about warring legal philosophies” and his concern over society’s “abandoning a moral
absolutist legal philosophy,” (R. 17, Def. Opp’n to Mot. for Summ. J., Ex. A, ¶ 2.), that
support his decision to hang the poster are based on his belief that “our legal system is
based on moral absolutes from divine law handed down by God through the Ten
Commandments.” Ashbrook, 375 F.3d at 492. This plainly constitutes a religious
purpose in violation of Lemon’s first prong.

Although the history of Defendant’s Establishment Clause violations is sufficient
to reveal his religious purpose, the texts of the challenged poster and Defendant’s
supplementary pamphlet are also illuminating. Courts have found the challenged text
No. 09-4256 American Civil Liberties Union v. Deweese Page 13

itself significant in determining purpose under Lemon. McCreary, 545 U.S. at 868
(“Where the text is set out, the insistence of the religious message is hard to avoid in the
absence of a context plausibly suggesting a message going beyond an excuse to promote
the religious point of view.”); Stone, 449 U.S. at 41-42; Ashbrook, 375 F.3d at 491. In
addition to a redacted text of the Ten Commandments, the poster includes editorial
statements by Defendant. These include religious statements such as “God is the final
authority, and we acknowledge His unchanging standards of behavior,” and “I join the
Founders in personally acknowledging the importance of Almighty God’s fixed moral
standards for restoring the moral fabric of this nation,” among others. (R. 17, Def.
Opp’n to Mot. for Summ. J., Ex. A - 3.) Similarly, in his supplemental pamphlet
Defendant states,

We are engaged in a great civil war of legal philosophies in the United
States . . . . The historically established philosophy bases its distinctions
between right and wrong on the God of the Bible. It holds that God has
defined for humanity’s own good and happiness what is right and wrong
and that those standards cannot be altered or abolished. It is a standard
of moral absolutes.

(R. 16, Pl.’s Mot. for Summ. J., Ex. 5-A.) Defendant’s definition of moral absolutes as
the standards of “the God of the Bible,” (R. 16, Pl.’s Mot. for Summ. J., Ex. 5-A.),
coupled with his statements regarding the “necessity of moral absolutes,” (R. 17, Def.
Opp’n to Mot. for Summ. J., Ex. A - 3.), reveal Defendant’s religious purpose.

Although Defendant attempts to veil his religious purpose by casting his religious
advocacy in philosophical terms, “[a] finding of religious purpose is militated by the
blatantly religious content of the display[].” McCreary I, 354 F.3d at 455. Replacing
the word religion with the word philosophy does not mask the religious nature of
Defendant’s purpose. The poster’s patently religious content reveals Defendant’s
religious purpose, violating Lemon’s first prong, and thus the Establishment Clause.
No. 09-4256 American Civil Liberties Union v. Deweese Page 14

B. Endorsement Test

Although “failure under any one of the Lemon prongs deems governmental action
violative of the Establishment Clause,” McCreary I, 354 F.3d at 458, and Defendant
violated the Establishment Clause based on Lemon’s first prong, its is also helpful to
consider Lemon’s second, endorsement, prong.

As reformulated in recent years, the second prong of Lemon asks whether “the
government action has the purpose or effect of endorsing religion.” Mercer, 432 F.3d
at 635.

Under the endorsement test, the government violates the Establishment
Clause when it acts in a manner that a reasonable person would view as
an endorsement of religion. This is an objective standard, similar to the
judicially-created reasonable person standard of tort . . . . [T]he inquiry
here is whether the reasonable person would conclude that [defendant’s]
display has the effect of endorsing religion.

Id. at 636. See also McCreary I, 354 F.3d at 458 (internal citations omitted). In this
case, as in the prior case involving Judge DeWeese, the Court asks,

whether a reasonable observer acquainted with the text, history, and
implementation of DeWeese’s display of the Ten Commandments in his
courtroom would view it as a state endorsement of religion. The inquiry
must be viewed under the totality of the circumstances surrounding the
display, including the contents and the presentation of the display,
because the effect of the government’s use of religious symbolism
depends on context.

Ashbrook, 375 F.3d at 492.

In determining what constitutes a constitutionally permissible display of
the Ten Commandments in a governmental building . . . the symbols
must be interconnected in a manner that is facially apparent to the
observer and the interconnection must be secular in nature. When
secular and non-secular items are displayed together, we consider
whether the secular image detracts from the message of endorsement; or
if rather, it specifically links religion and civil government.

Id. at 493.
No. 09-4256 American Civil Liberties Union v. Deweese Page 15

In contrast to the Ten Commandments displays in Stone, the McCreary cases,
Van Orden, Mercer, and Ashbrook, the poster in this case is not merely a display of the
Ten Commandments in Defendant’s courtroom. It sets forth overt religious messages
and religious endorsements. It is a display of the Ten Commandments editorialized by
Defendant, a judge in an Ohio state court, exhorting a return to “moral absolutes” which
Defendant himself defines as the principles of the “God of the Bible.” The poster is an
explicit endorsement of religion by Defendant in contravention of the Establishment
Clause.

The poster includes both the Ten Commandments, and seven secular “Humanist
Precepts,” (R. 17, Def. Opp’n to Mot. for Summ. J., Ex. A-3), in addition to four
editorial comments written by Defendant. Defendant’s prior poster of the Ten
Commandments was invalidated partially because we found that “DeWeese’s display
conveys a message of religious endorsement because of the complete lack of any
analytical connection between the Ten Commandments and the Bill of Rights that could
yield a unifying cultural or historical theme that is also secular for a reasonable
observer.” Ashbrook, 375 F.3d at 494. Defendant’s second poster, at issue in this case,
does not suffer from the same defect. Defendant’s editorial comments explicitly link the
Ten Commandments and the “Humanist Precepts.” The poster reads “There is a conflict
of legal and moral philosophies . . . All law is legislated morality. The only question is
whose . . . . Ultimately, there are only two views: Either God . . . or man . . . Here are
examples.” (R. 17, Def. Opp’n to Mot. for Summ. J., Ex. A-3). The poster then sets out
the Ten Commandments and the “Humanist Precepts” in two opposing columns.

However, while the poster effectively links the Ten Commandments and secular
principles, the poster fails the endorsement test for a different reason. To survive
endorsement test scrutiny, “the interconnection [between the religious and secular
displays] must be secular in nature.” Ashbrook, 375 F.3d at 493. Here it is not. Rather,
by stating that the “moral absolutes” of “the God of the Bible” are the “fixed moral
standards for restoring the moral fabric of this nation,” (R. 17, Def. Opp’n to Mot. for
Summ. J., Ex. A-3), that should triumph in the “conflict of legal and moral philosophies
No. 09-4256 American Civil Liberties Union v. Deweese Page 16

raging in the United States,” the poster “specifically links religion and civil
government.” Ashbrook, 375 F.3d at 493. Defendant’s poster thus violates the
Establishment Clause under Lemon’s endorsement test.

Finally, we will not discuss Lemon’s third entanglement prong inasmuch as
parties did not address it in their briefs. Brown v. Crowley, 229 F.3d 1150 (6th Cir.
2000) (table) (noting that inadequate briefing constitutes waiver).

C. Summary

For the reasons discussed above, the hanging of Defendant’s poster in the
courtroom violates the Establishment Clause both under Lemon’s purpose and
endorsement prongs. Therefore, we AFFIRM the district court’s decision.4

IV. Protected Speech Under the First Amendment

A. Analysis

Defendant contends that his hanging of the poster in his courtroom constitutes
protected speech under the First Amendment of the United States Constitution. The
Supreme Court has stated that “there is a crucial difference between government speech
endorsing religion, which the Establishment Clause forbids, and private speech
endorsing religion, which the Free Speech and Free Exercise clauses protect.” Santa Fe
Indep. Sch. Dist. v. Doe, 530 U.S. 290, 302 (2000). However, although Defendant is
correct that “judges are not First Amendment orphans,” (Br. of Appellant at 43),
Defendant’s hanging of the poster in his courtroom is not the private judicial speech
protected by the First Amendment’s Free Speech clause. See Republican Party of
Minnesota v. White, 536 U.S. 765 (2002) (holding unconstitutional a statute prohibiting
judges running for election from expressing a view on political issues during
campaigns).

4
In view of our disposition of this case pursuant to the U.S. Constitution’s Establishment Clause,
we need not decide whether the poster is similarly violative of the Ohio State Constitution’s establishment
clause.
No. 09-4256 American Civil Liberties Union v. Deweese Page 17

Defendant presented the identical argument to defend his first Ten
Commandments poster. We rejected this argument in Ashbrook, explaining:

DeWeese’s posters are situated in a courtroom, a public space, and were
placed on the wall by a sitting judge charged with the decoration of that
space while in office and presiding in the same courtroom. As such, we
reject DeWeese’s contention that the display constitutes private religious
expression protected by the Free Speech Clause, falling beyond the
bounds of Establishment Clause scrutiny. Indeed, they constituted
government speech subject to the strictures of the Establishment Clause.

375 F.3d at 490 n.4. This analysis is equally applicable and controlling in this case.

B. Summary

Defendant’s hanging of the poster in the courtroom is not protected by the First
Amendment’s Free Speech Clause. Therefore, we AFFIRM the district court’s
decision.

CONCLUSION

For the foregoing reasons, we AFFIRM the district court’s decision.