Glassroth v. Moore

[PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR TH E ELEV ENTH C IRCUIT
________________________
FILED
U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
Nos. 02-16708 & 02-16949
JULY 1, 2003
________________________
THOMAS K. KAHN
CLERK
D. C. Docket Nos. 01-01268-CV -T-N
01-01269-CV-T-N

STE PHE N R. G LAS SRO TH,
BEV ERL Y J. H OW ARD ,

Plaintiffs -App ellees,

versus

ROY S. MO ORE ,
Chief Ju stice of the Alabam a Supr eme Co urt,

Defen dant-A ppellant.

-----------------------------------------------------

MEL INDA M ADD OX,

Plaintiff- Appe llee,

versus

ROY S . MOO RE, in his official capacity
as Administrative Head of the Alabama
Judicial S ystem,

Defen dant-A ppellant.
 ________________________

Appeals from the United States District Court
for the Middle District of Alabama
_________________________
(July 1, 2003)

Before EDMOND SON, Chief Judge, CARNES, Circuit Judge, and STORY*,
District Judge.

CARNE S, Circuit Judge:

The Chief Justice of the Alabama Supreme Court installed a two-and-one-

half ton m onum ent to the T en Com mandm ents as the centerpie ce of the r otunda in

the Alabama State Judicial Building. He did so in order to remind all Alabama

citizens of, among other things, his belief in the sovereignty of the Judeo-Christian

God o ver both the state an d the chu rch. An d he rejec ted a requ est to perm it a

monument displaying a historically significant speech in the same space on the

grounds that “[t]he placement of a speech of any man alongside the revealed law of

God would tend in consequence to diminish the very purpose of the Ten

Commandments monum ent.” Glassroth v. Moore, 229 F. Supp. 2d 1290, 1297

(M.D . Ala. 20 02).

_________________
*Honorable Richard W. Story, United States District Judge for the Northern District of
Georgia, sitting by designation.
2
 The monument and its placement in the rotunda create the impression of

being in the presence of something holy and sacred, causing some building

employees and visitors to consider the monument an appropriate and inviting place

for pray er. Thre e attorney s who do not c onsider the mon ument a pprop riate at all

and w ho do n ot share th e Chief J ustice’s relig ious belie fs brou ght two separate

lawsuits to have the monument taken out. Agreeing with them that it violated the

Establishment Clause of the First Amendment, the district court ordered the

monu ment rem oved. Glassro th, 229 F. Supp. 2d at 1319; 242 F. Supp. 2d 1067

(M.D . Ala. 20 02). Th e Chief J ustice app ealed. W e affirm.

I.

Because “[i]n religious-symbols cases, context is the touchstone,” King v.

Richm ond C ounty, No. 02-14146, slip op. 2541, at 2552 (11th Cir. May 30, 2003),

we set out the relevant facts in some detail, most of which are pulled from the

district court’s opinion, but a few of which we have drawn from undisputed

testimon y or othe r eviden ce in the re cord.

Chief Justice Moore began his judicial career as a judge on the Circuit Court

of Etowah County, Alabama. After taking office he hung a hand-carved, wooden

plaque depicting the Ten Commandments behind the bench in his courtroom and

routinely invited clergy to lead prayer at jury organizing sessions. Those actions

3
generated two high-profile lawsuits in 1995 based on the Establishment Clause,

one filed by a nonprofit organization seeking an injunction and the other brought

by the State of A labama seekin g a declaratory ju dgment tha t then-Judge Moore ’s

actions w ere not u nconstitu tional. Bo th suits w ere dism issed on justiciability

groun ds. Ala. Freethought Ass’n v. Moore, 893 F. Supp. 1522 (N.D. Ala. 1995);

Alabama ex rel. James v. ACLU, 711 S o. 2d 95 2 (Ala. 1 998); see Glassro th, 229 F.

Supp. 2d at 1293-94.

During his campaign for the Chief Justice position in the November 2000

election, then-Judge Moore’s campaign committee, capitalizing on name

recogn ition from the laws uits, decid ed to refe r to him a s the “Ten Comm andme nts

Judge.” Although the Chief Justice says he never described himself that way, he

did not d isagree w ith his cam paign co mmittee’s decision . As a res ult, most o f his

campaign materials, including billboards, television and radio com mercials,

telephone scripts, and mailings, described him as the “Ten Commandments Judge”

or other wise ref erred to th e Ten C omma ndmen ts. The ce ntral platfo rm of h is

campaig n was a promis e “to restor e the mo ral foun dation o f law.” Glassro th, 229

F. Supp. 2d at 1294.

After he was elected, Chief Justice Moore fulfilled his campaign promise by

installing th e Ten C omma ndmen ts monu ment in th e rotund a of the A labama S tate

4
Judicial B uilding. Id. at 1294, 1303. That building houses the Alabama Supreme

Court, the Court of Criminal Appeals, the Court of Civil Appeals, the state law

library, and the state’s Administrative Office of the Courts. The Chief Justice, as

administrative head of the Alabama judicial system and as lessee of the Judicial

Building, has final authority over the decoration of the rotunda and whether to put

any disp lays in the b uilding. See Ala. Const. Amend. 328, § 6.10; Ala. Code § 41-

10-275. Chief Justice Moore placed the monument in the rotunda of the Judicial

Building without the advance approval or even knowledge of any one of the other

eight justices of the Alabama Supreme Court. All decisions regarding it were

made b y him. Glassro th, 229 F. Supp. 2d at 1294. He did not use any government

funds in creating o r installing the mon ument. Id.

Thou sands o f people enter the J udicial B uilding e ach year. I n additio n to

attorneys , parties, jud ges, and employ ees, every fourth g rader in th e state is

broug ht on a to ur of the building as part of a field trip to the state cap ital. No one

who e nters the b uilding th rough the main entrance can miss the mon ument. I t is in

the rotunda, directly across from the main entrance, in fron t of a plate-glass

window with a courtyard and waterfall behind it. After entering the building,

members of the public must pass through the rotunda to access the public elevator

or stairs, to enter the law library, or to use the public restrooms. A person walking

5
to the elevator, stairs, or restroom will pass within ten to twenty feet of the

monu ment. The Chief Justice chose the location of the monument so that everyone

visiting th e Judicial B uilding w ould see it. Id.

The 5280-pound granite monument is “approximately three feet wide by

three feet deep by four feet tall.” Id. Two tablets with rounded tops are carved

into the sloping top of the monument. Excerpts from Exodus 20:2-17 of the King

James Version of the Holy Bible, the Ten Commandments, are chiseled into the

tablets. The left one reads:

I AM THE L ORD THY G OD

T HOU SHALT HAVE NO OTHER GODS BEFORE ME

T HOU SHALT NOT MAKE UNTO THEE ANY GRAVEN IMAGE

T HOU SHALT NOT TAKE THE NAME OF THE L ORD THY G OD IN VAIN

R EMEMBER THE SABBATH DAY, TO KEEP IT HOLY

The right one reads:

H ONOUR THY FATHER AND THY MOTHER

T HOU SHALT NOT KILL

T HOU SHALT NOT COMMIT ADULTERY

T HOU SHALT NOT STEAL

T HOU SHALT NOT BEAR FALSE WITNESS

6
 T HOU SHALT NOT COVET1

Glassro th, 229 F . Supp . 2d at 12 94-95 ; id. at 1320 (App. A - photograph of the

monu ment).

Below the Ten Commandments, each side of the monument contains one

large-sized and several smaller-sized quotations. The quotations are excerpted

from various historical documents and authorities. They are described and set out

in full in th e district co urt’s opin ion. Id. at 1295 ; id. at 1320-21 (App. B -

providing full quotations of the monument’s text). The quotations from secular

sources were placed below the Ten Commandments because of Chief Justice

Moore’s belief that the words of mere men could not be placed on the same plane

as the W ord of G od. Id. at 1295 .

“Due to the slope of the monument’s top and the religious appearance of the

tablets, the tablets call to mind an open Bible resting on a lectern.” Id. The

1
Observant readers will notice that the tablets contain a total of eleven statements.
Different faiths dispute how the sixteen verses in Exodus 20:2-17 should be divided to reflect the
later references to “Ten Commandments.” Exodus 34:28; Deuteronomy 4:13, 10:4. As one
expert testified at trial, “[e]ach tradition has struggled with how they should be numbered.” For
example, many Jews and some Christians consider the “First Commandment” to be “I am the
Lord thy God,” while others consider the First Commandment to be “Thou shalt [or You shall]
have no other gods before me.” More about the significance of this kind of disagreement for
Establishment Clause purposes is found in note 3, below.

In any event, the division of the commandments between two tablets is significant. As
the Chief Justice (who called them “tables”) explained: “the first table represents the duties
which we owe to GOD,” and “[t]he second table represents the duties which we owe to each
other.” 1st Supp. Rec. Vol. 2 at 150.

7
appearance and location of the monument itself give one “the sense of being in the

presenc e of som ething n ot just valu ed and r evered ( such as a n historic al docum ent)

but also holy and sacred.” Id. Emplo yees and visitors to the build ing con sider it

an appr opriate an d inviting place for prayer. Id.

The monument was installed after the close of business during the evening

of July 3 1, 2001 . The C hief Justic e has exp lained tha t it was do ne at nigh t to avoid

interrupting the normal business of the building. The installation of the monument

that nigh t was film ed by C oral Rid ge Min istries, an ev angelical C hristian m edia

outreach organiz ation. Id. at 1294. The organization has used its exclusive footage

of the installation to ra ise funds for its own pu rpose and f or Chief Ju stice Moor e’s

legal defe nse, wh ich it has u nderw ritten. Id. at 1304 n.2.

At the public unveiling of the monument the day after its installation, Chief

Justice Moore delivered a speech commemorating the event, and in that speech he

talked about why he had placed the monument, which he described as one

“depicting the moral foundation of our law,” where he did. He explained that the

location o f the mo numen t was “fittin g and p roper” b ecause:

this monument will serve to remind the appellate courts and judges of
the circuit and district courts of this state, the members of the bar who
appear before them, as well as the people who visit the Alabama
Judicial Building, of the truth stated in the preamble of the Alabama

8
 Constitution, that in order to establish justice, we must invoke “the
favor an d guida nce of A lmighty G od.” 2

Id. at 1321-24 (App. C - reproducing the full text of Chief Justice Moore’s remarks

at the unveiling ceremony). During that speech, the Chief Justice criticized

govern ment of ficials wh o “forbid teaching your ch ildren tha t they are cr eated in

the image of Almighty God” and who “purport all the while that it is a government

and not God w ho gave us our rights,” because the y have “turned away from those

absolute standards which form the basis of our morality and the moral foundation

of our law” and “divorce d the Constitution and the Bill of Rights from these

principles.” Id. at 1322. Recalling his campaign “pledge to restore the moral

foundation of law,” he noted that “[i]t is axiomatic that to restore morality, we

must first recognize the source of that morality,” and that “our forefathers

recognized the sovereignty of God.” Id. He noted during the speech that no

govern ment fu nds had been ex pended on the m onum ent.

The Chief Justice described various acknowledgments of God throughout

this country’s history, some of which, he pointed out, are inscribed on the

monument. He proclaimed that the unveiling of the monument that day “mark[ed]

2
See Ala. Const. Pmbl. (“We, the people of the State of Alabama, in order to establish
justice, insure domestic tranquillity, and secure the blessings of liberty to ourselves and our
posterity, invoking the favor and guidance of Almighty God, do ordain and establish the
following Constitution and form of government for the State of Alabama.”).

9
the restoration of the moral foundation of law to our people and the return to the

knowledge of God in our land.” Id. at 1321. In closing, he told the audience that

they would “find no documents surrounding the Ten Commandments because they

stand alone as an acknowledgment of that God that’s contained in our pledge,

contained in our motto, and contained in our oath.” Id. at 1324 .

During the trial the Chief Justice testified candidly about why he had placed

the monument in the rotunda. The following exchanges between him and one of

the plaintif fs’ attorne ys establish that purp ose:

Q [W]as y our pu rpose in putting th e Ten C ommandmen ts
monument in the Supreme Court rotunda to acknowledge GO D’s law
and G OD’s sovereig nty? . . .

A Yes.

1st Sup p. Rec. V ol. 2 at 10 0.

Q . . . Do yo u agree th at the mo numen t, the Ten Comm andme nts
monument, reflects the sovereignty of GOD over the affairs of men?

A Yes.

Q And the monument is also intended to acknowledge
GOD’s overruling power over the affairs of men, would that be
correct? . . .

A Yes.

Q . . . [W]he n you sa y “GO D” you mean G OD o f the Ho ly
Scripture?

10
 A Yes.

1st Sup p. Rec. V ol. 3 at 34 .

The rotunda is open to the public, but it is not a public forum where citizens

can place their ow n display s. Glassro th, 229 F. Supp. 2d at 1303. Chief Justice

Moo re has de nied the tw o reque sts that hav e been m ade to pla ce other d isplays in

the rotunda. He did so because he believed that those displays would have been

inconsistent with the rotunda’s theme of the moral foundation of law. An Alabama

State Representative asked the Chief Justice if a monument containing the Rev. Dr.

Martin Luther King Jr.’s famous “I Have a Dream” speech could be placed in the

rotunda. The Chief Justice denied the request in a letter, stating that, “The

placeme nt of a sp eech of a ny man alongsid e the reve aled law of Go d wou ld tend in

consequence to diminish the very purpose of the Ten Commandments monument.”

Id. at 1297. He also denied an atheist group’s request to display a symbol of

atheism in the rotun da. Id.

The Chief Justice did add two smaller displays to the rotunda at some point

after the Ten Commandments monument was installed. The first, a plaque entitled

“Moral Foundation of Law,” contains a quotation from the Rev. Dr. Martin Luther

King Jr.’s letter from the Birmingham jail speaking of just laws and “the moral law

or law of God,” and a quotation from Frederick Douglass speaking of slavery as

11
hiding man “from the laws of God.” Id. at 1324 -25 (A pp. D - provid ing a full

quotatio n of the p laque). T hat plaqu e, which the Chie f Justice p aid for w ith his

own m oney, m easures f orty-tw o inches by thirty-tw o inches . Id. at 1296. The

second display is a brass plaque that contains the Bill of Rights. That plaque,

measuring thirty inches by thirty-six inches, had been found in a box in the

building. The Chief Justice added both plaques because he thought that they

“comported with the ‘moral foundation of law theme.’” Id. The two plaques are

inconsp icuous c ompar ed to the T en Com mandm ents mo numen t. Each is n ot only

much s maller tha n the mo numen t, but also is located se venty-fiv e feet from it. A

person standing in front of the monument cannot see either plaque. Nothing about

their locatio n or app earance in dicates tha t they are co nnected to the mo numen t. Id.

The three plaintiffs are practicing attorneys in the Alabama cou rts. As a

result of their professional obligations, each of them has entered, and will in the

future h ave to en ter, the Jud icial Build ing. Bec ause of its location, th ey necess arily

come in contact with the monument. The monument offends each of them and

makes them feel like “outsiders.” Because of the monument, two of the plaintiffs

have chosen to visit the Judicial Building less often and enjoy the ro tunda less

when they are there. One of those two has avoided the building to the extent of

purchasing law books and online research services instead of using the library, and

12
hiring a m essenge r to file do cumen ts in the co urts locate d in the Ju dicial Bu ilding.

Id. at 1297 .

II.

Pursuant to 42 U.S.C. § 1983, the three plaintiffs sued Chief Justice Moore

in his official capacity as administrative head of Alabama’s judicial system,

claiming that his actions violated the Establishment Clause of the First Amendment

as applied to the states throug h the D ue Pro cess Clau se of the F ourteen th

Amendment. They sought a declaratory judgment that his actions were

uncon stitutional a nd an in junction to force h im to rem ove the m onum ent. Prio r to

trial, Chief Justice Moore’s counsel requested – it may have been done jointly, but

it is unclear from the record whether the plaintiffs actually joined or simply did not

object to the request – that the district court judge visit the monument. The judge

did so, ac compa nied by th e attorney s for bo th sides. Id. at 1295.

After a seven-day bench trial, the district court concluded that Chief Justice

Moo re’s action s violated the Estab lishmen t Clause b ecause h is purpo se in

displaying the monument was non-secular and because the monument’s primary

effect is to a dvance religion. Id. at 1299, 1304. The court entered judgment to that

effect and gave the Chief Ju stice thirty d ays to rem ove the m onum ent volu ntarily.

After he declined to do so, the district court entered an order enjoining him from

13
failing to r emove the mon ument f rom the public ar eas of the Judicial B uilding.

Glassroth v. Moore, 242 F. Supp. 2d 1067 (M.D . Ala. 2002). The Chief Justice

appealed , and the d istrict cour t stayed its in junction pendin g appea l. Glassroth v.

Moore, 242 F . Supp . 2d 106 8 (M.D . Ala. 20 02).

III.

As this Court recently explained, Establishment Clause challenges are not

decided by bright-line rules, but on a case-by-case basis with the result turning on

the specif ic facts. King v . Richm ond C ounty, No. 02 -1414 6, slip op . 2541 ( 11th

Cir. May 30, 2003). As we have already noted, the facts set out in this opinion are

taken largely from the district court’s findings. The Chief Justice attacks those

finding s on sev eral bases .

A.

First, he contends that the district court judge should not have made any

factfindings based upon his viewing of the monument and its surrounds. The judge

unquestionably made important factfindings as a result of what he saw when he

viewed the monument and the rotunda in which it is located. That was error, the

Chief Justice argues, because he had thought that the only purpose of the district

court’s v iew of th e monu ment an d the area around it was to p rovide th e court w ith

a physica l context w ithin wh ich to asse ss the evid ence adm itted in the c ourtroo m.

14
 The sole decision cited by the Chief Justice in connection with the viewing

issue is Lillie v. United States, 953 F.2d 1188 (10th Cir. 1992), which involved a

judge’s uninvited viewing of the scene of the accident, outside the presence of

counsel and without their knowledge. The Tenth Circuit concluded that was error

because, “[w]ithout presence of counsel there is no way to be certain that the

premises viewed are in the same condition as when the event occurred, or that the

court does not view the wrong premises or objects.” Id. at 1191. That is n ot a

problem in this case, because the district court judge undertook the view only after

fully discussing the matter with counsel for both sides and scheduling the time of

the view ing with counse l in advan ce. And he und ertook th e view in their pres ence.

There w as no pr ocedur al irregula rity or lack of notice .

The district court told the attorneys early in the status conference that if the

case was decided on summary judgment motions, the court would not be making

any find ings of f act from its view. That is, of course, correct. Courts do not find

facts when deciding summary judgment motions, but this case was not decided on

summ ary judg ment. A s we w ill point ou t shortly, co unsel fo r both sid es fully

expected that the district court judge would be considering the facts and

circums tances he observ ed durin g the view if the case w as decide d by trial, as it

was, ins tead of o n summ ary judg ment.

15
 To the extent the Chief Justice is arguing that factfinders should never find

facts from what they observe at a view but should only use what they see to put

into con text the fac ts they hea r in the co urtroom , we agr ee with th e Tenth Circuit

that “such a distinction is only semantic, because any kind of presentation to the

jury or th e judge to help the f act finder determin e what th e truth is an d assimila te

and understand the evidence is itself evidence.” Id. at 1190 ; accord Snyder v.

Massa chusetts, 291 U.S. 97, 121, 54 S. Ct. 330, 338 (1934) (the “inevitable effect

[of a view] is that of evidence, no matter what label the judge may choose to give

it”), overruled on other grounds by Duncan v. Louisiana, 391 U .S. 145 , 88 S. C t.

1444 ( 1968) , Malloy v. Hogan, 378 U .S. 1, 84 S. Ct. 14 89 (19 64); In re

Application to Take Testimony, 102 F.R.D. 521, 524 (E.D.N.Y. 1984)

(“Authorities now generally agree that the view provides independent evidence.”);

Foster v . State, 12 So. 822, 823 (Miss. 1893) (“To say the jury cannot receive

evidence by simply viewing the scen e is to insult common sense. The m ost

convincing evidence is made b y the sense of sight. The juror, on the view , sees,

and thinks he knows what he sees, with all the conclusions flowing therefrom.”);

6 John Henry Wigm ore, Wigmore on Evidence § 1803 (James H. Chadbourn rev.

1976) (the jury o n a view is receivin g eviden ce becau se “to view the thing itself in

issue – i.e., the premises – is undoubtedly to consult a source of proof”); 2 Jack B.

16
Weins tein, Weinstein’s Federal Evidence (2d ed.) § 403.07[4] (2d ed. 2003)

(“[T]he m odern p osition is th at the view does pr ovide in depend ent evide nce.”).

Just as pic tures of th e monu ment an d the rotu nda that w ere subm itted as exh ibits

are evidence, so too is what the judge saw when he viewed the actual monument

and its setting.

In any event, “[i]t is a cardinal rule of appellate review that a party may not

challenge as error a ruling or other trial proceeding invited by that party.” United

States v. Ross, 131 F.3d 970, 988 (11th Cir. 1997) (quoting Crock ett v. Un iroyal,

Inc., 772 F.2d 1524, 1530 n.4 (11th Cir. 1985)). Counsel for Chief Justice Moore

urged the district court judge to undertake a view. When the judge said at a status

conference that if summary judgment was granted the issue of looking at the

monu ment w ould be moot, co unsel fo r the Ch ief Justice d isagreed , protestin g that:

“I believe it’s almost in cumbe nt upon the Cou rt to walk into the Ju dicial Bu ilding,”

and “I still think it’s almost necessary to take a look at this yourself because of the

proxim ity and also because of just the manne r in wh ich the fac ts play ou t here.”

Rec. V ol. 12 at 1 5.

The district court judge asked if the lawyers were going to make

arrange ments fo r him to s ee the mo numen t and po int out w hat he w as to see.

Coun sel for the plaintiffs a nswer ed, with out obje ction, that b oth sides had agr eed:

17
“you just walk in the front door and everything in the rotunda is fair game. And

we belie ve that the lawyers should n’t speak unless yo u’ve go t a questio n for us .

And the lawyers would be there, none of their clients would be there, and that

would be it.” Rec. Vol. 12 at 17.

Counsel for the Chief Justice agreed with that statement about how the view

should be conducted, and he made clear that the whole point was for the district

court judge to be able to gather facts about the monument and its setting, saying:

But I think with either the summary judgment motion or response,
and/or the pretrial briefs, that there’s going to be a lot of facts in there
that will probably give each side’s impression of how they interpret
the inside of the rotunda. But I agree with [plaintiffs’ counsel] that
you’re a jury. You have to walk in and see what you see and then
[sic] just like a juror would.

Rec. V ol. 12 at 1 6-17.

During argument about the cross-motions for summary judgment, and before

the view took place, counsel for the Chief Justice contended that summary

judgment was improper because the district court needed to view the monument as

part of the necessary “inquiry into the facts and circumstances”:

[T]he issue with regard to how a reasonable person would view the
monu ment w ould req uire an ex aminatio n of w hat you m ight call
social facts, which would require at least an examination of the
monument itself. This is why we believe it’s important for you to go
into the ro tunda an d view that mon ument a nd view the setting itself.
Unless you see it yourself, and since the reasonab le person test is a
test that’s su pposed to be app lied by the judge, it w ould be difficult

18
 for the judge to apply that particular test unless there was an inquiry
into the facts and circumstances with regard to this matter.

Rec. Vol. 13 at 43-44. So eager was he to have the district court judge conduct the

view “ju st like a juro r wou ld,” that co unsel fo r the Ch ief Justice v olunteer ed his

help in ar ranging parking for the d istrict cour t judge at th e Judicial B uilding. Any

conceiv able erro r was n ot just inv ited error , but invited error w ith a park ing spac e.

B.

The C hief Justic e also com plains tha t the district c ourt did not state its

findings from the view into the record so that the parties would have had an

opportunity to challenge them before the court issued its opinion. He never asked

the court to do that, and factfinders traditionally do not state facts into the record

before deciding the case; juries never do. The parties were on notice that the court

might make factfindings from what it saw during the view, and if either side had

wanted those fin dings sta ted into th e record before a decision was m ade, it sho uld

have requested that extraordinary procedure. Since neither side asked for that

procedure, we need not decide whether it would have been necessary or

approp riate if requ ested.

C.

In a related challenge to the district court’s findings, the Chief Justice argues

that the district court judge should not have relied upon his subjective impressions

19
from viewing the monument and its surrounding space. Recall that this same

party’s co unsel ha d urged the district c ourt jud ge to un dertake a view in order to

find the “social facts” about how a reasonable person would see the monument and

its surrou ndings . When the district c ourt des cribed h ow the monu ment an d its

presentation in the rotunda gave one a “sense of being in the presence of something

not just valued and revered (such as an historical document) but also holy and

sacred,” Glassro th, 229 F. Supp. 2d at 1295, the court was articulating findings

about the impression the monument made on the viewer, and would make on a

reasonable person viewing it. It was required to do that in order to apply the

reasona ble perso n test.

D.

Apart from the factfinding issues arising from the view, Chief Justice Moore

also argu es that the d istrict cour t made fa ctfinding s not sup ported b y the reco rd.

We review district court factfindings only for clear error, and as we have

explained, “[w]e cannot hold a district court’s finding of fact clearly erroneous

unless, in view of the entire record, we are ‘left with a definite and firm conviction

that a mistake has been committed.’” Eng’g Contractors Ass’n v. Metropolitan

Dade C ounty, 122 F.3d 895, 904 (11th Cir. 1997) (quoting Anderson v. City of

Bessem er City, 470 U.S. 564, 573, 105 S. Ct. 1504, 1511 (1985)). We cannot

20
reach the requisite definite and firm conviction that a mistake in factfinding has

been made, the Supreme Court has told us, where the district court has chosen one

of two plausible views o f the evid ence. Anderson, 470 U.S. at 574, 105 S. Ct. at

1511 (“If the district court’s account of the evidence is plausible in light of the

record viewed in its entirety, the court of appeals may not reverse it even though

convinced that had it been sitting as the trier of fact, it would have weighed the

evidence differently. Where there are two permissible views of the evidence, the

factfinder’s choice between them cannot be clearly erroneous.”) (citations

omitted).

The specific factfinding relating to the merits of the constitutional issue that

the Chief Justice challenges is the district court’s finding that “visitors and building

employees consider the monument an appropriate, and even compelling, place for

prayer.” Glassro th, 299 F . Supp . 2d at 12 95. That is at least a plausible view of

the evidence in light of the testimony of one of the plaintiffs that she had witnessed

a group in prayer around the monument, and the testimony of a building employee

that on several occasions he had prayed in front of the monument by himself and

with oth er emplo yees, silently and ou t loud.

IV.

21
 We turn now to the legal issues. The threshold one is whether these

plaintiffs have standing to bring the lawsuits that led to these appeals. The Chief

Justice disputes the district court’s conclusion that they do, a conclusion we review

de novo. Ga. State Conf. of NAACP B ranches v. Cox, 183 F .3d 125 9, 1262 (11th

Cir. 199 9).

The ap plicable p rinciples a re well-s ettled:

To satisfy the “case” or “controversy” requirement of Article III,
which is the “irred ucible co nstitution al minim um” of standing , a
plaintiff must, generally speaking, demonstrate that he has suffered
“injury in fact,” that the injury is “fairly traceable” to the actions of
the defendant, and that the injury will likely be redressed by a
favorable decision.

Bennett v. Spear, 520 U.S. 154, 162, 117 S. Ct. 1154, 1161 (1997) (citations

omitted). For Establishment Clause claims based on non-economic harm, the

plaintiffs must identify a “personal injury suffered by them as a consequence of the

alleged co nstitution al error, o ther than the psych ological c onsequ ence pre sumab ly

produced by observation of conduct with which one disagrees.” Valley Forge

Christian Coll. v. Ams. United for Sep. of Church & State, Inc., 454 U.S. 464, 485,

102 S. Ct. 752, 765 (1982). In this type of case, plaintiffs have standing if they are

“‘directly affected by the laws and practices against [which] their complaints are

directed,’” Saladin v. City of Milledg eville, 812 F.2d 687, 692 (11th Cir. 1987)

(quoting Sch. Dist. of Abington Township v. Schempp, 374 U.S. 203, 224 n.9, 83

22
S. Ct. 1560, 1572 n.9 (1963)), such as where the plaintiffs are “‘forced to assume

special burdens’ to avoid ‘unwelcome religious exercises,’” ACLU v. Rabun

County Chamber of Comm erce, Inc., 698 F.2d 1098, 1107 (11th Cir. 1983) (per

curiam) (quoting Valley Forge, 454 U.S. at 487 n.22, 102 S. Ct. at 766 n.22).

The location of the monument in the rotunda of the Judicial Building makes

it imposs ible for an yone us ing the sta irs, elevato rs, or restr ooms to avoid it.

Everyone going to the state law library in the building has to walk past the

monu ment. Glassro th, 229 F. Supp. 2d at 1294. The three plaintiffs are attorneys

whose professional duties require them to enter the Judicial Building regularly, and

when they do so they must pass by the monument. None of them shares the Chief

Justice’s religious views, and all of them consider the monument offensive. It

makes them feel like outsiders, and two of the plaintiffs have altered their behavior

as a cons equenc e. Id. at 1297. As we noted earlier, one of those two has incurred

expenses in order to minimize contact with the monument, purchasing law books

and online research to minimize use of the state law library and hiring messengers

to file doc uments in the cou rts located in the bu ilding.

Under these facts, the two plaintiffs who have altered their behavior as a

result of the monument have suffered and will continue to suffer injuries in fact

sufficien t for stand ing pur poses. See Schempp, 374 U.S. at 224 n.9, 83 S. Ct. at

23
1572 n .9 (hold ing that sc hool ch ildren an d paren ts had stan ding to c hallenge a state

law req uiring th e Bible to be read e very mo rning in public sc hools); Saladin, 812

F.2d at 692 -93 (holdin g that city residents h ad standing to challenge the city’s

placeme nt of the w ord “Ch ristianity” o n its officia l seal becau se they reg ularly

received correspondence bearing the seal and the seal made them feel like “second

class citizen s”); Rabun Coun ty, 698 F .2d at 11 07-08 (holdin g that state r esidents

who u sed pub lic parks h ad stand ing to ch allenge th e placem ent of a lig hted La tin

cross in a public park where they were unwilling to camp in that park because of

the “physical and metaphysical impact of the cross”). Further, a favorable decision

will likely redress their injuries. If Chief Justice Moore is required to remove the

monument from the public area of the Judicial Building, the plaintiffs will no

longer h ave to ob serve it or take action s to avoid going in to the bu ilding.

Having concluded that those two plaintiffs have standing, we are not

required to decide wheth er the oth er plaintiff , the one w ho has n ot altered h is

behavio r as a resu lt of the m onum ent, has sta nding. Rabun Coun ty, 698 F.2d at

1108-09 (“Because we have determined that at least these two individuals have met

the requirements of Article III, it is unnecessary for us to consider the standing of

the other plaintiffs in this action .”); accord Watt v. Energy Action Educ. Found.,

454 U .S. 151 , 160, 10 2 S. Ct. 2 05, 212 (1981 ).

24
 Contrary to Chief Justice Moore’s contention, the injuries the plaintiffs

assert are not based solely on their disagreement with his views about religion and

govern ment, w hich w ould be a non-r edressab le injury. While the C hief Justice’s

views may aggravate the emotional injury the plaintiffs suffer from viewing the

monument, the worst of the wound is inflicted by the monument itself. The

plaintiff who has incurred expense and inconvenience to avoid entering the

building has done so not because it houses the Chief Justice’s chambers, but

because the mon ument is there. Th e district co urt did n ot err by d eclining to

dismiss the cases on standing grounds. Now to the merits of the constitutional

issue.

V.

Because of this country’s “history and tradition of religious diversity that

dates from the settlement of the North American Continent,” the Founders included

in the Bill of Rights an Establishment Clause which prohibits any law “respecting

an establishment of religion.” County of Allegheny v. ACLU, 492 U.S. 573, 589,

109 S. Ct. 3086, 30 99 (1989). In the mo re than two centuries since that clause

became part of our Constitution, the Supreme Court has arrived at an

unders tanding of its gen eral mean ing, wh ich is that “g overnm ent may n ot prom ote

or affiliate its elf with a ny religio us doctr ine or or ganizatio n, may n ot discrim inate

25
among persons on the basis of their religious beliefs and practices, may not

delegate a govern mental p ower to a religiou s institution , and ma y not inv olve itself

too deeply in such an institution’s affairs.” Id. at 590-91, 109 S. Ct. at 3099

(footnotes omitted). Some aspects of the Chief Justice’s position in this case are

aimed d irectly at that u nderstan ding. T ake, for e xample , the one w e addres s next.

A.

The First Amendment does not say that no government official may take any

action respecting an establishment of religion or prohibiting the free ex ercise

thereof. It says that “Congress shall make no law” doing that. Chief Justice Moore

is not Congress. Nonetheless, he apparently recognizes that the religion clauses of

the First A mendm ent apply to all laws , not just th ose enac ted by C ongres s. See

Everson v. Bd. of Educ., 330 U.S. 1, 15, 67 S. Ct. 504, 511 (1947) (holding that the

Establishment Clause applies to the states through the Due Process Clause of the

Fourte enth A mendm ent). Ev en with that conc ession, h is position is still plenty

bold. He argues that because of its “no law” language, the First Amendment

proscrib es only law s, which should be defin ed as “a ru le of civil co nduct . . .

commanding what is right and prohibiting what is wrong.” Brief of Appellant at

19 (qu oting 1 W illiam Blac kstone, Commentaries *44). Any governmental action

promoting religion in general or a particular religion is free from constitutional

26
scrutiny, he insists, so long as it does not command or prohibit conduct. The

monument does neither, but instead is what he calls “a decorative reminder of the

moral foundation of American law.” Brief of Appellant at 19.

The bread th of the Ch ief Justice’s position is illus trated by his cou nsel’s

concess ion at ora l argum ent that if w e adopte d his po sition, the C hief Justic e wou ld

be free to adorn th e walls o f the Ala bama S uprem e Cour t’s courtro om w ith

sectarian religious murals and have decidedly religious quotations painted above

the bench. Every government building could be topped with a cross, or a menorah,

or a statue of Bud dha, dep ending upon th e views of the of ficials with authority

over the premises. A crèche could occupy the place of honor in the lobby or

rotunda of every municipal, county, state, and federal building. Proselytizing

religious messages could be played over the public address system in every

govern ment bu ilding at th e whim of the of ficial in cha rge of th e premis es.

However appealing those prospects may be to some, the position Chief

Justice M oore tak es is forec losed by Supre me Court prece dent. County of

Allegheny, 492 U.S. at 612, 109 S. Ct. at 3110, which held unconstitutional the

placement of a crèche in the lobby of a courthouse, stands foursquare against the

notion that the Establishment Clause perm its government to promo te religion so

long as it d oes not c omma nd or p rohibit co nduct. Id., 109 S. Ct. at 3110 (“To be

27
sure, som e Christia ns may w ish to see th e government p roclaim its allegiance to

Christianity in a religious celebration of Christmas, but the Constitution does not

permit the gratification of that desire, which would contradict ‘the logic of secular

liberty’ it is the purpose of the Establishment Clause to protect.”) (citation

omitted). To the same effect is the decision in Lee v. Weisman, 505 U.S. 577, 587,

112 S. Ct. 2649, 2655 (1992), where the Supreme Court explained that, “[a] school

official, the principal, decided that an invocation and a benediction should be

given; this is a choice attributable to the State, and from a constitutional

perspec tive it is as if a s tate statute d ecreed th at the pray ers mus t occur.” A nd in

Jaffree v. Wallace, 705 F .2d 152 6 (11th Cir. 198 3), prob. ju ris. noted and aff’d in

part, 466 U .S. 924 , 104 S . Ct. 170 4, cert. denied sub. nom. Bd. of Sch. Comm’rs of

Mobile County v. Jaffree, 466 U.S. 926, 104 S. Ct. 1707, and aff’d in part, 472

U.S. 3 8, 105 S . Ct. 247 9 (198 5), this C ourt con cluded th at “[i]f a statute

authoriz ing the tea chers’ activ ities wou ld be un constitutio nal, then th e activities, in

the absence of a statute, are also unconstitutional.” Id. at 1533-35.

B.

Another of the Chief Justice’s broad-based attacks on the application of the

Establish ment C lause to h is condu ct involv es the def inition of religion. H e insists

that for First Amendment purposes religion is “the duty which we owe to our

28
Creator, and the manner of discharging it”; nothing more, nothing less. Brief of

Appe llant at 11- 12 (qu oting V irginia D eclaration of Righ ts Art. I, § 16 (17 76)).

The C hief Justic e argues that the T en Com mandm ents, as he has pres ented the m in

the monument, do not involve the duties individuals owe the Creator, and therefore

they are not religious; instead, he says, they represent the moral foundation of

secular d uties that in dividua ls owe to society.

The Supreme Court has instructed us that for First Amendment purposes

religion includes non-Christian faiths and those that do not profess belief in the

Judeo- Christian God; in deed, it inc ludes the lack of an y faith. Allegh eny Co unty,

492 U .S. at 590 , 109 S . Ct. at 309 9 (“Perh aps in the early days of the R epublic

these words [of the Establishment Clause] were understood to protect only the

diversity within Christianity, but today they are recognized as guaranteeing

religious liberty and equality to the infidel, the atheist, or the adherent of a non-

Christian faith such as Islam or Judaism.”) (internal marks omitted); Wallace v.

Jaffree, 472 U.S. 38, 52-53, 105 S. Ct. 2479, 2487-88 (1985) (“[T]he Court has

unambiguously concluded that the individual freedom of conscience protected by

the First Amendment embraces the right to select any religious faith or none at

all.”) (footn ote omitte d); Torcaso v. Watkins, 367 U.S. 488, 495, 81 S. Ct. 1680,

1683- 84 (19 61). Ch ief Justice M oore’s p roffered definition of religio n is

29
inconsis tent with the Sup reme C ourt’s be cause his presup poses a b elief in G od.

We understand that the Chief Justice disagrees with the Supreme Court’s definition

of religio n, but w e are bou nd by it.

As for the other essential premise of Chief Justice Moore’s argument – that

the Ten Commandments monum ent depicts only the moral foundation of secular

duties – the Supreme Court has instructed us that “[t]he Ten Commandments are

undeniably a sacred text in the Jewish and Christian faiths, and no legislative

recitation of a supposed secular purpose can blind us to that fact.” Stone v.

Graham, 449 U.S. 39, 41, 101 S. Ct. 192, 194 (1980) (footnote omitted). The

Stone decision did not h old that all g overnm ent uses o f the Ten Comm andme nts

are impermissible; they may be used, for exam ple, in a secular study of history,

civilization , or com parative r eligion. Id. at 42, 101 S. Ct. at 194. Use of the Ten

Comm andme nts for a s ecular pu rpose, h owev er, does n ot chang e their inh erently

religious nature, and a particular governmental use of them is permissible under the

Establish ment C lause on ly if it withs tands scr utiny un der the p revailing legal test.

As we discuss next, the use to which Chief Justice Moore, acting as a government

official, ha s put the T en Com mandm ents in this case fails th at test.

C.

30
 For a practice to survive an Establishment Clause inquiry, it must pass the

three-step test laid out in Lemon v. Kurtzman, 403 U .S. 602 , 91 S. C t. 2105 ( 1971) .

The Lemon test requires that the challenged practice have a valid secular purpose,

not have the effect of advancing or inhibiting religion, and not foster excessive

govern ment en tanglem ent with religion. Id. at 612-1 3, 91 S . Ct. at 211 1.

We follow the tradition in this area by beginning with the almost obligatory

observation that the Lemon test is often maligne d. See, e.g., Lamb’s Chapel v. Ctr.

Moric hes Un ion Fre e Sch. D ist., 508 U.S. 384, 398, 113 S. Ct. 2141, 2150 (1993)

(Scalia, J., concurring) (“[N]o fewer than five of the currently sitting Justices have,

in their own opinions, personally driven pencils through the [Lemon test’s] heart

(the author of today’s opinion repeatedly), and a sixth has joined an opinion doing

so.”); Wallace v. Jaffree, 472 U .S. at 110 , 105 S . Ct. at 251 7 (Reh nquist, J.,

dissenting) (“The three-part test has simply not provided adequate standards for

deciding Establishment Clause cases, as this Court has slowly come to realize.”);

Elenor e Cotter K lingler, C ase Com ment, Constitutional Law: Endorsing a New

Test for Establishment Clause Cases, 53 Fla. L. Rev. 995 (2001). But it is even

more often applied.

What th e Supr eme Co urt said ten years ago remains true toda y: “Lemon,

however frightening it might be to some, has not been overruled.” Lamb’s Chapel,

31
508 U.S. at 395 n.7, 113 S. Ct. at 2148 n.7. We applied the Lemon test in another

religious display ca se just day s before this one w as orally ar gued. See King v.

Richm ond C ounty, No. 02-14146, slip op. 2541 (11th Cir. May 30, 2003). In

doing so, we observed that “[e]ven though some Justices and commentators have

strongly criticized Lemon, both the Supreme C ourt and this circuit continue to use

Lemon’s three-pronged analysis.” Id. at 2545-46 (footnote omitted). Having

noted th at again to day, we proceed with the test.

Applying Lemon, the district court con cluded that Chief Justice M oore’s

purpose in displaying the monument was not secular. It based that conclusion on

the Chief Justice’s own words, on the monument itself, and on the physical context

in whic h it appea rs. Glassro th, 229 F. Supp. 2d at 1299-1300. The court found the

case not as difficult as those in which the Ten Commandments display had “an

arguab ly secular, h istorical pu rpose, fo r the evid ence her e does n ot even b egin to

support that conclusion, nor does the evidence support the conclusion that the Ten

Commandments were displayed as sort of a secular moral code.” Id. at 1301 .

Instead, “[t]he Chief Justice’s words unequivocally belie such purposes.” Id.

Citing Justice O’Connor’s concurring opinion in Wallace v. Jaffree, 472

U.S. at 74, 105 S. Ct. at 2499 (O’Connor, J., concurring), Chief Justice Moore

argues th at the distric t court err ed by ps ychoan alyzing h im and, a s he puts it,

32
“dissecting [his] hear t and min d.” Brief of Ap pellant at 4 2. Wallace v. Jaffree

involve d legislativ e purpo se, not tha t of an ind ividual g overnm ental actor . 472

U.S. at 40, 105 S. Ct. at 2481. Besides, no psychoanalysis or dissection is required

here, where there is abundant evidence, including his own words, of the Chief

Justice’s purpose.

Chief Justice Moore testified candidly that his purpose in placing the

monument in the Judicial Building was to acknowledge the law and sovereignty of

the God o f the Holy S criptures, and th at it was intended to acknow ledge “God ’s

overruling power over the affairs of men.” 1st Supp. Rec. Vol. 2 at 100; 1st Supp.

Rec. Vol. 3 at 34. In his unveiling speech , the Chief Justice described his purpose

as being to remind all who enter the building that “we must invoke the favor and

guidance of Almighty God.” Glassro th, 229 F . Supp . 2d at 12 97, 132 2 (Ap p. C).

And he said that the monument marked “the return to the knowledge of God in our

land.” Id. at 1323. He refused a request to give a famous speech equal position

and prominence because, he said, placing “a speech of any man alongside the

revealed law of God would tend to diminish the very purpose of the Ten

Commandments monum ent.” Id. at 1297.

Again st the we ight of all th is eviden ce, Chief Justice M oore’s in sistence in

his briefs and arg ument, a nd in pa rt of his tes timony, th at the Ten Comm andme nts

33
as presen ted in his m onum ent have a purely s ecular ap plication is uncon vincing .

That argument is akin to the state’s contention in Stone that the fine print about

secular purpose on the Ten Commandments posters in that case gave them a

constitutio nally perm issible pu rpose. 449 U.S. at 41, 101 S. Ct. at 193. At the

bottom of each poster was a statement that: “The secular application of the Ten

Commandments is clearly seen in its adoption as the fundamental legal code of

Western Civilization and the common law of the United States.” Id., 101 S. Ct. at

193. The Supreme Court said, “[u]nder this Court’s rulings, however, such an

‘avowed’ secular purpo se is not sufficient to avoid conflict with the First

Amendment.” Id., 101 S . Ct. at 193 -94. Th e same is tr ue here.

Unde r our circ uit law, th e purpo se inquir y is a factua l one, see ACLU v.

Rabun County Chamber of Com merce, 698 F.2d 1098, 1110-11 (11th Cir. 1983),

and on appeal we are obligated to accept the district court’s findings of fact unless

they are cle arly erron eous, Ande rson v. C ity of Bes semer C ity, 470 U.S. 564, 573,

105 S. Ct. 1504, 1511 (1985). Clearly er roneou s they are n ot. Mo reover, e ven if

we were free to review the determination de novo, having examined the record

ourselves, we agree with the district court that it is “self-evident” that Chief Justice

Moo re’s purp ose in dis playing th e monu ment w as non- secular. Given all of the

34
evidence, including the Chief Justice’s own words, we cannot see how a court

could re ach any o ther con clusion.

Our inquiry could end there, because “[w]hen evidence shows that

endorsement or promotion of religion was a primary purpose for the challenged

practice . . . the practice violates the Establishment Clause.” King, No. 02-14146,

slip op. at 2548. But in the interest of completeness, we will also review the

district court’s additional holding that the monument had the primary effect of

advancing religion.

“The eff ect pron g asks w hether . . . th e practice u nder rev iew in fa ct wou ld

convey a messag e of end orseme nt or disa pproval to an inf ormed , reasona ble

observer.” Id. at 2549. The district court concluded that a reasonable observer

would view th e monu ment’s p rimary ef fect as an e ndorse ment of religion.

Glassro th, 229 F. Supp. 2d at 1302-03. It based that conclusion on: the

appearance of the monument itself; its location and setting in the rotunda; the

selection and location of the quotations on its sides; and the inclusion on its face of

the text of the Ten Comm andme nts, wh ich is an “u ndeniab ly . . . sacred te xt,”

Stone, 449 U .S. at 41, 1 01 S. C t. at 194, all o f which contribu ted to “the in effable

but still overwhelming holy aura of the monument,” Glassro th, 229 F. Supp. 2d at

1303-04. The court also considered: the fact that the Chief Justice campaigned as

35
the “Ten Commandments Judge”; his statements at the monument’s unveiling; and

the fact tha t the rotun da is not a public fo rum fo r speech . Id. The court concluded

that a reasonable observer “would find nothing on the monument to de-emphasize

its religious nature, and would feel as though the State of Alabama is advancing or

endorsing, favoring or preferring, Christianity.” Id. at 1304 .

The pa rties agree that our r eview o f the distric t court’s ef fect ruling is

plenary. Having reviewed the matter de novo, and aided by the district court’s

meticulous findings of fact, we reach the same conclusion the district court did,

which is to say that we also agree with the concession that Chief Justice Moore

made in his testimony when he said that the monument “reflects the sovereignty of

God over men.” 1st Supp. Rec. Vol. 3 at 34. The monument fails two of Lemon’s

three prongs. It violates the Establishment Clause.

D.

Chief Justice Moore contends that even if it cannot clear the Lemon test, the

monument is saved by the Supreme Court’s decision in Marsh v. Chambers, 463

U.S. 783, 103 S. Ct. 3330 (1983). In that case, the Supreme Court considered a

challeng e to the N ebraska Legislatu re’s practic e of emp loying a c haplain to lead it

in prayer at the beg inning o f each ses sion. Id. at 784-8 5, 103 S . Ct. at 333 2-33.

Applying the Lemon test to the practice, the court of appeals concluded that the

36
practice of beginning legislative sessions with prayer violated all three

requirem ents of th e test. Id. at 786, 1 03 S. C t. at 3333 . The S uprem e Cour t,

without applying Lemon, reversed on the ground that the challenged practice was

“deeply embedded in the history and tradition of this country.” Id., 795, 10 3 S. Ct.

at 3333 , 3338.

The Court recounted the history of the practice, finding that “[f]rom colonial

times through the founding of the Republic and ever since, the practice of

legislative prayer has coexisted with the principles of disestablishment and

religious freedom.” Id. at 786, 103 S. Ct. at 3333. The Court further noted that

Congress authorized the appointment of paid chaplains just days before a final

agreem ent on th e langua ge of the Bill of R ights w as reache d. Id. at 787-88, 103 S.

Ct. at 3333-34. “Clearly the men who wrote the First Amendment Religion

Clauses did not view paid legislative chaplains and opening prayers as a violation

of that Amendment, for the practice of opening sessions with prayer has continued

without interruption ever since that early session of Congress.” Id. at 788, 103 S.

Ct. at 3334 (footnote omitted). The Court concluded that “[i]n light of the

unambiguous and unbroken history of more than 200 years, there can be no doubt

that the practice of opening legislative sessions with prayer has become part of the

fabric of our society.” Id. at 792, 103 S. Ct. at 3336.

37
 Turning back to this case, there is no evidence of an “unambiguous and

unbroken history” of displaying religious symbols in judicial buildings. Chief

Justice M oore ins ists, thoug h, that Marsh must be read much more broadly, that the

issue turns on “whether the monument’s acknowledgments of God as the source of

law and liberty in America parallel similar acknowledgments of God at the time of

America’s founding.” Brief of Appellant at 44. That there were some government

acknowledgments of God at the time of this country’s founding and indeed are

some today, however, does not justify under the Establishment Clause a 5280-

pound granite monument placed in the central place of honor in a state’s judicial

building. The Supreme Court has warned that a broad reading of Marsh “would

gut the co re of the E stablishm ent Clau se” and h as stated th at “Marsh plainly does

not stand for the sw eeping p ropositio n . . . that all acc epted pr actices 20 0 years o ld

and their equivalents are constitutional today.” Allegh eny Co unty, 492 U.S. at

603-04, 109 S. Ct. at 3106.

Chief Ju stice Mo ore has p ointed to no evid ence that th e Ten C omma ndmen ts

in any form were pu blicly displayed in any state or federal courthouse, much less

that the pr actice of d isplaying them w as wide spread a t the time th e Bill of R ights

was proposed and adopted. However it may be applied in any other context and

38
circums tances, w e do no t believe th at Marsh saves the Ten C omma ndmen ts

monument in this case from the pros criptions of the E stablishm ent Clau se.

E.

The result we reach in this case is not inconsistent with our recent decision

in King, No. 02-14146, slip op. 2541. In that case, we applied the Lemon test and

concluded that the Seal of the Richmond County Superior Court did not violate the

Establishment Clause despite its inclusion of a depiction of the Ten

Comm andme nts. Id. at 2556. The Seal included an image of two tablets, the first

with R oman n umerals I throug h V an d the seco nd with numer als VI th rough X. Id.

at 2543. The Seal had been in use for more than one hundred thirty years, and

there was no evidence about why the pictograph of the Commandments was

originally included. The county proffered a plausible secular purpose, which was

that the Commandm ents allowed illiterate Georgians to recognize the Seal as a

symbol of law, and in the absence of any showing that the proffered secular

purpose was imp lausible, we concluded that the Coun ty had satisfied the purpose

prong of the Lemon test. Id. at 2546-48.

On the effect prong, we noted in King that the constitutionality of a

govern ment’s u se of a pr edomin antly religio us symb ol depen ds on th e contex t in

which it appears , id. at 2548-52, and we concluded that given the context in which

39
the pictog raph of the Ten Comm andme nts appe ared on the Seal, a reasona ble

observ er wou ld not be lieve that th e Seal w as an end orseme nt of relig ion. Id. at

2552-56. Alongside the tablets on the Seal was a sword, which is a symbol of the

legal system, and we reasoned that the depiction of the Ten Commandments on

that Seal must be taken in context. “Like the secular decorations surrounding the

crèche in Lynch or the other lawgivers who accompany Moses and the Ten

Comm andments o n the south w all frieze of the Su preme Co urt building, the Seal’s

sword and the words ‘SUPERIOR COURT RICHMOND COUNTY, GA’

contextualize the Ten Commandants pictograph.” Id. at 2554 (footno te omitted ).

In King, we also gave weight to the small size of the tablets: “[T]he

pictograph of the tablets and sword is at most only one inch in diameter and is not

the focal point of any governmental display in an important public building.” Id. at

2555. Finally we noted that the tablets did not include the text of the Ten

Comm andme nts, and th at a reason able obs erver w ould the refore b e less likely to

focus o n the relig ious asp ects of the Comm andme nts. Id. at 2555-56.

The distinctions between that case and this one are clear. In King, there was

no evidence of a non-secular purpose; in this case, there is an abundance of

evidenc e, includin g parts o f the Ch ief Justice’s own te stimony , that his pu rpose in

installing the monument was not secular. In King, the image was in the context of

40
another symbol of law; in this case the monument sits prominently and alone in the

rotunda of the Judicial Building. In King, the image was approximately one-inch

in size and not a focal point; in this case the monument is an unavoidable two-and-

one-half ton centerpiece of the rotunda. Finally, there was no text of the

Commandments on the Seal in King; in this case the monument contains text from

the King James version of the Bible.3

Nor is o ur decisio n today in consisten t with tho se from any othe r circuits in

recent years involving the Ten Commandments. The Third Circuit issued an

3
“The clearest command of the Establishment Clause is that one religious denomination
cannot be officially preferred over another.” Larson v. Valente, 456 U.S. 228, 244, 102 S. Ct.
1673, 1683 (1982). Several amici in this case have pointed out that Chief Justice Moore chose
the excerpts of the Ten Commandments from the King James Version of the Bible, which is a
Protestant version. Jewish, Catholic, Lutheran, and Eastern Orthodox faiths use different parts
of their holy texts as the authoritative Ten Commandments. “In some cases the differences
among them might seem trivial or semantic, but lurking behind the disparate accounts are deep
theological disputes.” Steven Lubet, The Ten Commandments in Alabama, 15 Const. Comment.
471, 474-76 & n. 18 (1998); cf. Lemon, 403 U.S. at 628-29, 91 S. Ct. at 2119 (noting the conflict
between Catholics and Protestants over the use of the King James Version of the Bible in
nineteenth century public schools).

To give but one example, the Hebrew translation of the Sixth Commandment prohibits
only murder, not all killings as the King James Version does (and in the Lutheran and Catholic
versions it is the Fifth Commandment, not the Sixth). See Brief of Amicus Curiae The
American Jewish Congress at 15 (citing Gerald Blidstein, Capital Punishment: The Classic
Jewish Discussion, in 14 Judaism 159 (1965)); Brief of Amicus Curiae Ala. Clergy, et al. at 14;
Brief of Amicus Curiae Am.-Arab Anti-Discrimination Comm. at 13 n.4; see also Harvey v.
Cobb County, 811 F. Supp. 669, 677 (N.D. Ga. 1993) (“As Rabbi Lewis testified, this [‘Thou
shalt not kill’] version of the Sixth Commandment is a mistranslation of the original Hebrew,
which prohibits murder, and frequently appears in Christian versions of the Ten
Commandments.”), aff’d mem., 15 F.3d 1097 (11th Cir. 1994). The point is that choosing which
version of the Ten Commandments to display can have religious endorsement implications under
the Establishment Clause.

41
opinion just days before this one holding that the inaction of county commissioners

with res pect to a p laque tha t had bee n on the outside w all of a histo rically

significant courthouse for more than eighty years did not violate the Establishment

Clause. Freetho ught S oc’y v. C hester C ounty, ___ F.3d ____, No. 02-1765 (3d

Cir. Jun e 26, 20 03). Th at case is readily distinguishable from this one because the

plaque had been there more than eight decades and no government entity or official

has done anything in modern times to highlight or celebrate its existence, or even

to maintain it; the plaque is not located in a prominent place but instead is away

from the main entrance of the courthouse near a permanently closed door where

visitors have no reason to go; and the text of the plaque is not visible to passersby

on the sidewalk, who can see only the title “The Commandments.” Id. man. op. at

5-7, 11 -12, 31 -33; id. at 39 (B right, J., co ncurrin g).

As the Third Circuit noted in the Freetho ught S ociety case, “a new display

of the Ten Commandments is much more likely to be perceived as an endorsement

of religio n” by the govern ment tha n one in which there is a leg itimate

“preservationist perspective.” Id. at 31, 32 ; see also id. at 33 (“[I]t is highly

significant that there is no evidence that the County has taken any action involving

the plaqu e since it w as erected 80 years ago.”); id. at 39 (Bright, J., concurring)

(noting the “crucial facts” that the location of the plaque was not changed when the

42
old entrance near it was closed, leaving the plaque barely visible from the street

and its tex t mostly o bscured , and con cluding that “[a] w orld of d ifference exists

between the conduct of the Chester County officials approving the placement of

the plaque at the then main entrance to the Chester County Courthouse eighty-three

years ago and the decision of Chester County not to remove the plaque as of

today”).

This cas e on its fac ts is closer to those in w hich the S ixth and Seven th

Circuits have held prominent displays of the Ten Commandments on government

groun ds to vio late the Es tablishm ent Clau se. See Adland v. Russ , 307 F.3d 471

(6th Cir. 2002) (returning a large, granite Ten Commandments monument from

storage to a prominent position on the capitol grounds would violate the

Establish ment C lause), cert. denied, 123 S. Ct. 1909 (2003); Ind. Civil Liberties

Union v. O’Bannon, 259 F.3d 766 (7th Cir. 2001) (erecting a seven- foot tall,

11,500-pound limestone monument, one side of which contained the Ten

Commandments, on statehouse grounds would violate the Establishment Clause)

cert. denied, 534 U .S. 116 2 (200 2); Books v. City of Elkhart, 235 F .3d 292 (7th

Cir. 2000) (displaying a Ten Commandments monument, identical to the one

involved in Adland, on the lawn of the municipal building violated the

Establish ment C lause), cert. denied, 532 U.S. 1058 (2001).

43
 F.

The difference in results between the King and Freetho ught S ociety

decisions on the one hand, and the Adland, Books, and O’Bannon decisions on the

other hand, illustrates that factual specifics and context are nearly everything when

it comes to applying the Establishment Clause to religious sym bols and displays. 4

Our decision is necessarily limited to the case before us. It implies nothing about

differen t cases inv olving o ther facts. W e do no t say, for ex ample, th at all

recognitions of God by government are per se impermissible. Several Supreme

Court Justices have said that some acknowledgments of religion such as the

4
Chief Justice Moore contends that under the district court’s reasoning, the sculpture of
“Themis,” the Greek goddess of justice, which is part of the fountain in front of the courthouse
where the trial in this case took place, would also be unconstitutional. Brief of Appellant at 15
n.4. His contention ignores the clear factual and contextual distinctions between that sculpture
and the Ten Commandments monument. There is no evidence that the sculpture has had the
effect of furthering religion, or that its purpose was to do so.

44
declaration of Thanksgiving as a government holiday, our national motto “In God

We Trust,” its presence on our money, and the practice of opening court sessions

with “G od save the Un ited States and this h onorab le Cour t” are not e ndorse ments

of religio n. See, e.g., Santa Fe Indep. Sch. Dist. v. Doe, 530 U.S. 290, 322-23, 120

S. Ct. 2266, 2286 (2000) (Rehnquist, C.J., dissenting, joined by Scalia and

Thomas, JJ.) (the Establishment Clause does not prohibit singing the National

Anthem with its concluding verse “And this be our motto: ‘In God is our trust’”);

Lynch, 465 U.S. at 693, 104 S. Ct. at 1369-70 (O ’Connor, J., concurring) (“Tho se

government ackno wledgments of religion [declaration of T hanksgiving as a

holiday, th e nationa l motto o n mon ey, and th e openin g of cou rt session s with

reference to God] serve, in the only ways reasonably possible in our culture, the

legitimate secular purposes of solemnizing public occasions, expressing confidence

in the futu re, and en courag ing the re cognitio n of w hat is wo rthy of ap preciation in

society. For that reason, and because of their history and ubiquity, those practices

are not understood as conveying government approval of particular religious

beliefs.”); id. at 717, 104 S. Ct. at 1382 (Brennan, J., dissenting, joined by

Marshall, Blackmun, and Stevens, JJ.) (such acknowledgments are immune from

Establishment Clause challenges “because they have lost through rote repetition

any significant religious content”). In its Allegh eny Co unty decision, the Supreme

45
Court did not imply that such acknowledgments of God in the Pledge of Allegiance

and the National motto violate the Establishment Clause, “because there is an

obvious distinction between crèche displays and references to God in the motto and

the pledge.” Allegh eny Co unty, 492 U.S. at 603, 109 S. Ct. at 3106. For the same

reason, our decision in this case does not imply that, either.5

VI.

Finally, we turn to a position of Chief Justice Moore’s that aims beyond

First A mendm ent law to target a co re princip le of the ru le of law in this cou ntry.

He contends that the district court’s order and injunction in this case contravene the

right and authority he claims under his oath of office to follow the state and federal

constitutions “as he best understands them, not as understood by others.” Brief of

Appellant at 51. He asserts that “courts are bound by the Constitution, not by

another court’s interpretation of that instrument,” and insists that he, as Chief

Justice is “not a ministerial officer; nor is he answerable to a higher judicial

5
While we are on the subject of what the decision in this case does not mean, we reject
Chief Justice Moore’s argument that this decision means that the Establishment Clause requires
“the purging of all ‘religious’ sources from any opinions that the Chief Justice might write such
as the one in Yates v. El Bethel Primitive Baptist Church, [No. 1001913, (Ala. Oct. 11, 2002)
(Moore, C.J., dissenting)].” Brief of Appellant at 28. It means no such thing.

46
authority in the per forman ce of his d uties as ad ministrativ e head o f the state

judicial sys tem.” 6 Brief of Appellant at 53.

The Chief Justice’s brief reminds us that he is “the highest officer of one of

the three branches of government in the State of Alabama,” and claims that

because of his important position, “Chief Justice Moore possesses discretionary

powe r to determ ine wh ether a co urt orde r comm anding him to ex ercise of [ sic] his

duties as administrative head is consistent with his oath of office to support the

federal and state constitution.” Brief of Appellant at 54. Article VI, clause 3, of

the United States Constitution states: “The Senators and Representatives before

mentioned, and the Members of the several State Legislatures, and all executive

and judicial Officers, both of the United States and of the several States, shall be

bound by Oath or Affirmation, to support this Constitution . . . .” Article XVI,

section 279 of the Alabama Constitution requires state officials to take a similar

oath or affirmation to support the federal and state constitutions. Chief Justice

6
A critical distinction is worth mentioning here. While all state and federal courts are
bound to follow decisions of the United States Supreme Court, state courts when acting
judicially, which they do when deciding cases brought before them by litigants, are not bound to
agree with or apply the decisions of federal district courts and courts of appeal. See Arizonans
for Official English v. Arizona, 520 U.S. 43, 58 n.11, 117 S. Ct. 1055, 1064 n.11 (1997); Powell
v. Powell, 80 F.3d 464, 467 (11th Cir. 1996). That is different from what we have here. At issue
here is not a judicial decision of the Alabama Supreme Court, eight-ninths of which had nothing
to do with the challenged action. At issue here is the conduct of a party, who concedes he acted
not judicially but as the administrative head of a state government department, and in that
capacity his conduct is subject to as much scrutiny as that of any head of any government
department.

47
Moo re’s argu ment tak es his ob ligation an d turns it in to a license . To say th e least,

there is no thing in la w or lo gic to sup port his th eory.

The clear implication of Chief Justice Moore’s argument is that no

government official who heads one of the three branches of any state or of the

federal government, and takes an oath of office to defend the Constitution, as all of

them do, is subject to the order of any court, at least not of any federal court below

the Supreme Court. In the regime he champions, each high government official

can decide whether the Constitution requires or permits a federal court order and

can act accordingly. That, of course, is the same position taken by those southern

govern ors wh o attemp ted to def y federal c ourt ord ers durin g an earlie r era. See

generally, e.g., Mered ith v. Fair , 328 F.2d 586, 589-90 (5th Cir. 1962) (en banc)

(enjoining Mississippi Governor Ross Barnett from interfering with the district

court’s o rder to ad mit a black student to the Un iversity of Mississ ippi); Williams v.

Wallace, 240 F. Supp. 100, 110 (M.D. Ala. 1965) (Johnson, J.) (enjoining Alabama

Governor George C. W allace from interfering with and failing to provide police

protectio n for pla intiffs’ ma rch from Selma to Mon tgomer y); cf. United States v.

Barnett, 376 U.S. 681, 84 S. Ct. 984 (1964) (holding that the Governor of

Mississippi was not entitled to a jury trial on a charge of criminal contempt for

willfully d isobeyin g a temp orary res training o rder of a federal d istrict cour t).

48
 Any notion of high government officials being above the law did not save

those go vernor s from h aving to obey fed eral cour t orders, a nd it will n ot save th is

chief justic e from h aving to comply with the court or der in this case. See U.S.

Const. A rt. III, § 1; id. Art. V I, cl. 2. What a different federal district court judge

wrote f orty years ago, in co nnection with the threat of a nother h igh state o fficial to

defy a federal court order, remains true today:

In the final analysis, the concept of law and order, the very essence of
a republican form of government, embraces the notion that when the
judicial process of a state or federal court, acting within the sphere of
its competence, has been exhausted and has resulted in a final
judgm ent, all pers ons affe cted there by are ob liged to o bey it.

United States v. Wallace, 218 F. Supp. 290, 292 (N.D. Ala. 1963) (enjoining

Governor George C. Wallace from interfering with the court-ordered desegregation

of the University of Alabama); accord, e.g., Cooper v. Aaron, 358 U .S. 1, 78 S. Ct.

1401 ( 1958) ; Sterling v. Con stantin, 287 U.S. 378, 397-98, 53 S. Ct. 190, 195

(1932) (stating that if a state Governor could nullify a federal court order “that the

fiat of a state Governor, and not the Constitution of the United States, would be the

supreme law of the land; that the restrictions of the Federal Constitution upon the

exercise o f state pow er wou ld be bu t impoten t phrases ”).

The ru le of law does req uire that ev ery perso n obey ju dicial ord ers wh en all

available means of appealing them have been exhausted. The chief justice of a

49
state supr eme cou rt, of all peo ple, shou ld be exp ected to ab ide by tha t principle .

We do expect that if he is unable to have the district court’s order overturned

through the usual appellate processes, when the time comes Chief Justice Moore

will obey that order. If necessary, the court order will be enforced. The rule of law

will prev ail.

VII.

AFFIRMED.

EDM OND SON , Chief Ju dge, con curs in th e result.

50