American Civil Liberties Union of Ohio Foundation, Inc. v. Robert Ashbrook, Sued Here in His Official Capacity as Richland County Commissioner, James Deweese, Hon., Sued Here in His Official Capacity as a Judge of the Richland County Court of Common Pleas
Docket: 02-3667
Court: Court of Appeals for the Sixth Circuit; September 17, 2004; Federal Appellate Court
The United States Court of Appeals for the Sixth Circuit addressed the appeal by Judge James DeWeese regarding a district court's decision that ruled his display of the Ten Commandments in his courtroom violated the Establishment Clause of the First Amendment. DeWeese had hung the Ten Commandments poster alongside a similarly styled Bill of Rights poster, both created and framed at his own expense. These posters, featuring the phrase "the rule of law" prominently, were displayed without additional context or explanatory captions. The courtroom also contained other historical displays, including portraits and quotes from founding figures and the state motto. The appellate court upheld the district court's order, affirming that the display of the Ten Commandments was unconstitutional. A dissenting opinion was noted from Judge Batchelder. The case highlights the ongoing legal scrutiny of religious displays in government settings.
A poster featuring portraits of nine historical figures and their quotes about the jury system is displayed alongside the Ten Commandments, which the American Civil Liberties Union of Ohio Foundation, Inc. (ACLU-Ohio) challenged in court. ACLU-Ohio, representing members in Richland County, Ohio, claimed that the display of the Ten Commandments violated the Establishment Clause of the First Amendment and the Ohio Constitution. They sought a permanent injunction for the removal of the poster. The district court ruled in favor of ACLU-Ohio, granting partial summary judgment against DeWeese and denying the defendants' cross-motion for summary judgment, mandating the immediate removal of the poster.
The standard of review for summary judgment is de novo, allowing for a fresh evaluation of the district court's conclusions of law and constitutional findings, while findings of subsidiary facts are reviewed for clear error. Standing to sue requires proof of (1) actual or threatened injury, (2) a causal link to the challenged action, and (3) a likelihood that the requested relief would address the injury. A voluntary organization like ACLU-Ohio can represent its members if those members have standing, the interests align with the organization's purpose, and individual participation is not necessary.
In this case, member Bernard Davis, a lawyer who practices in DeWeese's courtroom, has faced direct contact with the Ten Commandments display, which supports ACLU-Ohio's standing. The challenge aligns with ACLU-Ohio's mission to uphold the constitutional separation of church and state, and the requested relief does not require individual members' participation.
The Establishment Clause prohibits government endorsement of religion, asserting that government should not take a stance on religious beliefs or make religion relevant to an individual's political status.
To assess if a government action infringes the Establishment Clause, the Lemon v. Kurtzman test is applied, which evaluates: (1) the secular purpose of the action, (2) its primary effect on religion, and (3) whether it leads to excessive entanglement with religion. Although government claims of secular purpose are given some deference, courts must discern genuine secular intentions from sham ones. A plaintiff must demonstrate that the predominant purpose of a display is religious, without requiring an exclusively secular purpose. Displays must not serve as covert governmental endorsement of a religious message. The Ten Commandments, as a sacred text, do not inherently disqualify public displays, but the Supreme Court has indicated that they cannot be presented purely as religious admonitions without a permissible secular context. The Court has acknowledged that the Ten Commandments can be integrated into educational settings relating to history or ethics but ruled against their display when solely religious in nature, as seen in Stone v. Graham. In the case at hand, DeWeese's intent in displaying the Ten Commandments was primarily religious, aimed at emphasizing moral absolutism and asserting God's authority in law, which the district court found did not meet the criteria for a permissible secular purpose.
DeWeese's intent in displaying the Ten Commandments in his courtroom was twofold: to promote the idea that the legal system is grounded in moral absolutes derived from divine law, and to encourage debate on moral absolutism versus moral relativism due to what he perceives as a moral crisis in the country. The district court determined that by officially endorsing moral absolutism through this display, DeWeese crossed the line established by the Establishment Clause. Although he claimed the display served an educational purpose, he failed to articulate how it would function in that capacity beyond urging participants to view the Commandments as legal guidance. His testimony indicated a predominant non-secular purpose, leading the court to conclude that the display violated the Establishment Clause.
The court further applied the "endorsement" test under the second prong of the Lemon test to assess the display's primary effect. It questioned whether a reasonable observer would interpret the display as a government endorsement of religion. The inquiry considered the totality of circumstances, including the display's content and presentation, emphasizing that context is crucial when evaluating religious symbols. The Supreme Court's precedent showed that merely placing secular symbols alongside religious ones does not negate the endorsement effect if they are not integrated within an overall secular theme. The McCreary County decision underscored that for a religious display to be constitutionally permissible, any symbols must be interconnected in a way that is clear and secular to observers.
When secular and religious items are displayed together, the critical consideration is whether the secular image diminishes the perception of government endorsement of religion or instead links religion with civil government. A display featuring a single religious symbol alongside patriotic symbols suggests to a reasonable observer that the government is endorsing that religious symbol equally with cherished secular symbols, constituting endorsement. Courts have rejected attempts to "secularize" religious displays, noting that such arrangements still imply governmental endorsement of religion.
In this context, the Ten Commandments display in DeWeese's courtroom is assessed independently from items in the adjacent Freedom Shrine, despite the physical proximity. These items were posted at different times and by different parties, lacking any cohesive presentation or connection, undermining any claims of a unified or secular message. Furthermore, the presence of other items in DeWeese's courtroom, including a Bill of Rights poster, does not mitigate the endorsement effect of the Ten Commandments display. The Bill of Rights poster, while visually cohesive with the Ten Commandments due to similarities in design, does not provide a secular context that would neutralize the religious endorsement perceived by observers. Thus, the overall display by DeWeese conveys a message of religious endorsement without any analytical connection to suggest a secular theme.
The Bill of Rights serves as a legal document ensuring rights for parties in DeWeese's courtroom, while the Ten Commandments, despite their historical significance, do not constitute law and are not binding on jurists. Their display alongside the Bill of Rights suggests a governmental endorsement of religion, violating the Establishment Clause of the First Amendment. The court referenced the Indiana Civil Liberties Union case, indicating that a reasonable observer would perceive the display as religious rather than historical. Although DeWeese argued that the poster is akin to traditional invocations at state legislative sessions, the court found no established practice of displaying the Ten Commandments in courthouses. Additionally, DeWeese's comparison of the Ten Commandments to the Ohio state motto was deemed inappropriate, as the latter does not compel belief or favor one religion over others, unlike the Ten Commandments, which inherently address religious duties. The court concluded that DeWeese's display contravenes the Establishment Clause, affirming the district court's decision.
The Honorable Joseph M. Hood, U.S. District Judge for the Eastern District of Kentucky, has the Ten Commandments displayed in his courtroom. The excerpt details the text of the Ten Commandments, emphasizing their religious significance. It clarifies that the County Commissioners were not involved in the district court's ruling concerning the Plaintiff's motion for partial summary judgment and the Defendant DeWeese's motion for summary judgment, thus they are not part of this appeal. The text also contrasts the interpretation of standing under Article III, referencing the Supreme Court case Valley Forge Christian College v. Americans United for the Separation of Church and State, which stated that psychological injury alone is insufficient for standing. However, this ruling is contextual and does not apply universally. The excerpt cites cases such as Washegesic v. Bloomingdale Public Schools and Adland v. Russ, which illustrate that direct and ongoing contact with religious displays can establish standing, thus distinguishing them from the Valley Forge case where plaintiffs had no direct injury.
The circuit court's interpretation of the Valley Forge precedent aligns with established principles and similar rulings from other circuits. A crucial distinction exists between government speech endorsing religion, which violates the Establishment Clause, and private speech endorsing religion, which is protected by the Free Speech and Free Exercise Clauses. Judge DeWeese's display of religious posters in a courtroom, a public space, is deemed government speech and therefore subject to Establishment Clause scrutiny, contradicting the argument for private religious expression protection. The Lemon test, despite criticisms, remains the binding framework for Establishment Clause cases in this circuit until overruled by the Supreme Court. The dissent raises questions about the ACLU's standing to bring the action and challenges the majority's application of the Lemon test, arguing that Judge DeWeese's intent was sufficiently secular to withstand scrutiny. The dissent also emphasizes the need for further discussion regarding the standing of the ACLU and the specific standing of its member, Bernard Davis, noting that no concrete injury has been demonstrated beyond subjective disagreement with the display.
The Supreme Court has ruled in Valley Forge Christian College v. Americans United for Separation of Church and State, Inc. that certain injuries are insufficient to establish standing under Article III, specifically highlighting that psychological impact or disagreement with conduct does not constitute a concrete injury. This ruling remains authoritative, having been cited by the Supreme Court over thirty times without disapproval. To establish standing, a party must demonstrate (1) an actual or imminent injury, (2) a causal connection to the challenged action, and (3) a likelihood that the requested relief will address the injury. The actual injury must be proven and cannot be merely hypothetical. In Valley Forge, the Court found no personal injury from a perceived constitutional violation, reiterating that psychic satisfaction does not qualify as a legitimate remedy under Article III. Some courts, including the ACLU's arguments, have suggested that non-economic injuries can suffice in First Amendment cases, as shown in Washegesic v. Bloomingdale Public Schools, where a plaintiff’s direct and ongoing exposure to an offensive religious display was deemed sufficient for standing. However, abstract objections do not meet the standing requirement, reinforcing that specific, direct interaction with the offending object is necessary. The district court also referenced similar findings in Hawley v. City of Cleveland regarding the impairment of public facility usage as a valid basis for standing.
In *Hawley v. City of Cleveland*, 773 F.2d 736 (6th Cir. 1985), the court denied taxpayer standing but recognized that plaintiffs had standing due to actual injuries incurred while using the airport. Similarly, in *Adland v. Russ*, standing was granted to plaintiffs who faced unwelcome contact related to proposed legislation for a Ten Commandments monument at the Kentucky State Capitol. The author believes these cases conflict with the Supreme Court's rulings in *Valley Forge* and *Steel Co.*, arguing they were incorrectly decided. However, they may be distinguished from those precedents. The current case involves the posting of the Ten Commandments in Judge DeWeese's courtroom, which does not utilize governmental authority to promote a sectarian view, unlike the portrait of Christ in *Washegesic*, which served no alternative purpose. The leasing of public space for a chapel in *Hawley* similarly served only to encourage a sectarian view, making it distinct from the present case.
*Adland* is deemed most relevant yet also distinguishable; the proposed Ten Commandments monument there was part of a larger cultural display that lacked a secular purpose. The current display in Judge DeWeese's courtroom features a small poster of the Ten Commandments, which is not prominently displayed or surrounded by unrelated objects, contrasting with the significant and contextual monument planned in *Adland*. The courtroom also includes various secular and historical displays, indicating that the Ten Commandments poster serves a different function than the monument in *Adland*.
Judge DeWeese displays a portrait of Lincoln and state flags in his courtroom, as well as other documents, for educational purposes when community groups visit to learn about legal origins. The ACLU challenged the presence of a poster in the courtroom, arguing it promotes a religious view. However, the court found that the poster is small, not easily readable, and not aimed at the plaintiff, contrasting it with a prominent Christ portrait in a previous case. The ACLU's claim of injury, based on a member's feelings of offense, was deemed insufficient for standing, as it merely reflects disagreement with government actions. The ACLU's assertion of being a frequent litigant in Establishment Clause cases does not grant them special authority to pursue such claims without direct involvement from affected members. The court emphasized that the Constitution does not allow federal courts to act as overseers of governmental actions, rejecting the notion of the ACLU as "self-appointed Establishment Clause police." The case's facts differentiate it from previous precedents, supporting the conclusion that the ACLU's claims lack merit.
The case presents a distinction from numerous other "Ten Commandments" cases, suggesting that the ACLU lacks standing to pursue the claim, and argues that the topic deserved more thorough examination than it received from both the district court and the majority opinion. Judge DeWeese's display of the Ten Commandments in his courtroom, as part of a broader educational display with nearly forty other objects, is asserted to not violate the Establishment Clause. Citing the ACLU v. Capitol Square Review and Advisory Board decision, it is emphasized that the Establishment Clause was never intended to completely eliminate religious references from public life. Historical acknowledgment of religion by government branches is outlined, reinforcing that such expressions do not inherently breach constitutional guidelines.
The Supreme Court's tests for assessing governmental actions under the Establishment Clause are referenced, primarily focusing on the "Lemon test," which evaluates a government's secular purpose, effects on religion, and the potential for excessive entanglement. While the majority argues that the display could imply an endorsement of religion, it bases its conclusion on the first prong of the Lemon test. However, the dissenting opinion contends that Judge DeWeese's display fulfills both prongs of the Lemon analysis, particularly asserting that the display does indeed possess a secular purpose, and criticizes the district court's finding to the contrary as erroneous.
The Supreme Court's interpretation of the first prong of the Lemon test indicates that a legislative or governmental action can be deemed constitutional if it articulates a secular purpose. The Court has invalidated actions lacking a secular purpose only when it has determined they were driven entirely by religious motivations. In assessing such actions, the government’s claim of a legitimate secular purpose is given deference unless it is proven to be a "sham." The district court must evaluate evidence in favor of the non-moving party. Judge DeWeese's stated intention for posting the Ten Commandments—using them for educational purposes—should be upheld in the absence of contrary evidence.
The ACLU and the district court argue that DeWeese's purpose was predominantly religious, asserting that his motives are a sham. The district court's rejection of DeWeese's explanation relied on precedent from Stone v. Graham, which found a presumption against secular purposes in similar cases. The district court concluded that the display of the Ten Commandments could only be constitutional if the religious elements were sufficiently diluted in favor of a secular message, a conclusion not mandated by Stone. The majority opinion similarly adopts these errors, failing to recognize the distinction between DeWeese’s stated intent and the conclusions drawn about his underlying motivations.
A determination that the Decalogue has some religious purpose does not equate to it serving solely a religious purpose, which is necessary for a violation of the first prong of the Lemon test. The Supreme Court has indicated that the Ten Commandments may serve both religious and secular functions. The Stone decision does not prohibit the use of the Ten Commandments, recognizing their historical significance in Western Civilization. The Court noted that the Decalogue could be incorporated into educational contexts, such as history and civilization studies, which reflects the intended use by Judge DeWeese in discussions about law and legal philosophy with community groups.
The district court's flawed interpretation of Stone leads to the incorrect conclusion that the display is only constitutional if "diluted," contradicting the Supreme Court's guidance in Lynch. A secular purpose does not have to be the sole or primary motive; it merely needs to ensure that the display is not entirely driven by religious considerations.
Judge DeWeese has articulated his purpose for the display as educational, aligning with Supreme Court endorsements. The ACLU's assertion that DeWeese lacks a purely secular purpose is misguided; he does not need to demonstrate a purely secular intent, only that he does not have an exclusively religious one. The district court's reliance on ACLU of Kentucky v. McCreary County inaccurately applies a "predominate purpose" standard, which misrepresents the appropriate legal analysis.
Even under this erroneous standard, DeWeese's display would still be permissible, as his testimony does not convincingly indicate a predominantly religious intent. He framed the display in terms of jurisprudence and legal philosophy. The majority's interpretation of DeWeese’s statements misrepresents them, conflating his personal beliefs with his motives for the display. Even if one of his purposes were religious, it does not meet the standard for unconstitutionality.
DeWeese's intent for displaying the Ten Commandments in his courtroom was secular and should not be deemed unconstitutional under the Establishment Clause. The majority's claim that promoting debate on moral absolutism versus moral relativism crosses this line is challenged, as many educational institutions might be surprised by this interpretation. The majority mistakenly concluded that DeWeese presented no secular purpose for the display, failing to give proper deference to his assertion of a legitimate secular intent. The district court also erred by not viewing evidence favorably towards DeWeese. A proper legal standard requires only an ascertainable secular purpose rather than an entirely or predominantly secular purpose. Additionally, applying the endorsement test from the Lemon test, a reasonable observer would not perceive the display as endorsing religion. The analysis must consider the context and history of the community, and DeWeese argues that the overall circumstances do not suggest government endorsement of religion. The Ten Commandments and the Bill of Rights are presented on identical posters in the courtroom, with the larger phrase "the rule of law" emphasized, suggesting a commitment to legal principles rather than religious endorsement.
In Judge DeWeese's courtroom, three framed posters featuring Jefferson, Hamilton, and Madison commend the jury trial system, while the United States and Ohio state flags flank the judge's bench, alongside a portrait of Lincoln. Above the judge's chair is the Ohio state seal, accompanied by the motto "With God All Things Are Possible." Visitors also encounter the "Freedom Shrine," donated by the Exchange Club of Mansfield, showcasing excerpts from significant American speeches, many of which link religion to civic order. The displays in the courtroom, hallway, and lobby were established by DeWeese in fall 2000 for educational purposes, with the Decalogue poster being notably prominent but isolated. The district court argued that the Decalogue's context is separate and lacks a cohesive theme with other displays, a reasoning the majority opinion accepted. However, DeWeese contended that visitors must pass the Freedom Shrine to enter the courtroom, suggesting a broader context that should be considered in Establishment Clause evaluations. The overall display, encompassing about forty pieces, is intended to honor lawgivers rather than promote religious views, countering claims that it seeks to secularize the Ten Commandments.
Judge DeWeese presented the Ten Commandments in an objective manner, integrating them with a secular message. Even without the Freedom Shrine, the context of the ten-object display in the courtroom supports the poster's inclusion. While some individuals, like Bernard Davis, may see this as a religious endorsement, they do not represent the reasonable observer standard. The application of First Amendment principles requires a balanced perspective. The Supreme Court's decision in Lynch upheld a religious symbol's presence within a broader display, rejecting claims that it conveyed an endorsement of religion. Justice O'Connor's endorsement test highlighted that the mere presence of a religious symbol does not imply intent to endorse. The Allegheny case, often cited for its restrictive view on context, involved a creche that stood alone, unlike the Ten Commandments, which are part of a display with secular and governmental themes. The inclusion of the Ten Commandments alongside items like the Bill of Rights and depictions of notable historical figures suggests that this display does not demonstrate governmental endorsement of religion, aligning with the reasonable observer's perspective established by the Supreme Court.
The text critiques the majority opinion's dismissal of DeWeese's claim regarding the posting of the Ten Commandments in county courthouses. It argues that this dismissal reflects an unreasonable, rigid interpretation of First Amendment values, shifting from an objective assessment to a "heckler's veto." The majority opinion distinguishes the case from Marsh v. Chambers, where the Supreme Court upheld legislative prayers based on a long-standing historical practice. However, it finds DeWeese's comparison inappropriate, citing a lack of a similar tradition for the Ten Commandments' display. DeWeese counters this by highlighting the presence of the Ten Commandments in various public buildings, including notable federal sites, and points to a trend of lawsuits on the issue, suggesting that the acknowledgment of the Ten Commandments is part of societal fabric. The text also challenges the majority's restrictive focus on county courthouses, arguing that the analysis should encompass all government buildings. Additionally, it critiques the majority's efforts to distinguish the case from precedent set in Capitol Square, emphasizing the lack of coercion or preference for a specific religion in that ruling.
Judge DeWeese's display of the Ten Commandments does not fulfill the claims made by the majority opinion regarding its role as an admonishment to observers based on the assertion that the initial commandments pertain solely to the religious duties of believers. The significance of the Ten Commandments in shaping secular law is acknowledged, as many civil regulations align with religious precepts, including state prohibitions that echo the Decalogue. Historical examples such as "Blue Laws" demonstrate the lasting influence of the Commandments, particularly in relation to Sunday observance. The Supreme Court has upheld these laws, recognizing their religious origins. The application of the command against using the Lord's name in vain is evident in legal contexts where officials affirm their commitment to truthfulness. Furthermore, historical practices such as blasphemy prosecutions underscore the Commandments' legal relevance in early American law. The assertion that the first several Commandments are solely religious is challenged, supporting their inclusion in historical displays about American legal development. Judge DeWeese highlights the absurdity of a federal judge ordering the removal of a display of the Ten Commandments from a state courtroom while simultaneously sitting beneath a mural of the same. The ACLU's argument that the judicial record should be the medium of legal expression is acknowledged, yet they do not contest that Judge DeWeese has not utilized the Ten Commandments in his rulings. Justice Thomas is cited, emphasizing the expansive interpretation of First Amendment protections, which have historically covered a wide range of expressive acts.
The dissenting opinion of Justice Thomas in Nixon v. Shrink Missouri Gov't PAC asserts that the First Amendment should protect the display of historical documents, such as the Ten Commandments, particularly when used for educational purposes in a courtroom setting. He argues that the Establishment Clause should allow the government some flexibility in acknowledging the historical influence of religion on the nation’s laws. Thomas references past Supreme Court decisions, emphasizing that recognizing the historical significance of religious teachings in law is not unconstitutional. He critiques the majority opinion for neglecting this historical context and for adopting a rigid interpretation of the Establishment Clause.
Thomas also addresses the issue of taxpayer standing, criticizing Justice Brennan's dissent for a revisionist interpretation of precedents. He contends that the claim requiring taxpayers to demonstrate a legal interest in congressional expenditures is flawed and that the standard of demonstrating redressable injury has not been met. Furthermore, Thomas notes that the majority failed to consider jurisdictional issues related to claims that are not ripe for adjudication, citing the case Adland as an example where the court lacked subject matter jurisdiction to rule on a proposed display that had not yet been erected.
