Adland v. Russ (2002) (Batchelder, J., dissenting)

Adland v. Russ, 107 F.Supp.2d 782 (E.D. Ky. 2000) was upheld by the United States Court of Appeals for the Sixth Circuit on October 9, 2002.  (The court opinion is not reproduced.)

The following opinion reproduced below is Circuit Judge ALICE M. BATCHELDER's dissent to the U.S. Court of Appeals, Sixth Circuit's opinion. 

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   ALICE M. BATCHELDER, Circuit Judge, dissenting.  The majority today rules on the constitutionality of a historical and cultural display that is still being planned and has yet to be erected.  Because the jurisdiction of the federal courts extends only to cases that are ripe for review, I respectfully dissent.


    Before this Court may address the plaintiffs' contention that Section 8 of Senate Joint Resolution No. 57 violates the Establishment Clause, we must be certain that we have jurisdiction--that is, we must determine whether the plaintiffs present an actual "case" or "controversy" within the meaning of Article III of the Constitution.  We review this question of federal jurisdiction de novo.  Greater Detroit Res. Recovery Auth. v. United States EPA, 916 F.2d 317, 319 (6th Cir. 1990).

    Of particular concern here is whether this case is ripe for review.  "Ripeness is more than a mere procedural question; it is determinative of jurisdiction.  If a claim is unripe, federal courts lack subject matter jurisdiction and the complaint must be dismissed.  This deficiency may be raised sua sponte if not raised by the parties."  Bigelow v. Mich. Dep't of Natural Res., 970 F.2d 154, 157 (6th Cir. 1992) (quoting S. Pac. Transp. Co. v. City of Los Angeles, 922 F.2d 498, 502 (9th Cir. 1990)).  See also Steel Co. v. Citizens for a Better Env't, 523 U.S. 83, 93 (1998); Louisville & Nashville R.R. v. Mottley, 211 U.S. 149, 152 (1908); Franzel v. Kerr Mfg. Co., 959 F.2d 628, 630 & n. 1 (6th Cir. 1992).  "[R]ipeness doctrine is drawn both from Article III limitations on judicial power and from prudential reasons for refusing to exercise jurisdiction."  Reno v. Catholic Soc. Servs., Inc., 509 U.S. 43, 57 n. 18 (1993).  Although neither party to this appeal raised the issue of ripeness, I will address it.

    The ripeness doctrine is designed to "prevent the courts, through avoidance of premature adjudication, from entangling themselves in abstract disagreements over administrative policies, and also to protect the agencies from judicial interference until an administrative decision has been formalized and its effects felt in a concrete way by the challenging parties."  Abbott Labs. v. Gardner, 387 U.S. 136, 148-49 (1967), overruled on other grounds by Califano v. Sanders, 430 U.S. 99 (1977). "Ripeness becomes an issue when a case is anchored in future events that may not occur as anticipated, or at all."  Nat'l Rifle Ass'n of Am. v. Magaw, 132 F.3d 272, 284 (6th Cir. 1997).  The Supreme Court has instructed that we are to make a two-fold inquiry: we must "evaluate both the fitness of the issues for judicial decision and the hardship to the parties of withholding court consideration."  Abbott Labs., 387 U.S. at 149.  A claim, to be ripe for review, must satisfy both criteria.  Nationwide Mut. Ins. Co. v. Cisneros, 52 F.3d 1351, 1362 (6th Cir. 1995).  This circuit has interpreted the ripeness inquiry to include consideration of the likelihood that the harm complained of will actually occur; whether the record is sufficiently developed to make the case fit for judicial resolution; and hardship to the parties if relief is denied.  Magaw, 132 F.3d at 284.  As I shall explain, this case is not ripe.

     The majority discusses a number of Supreme Court cases that provide guidance in determining whether a challenge to a religious display or figure erected on public property brought under the Establishment Clause is ripe for review.  In Stone v. Graham, 449 U.S. at 39, the Supreme Court ruled that a Kentucky statute requiring the posting of the Ten Commandments in each public school classroom violated the Establishment Clause.  While the Court, following Lemon, rejected the Commonwealth's proffered secular purpose as "self-serving" and "not sufficient to avoid conflict with the First Amendment," id. at 41 (citation omitted), it noted that this singular display of the Ten Commandments was entirely different from an integration of the Ten Commandments into the school curriculum, "where the Bible may constitutionally be used in an appropriate study of history, civilization, ethics, comparative religion, or the like."  Id. at 42 (citing Sch. Dist. of Abington Township v. Schempp, 374 U.S. 203, 225 (1963)).

    The Supreme Court used similar reasoning in Lynch v. Donnelly, 465 U.S. at 668, where the Court upheld a town's Christmas display consisting of a creche scene and a large variety of both religious and nonreligious items.   Id. at 671.  Finding an "unbroken history of official acknowledgment by all three branches of government of the role of religion in American life," the Court reviewed the country's history of governmental recognition of, and in fact, subsidizing of holidays having a religious significance, as well as the governmental acknowledgment of the country's religious heritage.  Id. at 674-77.  The Court concluded that the constitutionality of the Christmas display must be determined by examining the display as a whole, and not by focusing inordinately on the creche scene, and viewed in that manner, the display did not offend the Establishment Clause.  Id. at 680.  In a concurring opinion, Justice O'Connor concluded that the town did not "intend" either to endorse Christianity or express disapproval of non-Christian religions, but wanted only to celebrate a "public holiday through its traditional symbols."  Id. at 691 (O'Connor, J., concurring).  Justice O'Connor analogized the nativity scene to a museum display of religious artifacts; the religious message is still communicated but there is no endorsement of the message by the museum. Id. at 692.

    A locality's holiday displays were again challenged in County of Allegheny v. American Civil Liberties Union, 492 U.S. 573 (1989).  One display, which was held unconstitutional by the Court, was an unmistakably Christian nativity scene, while the other display, located outside another public building, consisted of a Christmas tree, a "Salute to Liberty" sign and a Chanukah menorah.  Id. at 578.  As the majority discusses above, the Court found the county's nativity scene unconstitutional because there were no offsetting nonreligious displays to detract from its religious message, id. at 598-602, but found that the Chanukah menorah and Christmas tree, in conjunction with the "Salute to Liberty" sign, conveyed a secular "winter-holiday" message, in Justice Blackmun's estimation.  Id. at 616 (Blackmun, J., opinion).

    From Lynch and County of Allegheny we learn that public displays may, consistent with the Court's interpretation of the Establishment Clause, have a religious component and religious symbolism so long as the message from the display is neither completely religious nor exclusive of other religions.   The unconstitutional display in County of Allegheny was entirely Christian, whereas the permissible displays in that case and in Lynch were more inclusive and less overtly religious.  Applying that distinction, this circuit, in Doe v. City of Clawson, 915 F.2d 244 (6th Cir. 1990), upheld a nativity scene based on a number of factors, one of which was the presence of other, nonreligious figures and messages.  Besides the traditional Holy Family figures, there was a Santa Claus figure, a Noel sign, and a number of other holiday decorations conveying an overall message of celebrating the holiday, but not the religious nature of the holiday.  Id. at 248-49.  See also Washegesic v. Bloomingdale Pub. Sch., 33 F.3d 679, 683 (6th Cir. 1994), cert. denied, 514 U.S. 1095 (1995) (citing Stone for the propositions that the constitutional infirmity of posting the Ten Commandments resulted from the fact that the display was not integrated with other displays or a course of study).

    After reviewing these precedents, I conclude that this claim is not ripe for adjudication.  At this point the plantiffs' claim does not satisfy any of the factors set forth in Magaw, 132 F.3d at 284, namely: a likelihood that the harm complained of will actually occur; that the record is sufficiently developed to make the case fit for judicial resolution; and that the parties will suffer hardship if relief is denied.  First, because there is no evidence in the record to tell us what will comprise the "historical display" of which the Ten Commandments monument will be a part, I conclude that the plaintiffs have not demonstrated that the harm they complain of will ever come to pass, much less that the "injury in fact [is] certainly impending."  Magaw, 132 F.3d at 280.  And without this evidence, this Court lacks a factual basis upon which to make a determination of the display's constitutionality.

    Second, Section 8 contains no description of the content of the "historical and cultural display" into which the monument is to be incorporated, and to date, no such display has been assembled.  We are left to speculate about whether that display will be sufficiently historical and cultural to offset the religious tone of the monument or whether the display of the monument will be forbidden because of an explicitly religious message.  The monument itself depicts the Ten Commandments as only one--albeit the most prominent one--of several messages, and in its implementation of Section 8, the Commonwealth might include in the display any number of other things relevant to the historical and cultural influences on the development of Kentucky law, which might well neutralize any message of endorsement of religion by the Commonwealth.  The Magna Charta, the Declaration of Independence and the Constitution of the United States come immediately to mind, not to mention Daniel Boone, long rifles and Indians.  An historical display containing numerous nonreligious items would be akin to the display upheld in Lynch, 465 U.S. at 687 (O'Connor, J., concurring), where the Court found that the nonexclusive nature of the display evidenced the city's desire to celebrate the holiday season.

    Third, the plantiffs have not shown that they would suffer any hardship now if relief is denied.  They would not suffer any immediate economic harm, Abbott Labs., 387 U.S. at 152-53, nor would they suffer risk of prosecution by the state, Babbitt v. United Farm Workers Nat'l Union, 442 U.S. 289, 298-99 (1979), nor would their constitutional speech or conduct be chilled, Virginia v. Am. Booksellers Ass'n, 484 U.S. 383, 393 (1988).  Their worry that they might encounter a display in which the Ten Commandments monument is placed in such a way that it violates the Establishment Clause may be legitimate, but it is not legally cognizable at this point.  See, e.g., Ohio Forestry Ass'n v. Sierra Club, 523 U.S. 726, 734 (1998) ("[W]e do not find a strong reason why the [respondent] must bring its challenge now in order to get relief.").

    The Supreme Court's recent decision in Santa Fe Independent School District v. Doe, 530 U.S. 290 (2000), supports this conclusion.   In Santa Fe the Court ruled unconstitutional a system in which the school allowed the student body, through balloting, to determine whether an invocation would be given at school football games and who would give the invocation should the student body elect to have one.  Id. at 296-98.  Important for our purposes, the Court rejected the school district's argument that the case was not ripe because no prayer had actually yet been given.  Id. at 313-16.  The Court found that the case was ripe because an injury had occurred when the district enacted a policy which, on its face, revealed a purpose that itself violated the Establishment Clause.  Id. at 313-17.  The clear evidence of this purpose, the Court held, was the policy's language using the religious term "invocation" with no secular alternatives, and the policy's decision-making mechanism permitting the Christian majority to impose its views on the non-Christian minority.  Id.  Here, no religious purpose is apparent on the face of Section 8 of Senate Joint Resolution No. 57 because, as this opinion has explained, Section 8 calls for the Ten Commandments monument to be part of an historical and cultural display.  See also Wheeler v. Barrera, 417 U.S. 402, 426 (1974) (ruling that an Establishment Clause challenge to Title I funds, where the plaintiffs claimed that Title I would allow publicly paid teachers to be sent to parochial schools to teach, was not ripe because the state had a choice of many constitutional means with which to implement Title I).

    The plaintiffs argue that because portions of Senate Joint Resolution 57--other than Section 8--contain overtly Christian references, and because Section 8 requires the historical display to include the Resolution itself, the display will not be able to survive an Establishment Clause challenge.  The plaintiff's complaint, however, challenged only Section 8 of the Resolution, and in the absence of any specific evidence detailing the composition of the display mandated by Section 8, we can only speculate whether in its final form, that display will offend the Constitution.  A case requiring this kind of speculation for its resolution is not ripe.

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