Dissent from Denial of Rehearing En Banc in

American Civil Liberties Union of Kentucky v. McCreary County, Kentucky (2004)

United States Court of Appeals

for the Sixth Circuit






No. 01-5935


Filed: March 23, 2004

[* * * * *]

    BOGGS, Chief Judge, dissenting from the denial of rehearing en banc, joined by Batchelder, J.

   The core question in this case is whether the district court and the panel majority erred in holding, as a matter of law, that despite the statement of historical and patriotic secular purpose included in each display at issue here, and despite the five separate secular purposes for the displays articulated by the defendants in the district court, they nonetheless have an essentially religious purpose because the Ten Commandments appear beside eight or nine otherwise indisputably secular documents.

    This court has held that in Establishment Clause cases federal courts must defer to the government's articulation of a secular purpose unless the stated purpose is shown to be a "sham."  Chaudhuri v. Tenn., 130 F.3d 232, 236 (6th Cir. 1997).  That rule has been misapplied by the panel majority.

    In coming to the conclusion that the defendants' carefully articulated secular purposes are a sham, the court ignores the First Amendment principles laid out in County of Allegheny v. ACLU, 492 U.S. 573 (1989), and Lynch v. Donnelly, 465 U.S. 668 (1984).  It establishes a new and heightened standard of proof, holding that the displays lacked a secular purpose because they "provided the viewer with no analytical or historical connection between the Ten Commandments and the other historical documents."  ACLU of Ky. v. McCreary County, 354 F.3d 438, 453 (6th Cir. 2003).  Neither the Supreme Court nor this court has ever adopted such a standard.  On the contrary, the Supreme Court has upheld displays of a cross, Capitol Square Review & Advisory Bd. v. Pinette, 515 U.S. 753, 766 (1995) (plurality opinion), a crèche, Lynch, 465 U.S. 668, and a menorah, County of Allegheny, 492 U.S. 573, none of which made explicit an "analytical or historical connection" between the religious item and other, secular items in the displays.

    The implication of the court's decision is that the presence of the Ten Commandments, in an array containing indisputably historical and patriotic secular documents, converts the whole into a display having a primarily religious purpose.  The panel majority appears to have drawn this rule from Stone v. Graham, 449 U.S. 39 (1980), a brief, per curiam disposition that preceded both Lynch and Donnelly, and that bears no meaningful factual resemblance to this case.  Stone struck down a Kentucky statute that mandated the posting of the Ten Commandments, standing alone, in every classroom in the Commonwealth.  In dicta, the Court stated that the Ten Commandments "may constitutionally be used in an appropriate study of history, civilization, ethics, comparative religion, or the like."  449 U.S. at 42 (citing Sch. Dist. of Abington Township v. Schempp, 374 U.S. 203, 225 (1963)) (emphasis added).  I do not believe this language can be read as an attempt to state binding limits on all future constitutionally valid displays.  And even if it were to be read in that aggressive fashion, Stone certainly does not suggest that a display that includes the Ten Commandments as part of an array containing eight or nine otherwise secular, historical documents, violates the First Amendment unless the display also provides an explicit analytical or historical connection between the clearly secular and the arguably religious items.

    Another troubling aspect of the majority opinion concerns its sympathetic treatment of the district court's conclusion that the history of the defendants' earlier attempts to erect "constitutionally invalid displays" had "'imprinted the defendants' purpose, from the beginning, with an unconstitutional taint [.]'"  McCreary County, 354 F.3d at 457 (quoting ACLU of Ky. v. McCreary County, 145 F.Supp.2d 845, 850 (E.D. Ky. 2001)).  I think the history of the defendants' displays is entitled to considerably less weight than the majority gives it.  Our court has previously expressed great reluctance to allow a government's past actions to taint its future actions from the standpoint of the Establishment Clause.  In Granzeier v. Middleton, 173 F.3d 568 (6th Cir. 1999), we held that the government could close its offices on Good Friday without violating the Establishment Clause by adopting a "spring weekend" rationale, even though there was evidence that the government's purpose was originally religious, including a poster put up by a government employee depicting the Crucifixion.  We stated that "the fact that a particular closing was once constitutionally suspect does not prevent it from being reinstated in a constitutional form."  Id. at 574.  Our holding in Granzeier reflects an important principle of equal treatment that is slighted by the panel's opinion.  In general, governmental bodies, like other litigants, should be free to take instruction from prior decisions or arguments, and thus to eschew, or move away from, practices that are contrary to law. (5)

    Finally, the lead opinion erroneously applies the heightened Establishment Clause standards for public schools to other public buildings such as courthouses.  See McCreary County, 354 F.3d at 461.  This ignores the reasons given by the Supreme Court for creating a heightened constitutional standard in public schools, namely that young children are impressionable and that the state exercises coercive power through mandatory school attendance requirements.  Edwards v. Aguillard, 482 U.S. 578, 584 (1987).  By applying these heightened requirements to courthouses and other public buildings, the lead opinion not only misapplies the law, it also invites a new round of First Amendment challenges to religious texts and symbols that are nearly ubiquitous in non-schoolhouse public buildings throughout the nation, particularly courthouses.

    The court's decision, that the Ten Commandments' text is impermissible as one of ten otherwise secular documents, gives no further guidance.  Would it be permissible as one of twenty other texts, or one of one hundred?  Would it make a difference if the display involved a pictorial representation, rather than a text?

    I have seen at one institution what seemed to me a possible solution to some controversies of this type.  There was a representation of two tablets, bearing only the Roman numerals "I" to "X."  This left it to all observers to decide what exact text they wished to impose on that symbol.   But under the court's decision, I have no idea if even this display could pass muster.

    Believing the panel's decision to be both draconian and legally unsupported, I would rehear this case, so that the full court could give it more nuanced consideration.  I therefore respectfully dissent from the denial of rehearing en banc.


    5.    The holding and reasoning of Granzeier are consistent with the Supreme Court's decision in Santa Fe Independent School District v. Doe, 530 U.S. 290 (2000), relied upon by the panel.  While the Santa Fe majority considered both the "text and history" of the school policy at issue in that case, which authorized a student-elected speaker to make an "invocation" to "solemnize" home football games, id. at 298 & n. 6, 315, it also made clear that the policy was, in fact, invalid on its face.   Id. at 306-07, 314-15; see id. at 315 ("The narrow question before us is whether implementation of the October policy insulates the continuation of such prayers from constitutional scrutiny.")  Moreover, the evidence of a "continuous" Establishment Clause violation, as well as other troubling aspects of the case's history, were far stronger in Santa Fe than in this case, where the counties have seriously rethought and reorganized their displays in response to constitutional concerns.  Cf. id. at 294-98 (detailing various cosmetic alterations made to school district's longstanding policy of pregame and graduation prayers, which were frequently explicitly Christian in nature; also noting that the record suggested that there had been official harassment and intimidation of the Santa Fe plaintiffs during the litigation).

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