307 F.3d 471 (6th Cir. 2002), 00-6139, Adland v. Russ

Docket Nº:00-6139.
Citation:307 F.3d 471
Party Name:Rabbi Jonathan ADLAND; Reverend Johanna Bos; Reverend James Jerrell Greenlee; Reverend Gilbert Schroerlucke; Jeff Vessels; and American Civil Liberties Union of Kentucky, Plaintiffs-Appellees, v. Armond RUSS, in his official capacity as Commissioner of the Department for Facilities Management, Defendant-Appellant.
Case Date:October 09, 2002
Court:United States Courts of Appeals, Court of Appeals for the Sixth Circuit
 
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307 F.3d 471 (6th Cir. 2002)

Rabbi Jonathan ADLAND; Reverend Johanna Bos; Reverend James Jerrell Greenlee; Reverend Gilbert Schroerlucke; Jeff Vessels; and American Civil Liberties Union of Kentucky, Plaintiffs-Appellees,

v.

Armond RUSS, in his official capacity as Commissioner of the Department for Facilities Management, Defendant-Appellant.

No. 00-6139.

United States Court of Appeals, Sixth Circuit.

October 9, 2002

Argued Nov. 2, 2001.

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David A. Friedman (argued and briefed), American Civil Liberties Union of Kentucky, General Counsel, Louisville, KY, C. Laurie Griffith (briefed), Griffith Law Offices, Louisville, KY, for Plaintiffs-Appellees.

Scott White (briefed), Jennifer L. Carrico (argued and briefed), Office of the Attorney General, Frankfort, KY, for Defendant-Appellant.

Edward L. White, III, Thomas More Center for Law & Justice, Ann Arbor, MI, for Amicus Curiae.

Edna J. Turner, Theodore H. Amshoff, Jr., Amshoff & Amshoff, Louisville, KY, for Defendants.

Before: MARTIN, Chief Circuit Judge; BATCHELDER, Circuit Judge; SARGUS, District Judge.[*]

OPINION

BOYCE F. MARTIN, JR., Chief Circuit Judge.

On April 21, 2000, Kentucky Governor Paul E. Patton signed into law Senate Joint Resolution No. 57, a resolution "relating to the display of historic documents that include a depiction of the Ten Commandments." The Resolution contains two primary substantive provisions—Section 2, which authorizes a public school teacher to post the Ten Commandments in a classroom when incorporated into a historical display, and Section 8, which directs the Department for Facilities Management to

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"relocate the monument inscribed with the Ten Commandments which was displayed on the Capitol grounds for nearly three decades to a permanent site on the Capitol grounds near Kentucky's floral clock to be made part of a historical and cultural display including the display of this order to remind Kentuckians of the Biblical foundations of the laws of the Commonwealth." Plaintiffs, Rabbi Jonathan Adland, Reverend Johanna Bos, Reverend James Jerrell Greenlee, Reverend Gilbert Schroerlucke, the American Civil Liberties Union of Kentucky and its executive director Jeff Vessels, filed suit seeking to permanently enjoin the defendant Armand Russ, Commissioner of the Commonwealth of Kentucky Department for Facilities Management, from complying with Section 8. By agreement of the parties, the district court heard the matter on the merits. In a careful and thoughtful opinion, the district court declared Section 8 of Kentucky Senate Joint Resolution Number 57 unconstitutional under the Establishment Clause of the First Amendment and permanently enjoined the defendant from complying with Section 8. We AFFIRM.

I.

A.

The Ten Commandments monument was presented to the Commonwealth by the Fraternal Order of Eagles, a national service organization dedicated to promoting liberty, truth and justice, in 19711 In offering to donate the monument to the Commonwealth, the Eagles explained in a March 14, 1971, letter that:

Most of today's younger generation either have not seen the Ten Commandments or have not been taught them. In our opinion the youth of today is in dire need of learning the simple laws of God if we are to attain love and charity necessary to create peace among the peoples of all nations.

The granite monument, which is over six feet tall and almost four feet wide, bears an inscription of the following version of the Ten Commandments:

I AM the LORD thy God.

Thou shalt have no other gods before me.

Thou shalt not make to thyself any graven images.

Thou shalt not take the name of the Lord thy God in vain.

Remember the Sabbath day, to keep it holy.

Honor thy father and thy mother, that thy days may be long upon the land which the Lord thy God giveth thee.

Thou shalt not kill.

Thou shall not commit adultery.

Thou shall not steal.

Thou shalt not bear false witness against thy neighbor.

Thou shalt not covet thy neighbor's house.

Thou shalt not covet thy neighbor's wife, nor his manservant, nor his maidservant, nor his cattle, nor anything that is thy neighbor's.

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At the top of the monument, there are two small tablets containing ancient Hebrew script. Surrounding these tablets is a floral design, and between the tablets is the all-seeing eye, similar to the one depicted on the dollar bill. Immediately below the eye is an American eagle grasping the American flag. Below the text of the monument are two small Stars of David, and in the center of the stars is a similarly-sized symbol representing Christ: two Greek letters, Chi and Rho, superimposed upon each other. At the base of the monument is a small scroll, which reads: "Presented to the Commonwealth of Kentucky by Kentucky State Aerie Fraternal Order of Eagles 1971."

Contrary to the statement in Section 8 of the Resolution, the district court found that the monument was displayed on Capitol grounds until approximately 1980. It was removed to make room for construction on the Capitol grounds and has remained in storage since that time.

B.

The Resolution contains a preamble consisting of seventeen "Whereas" clauses that recite the Senate's purpose in enacting this Resolution. Ten of the clauses quote famous Americans-Samuel Adams, Fisher Ames, George Washington, Andrew Jackson, John Quincy Adams, Abigail Adams, Woodrow Wilson, and Jimmy Carter-professing their beliefs in the Bible, God, or Christianity. For example, the Resolution quotes Andrew Jackson's May 29, 1845, statement:

My lamp of life is nearly out, and the last glimmer has come. I am ready to depart when called. The Bible is true. The principles and statutes of that Holy Book have been the rule of my life, and I have tried to conform to its spirit as nearly as possible. Upon that sacred volume I rest my hope for eternal salvation, through the merits and blood of our blessed Lord and Savior, Jesus Christ.

Similarly, the Resolution quotes George Washington's September 19, 1796, declaration: "Of all the dispositions and habits which lead to political prosperity, religion and morality are indispensable supports." The Resolution also quotes Woodrow Wilson's statement:

The Bible is the word of life. I beg that you will read it and find this out for yourselves . . . . You will find it full of real men and women not only, but also of things you have wondered about and had been troubled about all your life, as men have been always; and the more you read, the more it will become plain to you what things are worthwhile and what are not, what things make men happy—loyalty, right dealings, speaking the truth, readiness to give everything for what they think their duty, and most of all, the wish that they may have the real approval of the Christ, who gave everything for them . . . . When you have read the Bible, you will know it is the Word of God, because you will have found it the key to your own heart, your own happiness, and your own duty.

In addition, the Resolution also employs quotes from a 1892 United States Supreme Court decision which, viewed in isolation, conclude that the Supreme Court has declared the United States to be a "Christian nation." Four other clauses incorporate miscellaneous quotations regarding God or the Bible in pre-Revolutionary legislative sources or in Kentucky law. One of the clauses also references the presence of the Ten Commandments in the United States Supreme Court chambers as part of a frieze containing several historical law givers.

Section 8 of the Resolution directs that the monument be relocated to the Capitol grounds, the seat of the Commonwealth's

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government, near Kentucky's Floral Clock, a large clock planted with 13,000 Alternanthera and Santolina plants. The clock is thirty-four feet in diameter and weighs 200,000 pounds, and according to the Commonwealth, it is one of the largest clocks in the world. The Floral Clock area is a prominent and central feature on the Capitol grounds which can be seen from the circular drive leading up to the Capitol plaza and the public parking area.

According to Section 8, the Ten Commandments monument will be part of a "historical and cultural display." The Resolution does not delineate the specific components of this display, but the Commonwealth in its brief clarifies that this display will consist of the "markers, signs and monuments" in the "historical garden area surrounding the Kentucky Floral Clock." (Appellant's Brief at 7). These markers include: (1) a Kentucky Historical Society memorial sign commemorating "A Civil War Reprisal" and describing in detail a Kentucky Civil War event on the location; (2) a "Welcome to Kentucky" bronze plaque; (3) the Kentucky Coffee Tree Marker commemorating Joe Cross Creason, Sr., humorist, author and journalist; (4) the Freedom Tree Marker memorializing Kentucky Vietnam Prisoners of War; (5) a stone marker in memory of Charles Wickliffe, Finance and Administration Cabinet, 1960-1995; (6) a plaque in memory of Governor Bert Combs, in recognition of courageous leadership, 1959-1963; and, (7) a memorial for John Stony Spicer, Physical Plant Director, 1958-1988. As the Commonwealth states in its reply brief, "Together with these surrounding markers and memorials, the monument will be one 'part of a historical and cultural display' established by the Resolution." (Appellant's Reply Brief at 10-11).

If the Ten Commandments monument was relocated to this area it would be the largest monument in the area, except for the Floral Clock. Both the Floral Clock and the Ten Commandments monument would be visible to motorists driving on the road between the Capitol and the...

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