King v. Richmond County, Ga.

• Citation: 331 F.3d 1271
• Decision Date: 30 May 2003
• Docket Number: No. 02-14146.,02-14146.
• Parties: Reverend Daniel KING, E. Ronald Garnett, and Shirley Fencl, Plaintiffs-Appellants, v. RICHMOND COUNTY, GEORGIA and Elaine Johnson, in her individual capacity and in her official capacity as Clerk of the Superior Court of Richmond County, Georgia, Defendants-Appellees.
• Court: United States Courts of Appeals. United States Court of Appeals (11th Circuit)

331 F.3d 1271

Reverend Daniel KING, E. Ronald Garnett, and Shirley Fencl, Plaintiffs-Appellants, v. RICHMOND COUNTY, GEORGIA and Elaine Johnson, in her individual capacity and in her official capacity as Clerk of the Superior Court of Richmond County, Georgia, Defendants-Appellees.

No. 02-14146.

United States Court of Appeals, Eleventh Circuit.

May 30, 2003.

COPYRIGHT MATERIAL OMITTED

Gerald R. Weber, American Civil Liberties Union Foundation, Atlanta, GA, John Paul Batson, Augusta, GA, Robert Lo-Pei Tsai, ACLU of GA, Eugene, OR, for Plaintiffs-Appellants.

James W. Ellison, Burnside, Wall, Daniel, Ellison & Revell, Augusta, GA, for Defendants-Appellees.

Alexander J. Luchenitser, Ayesha N. Khan, Americans United from Separation of Church & State, Washington, DC, for Amicus Curiae, Am. United for Separation of Church & State.

Appeal from the United States District Court for the Southern District of Georgia.

Before EDMONDSON, Chief Judge, and KRAVITCH and GIBSON^*, Circuit Judges.

KRAVITCH, Circuit Judge:

The question presented is whether the use of a court clerk's seal violates the Establishment Clause of the First Amendment when the seal contains an outline of the Ten Commandments, a sword, and the name of the court and is used solely to authenticate documents. We conclude that it does not.

I. BACKGROUND

Since 1852, a Georgia statute has required clerks of the state superior courts to have a "substantial seal of office" with the name of the county and court inscribed thereon.¹ In conformance with the statute, the Clerk of the Superior Court of Richmond County has maintained an official seal (the "Seal") for more than 130 years. Records found in the Richmond County clerk's office indicate that the Seal has been used on documents at least since 1872.

The Seal is circular, with the words "SUPERIOR COURT RICHMOND COUNTY, GA" inscribed around the perimeter. The center of the Seal contains a depiction of a hilt and tip of a sword, the center of which is overlaid by two rectangular tablets with rounded tops. Roman numerals I though V are listed vertically on the left tablet; the right lists numerals VI to X. The Seal is placed on documents in one of three ways: with ink from a rubber stamp, by embossment into paper, or by embossment into a gold seal on paper. The ink-stamped version of the seal is approximately one-and-a-half inches in diameter, with the center portion depicting the tablets measuring approximately one inch. The embossed version is smaller, approximately one-and-a-fourth inches in diameter, with the center portion measuring less than three-fourths of an inch.

The Seal's only function is to authenticate legal documents. In one of the forms described above, the Seal is affixed to all certified copies of court documents and real-estate records, witness subpoenas, certifications of juror service, notary certificates of appointment, and attorney licenses. Approximately 24,000 documents bore the Seal in 1999. The Seal does not appear on the office of the clerk's letterhead or on its website, nor is it displayed in the clerk's office, in the courtroom, or anywhere else in the Richmond County Courthouse. The office of the clerk's letterhead and envelopes bear the seal of the state of Georgia instead.

Richmond County displays another object relevant to this case. A statue of Justice, entitled "Miss Justice," stands in the parking lot of the city-county municipal building and courthouse.² The statue depicts Justice as a woman holding a sword in her right hand and the scales of justice in her left.

Appellants Reverend Daniel King, E. Ronald Garnett, and Shirley Fencl filed suit in federal district court under 42 U.S.C. § 1983, contending that the Seal violates the Establishment Clause of the First Amendment. Appellants sought injunctive and declaratory relief as well as nominal damages against Richmond County and Elaine Johnson, Clerk of the Superior Court, in both her individual and official capacities. According to the complaint, the Seal "prominently displays the Ten Commandments, a sacred text in the Judeo-Christian religious traditions," in violation of the Establishment Clause and Article I, section II, paragraph VII of the Georgia Constitution. In response, the Appellees conceded that the pictograph in the center of the Seal resembles depictions of the Ten Commandments,³ but argued that the use of the Seal is not unconstitutional under any of the Supreme Court's Establishment Clause tests.

After a summary bench trial, the District Court concluded that although the tablets depicted on the Seal represented the Ten Commandments, and that a reasonable observer could view them as such, there was no Establishment Clause violation. The District Court found, and both parties agreed, that the Seal had been in use for more than 130 years but that there was no evidence of the purpose for the Seal's design or when it was adopted by the clerk of the superior court.

Employing the Supreme Court's test in Lemon v. Kurtzman, 403 U.S. 602, 91 S.Ct. 2105, 29 L.Ed.2d 745 (1971), the District Court examined the facts to determine (1) whether the Seal had a secular purpose, (2) whether its primary effect was to advance religion, and (3) whether it fostered excessive entanglement between government and religion. On the first of these questions, the District Court found that the purpose of the Seal's design was "lost in the mists of history" but that pictographs of the Ten Commandments represented "both religious virtue and the rule of law." Second, the court held that the Seal's primary effect was not to advance religion. The court reasoned that the outline of the Ten Commandments was distinguishable from cases in which the text was displayed, indicating that a depiction without the text "would not lead a reasonable observer to conclude that religion was endorsed." The court concluded that, given the Ten Commandments' "role in the secular development of our society" and legal system, a reasonable observer would view the Seal as "conveying the image of a widely recognized legal code used merely to notify the reader that the stamped documents are court documents." The court emphasized that the use of the Seal was limited to the authentication of documents and was inconspicuous when compared to the governmental displays described in other cases. Third, the court found that the use of the Seal had not caused an excessive entanglement between government and religion. Finally, it held that the claims under Georgia's constitution were without merit.

On appeal, Appellants argue that the District Court erred in finding that the Seal did not violate the Establishment Clause because (1) the Seal has a religious purpose and (2) the use of the Seal has the primary effect of endorsing religion. Appellants do not challenge the District Court's conclusions as to the lack of excessive entanglement or their claims under the Georgia Constitution.

II. STANDARD OF REVIEW

We review the District Court's factual findings for clear error and review de novo its legal conclusions. See ACLU of Ga. v. Rabun County Chamber of Commerce, Inc., 698 F.2d 1098, 1110 (11th Cir.1983) (per curiam).

III. ANALYSIS

The issue presented is whether the use of the Seal violates the Establishment Clause of the First Amendment. The Establishment Clause prohibits Congress from making any law "respecting the establishment of religion, or prohibiting the free exercise thereof. . . ." U.S. Const., Amend. I. The prohibition against the establishment of religion applies to the states through the Fourteenth Amendment. See Cantwell v. Connecticut, 310 U.S. 296, 60 S.Ct. 900, 84 L.Ed. 1213 (1940).

In religious-symbols cases, the Supreme Court has applied the analysis outlined in Lemon v. Kurtzman, 403 U.S. 602, 91 S.Ct. 2105, 29 L.Ed.2d 745 (1971). See, e.g., County of Allegheny v. ACLU, Greater Pittsburgh Chapter, 492 U.S. 573, 592, 109 S.Ct. 3086, 106 L.Ed.2d 472 (1989); Lynch v. Donnelly, 465 U.S. 668, 679, 104 S.Ct. 1355, 79 L.Ed.2d 604 (1984); Stone v. Graham, 449 U.S. 39, 40-41, 101 S.Ct. 192, 66 L.Ed.2d 199 (1980) (per curiam). Under the Lemon analysis, a governmental practice violates the Establishment Clause if it does not have a secular purpose, if its primary effect is to advance or inhibit religion, or if it fosters excessive government entanglement with religion. Lynch, 465 U.S. at 679, 104 S.Ct. 1355.

Despite the Supreme Court's reliance on these three "tests," it has emphasized that there is no bright-line rule for evaluating Establishment Clause challenges and that each challenge calls for line-drawing based on a fact-specific, case-by-case analysis. Id.; see also County of Allegheny, 492 U.S. at 592, 109 S.Ct. 3086. In recent years, the Court has "paid particularly close attention" to whether the challenged governmental practice has either "the purpose or effect of `endorsing religion.'" County of Allegheny, 492 U.S. at 592, 109 S.Ct. 3086. Even though some Justices and commentators have strongly criticized Lemon,⁴ both the Supreme Court and this circuit continue to use Lemon's three-pronged analysis. See id.; Adler v. Duval County Sch. Bd., 206 F.3d 1070, 1075 (11th Cir. 2000) (en banc), vacated by 531 U.S. 801, 121 S.Ct. 31, 148 L.Ed.2d 3, opinion and judgment reinstated by 250 F.3d 1330 (11th Cir.2001); Rabun County, 698 F.2d at 1098.

Here, Appellants argue that the use of the Seal violates the purpose and effect prongs of the Lemon analysis; they do not contend that use of the Seal implicates excessive government entanglement with religion. Accordingly, for Appellants to prevail, they must show that, given the particular facts of this case, the use of the Seal violates either the purpose test or the effect test of Lemon.

A. Purpose Prong

"Under the Lemon analysis, a statute or practice which touches upon religion, if it is to be permissible under the Establishment Clause, must have a secular purpose." County of Allegheny, 492 U.S....