Am. Civil Lib. Union, Ky v. Mccreary Co, Ky

• Decision Date: 18 December 2003
• Docket Number: No. 01-5935.,01-5935.
• Citation: 354 F.3d 438
• Parties: AMERICAN CIVIL LIBERTIES UNION OF KENTUCKY, et al., Plaintiffs-Appellees, v. McCREARY COUNTY, KENTUCKY, et al., Defendants-Appellants.
• Court: U.S. Court of Appeals — Sixth Circuit

354 F.3d 438

AMERICAN CIVIL LIBERTIES UNION OF KENTUCKY, et al., Plaintiffs-Appellees, v. McCREARY COUNTY, KENTUCKY, et al., Defendants-Appellants.

No. 01-5935.

United States Court of Appeals, Sixth Circuit.

Argued: December 4, 2002.

Decided and Filed: December 18, 2003.

Mathew D. Staver, Erik W. Stanley, Liberty Counsel, Longwood, Florida, Johnnie L. Turner, Law Offices of Johnnie L. Turner, Harlan, KY, for Appellants.

David A. Friedman, American Civil Liberties Union of Kentucky, Louisville, KY, for Appellees.

David R. Huggins, National Legal Foundation, Virginia Beach, VA, for Amicus Curiae.

Before: RYAN, CLAY, and GIBBONS, Circuit Judges.

CLAY, J., delivered the opinion of the court. GIBBONS, J. (pp. 462-63), delivered a separate concurring opinion. RYAN, J. (pp. 463-82), delivered a separate dissenting opinion.

OPINION

CLAY, Circuit Judge.

Defendants, two Kentucky counties and a county school district, as well as three officials of these governmental entities, appeal from the district court's order granting Plaintiffs' motion for a supplemental preliminary injunction prohibiting Defendants from displaying copies of the Ten Commandments in three separate displays on the basis that Plaintiffs showed a strong likelihood of succeeding on their claim that Defendants' displays violated the Establishment Clause of the First Amendment. For the reasons set forth below, we AFFIRM.

I. BACKGROUND

A. Procedural History

On November 18, 1999, seven individuals in three Kentucky counties (McCreary County, Harlan County, and Pulaski County) along with the American Civil Liberties Union ("ACLU") filed three lawsuits in the United States District Court for the Eastern District of Kentucky, alleging that these counties had erected displays consisting of framed copies of the Ten Commandments in the county courthouses of McCreary and Pulaski Counties, as well as in the schools of the Harlan County School District, in violation of the Establishment Clause of the First Amendment.¹ Plaintiffs sought a declaration that the displays were unconstitutional, as well as preliminary and permanent injunctive relief enjoining the counties from continuing their display of the Ten Commandments.

Shortly after the complaint was filed, Defendants modified the displays to include secular historical and legal documents, some of which were excerpted, and then filed respective motions to dismiss. Following a hearing held on April 20, 2000, the district court issued an order on May 5, 2000 in each of the three cases which denied Defendants' motions to dismiss and granted Plaintiffs' motions for preliminary injunctive relief; the court ordered that the displays be removed and that no similar displays be erected. Defendants filed a notice of appeal to this Court, and a motion to stay the injunction pending appeal. The district court denied the motion to stay, as did this Court.

Defendants allegedly obtained new counsel and then filed a motion to clarify the district court's preliminary injunction as to all Defendants regarding the court's prohibition against erecting "similar displays." The district court denied the motion for clarification on September 15, 2000, stating that "the injunction speaks for itself." (J.A. at 119.)

Defendants, allegedly acting on the belief that a display containing the Ten Commandments could be erected within the parameters of the Constitution, voluntarily dismissed their appeal to this Court and erected new displays containing several additional secular historical and legal documents in their entirety, along with the Ten Commandments. The courthouse displays contained an explanation entitled the "Foundations of American Law and Government Display" which explained that the displays included various documents that played a significant role in the founding of the American system of law and government. The school district displays contained similar documents to the courthouse displays, except instead of the "Foundations of American Law and Government Display" explanation, the School Board displays contained a School Board Resolution. The Resolution addressed the historical context of the displays and opened a forum for the community to post an unlimited number of additional historical documents.

As a result of these new displays, Plaintiffs filed a motion to hold Defendants in contempt for violating the district court's preliminary injunction or, in the alternative, to enter a supplemental preliminary injunction order. Defendants responded to Plaintiffs' motion by arguing that the new displays were not similar to the previous displays, and contended that the "purpose for the display is to educate citizens of the county regarding some of the documents that played a significant role in the foundation of our system of law and government." (J.A. at 151.)

A hearing was held on March 30, 2001, at which time the district court denied Plaintiffs' motion for contempt, and on April 2, 2001, the court entered a corresponding order denying the motion for contempt, while urging the parties to settle the matter. The court noted in the order, however, that if the parties could not reach a settlement by April 30, 2001, the court would rule upon Plaintiffs' motion for a supplemental preliminary injunction. The parties failed to reach a settlement, and the district court then issued an order granting Plaintiffs' motion for a supplemental preliminary injunction on June 22, 2001. It is from the district court's order granting Plaintiffs' motion for a supplemental preliminary injunction that Defendants now appeal.

B. Facts

In 1999, McCreary County erected a display of the Ten Commandments in the McCreary County Courthouse consisting of "at least one framed copy of one version of the Ten Commandments and [which] was not part of any larger educational, historical, or retrospective exhibit." McCreary I, supra note 1, at 684. The display was erected pursuant to an order signed by Defendant Jimmie Greene, McCreary County Judge Executive. Id. Likewise, Pulaski County officials erected a copy of the Ten Commandments in the Pulaski County courthouse in the same fashion. Pulaski, supra note 1, at 695. The Pulaski display was erected by Defendant Darrell Beshears, Pulaski County Judge Executive. Id. The courthouse displays, both in their initial and later in their modified forms, were "readily visible to the plaintiffs and the other county citizens who use the courthouse to conduct civic business, to obtain or renew driver's licenses and permits, to register cars, to pay local taxes, and to register to vote." McCreary I, supra note 1, at 684; Pulaski, supra note 1, at 695. The schools in Harlan County School District displayed copies of a version of the Ten Commandments in their classrooms which, like the courthouse displays, initially consisted of "framed copies of one version of the Ten Commandments which were not part of larger educational, historical or retrospective exhibits." Harlan, supra note 1, at 671.

After Plaintiffs filed suit, Defendants amended the respective displays "in an attempt to bring the display[s] within the parameters of the First Amendment and to insulate themselves from suit." McCreary I, supra note 1, at 684. Specifically, the Courthouse displays were modified to consist of:

(1) an excerpt from the Declaration of Independence; (2) the Preamble to the Constitution of Kentucky; (3) the national motto of "In God We Trust"; (4) a page from the Congressional Record of Wednesday, February 2, 1983, Vol. 129, No. 8, declaring it the Year of the Bible and including a copy of the Ten Commandments; (5) a proclamation by President Abraham Lincoln designating April 30, 1863 a National Day of Prayer and Humiliation; (6) an excerpt from President Lincoln's "Reply to Loyal Colored People of Baltimore upon Presentation of a Bible" reading, "The Bible is the best gift God has ever given to man."; (7) a proclamation by President Ronald Reagan marking 1983 the Year of the Bible; and (8) the Mayflower Compact.

Id. (footnote omitted); see also Pulaski, supra note 1, at 695-96. The School Board display was modified to include those documents included in the modified courthouse displays, along with the addition of "a recently enacted Kentucky statute, K.R.S. 158.195, which the defendants allege permits the posting of the Ten Commandments; and ...a Harlan County School Board resolution permitting the posting of the Ten Commandments." Harlan, supra note 1, at 672. Also common to all three modified displays was the fact that while some of the added documents were "displayed in their entirety, the defendants [] excerpted a small portion of others to include only that document's reference to God or the Bible with little or no surrounding text." McCreary I, supra note 1, at 684; Pulaski, supra note 1, at 696; Harlan, supra note 1, at 672.

Despite the modifications, Plaintiffs sought a preliminary injunction from the district court to enjoin Defendants from displaying the modified exhibits, and the district court granted the preliminary injunction as to all three displays. See McCreary I, supra note 1, at 691. The district court found that "the amended displays failed the `purpose' and `effect' prongs of the three-part test set out in Lemon v. Kurtzman, 403 U.S. 602, 91 S.Ct. 2105, 29 L.Ed.2d 745 (1971), in that they lacked a secular purpose and had the effect of endorsing religion." McCreary II, supra note 1, at 846 (footnotes omitted). The court ordered that the displays be removed "immediately" and further ordered that "similar displays" could not be erected in the future. McCreary I, supra note 1, at 691.

Defendants then posted a third version of the displays, presuming that the modified displays were in conformity with the law as set forth in the district court's opinions. The new courthouse displays consisted of the entire Star Spangled Banner, the Declaration of Independence, the Mayflower Compact, the Bill of Rights, the...