Aclu Nebraska Foundation v. City of Plattsmouth

Citation358 F.3d 1020
Decision Date06 April 2004
Docket NumberNo. 02-2444.,02-2444.
PartiesACLU NEBRASKA FOUNDATION; John Doe, Plaintiffs-Appellees, v. CITY OF PLATTSMOUTH, Nebraska, Defendant-Appellant. State of Nebraska, Amicus on Behalf of Appellant. Americans United for Separation of Church and State, Amicus on Behalf of Appellee.
CourtUnited States Courts of Appeals. United States Court of Appeals (8th Circuit)

Francis J. Manion, argued, New Hope, KY (Jeffrey Downing of Lincoln, NE, on the brief), for appellant.

Amy A. Miller, argued, Lincoln, NE (Sue Ellen Wall, Lincoln, NE, on the brief), for appellee.

Before BOWMAN, RICHARD S. ARNOLD, and BYE, Circuit Judges.

BYE, Circuit Judge.

A resident of the City of Plattsmouth and the ACLU Nebraska Foundation allege Plattsmouth's display of a Ten Commandments monument violates the Establishment Clause of the United States Constitution. The district court1 found the Ten Commandments monument violates the Establishment Clause and granted appellees' motion for summary judgment. Plattsmouth appeals.

I

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 image.

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 shalt not commit adultery.

Thou shalt 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.

So reads the approximately five-foot-tall granite monument at issue in this lawsuit. Above the inscription are two small tablets engraved with the Ten Commandments written in a Semitic script,2 an eye within a triangle,3 and an eagle gripping an American flag. Below it are two six-point stars,4 the intertwined symbols "chi" and "rho"5 and a small scroll reading, "PRESENTED TO THE CITY OF PLATTSMOUTH NEBRASKA BY FRATERNAL ORDER OF EAGLES PLATTSMOUTH AERIE NO. 365 1965."

Other than the scroll's reference to Plattsmouth, the monument bears a very close resemblance to scores of other Ten Commandments monuments given by the Fraternal Order of the Eagles to towns and cities in the 1950s and 1960s. See, e.g., Van Orden v. Perry, 351 F.3d 173, 175-76 (5th Cir.2003) (describing an Eagles monument on the Texas capitol grounds); Adland v. Russ, 307 F.3d 471, 475-76 (6th Cir.2002), cert. denied, ___ U.S. ___, 123 S.Ct. 1909, 155 L.Ed.2d 826 (2003) (describing an Eagles monument on the Kentucky capitol grounds); Summum v. Ogden, 297 F.3d 995, 997-98 (10th Cir. 2002) (describing an Eagles monument in Utah); Books v. Elkhart, 235 F.3d 292, 296 (7th Cir.2000) (describing an Eagles monument in Indiana); Christian v. Grand Junction, No. 01-CV-685, 2001 WL 34047958, *1 (D.Co. June 27, 2001). The Seventh Circuit's opinion in Books recounts the history of the Eagles's Ten Commandments project, which begins with a Minnesota juvenile court judge who saw the Ten Commandments as the cure for juvenile delinquency, and includes the involvement of Hollywood producer Cecil B. DeMille, who was promoting his movie THE TEN COMMANDMENTS. Id. at 294-95; see also State v. Freedom From Religion Found., Inc. 898 P.2d 1013, 1017 (Colo.1995).

The Ten Commandments monument belongs to Plattsmouth. The monument stands in Memorial Park ten blocks from Plattsmouth City Hall. The park, at forty-five acres the largest park in the City, is also owned by Plattsmouth. The monument sits under shady trees on a grassy knoll between a recreation area (containing a barbeque grill, benches, picnic tables, and a permanent shelter) and a road. Although the inscribed side faces the road, it is too far away to be read by passing motorists. Pedestrians, picnickers, and others using the park, however, have an unrestricted view of the Ten Commandments as written on the monument. Other than mowing grass around its concrete base the monument requires no regular maintenance. When the monument is in need of cleaning or repair, however, City of Plattsmouth employees perform those duties. On at least one occasion since this litigation commenced, the monument was toppled over and City employees re-erected it.

Permanent markers may not be placed in the park without the permission of Plattsmouth. The City has no formal policy regarding the acceptance of permanent markers; rather, it makes such decisions on a case-by-case basis. No other monument, statue or the like is within eyeshot of the subject monument. A large plaque containing the names of donors is located by the main entrance to the park. Individual pieces of recreational equipment, such as grills and benches, bear plaques identifying their donors.

No contemporaneous City resolutions, minutes, proclamations or other records survive from the period, so there is little evidence of the process by which the monument was accepted and installed. What is known is the following: the Eagles donated the monument to Plattsmouth in 1965. The Eagles is a national organization responsible for many philanthropic and community-enhancing contributions to Plattsmouth. The Eagles chose the words and symbols and had them engraved on the monument. The Ten Commandments, also referred to as the Decalogue, are an amalgam of those used in the Protestant, Catholic and Jewish religions. Then Street Commissioner Art Hellwig and other Plattsmouth employees erected the monument. It is not known whether these City employees were acting in their personal or official capacities when they erected the monument. It is known, however, that Hellwig was an officer of the Eagles at the time.

John Doe is a Plattsmouth resident who comes into frequent unwelcome contact with the monument. Doe is an atheist and as such does not share the religious beliefs expressed on the monument. The monument alienates Doe and makes him feel like a second-class citizen. He lives near the monument and drives by it frequently. Although the letters are too small to be read from the street, Doe is reminded of its message every time he drives by. Because of the monument, Doe avoids using the park for recreational activities except when a scheduled event requires his presence. He would use the park more often were it not for the monument.

John Doe is a donor to and member of the ACLU Nebraska Foundation. The ACLU is a membership organization whose stated purpose is defending citizens' constitutional rights. Its members hold a variety of religious views. The ACLU has over 800 members in Nebraska, including twelve in Cass County, of which Plattsmouth is the county seat. Some of these members come into direct and unwelcome contact with, and are deeply offended by, the monument. The ACLU participated in this action to assert the rights and interests of its local members, including those of John Doe.

II

Before we reach the question of whether Plattsmouth's display is unconstitutional, we must answer the threshold question of whether Doe and the ACLU have standing to bring their Establishment Clause claim. Tarsney v. O'Keefe, 225 F.3d 929, 934 (8th Cir.2000) ("Standing is the threshold question in every federal case....") (internal quotation and citation omitted). Standing is a jurisdictional requirement; if Doe and the ACLU have no standing to bring this claim the district court had no power to consider the monument's constitutionality, and neither does this court. See id.; Valley Forge Christian Coll. v. Am. United for Separation of Church and State, Inc., 454 U.S. 464, 475-76, 102 S.Ct. 752, 70 L.Ed.2d 700 (1982) ("[O]f one thing we may be sure: Those who do not possess Art. III standing may not litigate as suitors in the courts of the United States."). The district court found Doe and the ACLU have standing to bring this action, a decision we now review de novo. Heartland Acad. Cmty. Church v. Waddle, 335 F.3d 684, 689 (8th Cir.2003).

Parties invoking federal jurisdiction, here Doe and the ACLU, have the burden of establishing standing. Schanou v. Lancaster County Sch. Dist., 62 F.3d 1040, 1045 (8th Cir.1995).6 The standing doctrine incorporates both constitutional requirements and prudential considerations, and serves to limit federal jurisdiction to "cases" and "controversies" as required by Article III of the U.S. Constitution. Lujan v. Defenders of Wildlife, 504 U.S. 555, 559-61, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992). The constitutional prerequisite has been distilled into the following test:

First, the plaintiff must have suffered an "injury in fact" — an invasion of a legally protected interest which is (a) concrete and particularized, and (b) actual or imminent, not conjectural or hypothetical. Second, there must be a causal connection between the injury and the conduct complained of — the injury has to be fairly traceable to the challenged action of the defendant, and not the result of the independent action of some third party not before the court. Third, it must be likely, as opposed to merely speculative, that the injury will be redressed by a favorable decision.

Id. at 560-61, 112 S.Ct. 2130 (internal quotations and citations omitted).

A plaintiff may also be denied standing, even if he meets the Article III standing requirements, if he runs afoul of certain judicially-constructed prudential...

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