Aclu Nebraska Found. v. City of Plattsmouth, Neb.

• Decision Date: 19 August 2005
• Docket Number: No. 02-2444.,02-2444.
• Citation: 419 F.3d 772
• Parties: ACLU 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, Foundation for Moral Law, Inc.; Wallbuilders, Inc.; The National Legal Foundation, Amici on Behalf of Appellant.
• Court: U.S. Court of Appeals — Eighth Circuit

419 F.3d 772

ACLU 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 Foundation for Moral Law, Inc.; Wallbuilders, Inc.; The National Legal Foundation, Amici on Behalf of Appellant.

No. 02-2444.

United States Court of Appeals, Eighth Circuit.

Submitted: September 15, 2004.

Filed: August 19, 2005.

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

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

Before LOKEN, Chief Judge, RICHARD SHEPPARD ARNOLD¹, BOWMAN, WOLLMAN, MORRIS SHEPPARD ARNOLD, MURPHY, BYE, RILEY, MELLOY, SMITH, COLLOTON, GRUENDER, and BENTON, Circuit Judges, En Banc.

BOWMAN, Circuit Judge.

The City of Plattsmouth, Nebraska, appeals the District Court's grant of summary judgment in favor of John Doe, a Plattsmouth resident, and the ACLU Nebraska Foundation on their claim that the City's display of a Ten Commandments monument violates the Establishment Clause of the First Amendment. We reverse.

In 1965, the Fraternal Order of Eagles (Eagles) donated to the City of Plattsmouth an approximately five-foot-tall and three-foot-wide granite monument inscribed with a nonsectarian version of the Ten Commandments.² Above the text of the Commandments appear two small tablets surrounded by a floral design; an eye within a pyramid—an all-seeing eye similar to that appearing on the back of a dollar bill; and an eagle clutching the American flag. Below the text are two Stars of David; the intertwined Greek letters "chi" and "rho"; and a scroll reading, "PRESENTED TO THE CITY OF PLATTSMOUTH, NEBRASKA BY FRATERNAL ORDER OF EAGLES PLATTSMOUTH AERIE NO. 365 1965." Appellant's Br., Ex. O. The Plattsmouth monument is one of many other Ten Commandments monuments given by the Eagles to towns, cities, and even states in the 1950s and 1960s.³ The Eagles is a national social, civic, and patriotic organization. Its local chapter has been responsible for many philanthropic and community-enhancing contributions to the City of Plattsmouth.

The monument was erected in a corner of Plattsmouth's forty-five-acre Memorial Park, ten blocks distant from Plattsmouth City Hall. Then Street Commissioner Art Hellwig, an Eagles officer at the time, and other City employees helped erect the monument, although it is not known whether these City employees were acting in their personal or official capacities. The monument is located two hundred yards away from the park's public parking lot, and there are no roads or walkways from the parking lot to the monument. The words of the monument face away from the park, away from any recreational equipment, picnic tables, benches, or shelters. Although the inscribed side of the monument faces the road, it is too far away to be read by passing motorists. The City of Plattsmouth performs no regular maintenance on the monument, but if repairs are required, City employees perform those duties. In addition to the monument, the park contains, among other items, recreational equipment, picnic tables and shelters, and a baseball diamond. Certain individual items located in the park, such as grills, benches, and picnic shelters, bear plaques identifying their donors. In addition, a large plaque inscribed with the names of all donors to Memorial Park is located near the park's entrance. Because no contemporaneous City records exist, there is little evidence in the record regarding the process by which the monument was accepted and installed.

In 2001, more than thirty-five years after the monument was installed, Doe and the ACLU sued the City of Plattsmouth, claiming that the Ten Commandments monument interfered with Doe's use of Memorial Park and caused him to modify his travel routes and other behavior to avoid unwanted contact with the monument. According to Doe and the ACLU, the City's display of the monument in Memorial Park is a violation of the Establishment Clause. The District Court granted summary judgment in favor of the plaintiffs, finding that both Doe and the ACLU have standing to bring suit and that the City's display of the monument violates the Establishment Clause.

On appeal, a divided panel of this Court affirmed. ACLU Nebraska Found. v. City of Plattsmouth, 358 F.3d 1020 (8th Cir.2004), vacated and rehearing en banc granted, April 6, 2004. After agreeing with the District Court that both Doe and the ACLU have standing to pursue this action, the opinion of the Court concluded that (1) Plattsmouth's display of the monument violates the Establishment Clause because the City's purpose in installing or maintaining the monument was solely religious and (2) the display's primary effect was an impermissible endorsement of religion. Id. at 1026-31.

We granted Plattsmouth's petition for rehearing en banc to review the District Court's determination that the City's display of the monument violates the Establishment Clause.⁴ With the benefit of the United States Supreme Court's recent decision in Van Orden v. Perry, ___ U.S. ___, 125 S.Ct. 2854, ___ L.Ed.2d ___ (2005), we now reverse.

When we consider a district court's grant of summary judgment, we review findings of fact for clear error and conclusions of law de novo. Royer ex rel. Royer v. City of Oak Grove, 374 F.3d 685, 687 (8th Cir.2004). We view the facts in the light most favorable to the nonmoving party—in this case the City—and give that party the benefit of all reasonable inferences that may be drawn from the facts. Morgan v. United Parcel Serv. of Am., Inc., 380 F.3d 459, 463 (8th Cir.2004), cert. denied, ___ U.S. ___, 125 S.Ct. 1933, 161 L.Ed.2d 773 (2005).

The Establishment Clause of the First Amendment prohibits government from making any law "respecting an establishment of religion." U.S. Const. amend. I. This prohibition applies to the states through the Fourteenth Amendment. Everson v. Bd. of Educ., 330 U.S. 1, 15, 67 S.Ct. 504, 91 L.Ed. 711 (1947). Using the test described by the Supreme Court in Lemon v. Kurtzman, 403 U.S. 602, 91 S.Ct. 2105, 29 L.Ed.2d 745 (1971), the District Court held that the presence of the monument in a City park violates the Establishment Clause.⁵ In Lemon, the Supreme Court announced a three-part test for analyzing whether government activity results in a prohibited establishment of religion. Under the Lemon test, government practice is permissible for purposes of Establishment Clause analysis only if (1) it has a secular purpose; (2) its principal or primary effect neither advances nor inhibits religion; and (3) it does not foster an excessive entanglement with religion. Id., 403 U.S. at 612-13, 91 S.Ct. 2105 (citations omitted); Children's Healthcare is a Legal Duty, Inc. v. Min De Parle, 212 F.3d 1084, 1093 (8th Cir.2000), cert. denied, 532 U.S. 957, 121 S.Ct. 1483, 149 L.Ed.2d 372 (2001).

After the Court en banc heard argument in the present case, the United States Supreme Court weighed in on the constitutionality of certain government displays of the Ten Commandments. See Van Orden, ___ U.S. ___, 125 S.Ct. 2854, ___ L.Ed.2d ___; McCreary County v. ACLU, ___ U.S. ___, 125 S.Ct. 2722, ___ L.Ed.2d ___ (2005). In Van Orden, the Court held that the State of Texas did not violate the Establishment Clause when it accepted a Ten Commandments monument from the Eagles (a monument virtually identical to that at issue in this case) and installed the monument on the grounds of the Texas State Capitol. The Ten Commandments monument, along with the other monuments and historical markers, stands on the twenty-two acres surrounding the Texas State Capitol to "commemorat[e] the `people, ideals, and events that compose Texan identity.'" Van Orden, 125 S.Ct. at 2858 (citing Tex. H. Con. Res. 38, 77th Leg. (2001)). In his plurality opinion finding no Establishment Clause violation, Chief Justice Rehnquist (joined by Justices Scalia, Kennedy, and Thomas) acknowledged that the test announced in Lemon occasionally has governed the analysis of Establishment Clause cases over the past twenty-five years, but noted that "the factors identified in Lemon serve as `no more than helpful signposts'" in Establishment Clause analysis. Id. at 2861 (quoting Hunt v. McNair, 413 U.S. 734, 741, 93 S.Ct. 2868, 37 L.Ed.2d 923 (1973)). The Chief Justice went on to cite recent cases in which the Supreme Court did not apply the Lemon test. See, e.g., Zelman v. Simmons-Harris, 536 U.S. 639, 122 S.Ct. 2460, 153 L.Ed.2d 604 (2002); Good News Club v. Milford Cent. Sch., 533 U.S. 98, 121 S.Ct. 2093, 150 L.Ed.2d 151 (2001). Chief Justice Rehnquist ultimately concluded that the Lemon test was "not useful in dealing with the sort of passive monument that Texas has erected on its Capitol grounds." Van Orden, 125 S.Ct. at 2861. Instead, he declared that Establishment Clause analysis in these circumstances was "driven both by the nature of the monument and by our Nation's history." Id. Explicitly recognizing the religious nature and significance of the Ten Commandments, id. at 2863, the Chief Justice distinguished the "passive use" of the Ten Commandments text by the State of Texas from the impermissible use of the text by the State of Kentucky, where copies of the text hung in public-school classrooms and "confronted elementary school students every day," id. at 2864 (distinguishing Stone v. Graham, 449 U.S. 39, 101 S.Ct. 192, 66 L.Ed.2d 199 (1980)). After discussing in some detail our Nation's history insofar as the use of the Ten Commandments and other religious symbols are concerned, id. at 2859-63, Chief Justice Rehnquist—with a fifth vote from Justice Breyer concurring in the judgment—concluded that the State of Texas did not violate the Establishment Clause by its display of the Ten Commandments monument on its Capitol grounds, id. at 2864.

In his opinion concurring in...