Green v. Haskell County Board of Com'Rs

• Decision Date: 30 July 2009
• Docket Number: No. 06-7098.,06-7098.
• Parties: James W. GREEN, an individual; American Civil Liberties Union of Oklahoma, a non-profit corporation, Plaintiffs-Appellants, v. HASKELL COUNTY BOARD OF COMMISSIONERS, also known as Board of County Commissioners of Haskell County, Oklahoma; Kenny Short, in his official capacity as Chairman of the Haskell County Board of Commissioners, Defendants-Appellees, Mainstream Baptist Network; Oklahoma Mainstream Baptists; Americans United for Separation of Church and State; American Center for Law and Justice; The National Legal Foundation; American Legion # 182; and Foundation for Moral Law, Amici Curiae.
• Court: U.S. Court of Appeals — Tenth Circuit

574 F.3d 1235

James W. GREEN, an individual; American Civil Liberties Union of Oklahoma, a non-profit corporation, Plaintiffs-Appellants, v. HASKELL COUNTY BOARD OF COMMISSIONERS, also known as Board of County Commissioners of Haskell County, Oklahoma; Kenny Short, in his official capacity as Chairman of the Haskell County Board of Commissioners, Defendants-Appellees, Mainstream Baptist Network; Oklahoma Mainstream Baptists; Americans United for Separation of Church and State; American Center for Law and Justice; The National Legal Foundation; American Legion # 182; and Foundation for Moral Law, Amici Curiae.

No. 06-7098.

United States Court of Appeals, Tenth Circuit.

July 30, 2009.

Michael C. Salem, Salem Law Office, Norman, OK, Tina L. Izadi, ACLU-of OK. Foundation, Oklahoma City, OK, Daniel Mach, American Civil Liberties Union, Washington, DC, for Plaintiffs-Appellants.

Brently C. Olsson, Oklahoma City, OK, David C. Laplante, Kevin H. Theriot, Alliance Defense Fund, Leawood, KS, for Defendants-Appellees.

Before HENRY, Chief Circuit Judge, TACHA, KELLY, BRISCOE, LUCERO, MURPHY, HARTZ, O'BRIEN, McCONNELL, TYMKOVICH, GORSUCH, and HOLMES, Circuit Judges.

ORDER

Defendants-Appellees' Petition for Rehearing En Banc is denied. A poll was requested. On a vote of six to six of the active members of the Court, rehearing en banc was denied. Fed. R.App. P. 35(a). Judges Tacha, Kelly, O'Brien, McConnell, Tymkovich, and Gorsuch would grant rehearing en banc.

KELLY, Circuit Judge, dissenting from the denial of rehearing en banc, with whom TACHA and TYMKOVICH, Circuit Judges, join.

The court's decision in this case perpetuates a regrettable misapprehension of the Establishment Clause: that recognition of the role of religion in this country's founding, history, traditions, and laws is to be strictly excluded from the civic sphere. The court's analysis misconstrues—and in so doing multiplies the errors inherent in—the Supreme Court's already-questionable "tests"¹ used to analyze passive acknowledgments of religion such as Ten Commandments monuments. The opinion strongly suggests that Ten Commandments displays authorized by small-town commissioners who harbor personal religious beliefs are unconstitutional establishments of religion. Such a conclusion is not only inconsistent with the original meaning of the Establishment Clause,² but is also plainly contrary to the Supreme Court's precedent in Van Orden v. Perry, 545 U.S. 677, 125 S.Ct. 2854, 162 L.Ed.2d 607 (2005).

In accord with our precedent in O'Connor v. Washburn University, 416 F.3d 1216, 1223-24 (10th Cir.2005), the court analyzed the constitutionality of the Ten Commandments display at issue in this case in light of Lemon v. Kurtzman, 403 U.S. 602, 91 S.Ct. 2105, 29 L.Ed.2d 745 (1971), as modified by Justice O'Connor's endorsement analysis. While not advocating that test, I am satisfied, for present purposes, to remain within the Lemon framework despite the plentiful—and meritorious— criticism of it.³ See Lamb's Chapel v. Ctr. Moriches Union Free Sch. Dist., 508 U.S. 384, 398-99, 113 S.Ct. 2141, 124 L.Ed.2d 352 (1993) (Scalia, J., concurring) (collecting criticism of Lemon); County of Allegheny v. ACLU, 492 U.S. 573, 669-76, 109 S.Ct. 3086, 106 L.Ed.2d 472 (1989) (Kennedy, J., concurring in part and dissenting in part) (critiquing the endorsement test); Michael Stokes Paulsen, Lemon Is Dead, 43 Case W. Res. L.Rev. 795, 800-25 (1993). What is troubling, however, is the court's inflexible adherence to Lemon and the endorsement test despite Van Orden, given that Lemon has been rejected by a majority of justices while Justice Breyer's controlling concurrence in Van Orden remains good law. See McCreary County v. ACLU, 545 U.S. 844, 890, 125 S.Ct. 2722, 162 L.Ed.2d 729 (2005) (Scalia, J., dissenting) (recounting criticism of Lemon by various justices); Marks v. United States, 430 U.S. 188, 193, 97 S.Ct. 990, 51 L.Ed.2d 260(1977) (stating that the concurrence on the narrowest grounds controls).

This court's opinion contravenes Van Orden and misconstrues the endorsement analysis by (1) improperly creating a per se rule that new Ten Commandments displays are unconstitutional as long as someone files suit quickly; (2) placing too much emphasis on the fact that this was a small town, thereby making the effect of the Establishment Clause depend on the size of the community; and (3) conducting a subjective analysis rather than an objective analysis. Under a proper application of the Supreme Court's precedent, this Ten Commandments display is constitutional.

I. The Conflict with Van Orden

A. Factual Similarities

The disposition in this case cannot be reconciled with Van Orden, which ought to control given the substantial similarities between the operative facts in the two cases. As in Van Orden, this Ten Commandments display is located outside, on the grounds of a public building—here a county courthouse—along with other secular displays. These displays include a war memorial for World Wars I and II (the largest monument on the lawn); smaller monuments for Vietnam and Korea, the Choctaw Nation, the unmarked graves in Haskell County, and the Classes of 1954 and 1955; as well as a sidewalk composed partly of "personal message bricks" commemorating various individuals and groups. Green v. Bd. of County Comm'rs of County of Haskell, 450 F.Supp.2d 1273, 1274-75 (E.D.Okla.2006), rev'd, 568 F.3d 784 (10th Cir.2009). All of these monuments are within seventy-five feet of each other, and thus can all be considered to be a single group of monuments. Furthermore, the Ten Commandments display was not in the most prominent place on the courthouse lawn.⁴ "The physical setting of the monument," therefore, "suggests little or nothing of the sacred." Van Orden, 545 U.S. at 702, 125 S.Ct. 2854 (Breyer, J., concurring).

The fact that the monument is surrounded by other secular displays is of considerable importance under existing precedent. See id.; County of Allegheny, 492 U.S. at 595-96, 598-600, 616-19, 109 S.Ct. 3086 (plurality opinion); Lynch v. Donnelly, 465 U.S. 668, 692, 104 S.Ct. 1355, 79 L.Ed.2d 604 (1984); O'Connor, 416 F.3d at 1228; cf. ACLU v. City of Plattsmouth, 419 F.3d 772, 779 (8th Cir.2005) (en banc) (Bye, J., dissenting) (noting that the court upheld a display standing alone). And yet, the court dismisses this consideration out-of-hand, reasoning that the collection is less cohesive, integrated, and artistic than the collection in Van Orden. Green, 568 F.3d at 805-06. How an aesthetic critique of the monuments distinguishes this case in any meaningful way from Van Orden is puzzling. Federal courts do not sit as landscape architects or arbiters of style to decide whether small-town commissioners have sufficiently sophisticated taste.

The court protests, perhaps too much, that the critical factor here is not mere aesthetics, but rather the failure to have a "unifying, cohesive secular theme." Id. at 806 n. 16. That, too, is in the eye of the beholder; as I suggest below, the collection of monuments does have a theme— celebration of Haskell County's history and moral ideals. The display of monuments does not have to be comprehensive; it is enough that the display celebrates a selection of events, people, and ideals that mark and measure the lives of Haskell County's citizens. Moreover, the court's opinion has created a catch-22: the commissioners could either exercise direct control over the creation of monuments (rendering the message more likely to be identified with the government), or they could take a hands-off, neutral approach (creating the possibility of a disunified theme). Either way, under the court's opinion, the commissioners lose. Accordingly, we should not rely on such an easily manipulated rationale as "cohesiveness" to distinguish this case from Van Orden.

The only legally relevant consideration is whether there are sufficient other monuments such that, taken as a whole, the display conveys a secular moral and historical message. See Van Orden, 545 U.S. at 701, 125 S.Ct. 2854 (Breyer, J., concurring) ("In certain contexts, a display of the tablets of the Ten Commandments can convey not simply a religious message but also a secular moral ... [a]nd ... historical message."); see also Pleasant Grove City v. Summum, ___ U.S. ___, 129 S.Ct. 1125, 1140, 172 L.Ed.2d 853 (2009) (Scalia, J., concurring) (engaging in a Van Orden inquiry and noting the presence of fifteen permanent displays without inquiring as to their "integration" or aesthetic quality). This display most certainly does so—after all, the monument sits with other monuments celebrating Haskell County's history and honoring (among others) those who have made the moral sacrifice of giving their lives for the rights and liberties we hold dear. The setting clearly establishes that the monument exists in a "context of history and moral ideals." Van Orden, 545 U.S. at 701, 125 S.Ct. 2854 (Breyer, J., concurring).

Moreover, the message conveyed by the collection of monuments is reemphasized by the display itself, as the monument contains not only the Ten Commandments, but also the Mayflower Compact. Green, 450 F.Supp.2d at 1276. Until the court's opinion suggested otherwise, Green, 568 F.3d at 807-08, who would have suspected that the Mayflower Compact primarily contributes to a religious message by being paired with the Ten Commandments? At the risk of stating the obvious, the Compact pertains to the founding of our country (which is of some historical significance), and nothing suggests that the Compact's religious aspects were meant to predominate. If anything, the Compact demonstrates that the historical aspect of the Ten Commandments predominated. In any event, it is clear that the monument is "part of a display that communicates not simply a religious message, but a secular message as well." Van Orden, 545 U.S. at 701, 125 S.Ct. 2854 (Breyer, J., concurring).

The setting of the monument...