Aclu of Ohio Foundation, Inc. v. Ashbrook

• Decision Date: 14 July 2004
• Docket Number: No. 02-3667.,02-3667.
• Citation: 375 F.3d 484
• Parties: AMERICAN CIVIL LIBERTIES UNION OF OHIO FOUNDATION, INC., Plaintiff-Appellee, v. Robert ASHBROOK, Sued Here in His Official Capacity as Richland County Commissioner, Defendant, James DeWeese, Hon., Sued Here in His Official Capacity as a Judge of the Richland County Court of Common Pleas, Defendant-Appellant.
• Court: U.S. Court of Appeals — Sixth Circuit

375 F.3d 484

AMERICAN CIVIL LIBERTIES UNION OF OHIO FOUNDATION, INC., Plaintiff-Appellee, v. Robert ASHBROOK, Sued Here in His Official Capacity as Richland County Commissioner, Defendant, James DeWeese, Hon., Sued Here in His Official Capacity as a Judge of the Richland County Court of Common Pleas, Defendant-Appellant.

No. 02-3667.

United States Court of Appeals, Sixth Circuit.

Argued October 31, 2003.

Decided and Filed July 14, 2004.

Rehearing En Banc Denied September 17, 2004.

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Scott T. Greenwood, Greenwood & Associates, Cincinnati, OH, Raymond Vasvari (argued and briefed), American Civil Liberties Union of Ohio Foundation, Cleveland, OH, for Plaintiff-Appellee.

Francis J. Manion (argued and briefed), American Center for Law and Justice, New Hope, KY, for Defendants-Appellants.

David R. Langdon (briefed), Law Office of David R. Langdon, Cincinnati, OH, for Amicus Curiae.

Before: BATCHELDER and COLE, Circuit Judges; HOOD, District Judge.^*

HOOD, D.J., delivered the opinion of the court, in which COLE, J., joined. BATCHELDER, J. (pp. 495-508), delivered a separate dissenting opinion.

OPINION

HOOD, District Judge.

Defendant, a judge in the General Division of the Court of Common Pleas in Richland County, Ohio, appeals the district court's order granting Plaintiff's motion for partial summary judgment and denying summary judgment for Defendant on the issue of whether his courtroom display of the Ten Commandments violated the Establishment Clause of the First Amendment. For the reasons set forth below, we AFFIRM the decision of the district court.

I. BACKGROUND

In July 2000, James DeWeese, the elected judge of the General Division of the Court of Common Pleas in Richland County, Ohio, hung a poster of the Ten Commandments in a gilded frame on the wall of his courtroom, Courtroom Number One. The poster hung on a side wall of the courtroom, near the front of the audience section. Directly opposite and across the gallery from the poster of the Ten Commandments, he hung a similarly styled and framed poster of the Bill of Rights.

DeWeese had created both of these posters on his computer and had them enlarged and framed at a local framing store, all at his personal expense. The style of the posters is identical. At the top, in the largest size print on the page, are the words "the rule of law." Next, in smaller-sized and all-capital typeface, one poster bears the words "THE TEN COMMANDMENTS." In identical typeface, the other poster bears the words "BILL OF RIGHTS." Finally, each poster contains the text of the relevant documents.¹ No captions or plaques accompany these posters to describe or explain their purpose or to tie either of the posters together into a unified display with one another or any other items displayed in the courtroom or in the vicinity of the courtroom.

Also in the courtroom are three posters featuring portraits of and quotations from Thomas Jefferson, James Madison, and Alexander Hamilton concerning the virtues of the jury trial system. The posters were hung on the rear wall of the courtroom in 1993. Above the jury box hangs a portrait of Abraham Lincoln already present in the courtroom when DeWeese came onto the bench in 1991. On the front wall hangs the seal and the motto of the State of Ohio, "With God All Things Are Possible." These items were placed in the courtroom in 1991 or 1992.

DeWeese's courtroom is located on the third floor of the Richland County Courthouse and shares a lobby area with the three other courtrooms located on that floor. On the third floor, there are also several elevators, stairwells, offices, and restrooms. There are two displays in the lobby area. The first, the "Freedom Shrine," is a display of twenty-nine reproductions of historical documents arranged and donated by the National Exchange Club. The historical documents include the Mayflower Compact, presidential inaugural speeches, and the text of the "Star Spangled Banner," and were chosen to memorialize the founding of the country and subsequent moments of historical import. The display was hung sometime in the 1980s. There is also a separate poster containing the portraits of nine historical figures and quotations regarding the history of the jury system.

Plaintiff-Appellee American Civil Liberties Union of Ohio Foundation, Inc. ("ACLU-Ohio"), brought this action on behalf of members in Richland County, Ohio, against DeWeese and the Commissioners of Richland County, Ohio, all in their official capacities.² ACLU-Ohio asserted that the hanging and continued display of the Ten Commandments violated the Establishment Clause of the First Amendment to the United States Constitution and Article I, § 7, of the Ohio Constitution. ACLU-Ohio requested a permanent injunction and order directing removal of the Ten Commandments poster. The district court granted ACLU-Ohio's motion for partial summary judgment against DeWeese, denied Defendants' cross-motion for summary judgment, and ordered DeWeese to remove the poster immediately. This appeal followed.

II. STANDARD OF REVIEW

We review district court orders granting summary judgment de novo. Black v. Roadway Express, Inc., 297 F.3d 445, 448 (6th Cir.2002). More to the point, it is taught that:

... in reviewing a district court's grant of a permanent injunction, we review the district court's conclusions of law and its findings of constitutional, or ultimate, facts de novo. See Grutter v. Bollinger, 288 F.3d 732, 743 (6th Cir.2002). We review the district court's findings of subsidiary facts for clear error. Deja Vu v. Metro. Gov't of Nashville, 274 F.3d 377, 389 (6th Cir.2001).

Adland v. Russ, 307 F.3d 471, 477 (6th Cir.2002).

III. DISCUSSION

A. STANDING

Standing to sue requires an individual to demonstrate (1) actual or threatened injury which is (2) fairly traceable to the challenged action and (3) a substantial likelihood the relief requested will redress or prevent the plaintiff's injury. Adland, 307 F.3d at 477-78. A voluntary membership organization has standing to sue on behalf of its members "when (a) its members otherwise have standing to sue in their own right; (b) the interests it seeks to protect are germane to the organization's purpose; and (c) neither the claim asserted nor the relief requested requires participation of individual members in the lawsuit." Hunt v. Washington State Apple Adver. Comm., 432 U.S. 333, 343, 97 S.Ct. 2434, 53 L.Ed.2d 383 (1977); Adland, 307 F.3d at 478. Thus, in Adland, the court found standing where individual plaintiffs frequently traveled to the Kentucky State Capitol to engage in political advocacy for a variety of organizations and would endure direct and unwelcome contact as a result of legislation proposing erection of a proposed Ten Commandments monument there.³ Adland, 307 F.3d at 478. Standing for their co-Plaintiff, the American Civil Liberties Union, a voluntary membership organization, followed from their own standing under the test set out above. Id. at 478-79.

ACLU-Ohio has identified member Bernard Davis, a lawyer who travels to and must practice law within DeWeese's courtroom from time to time. There, Davis has and would continue to come into direct, unwelcome contact with the Ten Commandments display, the removal of which would, no doubt, prevent further injury to him. The interest protected by this challenge on his behalf is, no doubt, germane to the ACLU-Ohio's stated purpose, the preservation of the constitutional separation of church and state. The declaratory and injunctive relief and attorneys fees sought in this matter would not require the direct participation of any ACLU-Ohio member. It follows that the ACLU-Ohio has standing to assert the instant challenge to DeWeese's display.

B. THE LEMON TEST

The Establishment Clause of the First Amendment, made applicable to the states by the Fourteenth Amendment, states that "Congress shall make no law respecting an establishment of religion." U.S. Const., amend. I; Everson v. Bd. of Educ., 330 U.S. 1, 8, 67 S.Ct. 504, 91 L.Ed. 711 (1947). Thus, "[t]he Establishment Clause ... prohibits government from appearing to take a position on questions of religious beliefs or from `making adherence to a religion relevant in any way to a person's standing in the political community.'"⁴ County of Allegheny v. Am. Civil Liberties Union, 492 U.S. 573, 593-94, 109 S.Ct. 3086, 106 L.Ed.2d 472 (1989) (quoting Lynch v. Donnelly, 465 U.S. 668, 104 S.Ct. 1355, 79 L.Ed.2d 604 (1984)), quoted in American Civil Liberties Union of Kentucky v. McCreary County, Kentucky, 354 F.3d 438, 445 (6th Cir.2003). To determine whether a particular action by the government violates the Establishment Clause, we apply the test set forth in Lemon v. Kurtzman, asking (1) whether the challenged government action has secular purpose, (2) whether the action's primary effect advances or inhibits religion, and (3) whether the action fosters an excessive entanglement with religion.⁵ Lemon v. Kurtzman, 403 U.S. 602, 612-13, 91 S.Ct. 2105, 29 L.Ed.2d 745 (1971); Adland, 307 F.3d at 479.

1. PURPOSE

"Although a government's stated purposes for a challenged action are to be given some deference, it remains the task of the reviewing court to `distinguis[h] a sham secular purpose from a sincere one.'" McCreary County, 354 F.3d at 446 (quoting Santa Fe Indep. Sch. Dist. v. Doe, 530 U.S. 290, 308, 120 S.Ct. 2266, 147 L.Ed.2d 295 (2000)). Thus, a plaintiff must show that the predominate purpose for a challenged display is religious, although a totally secular purpose is not required. Id. (citing Adland, 307 F.3d at 480). At the end of the day, the display must not constitute a "purposeful or surreptitious effort to express some kind of subtle governmental advocacy of a particular religious message." Id. (quoting Lynch, 465 U.S. at 680, 104 S.Ct. 1355).

"The Ten Commandments are undeniably a sacred text in the Jewish and Christian faiths, and...