Am. Civil Liberties Union Of Ky. v. Mccreary County

• Decision Date: 09 June 2010
• Docket Number: No. 08-6069.,08-6069.
• Citation: 607 F.3d 439
• Parties: AMERICAN CIVIL LIBERTIES UNION OF KENTUCKY; Louanne Walker; David Howe; Sarah Doe and Thomas Doe, on behalf of themselves and their minor child, Jane Doe; Lawrence Durham; Paul Lee, Plaintiffs-Appellees,v.McCREARY COUNTY, KENTUCKY; Pulaski County, Kentucky, Defendants-Appellants.
• Court: U.S. Court of Appeals — Sixth Circuit

607 F.3d 439

AMERICAN CIVIL LIBERTIES UNION OF KENTUCKY; Louanne Walker; David Howe; Sarah Doe and Thomas Doe, on behalf of themselves and their minor child, Jane Doe; Lawrence Durham; Paul Lee, Plaintiffs-Appellees,v.McCREARY COUNTY, KENTUCKY; Pulaski County, Kentucky, Defendants-Appellants.

No. 08-6069.

United States Court of Appeals, Sixth Circuit.

Argued: Oct. 20, 2009.

Decided and Filed: June 9, 2010.

Rehearing and Rehearing En Banc Denied July 29, 2010.^*

COPYRIGHT MATERIAL OMITTED

ARGUED: Mathew D. Staver, Liberty Counsel, Orlando, Florida, for Appellants. David A. Friedman, American Civil Liberties Union of Kentucky, Louisville, Kentucky, for Appellees. ON BRIEF: Mathew D. Staver, Liberty Counsel, Orlando, Florida, Stephen M. Crampton, Mary E. McAlister, Liberty Counsel, Lynchburg, Virginia, for Appellants. David A. Friedman, William E. Sharp, American Civil Liberties Union of Kentucky, Louisville, Kentucky, for Appellees. John A. Eidsmoe, Foundation for Moral Law, Montgomery, Alabama, for Amicus Curiae.

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

CLAY, J., delivered the opinion of the court. GIBBONS, J. (pp. 451-52), delivered a separate concurring opinion. RYAN, J. (p. 452), delivered a separate dissenting opinion.

OPINION

CLAY, Circuit Judge.

Defendants, McCreary County, Kentucky, Pulaski County, Kentucky, and officials from these counties, appeal from the district court order granting Plaintiffs' motion to alter or amend judgment, granting a permanent injunction prohibiting Defendants from displaying the three contested Ten Commandments displays, and construing Defendants' renewed motion for summary judgment as one for relief from final judgment. For the reasons set forth below, we AFFIRM the district court's order.

BACKGROUND

In 1999, McCreary County and Pulaski County, Kentucky erected displays consisting of framed copies of the Ten Commandments in their county courthouses.¹ In response, Plaintiffs filed lawsuits, seeking preliminary injunctions that would require the removal of the displays based on violations of the Establishment Clause of the First Amendment.²

Shortly after the complaint was filed and prior to a ruling in the district court on Plaintiffs' request for a preliminary injunction, Defendants altered their displays “in an attempt to bring the display[s] within the parameters of the First Amendment and to insulate themselves from suit.” ACLU of Ky. v. McCreary County, Ky., 96 F.Supp.2d 679, 684 (E.D.Ky.2000) (“ McCreary I ”). The second set of displays posted in the courthouses included large copies of the Ten Commandments along with smaller copies of eight other documents, which were religious in nature.

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.

McCreary III, 354 F.3d at 442. Defendants also passed new resolutions authorizing the second set of displays (“the 1999 resolutions”), which emphasized the importance of religion in historical documents of the United States and encouraged the County-Judge Executive to “post the Ten Commandments as the precedent legal code upon which the civil and criminal codes of the Commonwealth of Kentucky are founded.” (Dist. Ct. R.E. 119 Ex. B). On May 5, 2000, the district court granted Plaintiffs' motion for a preliminary injunction, ordering that Defendants remove the second displays “immediately” and not erect “similar displays” in the future. McCreary I, 96 F.Supp.2d at 691.

In response to the district court's ruling, the counties removed the second set of displays, voluntarily dismissed an appeal from the initial preliminary injunction, and posted a third set of displays entitled the Foundations of Law and Government Displays (“Foundations Displays”). The third displays contained nine documents of equal size, including the Ten Commandments, along with one page of explanatory phrases to accompany each of the nine other documents. Specifically,

[t]he new courthouse displays consisted of the entire Star Spangled Banner, the Declaration of Independence, the Mayflower Compact, the Bill of Rights, the Magna Carta, the National Motto, the Preamble to the Kentucky Constitution, the Ten Commandments, Lady Justice and a one-page prefatory document entitled “The Foundations of American Law and Government Display.” ... The prefatory description states that the “display contains documents that played a significant role in the foundation of our system of law and government.” ... With regard to the Ten Commandments, the prefatory description states:

The Ten Commandments have profoundly influenced the formation of Western legal thought and the formation of our country. That influence is clearly seen in the Declaration of Independence, which declared that, “We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty, and the pursuit of Happiness.” The Ten Commandments provide the moral background of the Declaration of Independence and the foundation of our legal tradition.

There is no other discussion of the Ten Commandments and how it purportedly relates to any of the other documents in the display.

McCreary III, 354 F.3d at 443. At the time the Foundations Displays were erected, the counties did not repeal the 1999 resolutions, which were passed just months earlier, or pass new resolutions authorizing the third displays. On June 22, 2001, the district court granted Plaintiffs' motion for a supplemental preliminary injunction to include the third displays. On December 18, 2003, this Court affirmed.

On October 12, 2004, the Supreme Court granted Defendants' petition for certiorari.³ On March 8 and March 10, 2005, after oral argument but before the Supreme Court issued a decision, the counties passed new resolutions (“the 2005 resolutions”), which repealed and repudiated the 1999 resolutions authorizing the second displays. On June 27, 2005, the Supreme Court upheld the preliminary injunction on the basis that Defendants exhibited an unconstitutional religious purpose in posting the Foundations Displays. The Supreme Court viewed the repeal of the 1999 resolutions as “acts of obviously minimal significance in the evolution of the evidence.” McCreary IV, 545 U.S. at 872 n. 19.

After the Supreme Court issued its opinion, the case returned to the district court for further proceedings. The district court entered a scheduling order containing among other things, discovery and dispositive motion deadlines. After discovery closed, both sides submitted motions for summary judgment. Between the Supreme Court decision in June of 2005 and the filing of the motions for summary judgment in January and February of 2007, the parties merely conducted discovery as to the factual details and motivation for the sequence of the displays. Defendants made no changes to the Foundation Displays, nor did they pass any new resolutions concerning the purpose of the displays.

On September 28, 2007, the district court denied both Plaintiffs' and Defendants' motions for summary judgment. In denying Plaintiffs' motion for a permanent injunction against the Foundation Displays, the district court held that the constitutional violation is not “continuing” as required by the standard for a permanent injunction because “it is possible to purge the taint of the impermissible religious purpose.” (Dist. Ct. R.E. 153 at 10). However, the district court also denied Defendants' motion for summary judgment, holding that the counties had not taken any actions since the Supreme Court decision that showed a change in their predominantly religious purpose; thus, Defendants' actions in posting the Foundations Displays continued to violate the Establishment Clause. Despite the district court's holding that neither Plaintiffs nor Defendants were entitled to judgment as a matter of law, the court also found that no triable issues of fact remained and referred the case to the magistrate judge for a settlement conference.

On October 9, 2007, in response to the district court's finding that Defendants continued to violate the Establishment Clause, Defendants enacted new resolutions regarding the Foundations Displays (“the 2007 resolutions”). The 2007 resolutions stated the educational and historical purpose of the Foundations Displays and expressly disclaimed any attempt to endorse religion. On October 15, 2007, Plaintiffs filed a timely motion under Federal Rules of Civil Procedure 59 and 60 to alter or amend the court's September 28, 2007 judgment denying Plaintiffs' motion for summary judgment. On October 30, 2007, Defendants filed a renewed motion for summary judgment in light of the 2007 resolutions. Plaintiffs moved to strike Defendants' renewed motion on November 19, 2007, because Defendants had filed the motion more than one year after the dispositive motion deadline and had attempted to admit new evidence more than one year after the close of discovery.

On August 4, 2008, the district court: (1) granted Plaintiffs' motion to alter or amend judgment, (2) denied Plaintiffs' motion to strike Defendants' motion for summary judgment and directed Plaintiffs to file a response, and (3) construed Defendants' motion for summary judgment as one of relief...