American Civil Lib. Union v. Mercer County, Ky, Civ.A. 01-480-KSF.

CourtUnited States District Courts. 6th Circuit. United States District Court of Eastern District of Kentucky
Writing for the CourtForester
Citation219 F.Supp.2d 777
Decision Date06 September 2002
Docket NumberNo. Civ.A. 01-480-KSF.,Civ.A. 01-480-KSF.
PartiesAMERICAN CIVIL LIBERTIES UNION OF KENTUCKY & Bart McQueary, Plaintiffs, v. MERCER COUNTY, KENTUCKY & Charles H. McGinnis, Defendants.
219 F.Supp.2d 777
MERCER COUNTY, KENTUCKY & Charles H. McGinnis, Defendants.
No. Civ.A. 01-480-KSF.
United States District Court, E.D. Kentucky, Lexington.
September 6, 2002.

Page 778

Everett C. Hoffman, Segal, Stewart, Cutler, Lindsay, Janes & Berry, PLLC, David A. Friedman, American Civil Liberties Union of Kentucky, Caroline L. Laurie Griffith, Louisville, KY, for plaintiffs.

Mathew D. Staver, Erik W. Stanley, Liberty Counsel, Longwood, FL, Francis J. Manion, American Center for Law & Justice, New Hope, KY, for defendants.

Page 779


FORESTER, Chief Judge.

This matter is before the Court upon the following motions: plaintiffs' motion for a preliminary injunction [DE # 2] and defendants' motion for summary judgment [DE # 6]. These motions are ripe for review. The Court heard oral argument on the above motions August 22, 2002, at which time the parties were given the opportunity to present testimony. Neither the plaintiffs nor the defendants presented testimony. The Court rendered a summary opinion from the Bench on August 22, 2002, based upon the briefs submitted and the oral argument. This written Opinion elaborates upon the August 22 decision, providing more extensive analysis of the Court's reasoning.


The plaintiffs, both Mercer County resident Bart McQueary and the American Civil Liberties Union (hereinafter "ACLU"), seek declaratory and injunctive relief under 42 U.S.C. § 1983, alleging that a display in the Mercer County Courthouse violates the Establishment Clause of the First Amendment. The plaintiffs request a declaration that the display is unconstitutional and request the Court to issue both preliminary and permanent injunctions against the display. Both Mercer County, Kentucky, and Charles H. McGinnis, in his official capacity as Mercer County Judge Executive, are defendants.

The plaintiffs allege that displayed on a wall of the Mercer County courthouse is a framed copy of one version of the Ten Commandments that is not part of any larger educational or comparative religion display. The ACLU further states that its Mercer County members use the courthouse to transact civic business and that each plaintiff believes in the separation of church and state and the freedom of religion and is offended by the display.

In October, 2001, the Mercer Fiscal Court gave permission to Mr. Carroll Rousey, a county resident, to hang a display entitled "Foundations of American Law and Government" in the County Courthouse. McGinnis Affidavit, ¶ 13. This display was paid for, framed, and hung by Mr. Rousey. Id. at ¶ 4. Rousey informed the Fiscal Court that the Kentucky General Assembly had recently passed a resolution authorizing the inclusion of the Ten Commandments in displays of formative, historical documents on government property. Id. at ¶ 5. The display includes: the Mayflower Compact; the Declaration of Independence; the Ten Commandments; the Magna Carta (in two frames); the Star Spangled Banner; the National Motto "In God We Trust;" the Preamble to the Kentucky Constitution; the Bill of Rights; and Lady Justice. Id. at ¶ 15.

The display also includes a commentary page explaining the historical significance of each of the nine items contained therein. Id. at ¶ 3. The explanation for the Ten Commandments is as follows:

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.

Id. at ¶ 3.

As the photos attached to the McGinnis affidavit indicate, each frame in the display

Page 780

is the same size and no one item is displayed more prominently than the other.

The Mercer Fiscal Court gave permission for the display as part of its authority over the decoration of public property owned by the County. Id. at ¶ 7. The stated purpose for the display is that "all of the documents, including the Ten Commandments, have played a role in the formation of our system of law and government." Id. at ¶ 7 (emphasis added). The Fiscal Court viewed the display as being consistent with the County's tradition of celebrating history, for example, as the first permanent settlement west of the Allegheny Mountains. Id. at ¶ 6. Judge McGinnis and the Fiscal Court specifically disclaim any intent to endorse or promote religion and reaffirm Mercer County's commitment to the free exercise of religion. Id. at ¶ 9.




1. McQueary's injury in fact

As a preliminary matter, the defendants argue that plaintiff McQueary's alleged injury does not present a "case or controversy" sufficient to confer jurisdiction upon this Court pursuant to Article III of the Constitution. There are generally two views on the degree of alleged injury necessary to confer standing in the Establishment Clause context. The stricter view requires plaintiffs to allege altered behavior in an effort to avoid contact with a religious symbol. See, e.g., Freedom From Religion Found. v. Zielke, 845 F.2d 1463 (7th Cir.1988). The more lenient view taken by the Sixth Circuit does not require allegations that the plaintiff avoids contact with the display; instead, mere allegations by the plaintiff of direct and unwelcome personal contact with the religious symbol on government property are sufficient. See, e.g., Hawley v. City of Cleveland, 773 F.2d 736 (6th Cir.1985) cert. denied, 475 U.S. 1047, 106 S.Ct. 1266, 89 L.Ed.2d 575 (1986); Washegesic v. Bloomingdale Public Schools, 33 F.3d 679 (6th Cir.1994), cert. denied, 514 U.S. 1095, 115 S.Ct. 1822, 131 L.Ed.2d 744 (1995).

The defendants argue that the plaintiffs have alleged "boilerplate" standing and challenge whether McQueary or any other ACLU member has actually seen the display, relying on Valley Forge Christian College v. Americans United for Separation of Church and State, Inc., 454 U.S. 464, 485, 102 S.Ct. 752, 70 L.Ed.2d 700 (1982) (rejecting standing where the plaintiff alleges no injury beyond the "psychological consequence presumably produced by observation of conduct with which one disagrees"). Here, it is undisputed that plaintiff McQueary will be directly and repeatedly subjected to an unwelcome Ten Commandments display located in the county courthouse, where he conducts civic business such as renewing driver's licenses and paying his taxes. See Verified Complaint, ¶¶ 13-14.

The defendants are correct that the Supreme Court has held "the Establishment Clause does not provide a special license [for plaintiffs] to roam the country in search of governmental wrongdoing and to reveal their discoveries in federal court. The federal courts were simply not constituted as ombudsmen of the general welfare." Id. at 487, 102 S.Ct. 752. However, this Court must follow the Sixth Circuit standing analysis as set forth above in Hawley and Washegesic, taking a more expansive approach than that explicitly recognized in Valley Forge. The defendants' attempt to distinguish the Sixth Circuit precedent by arguing that the plaintiff's contact here is remote and not as frequent as the plaintiff in Washegesic who

Page 781

had "continuing direct contact with the object at issue." Washegesic, 33 F.3d at 683. However, McQueary has averred that he has routine contact with the local courthouse in order to conduct his civic business and this contact and reasonable likelihood of future contact constitutes sufficient injury in fact for standing pursuant to prevailing Sixth Circuit precedent.

2. ACLU's injury in fact

The ACLU has standing as an association as long as at least one of its members has standing. See, e.g., Warth v. Seldin, 422 U.S. 490, 511, 95 S.Ct. 2197, 45 L.Ed.2d 343 (1975) ("Even in the absence of injury to itself, an association may have standing solely as the representative of its members.... The association must allege that its members, or any one of them, are suffering immediate or threatened injury as a result of the challenged action....") (citations omitted) (emphasis added).

It is undisputed that McQueary is an ACLU member living in Mercer County. As stated above, McQueary has alleged a sufficient injury in fact for standing. Consequently, the ACLU has standing derived from McQueary, its member.


At this stage, only the motion for preliminary injunction is before the Court. A preliminary injunction is an extraordinary remedy intended to preserve the status quo until the merits of a case may be resolved. The Court must balance the four familiar factors when determining whether to issue a preliminary injunction in this Establishment Clause challenge: (1) the likelihood of success on the merits; (2) whether the plaintiff could suffer irreparable harm without the injunction; (3) whether granting the injunction will cause substantial harm to others; and (4) the impact the injunction will have on the public interest. See, e.g., Deja Vu of Nashville, Inc. v. Metro. Gov't of Nashville & Davidson County, Tenn., 274 F.3d 377, 400 (6th Cir.2001), cert. denied, ___ U.S. ___, 122 S.Ct. 1952, 152 L.Ed.2d 855 (2002) (citing Dixie Fuel Co. v. Comm'r of Social Sec., 171 F.3d 1052, 1059-60 (6th Cir.1999)); Connection Distrib. Co. v. Reno, 154 F.3d 281, 288 (6th Cir.1998) (citing Golden v. Kelsey-Hayes Co., 73 F.3d 648, 653 (6th Cir.1996), cert. denied, 519 U.S. 807, 117 S.Ct. 49, 136 L.Ed.2d 13 (1996)).

As both parties acknowledge, in a First Amendment case, "the likelihood of success on the...

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