American Civil Liberties Union v. Hamilton County

• Decision Date: 03 May 2002
• Docket Number: No. 1:02-CV-026.,1:02-CV-026.
• Parties: AMERICAN CIVIL LIBERTIES UNION OF TENNESSEE; Thomas E. Bibler and Nancy A. Bibler; Josef A. Davidson; C. Brad Guagnini; Roland Johnson, Jr.; William David Jones; Tracy Knauss and Donna Knauss; John W. Mingus, Sr.; Philip M. Posner; Robert H. Siskin and Priscilla Siskin; and Melanie Morel Sullivan, Plaintiffs, v. HAMILTON COUNTY, TENNESSEE; the County Commission of Hamilton County and Fred R. Skillern, Richard Casavant, Charlotte E. Vandergriff, William R. Cotton, Jr., Joanne H. Favors, Ben F. Miller, Jr., Harold R. Coker, Curtis D. Adams, and Bill Hullander, in their official capacities as County Commissioners of Hamilton County, Tennessee, Defendants.
• Court: U.S. District Court — Eastern District of Tennessee

202 F.Supp.2d 757

AMERICAN CIVIL LIBERTIES UNION OF TENNESSEE; Thomas E. Bibler and Nancy A. Bibler; Josef A. Davidson; C. Brad Guagnini; Roland Johnson, Jr.; William David Jones; Tracy Knauss and Donna Knauss; John W. Mingus, Sr.; Philip M. Posner; Robert H. Siskin and Priscilla Siskin; and Melanie Morel Sullivan, Plaintiffs, v. HAMILTON COUNTY, TENNESSEE; the County Commission of Hamilton County and Fred R. Skillern, Richard Casavant, Charlotte E. Vandergriff, William R. Cotton, Jr., Joanne H. Favors, Ben F. Miller, Jr., Harold R. Coker, Curtis D. Adams, and Bill Hullander, in their official capacities as County Commissioners of Hamilton County, Tennessee, Defendants.

No. 1:02-CV-026.

United States District Court, E.D. Tennessee, at Chattanooga.

May 3, 2002.

COPYRIGHT MATERIAL OMITTED

Hubert E. Hamilton, III, Chattanooga, TN, Susan L. Kay, Aclu of Tennessee, Nashville, TN, for Plaintiffs.

Rheubin M. Taylor, Hamilton County Attorney, Chattanooga, TN, R. Wayne Peters and Sam Elliott, Chattanooga, TN, for Defendants.

MEMORANDUM OPINION

EDGAR, Chief Judge.

I. Background

On September 19, 2001, the Hamilton County, Tennessee, County Commission (herein sometimes called the "Commission") voted, with one recorded dissent, that a copy of the Ten Commandments be "prominently displayed in the Hamilton County Courthouse, the Hamilton County City Courts Building, and the Juvenile Courts." On December 18, 2001, plaques containing the Ten Commandments were posted in all three buildings. The plaques differ slightly in size and color. However each plaque contains the following rendering of the Ten Commandments:

THE TEN COMMANDMENTS

NOTE: OPINION CONTAINING TABLE OR OTHER DATA THAT IS NOT VIEWABLE

This text is derived from the King James Version of the Bible, but was edited by the Hamilton County Attorney in consultation with the County's architect.

The plaque in the Hamilton County Courthouse is displayed in the foyer of the former main entrance, which was closed by the County for security reasons prior to December 18, 2001. While the entrance is closed, the area is fully accessible from the inside of the building. This plaque hangs on the wall alone. On an opposite wall hangs a photograph of a prior courthouse, a dedicatory plaque bearing the names of local officials, and a plaque inscribed with the Gettysburg Address. On an adjoining wall is a plaque honoring the father of a former County Executive. The plaques in the other buildings hang alone in the lobbies and are clearly visible from the main entrances to those buildings.

The plaintiffs are the American Civil Liberties Union of Tennessee ("A.C.L.U.") and a number of Hamilton County citizens. They bring this suit against Hamilton County and the members of the Hamilton County Commission in their official capacity for declaratory and injunctive relief under 42 U.S.C. § 1983. Plaintiffs also seek to recover attorney fees under 42 U.S.C. § 1988, as well as court costs. They seek a determination that the defendants have violated their rights under the Establishment Clause of the First Amendment to the United States Constitution. This case came before the Court on April 29, 2002, for a bench trial. For the reasons set forth in this memorandum opinion, judgment will be entered for some of the plaintiffs.

II. Standing

Plaintiff Tracy Knauss visits the Hamilton County Courthouse each year to personally pay his property taxes. His last visit for this purpose was February 28, 2002. On that date the Ten Commandments hung on a wall very near the location where such taxes are paid. Plaintiff Rabbi Philip M. Posner encountered the Ten Commandments while in the Hamilton County Courthouse as a participant in legal proceedings. He is an A.C.L.U. member. Plaintiff Knauss is engaged in ongoing litigation in the Hamilton County City Courts Building. He walks past the Ten Commandments as he enters the building.

Some of the other plaintiffs have, and will continue to do such business in the Hamilton County Courthouse as the purchasing of automobile license tags. The clergy plaintiffs visit the courthouses with their parishioners and congregation members as required. One plaintiff, Thomas Bibler, a college professor, occasionally visits the Hamilton County Courthouse and the Hamilton County City Courts Building with his students. However, other than plaintiffs Knauss and Posner, there is no evidence that any of the other individual plaintiffs have endured unwelcome contact with the Ten Commandment displays while conducting normal activities in Hamilton County courthouses.

In a public facility case such as this, individual plaintiffs have standing if they use the facility and suffer "actual injury." Washegesic v. Bloomingdale Pub. Sch., 33 F.3d 679, 682 (6th Cir.1994). Unwelcome direct contact with the Ten Commandments plaques gives rise to sufficient injury to create standing for individuals, and thereby a "case or controversy" under Article III of the Constitution of the United States. Id. at 682-83. Plaintiffs Knauss and Posner have suffered unwelcome direct contact with the Ten Commandments display in the Hamilton County Courthouse. Therefore, each of them has standing to challenge the posting in that courthouse. Plaintiff Knauss has confronted the display in the Hamilton County City Courts building. He has standing to challenge the display in that building. However, since there is nothing in this record to indicate that these, or any of the named plaintiffs, has confronted the plaque in the Juvenile Courts Building (except on a special trip to see and photograph the Ten Commandment plaque), they do not have standing to challenge the posting of the Ten Commandments in that building.

The A.C.L.U. has 131 members in Hamilton County. Some of those members are the individual plaintiffs in this suit. The A.C.L.U. has standing as an organization to address the Ten Commandments display in the Hamilton County Courthouse because one of its members, Rabbi Posner, has standing to sue in his own right; the specific interest (in this case the protection of constitutional rights) which the A.C.L.U. seeks to protect is germane to its purpose; and neither the legal claim asserted nor the relief sought requires the participation of the A.C.L.U.'s individual members. Friends of the Earth, Inc. v. Laidlaw Envtl. Servs., Inc., 528 U.S. 167, 181, 120 S.Ct. 693, 145 L.Ed.2d 610 (2000); Hunt v. Washington State Apple Adver. Comm'n, 432 U.S. 333, 342-43, 97 S.Ct. 2434, 53 L.Ed.2d 383 (1977); Mixon v. Ohio, 193 F.3d 389, 393 n. 1 (6th Cir.1999). However, since there is no evidence that any A.C.L.U. members have standing with respect to the plaques in the Hamilton County City Courts Building and the Juvenile Courts Building, the A.C.L.U. lacks standing to challenge the posted plaques in those buildings. In sum, plaintiffs Knauss, Posner and the A.C.L.U. collectively have standing to challenge the Ten Commandments displays in the Hamilton County Courthouse, and the Hamilton County City Courts Building, but not the Juvenile Courts Building.

III. Establishment Clause

The First Amendment to the United States Constitution declares, in part, that: "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof ...." These limitations on the legislative power of Congress are applied to states and their political subdivisions by the Fourteenth Amendment. Santa Fe Indep. Sch. Dist. v. Doe, 530 U.S. 290, 301, 120 S.Ct. 2266, 147 L.Ed.2d 295 (2000); Everson v. Bd. of Educ., 330 U.S. 1, 13-14, 67 S.Ct. 504, 91 L.Ed. 711 (1947). The issue presented here is whether Hamilton County and its governing body have violated the Establishment Clause by prominently posting the Ten Commandments in county courthouses.

This Court has recently observed that the Supreme Court has used various analytical approaches to draw the line between government and religion. Doe v. Porter, 188 F.Supp.2d 904, 909 (E.D.Tenn. 2002). One of those approaches is that set forth in Lemon v. Kurtzman, 403 U.S. 602, 91 S.Ct. 2105, 29 L.Ed.2d 745 (1971), wherein it was held that government action, to comply with the Establishment Clause, must (1) have a secular purpose; (2) have the primary effect of neither advancing nor inhibiting religion; and (3) not foster an excessive governmental entanglement with religion. Id. at 612-613, 91 S.Ct. 2105. This is the "Lemon test." While several Justices of the Supreme Court have been critical of this test, the Court has not rejected it, and it continues to be used by lower courts in deciding Establishment Clause disputes. See, e.g., American Civil Liberties Union v. Capitol Square Review & Advisory Bd., 243 F.3d 289, 305-308 (6th Cir.2001); Coles v. Cleveland Bd. of Educ., 171 F.3d 369, 383-85 (6th Cir.1999); Washegesic v. Bloomingdale Pub. Sch., 33 F.3d 679, 683 (6th Cir. 1994); Books v. City of Elkhart, 235 F.3d 292, 301 (7th Cir.2000), cert. denied, 532 U.S. 1058, 121 S.Ct. 2209, 149 L.Ed.2d 1036 (2001).

In recent public display cases, the Supreme Court has found it useful to formulate an "endorsement" test, which appears to be a refinement of the Lemon test. Under this formulation, governmental action runs afoul of the Establishment Clause if it has either the "purpose or effect of `endorsing' religion ...." County of Allegheny v. American Civil Liberties Union, 492 U.S. 573, 592, 109 S.Ct. 3086, 106 L.Ed.2d 472 (1989). Endorsement occurs when government conveys or attempts "to convey a message that a religion or a particular religious belief is favored or preferred." Id. at 593, 109 S.Ct. 3086 (citing Wallace v. Jaffree, 472 U.S. 38, 70, 105 S.Ct. 2479, 86 L.Ed.2d 29 (1985) (O'Connor, J., concurring)). The purpose and effect of governmental action are relevant inquiries under both the Lemon test and the "endorsement" test.

Purpose

In determining purpose, we look to whether the government subjectively intended to convey a message of endorsement or...