American Civil Liberties Union v. Mccreary County

• Decision Date: 22 June 2001
• Docket Number: No. CIV.A. 99-507.,CIV.A. 99-507.
• Citation: 145 F.Supp.2d 845
• Parties: AMERICAN CIVIL LIBERTIES UNION OF KENTUCKY; Louanne Walker and David Howe, Plaintiffs, v. MCCREARY COUNTY, KENTUCKY; and Jimmie Greene, in his official capacity as McCreary County Judge Executive, Defendants.
• Court: U.S. District Court — Eastern District of Kentucky

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145 F.Supp.2d 845 AMERICAN CIVIL LIBERTIES UNION OF KENTUCKY; Louanne Walker and David Howe, Plaintiffs,
v.
MCCREARY COUNTY, KENTUCKY; and Jimmie Greene, in his official capacity as McCreary County Judge Executive, Defendants. No. CIV.A. 99-507. United States District Court, E.D. Kentucky, London Division. June 22, 2001.

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Everett C. Hoffman, Segal, Stewart, Cutler, Lindsay, Jones & Berry, PLLC, David A. Friedman, American Civil Liberties Union of Kentucky, C. Laurie Griffith, Griffith Law Offices, PSC, ACLU Cooperating Attorney, Louisville, KY, Kathleen M. Flynn, Illinois State Appellate Defender, Chicago, IL, for plaintiffs.

Theodore H. Amshoff, Jr., Amshoff & Amshoff, PSC, Louisville, KY, Ronald D. Ray, Colonel, Crestwood, KY, Mathew D. Staver, Erik W. Stanley, Liberty Counsel, Longwood, FL, for defendants.

ORDER

COFFMAN, District Judge.

This matter is before the court upon the plaintiffs' motion (Record No. 40) for a supplemental preliminary injunction. The court, having reviewed the record and being otherwise sufficiently advised, will grant the motion and enjoin the continued exhibition of the current displays.

Facts

This consolidated case involves the efforts of McCreary and Pulaski Counties and the Harlan County schools to post the Ten Commandments. Having evolved throughout this litigation, the displays at issue originally consisted of only a framed copy of the Ten Commandments. After several other documents were added, this court found that the amended displays¹ failed the "purpose" and "effect" prongs of the three-part test set out in Lemon v. Kurtzman, 403 U.S. 602, 91 S.Ct. 2105, 29 L.Ed.2d 745 (1971),² in that they lacked a secular purpose³ and had the effect of endorsing religion. ACLU of Ky. v. McCreary County, 96 F.Supp.2d 679, 689 (E.D.Ky.2000). Accordingly, this court ordered the immediate removal of the displays from the courthouses and school system.

The defendants then erected a third set of displays which also included the Ten Commandments. Those displays, entitled "The Foundations of American Law and Government Display," included the full text of the Magna Carta as enacted in 1215 A.D., the Declaration of Independence, the Bill of Rights of the Constitution of the United States, the Star Spangled Banner, the Ten Commandments with a Biblical citation, and the Mayflower Compact of 1620; a picture of Lady Justice and an explanation of its significance; the National Motto of the United States ("In God We Trust") emblem and the Preamble to the Kentucky Constitution; and an explanation

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of each of the documents' historical and legal significance.⁴

After the hearing on this motion and resulting settlement negotiations, the McCreary and Pulaski County displays were again modified; the Scripture reference of "Exodus 20:3-17" and the phrase "King James Version" were eliminated from the Ten Commandments document. The Harlan County School Board display remains as it existed at the time of the hearing, but the school board has adopted a "Historical Document Placement Procedure" which implements its resolution for posting historical documents.

The plaintiffs, having asked this court to expand the preliminary injunction to include the current display,⁵ must establish: (1) a strong or substantial likelihood of success on the merits; (2) that they will suffer irreparable harm in the absence of an injunction; (3) that others will not suffer substantial harm if the injunction is granted; and (4) that an injunction will serve the public interest. Connection Distrib. Co. v. Reno, 154 F.3d 281, 288 (6th Cir.1998). Because the parties focus on the first of these elements and confine their arguments to the "purpose" and "effect" prongs of the Lemon test, the court will concentrate on these aspects of the issue. The court's analysis is governed by Stone v. Graham, 449 U.S. 39, 101 S.Ct. 192, 66 L.Ed.2d 199 (1980), and Books v. City of Elkhart, 235 F.3d 292 (7th Cir. 2000).⁶

Analysis

As Stone and Books direct, the test used to determine the constitutionality of the current display is that set out in Lemon v. Kurtzman, supra. Therefore, we look for the display to have a secular purpose, for its principal or primary effect (as seen by the reasonably well-informed observer) neither to advance nor inhibit religion, and for a lack of excessive entanglement.⁷

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Purpose

Although the Supreme Court typically gives deference, in religion cases, to the government's articulated purpose, where the Ten Commandments are at issue the Court has rejected the proffered purpose and found instead that the document is a sacred text which has a religious purpose. See Stone v. Graham, 449 U.S. 39, 101 S.Ct. 192, 66 L.Ed.2d 199 (1980).⁸ The government must dilute this religious purpose if a truly secular purpose can be said to exist. See Books, 235 F.3d at 303. This rejection of stated purpose has occurred even when secular symbols were used in conjunction with the Ten Commandments,⁹ just as this court must reject the stated purpose even when the defendants place the Ten Commandments in a display with secular documents.

With regard to the current displays, the defendants have articulated a number of purportedly secular purposes. Their stated intentions include: (1) "[T]o erect a display containing the Ten Commandments that is constitutional"¹⁰; (2) "to demonstrate that the Ten Commandments were part of the foundation of American Law and Government"¹¹; (3) "[to include the Ten Commandments] as part of the display for their significance in providing `the moral background of the Declaration of Independence and the foundation of our legal tradition'"<sup>12</sup>; (4) "to educate the citizens of the county regarding some of the documents that played a significant role in the foundation of our system of law and government"<sup>13</sup>; and (5) [as stated by the Harlan County School Board] "to create a limited public forum on designated walls within the school district for the purpose of posting historical documents which played a significant role in the development, origins or foundations of American or Kentucky law...."<sup>14</sup> While these stated purposes are to be given some deference, "it is nonetheless the duty of the courts to `distinguis[h] a sham secular purpose from a sincere one.'" Santa Fe Ind. Sch. Dist. v. Doe, 530 U.S. 290, 308, 120 S.Ct. 2266, 147 L.Ed.2d 295 (2000) (quoting Wallace v. Jaffree, 472 U.S. 38, 75, 105 S.Ct. 2479, 86 L.Ed.2d 29 (1985) (O'Connor, J., concurring in judgment)). Our task is made easier by the fact that the first three of these purposes are, on their face, religious in nature and therefore impermissible,

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while the history of the display belies the secular intentions of the other two.

Viewed facially, the first three of the defendants' stated "secular" purposes run afoul of the Supreme Court's holding in Stone v. Graham, because that case established that a state's desire to proclaim the Ten Commandments' foundational value for American law and government is a religious, rather than secular, purpose. In Stone, the Commonwealth of Kentucky sought to post the Ten Commandments along with the following notation: "The secular application of the Ten Commandments is clearly seen in its adoption as the fundamental legal code of Western Civilization and the Common Law of the United States." Stone, 449 U.S. at 41, 101 S.Ct. 192. This putatively secular purpose, which is fundamentally the same as the defendants' first three articulated purposes, was rejected by the Court. The majority declared that "such an `avowed' secular purpose is not sufficient to avoid conflict with the First Amendment.... The Ten Commandments are undeniably a sacred text in the Jewish and Christian faiths, and no legislative recitation of a supposed secular purpose can blind us to that fact." Id.¹⁵

The defendants' latter two articulated purposes, while facially secular in that they do not single out the Ten Commandments, crumble nonetheless upon an examination of the history of this litigation. "The Supreme Court has stressed the importance of the context of a clearly religious symbol in determining whether the purpose in displaying the symbol is religious or secular." Books, 235 F.3d at 303. To determine this context, the Seventh Circuit examined the history of the city's involvement in the monument's placement, from the initial dedication ceremony¹⁶ to the city's adoption of a resolution in response to the then-pending litigation,¹⁷ concluding that the city's purpose for displaying the monument was not secular. See id. at 304. In the present case, the history of these displays indicates that the defendants' overall purpose is religious in nature: to display the Ten Commandments. It is significant that the first displays, containing only the Ten Commandments, were erected in violation of the

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Supreme Court's clear ruling in Stone.¹⁸ This defiance imprinted the defendants' purpose, from the beginning, with an unconstitutional taint observed not only by this court, but by anyone acquainted with this litigation.¹⁹ The second set of displays (the subject of this court's previous ruling) accentuated the defendants' religious purpose, rather than diminishing it, by posting the Commandments along with "specific references to Christianity and texts that, while promulgated by the federal government, were chosen solely for their religious references." ACLU of Ky. v. Pulaski County, 96 F.Supp.2d 691, 699 (E.D.Ky. 2000).

In their third and fourth attempts, the defendants have posted the Ten Commandments alongside the full text of various historical documents, purporting to educate the citizens of McCreary and Pulaski Counties and the schoolchildren of Harlan County regarding the history of this nation's law and government. It is this court's function to determine "`whether the government's actual purpose is to endorse or disapprove of religion,'" Books, 235 F.3d at 302 (quoting Edwards v. Aguillard,...