American Civil Liberties Union, Ky. v. Grayson Co., 08-5548.

• Citation: 591 F.3d 837
• Decision Date: 14 January 2010
• Docket Number: No. 08-5548.,08-5548.
• Parties: AMERICAN CIVIL LIBERTIES UNION OF KENTUCKY, Raymond Harper, and Ed Meredith, Plaintiffs-Appellees, v. GRAYSON COUNTY, KENTUCKY, Defendant-Appellant.
• Court: United States Courts of Appeals. United States Court of Appeals (6th Circuit)

591 F.3d 837

AMERICAN CIVIL LIBERTIES UNION OF KENTUCKY, Raymond Harper, and Ed Meredith, Plaintiffs-Appellees, v. GRAYSON COUNTY, KENTUCKY, Defendant-Appellant.

No. 08-5548.

United States Court of Appeals, Sixth Circuit.

Argued: April 23, 2009.

Decided and Filed: January 14, 2010.

ARGUED:

Mathew D. Staver, Liberty Counsel, Orlando, Florida, for Appellant. William E. Sharp, General Counsel, 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 Appellant. William E. Sharp, David A. Friedman, General Counsel, American Civil Liberties Union of Kentucky, Louisville, Kentucky, for Appellees. Steven W. Fitschen, The National Legal Foundation, Virginia Beach, Virginia, for Amicus Curiae.

Before: MOORE and McKEAGUE, Circuit Judges; FORESTER, Senior District Judge.^*

McKEAGUE, J., delivered the opinion of the court, in which FORESTER, D.J., joined. MOORE, J. (pp. 857-63), delivered a separate dissenting opinion.

OPINION

KEAGUE, Circuit Judge.

In 2001, the Grayson County Fiscal Court approved a proposal to hang a "Foundations of American Law and Government Display" in the county courthouse. The display consisted of nine historical documents, including a copy of the Ten Commandments, along with an "Explanation Document" purporting to describe the significance of these items as foundations of law and government in the United States. The district court found that the hanging of the display was shown to have been motivated by a predominantly religious purpose, and so held that the inclusion of the Ten Commandments in the display violated the Establishment Clause. We hold that the district court erred in its assessment of the record, and conclude that plaintiffs have failed to present sufficient evidence to prove that the Fiscal Court had an impermissible purpose or that the Foundations Display endorses religion.

I

Reverend Chester Shartzer, a private citizen living in Grayson County, Kentucky, appeared at a Grayson County Fiscal Court meeting on September 18, 2001 in order to request that the Ten Commandments be placed in the Grayson County Courthouse as part of a "Foundations of American Law and Government Display" ("Foundations Display"). The display includes the Mayflower Compact, the Declaration of Independence, the Ten Commandments, the Magna Carta, The Star Spangled Banner, the National Motto, the Preamble to the Kentucky Constitution, the Bill of Rights, and a picture of Lady Justice. The display also includes an "Explanation Document" purporting to describe the historical significance of each item.¹

The minutes recount what occurred at that September 18, 2001 meeting:

Reverend Chester Shartzer addressed the Court concerning his desire for the County to place the Ten Commandments in the County buildings. He said there were several Counties in the State who has [sic] them in their Courthouses. He explained that some Counties has [sic] them hanging in a group of other historical documents. He said he thought the Civil Liberties would look more favorable toward it if they were hanging in a grouping with the other historical documents. County Attorney, Tom Goff said there had been some hearings concerning this in some of the Eastern Counties of the State. Judge Logsdon and the Court members expressed the desire to place them in the County buildings and asked the County attorney if he thought they could do so in a way that would not cause problems for the County. He explained that there could be law suits filed against the County, and that he wanted to study the results of the hearings from the other Counties, before advising them.

Damon Hornback made a motion to place the Ten Commandments in the buildings. Motion died for lack of a second.

On motion by Sandy Farris, seconded by Damon Hornback, vote 7 for 0 against, be and it is ordered that:

The County place the Ten Commandments in the Court House along with the Historical documents of the Declaration of Independence, Bill of Rights, Mayflower Compact, Star Spangled Banner, National Anthem, Magna Charta [sic], Explanation Document, and a County Resolution, after County attorney Tom Goff has looked at the results of the hearings in other Counties, and if he thinks this can be done without legal action against the County.

On September 28, 2001, the Fiscal Court revisited the display. While there is no transcript of this second meeting, Shartzer recalled in deposition what he had said in support of his motion:

I simply said, "I was on my way up here, and I seen a stop sign. Some of [sic] guys went ahead of me and put that up. I seen a sign that said turn right. If I'd have went straight, I'd have went over a bank." I said, "There's not everybody [sic] going to read and understand half of these displays that we're talking about. Some people will not be more interested in the Declaration of Independence than a fly. Neither are they the Ten Commandments, but they're signs, they're signs about our heritage, they're signs about turning right. I'd like for my kid to hear somebody say, `You oughtn't to kill somebody.' I'd like to hear somebody say to my children and I'd like to say to other kids, `Don't try to want everything the other guy's got. Get it yourself or not have it.'" I said, "That sign was put up for me. It's a road sign. I'm just wanting to put a road sign in the courthouse as a directive for young people to see where the heritage of America is"—"how it's embedded in my heart, and I want it in other hearts.

(Shartzer Dep. at 29-30.) After a 6-0 vote, the Fiscal Court ordered that "The following resolution along with the Historical Documents and the Ten Commandments be placed in a grouping in the Courthouse." No resolution was ever composed or posted with the Foundations Display. Once the Fiscal Court had approved, Shartzer obtained the display for installation; to that point, the members of the Fiscal Court had never seen the "Explanation Document" or any of the other display items.

With the help of two or three other private citizens, Shartzer posted the Foundations Display, which he had procured at private expense, on the second floor of the Grayson County Courthouse, where there was relatively little foot traffic. There was no public ceremony accompanying the unveiling of the display. Included as part of the authorized display from the beginning, along with the Ten Commandments and the other historical documents, was an "Explanation Document," consisting of an introduction describing the purpose of the Foundations Display and a paragraph-long explanation of each document's relation to the purpose. The introduction includes a listing of the nine historical documents and provides: "The Foundations of American Law and Government display contains documents that played a significant role in the foundation of our system of law and government." Each of the following nine paragraphs of the Explanation Document contains a statement about the respective historical document's historical and legal significance. The significance of the Ten Commandments is described 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.

Several weeks after the display was posted, two private citizens, Ed Meredith and Raymond Harper, discussed the Fiscal Court's decision, after which the two went together to the courthouse and viewed the Foundations Display. Meredith and Harper wrote a letter to the ACLU, and on November 27, 2001, the ACLU, Harper, and Meredith filed a complaint in the United States District Court for the Western District of Kentucky challenging the Foundations Display's presence in the county courthouse. On May 15, 2002, the district court entered a preliminary injunction ordering the Fiscal Court to remove the Ten Commandments. The Fiscal Court complied with the injunction and removed the Ten Commandments from the display, leaving the other eight items undisturbed.

The district court issued a stay of further proceedings pending resolution of similar litigation then pending before the Sixth Circuit in ACLU v. McCreary County, 354 F.3d 438. The stay remained in place until September 5, 2006. Once the stay was lifted, all parties filed motions for summary judgment. On March 28, 2008, the district court granted summary judgment for the plaintiffs, permanently enjoining the display of the Ten Commandments as part of the Foundations Display. Grayson County now appeals.

II

This court reviews a grant of summary judgment de novo. ACLU v. Mercer County, 432 F.3d 624, 628 (6th Cir.2005). Summary judgment "should be rendered if the pleadings, the discovery and disclosure materials on file, and any affidavits show that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law." FED.R.CIV.P. 56(c). The district court must construe the evidence and draw all reasonable inferences in favor of the nonmoving party. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986); Jones v. Potter, 488 F.3d 397, 403 (6th Cir.2007).

III

The burden is on the party invoking federal jurisdiction to demonstrate Article III standing. Stalley v. Methodist Healthcare, 517 F.3d 911, 916 (6th Cir. 2008). The presence of one party with standing is sufficient. Rumsfeld v. Forum for Academic and Institutional Rights, Inc., 547...