American Civil Liberties Union v. Board of Com'Rs

Decision Date18 April 2006
Docket NumberNo. 3:02CV7565.,3:02CV7565.
Citation444 F.Supp.2d 805
PartiesAMERICAN CIVIL LIBERTIES UNION OF OHIO FOUNDATION, INC., Plaintiff, v. BOARD OF COMMISSIONERS OF LUCAS COUNTY, OHIO, Defendant.
CourtU.S. District Court — Northern District of Ohio

Jillian S. Davis, Cleveland, OH, Thomas P. Goodwin, Toledo, OH, Jeffrey M. Gamso, ACLU of Ohio Foundation, Cleveland, OH, for Plaintiff.

Andrew K. Ranazzi, John A. Borell, Sr., Lance M. Keiffer, Maureen O. Atkins, Office of the Prosecuting Attorney, Toledo, OH, for Defendant.

ORDER

CARR, Chief Judge.

This is a civil liberties case. Plaintiff American Civil Liberties Union of Ohio Foundation (ACLU) claims that a monument inscribed with the Ten Commandments (also referred to as the Decalogue) on the grounds of the Lucas County courthouse in Toledo, Ohio, violates the First and Fourteenth Amendments of the U.S. Constitution and Article I, Section 7, of the Ohio Constitution.

Jurisdiction exists pursuant to 28 U.S.C. §§ 1331, 1343 and 1367.

The ACLU seeks declaratory and injunctive relief under 28 U.S.C. §§ 2201, 2202, and 1983; it also seeks attorneys fees under 42 U.S.C. § 1988(b).

Pending are the ACLU's and the County's counter-motions for summary judgment. For the following reasons, the County's motion shall be granted, and the ACLU's motion shall be denied.

Background

In June, 1957, the Fraternal Order of the Eagles donated a granite monument bearing the text of the Ten Commandments to the County, which installed the monument at the Southeast corner of the courthouse square. The courthouse is located West of Toledo's downtown business district.

The monument faces away from the courthouse (Def. Lucas County's Ex. Fl; Doc. 21 at 2), and is readily visible to pedestrians approaching the courthouse from downtown Toledo, including lawyers who have their offices in the central business district. Persons arriving by car are likely, though, to park South, West, or Northwest of the courthouse square; their direct path to the courthouse, which can be entered only from the West, would not take them past the monument.

The monument depicts two tablets resembling traditional portrayals of the Decalogue as brought, according to the Biblical account, by Moses from Mount Sinai. (Def. Lucas County's Ex. F 1 (containing photos of the monument); see also Doc. 21 at 2 (describing the monument); Doc. 29 at 2 (same)). Other symbols adorn the monument above and below the text of the Commandments, including: 1) two smaller, inscribed tablets with Greek text; 2) a bald eagle and United States flag; 3) the "all seeing eye" (also found on the Great Seal of the United States); 4) two stars of David, commonly associated with the Jewish faith and the state of Israel; and 5) the Chi-Rho symbol, a first century image used by early Christians. (Def. Lucas County's Ex. Fl; see also Doc. 29 at 2).

At the bottom of the monument is the following, inscribed as if etched on a scroll:

                PRESENTED TO THE COUNTY OF
                    LUCAS, STATE OF OHIO
                             BY
                    TOLEDO AERIE NO. 197
                  FRATERNAL ORDER OF EAGLES
                1957
                

(Def. Lucas County's Ex. F1).

The words, "the Ten Commandments," followed by "I AM the LORD thy God" appear on separate lines above the text of the individual commandments. The lettering of that caption is larger than that of the other writing on the monument. (Def. Lucas County's Ex. F1).

The Eagles presented many similar monuments to local governments in the 1950s and 1960s. See generally ACLU v. City of Plattsmouth, 419 F.3d 772, 773 n. 3 (8th Cir.2005) (describing the history of the monuments). They provided the monuments as part of a nation-wide campaign to counteract juvenile delinquency—to call the attention of young people to the moral code embodied in the Ten Commandment's text. Id. (citing cases referring to the prevention of juvenile delinquency as motivating factor for the actions of the Eagles); see also Twombly v. City of Fargo, 388 F.Supp.2d 983, 985 (D.N.D.2005).

With specific reference to the Lucas County monument, a contemporary newspaper article in the record in this case states the Eagles presented the Lucas County monument "as part of its youth guidance program." (Def. Lucas County's Ex. A).1

The monument stands several feet from a flag pole set in a concrete base. The flag pole is a Catholic War Veterans Memorial, with an inscription reading, "Catholic War Veterans of the United States of America, for God, country and home, April 19, 1957." (Def. Lucas County's Exs. F (map of courthouse grounds), F1 (photos), F2 (same)).

Among fourteen other memorials spread about the courthouse square are, inter alia, a stone monument of the Bill of Rights (donated by the ACLU in 1959) (Def. Lucas County's Ex. F2); a statue and memorial to Spanish-American War veterans (Def. Lucas County's Ex. F4, F5); and a statue honoring Ohio-born President William McKinley. (Def. Lucas County's Ex. F3, F4).

Six of the markers on the courthouse lawn are in the same general area as the Ten Commandments; the remainder are closer to the courthouse and further from the monument. (Doc. 29 at 3). Two markers on the grounds are historical markers explaining noteworthy information about Lucas County's history. (Id.) Some others are plaques from various groups noting commemorative trees on the lawn. (Id.)

In addition to the Decalogue monument and Catholic War Veterans Memorial, the statue of President McKinley also incorporates a religious reference: it quotes President McKinley as saying on his deathbed, "Nearer my God to thee," and "Goodbye all, Goodbye. It is God's way. His will be done, not ours." (Def. Lucas County's Ex. F3, F4).

The Ten Commandments monument was installed and dedicated in June, 1957, during a public ceremony. (Id.) Two judges, one county commissioner, Toledo's mayor, and two representatives of the Eagles participated. (See id. (newspaper photo of dedication ceremony and accompanying caption)). The news accounts do not record the presence or participation at the dedication ceremony of clergy or other representatives of religious organizations. (Id.) Local religious leaders did, however, write letters to the Board of Commissioners supporting the placement of the monument. (Id.) Commission Chairman Ray Gedert was quoted in a June 15, 1957, newspaper as stating, "If everyone read and followed the inscription, there would be less need for the courthouse building behind the marker." (Id.) There is no other evidence concerning the Board's purpose in accepting the monument from the Eagles.

On November 26, 2003, the ACLU brought suit, alleging that continued display of the Decalogue on the courthouse lawn violates the Establishment Clause of the First Amendment. No one had filed a formal complaint in the forty-six years prior to the ACLU lawsuit. (Doc. 21 at 2).

The County contends the monument "reflect[s] historical notions of law" and commemorates the role of the Decalogue "in the enforcement of the rule of law." (Doc. 21 at 2). The County asserts the monument "was erected for secular purposes reflecting Lucas County's commitment to the rule of law as enforced in the Courthouse behind the Statue." (Doc. 21 at 1).

This case was stayed when the Supreme Court granted certiorari in ACLU v. McCreary County, 354 F.3d 438 (6th Cir. 2003), and Van Orden v. Perry, 351 F.3d 173 (5th Cir.2003). On July 27, 2005, the Court issued its opinion in both cases. The parties in this case filed supplemental briefs to discuss the significance of Van Orden v. Perry, 545 U.S. 677, 125 S.Ct. 2854, 162 L.Ed.2d 607 (2005), and McCreary County v. ACLU, 545 U.S. 844, 125 S.Ct. 2722, 162 L.Ed.2d 729 (2005).

There is no disagreement between the parties about the material facts, only disputes of legal interpretation. Thus this case is well-suited for summary judgment under Rule 56(c) of the Federal Rules of Civil Procedure.

I. Standing

As an initial matter, the County contends the ACLU does not have standing to bring this suit.

An association may sue on behalf of its members if: 1) its members would have standing in their own right; 2) the interests the organization seeks to protect are important to its purpose; and 3) the claim asserted and the relief sought do not require participation by individual members in the suit. Hunt v. Washington Apple Adver. Comm'n, 432 U.S. 333, 343, 97 S.Ct. 2434, 53 L.Ed.2d 383 (1977); Cleveland Branch, NAACP v. City of Parma, 263 F.3d 513, 523-24 (6th Cir.2001); see also Mixon v. State of Ohio, 193 F.3d 389, 393 n. 1 (6th Cir.1999).

The ACLU is suing Lucas County on behalf of its members. Charles Boss, an attorney who practices in Lucas County and is a dues-paying, registered member of the ACLU, testified that the monument offended him and diminished his use and enjoyment of the courthouse and its grounds. (Def. Lucas County's Ex. C at 6-7, 12-14, 35-44; Pl.'s Ex. A at ¶¶ 1, 5, 6, 7; Doc. 29 at 3).

The County alleges Boss would not have standing in his own right, and, consequently, the ACLU does not have standing either. To have standing Boss must show he suffers an injury the court can remedy. Washegesic v. Bloomingdale Public Schls., 33 F.3d 679, 682 (6th Cir.1994). The County argues Boss can not make that showing.

In cases involving public display of a religious object, "unwelcome direct contact with the object" that causes diminished enjoyment of public facilities confers standing on a plaintiff. Id.; Hawley v. City of Cleveland, 773 F.2d 736, 738-39 (6th Cir.1985) (representative plaintiff's diminished enjoyment of airport from presence of chapel conferred standing); Harvey v. Cobb County, 811 F.Supp. 669, 674-75 (N.D.Ga.1993) (attorney whose practice required him to make regular appearances in local courthouse had standing to challenge county's placement of Ten Commandments on wall outside clerk's office).

Unwelcome contact has been found with regard to Decalogue monuments on public grounds or premises. See, e.g., Books v. City of Elkhart, 235 F.3d 292,...

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  • Freedom from Religion Found., Inc. v. Connellsville Area Sch. Dist.
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    • U.S. District Court — Western District of Pennsylvania
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    ...and memorials because "the similarities between this case and Van Orden are too vivid to dismiss"); ACLU v. Bd. of Comm'rs of Lucas Cnty., 444 F.Supp.2d 805, 815 (N.D.Ohio 2006) (calling Van Orden the "most factually similar case"). None of these cases, however, involved isolated monuments ......
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