American Civil Liberties v. Mercer County

Decision Date20 December 2005
Docket NumberNo. 03-5142.,03-5142.
Citation432 F.3d 624
PartiesAMERICAN CIVIL LIBERTIES UNION OF KENTUCKY; Bart McQueary, Plaintiffs-Appellants, v. MERCER COUNTY, KENTUCKY; Charles H. McGinnis, in his official capacity as Mercer County Judge Executive, Defendants-Appellees.
CourtU.S. Court of Appeals — Sixth Circuit

David A. Friedman, American Civil Liberties Union of Kentucky, Louisville, Kentucky, for Appellants. Francis J. Manion, American Center for Law and Justice, New Hope, Kentucky, for Appellees.


David A. Friedman, American Civil Liberties Union of Kentucky, Louisville, Kentucky, for Appellants. Francis J. Manion, American Center for Law and Justice, New Hope, Kentucky, Mathew D. Staver, Erik W. Stanley, Liberty Counsel, Longwood, Florida, for Appellees.

Before: SUHRHEINRICH and BATCHELDER, Circuit Judges; RICE, District Judge.*

SUHRHEINRICH, J., delivered the opinion of the court, in which BATCHELDER, J., joined.

RICE, D.J., concurred in the result only.


SUHRHEINRICH, Circuit Judge.

Plaintiffs-Appellants American Civil Liberties Union of Kentucky and Bart McQueary (collectively, "the ACLU") appeal from the order of the district court granting Defendants-Appellees Mercer County, Kentucky and Charles H. McGinnis' (collectively, "Mercer County's" or "the County's") motion for summary judgment and dismissing the ACLU's claims. The ACLU seeks to enjoin the County from displaying an exhibit in its courthouse that includes a copy of the Ten Commandments. While this appeal was pending, the Supreme Court granted a writ of certiorari in the case of ACLU v. McCreary County, 354 F.3d 438 (6th Cir.2003), cert. granted, ___ U.S. ___, 125 S.Ct. 310, 160 L.Ed.2d 221 (U.S. Oct. 12, 2004) (No. 03-1693), aff'd ___ U.S. ___, 125 S.Ct. 2722, 162 L.Ed.2d 729 (2005). Because the challenged display here is identical in all material respects to the third and final display in McCreary County, we held this appeal in abeyance pending Supreme Court review. Unlike McCreary County, we conclude that the Mercer County display lacks a religious purpose and further conclude that it does not endorse religion. Accordingly, we now AFFIRM.


On October 9, 2001, Carroll Rousey, a Mercer County resident, requested permission to hang a display entitled "Foundations of American Law and Government" in the County Courthouse. The display was to include the Mayflower Compact; the Declaration of Independence; the Ten Commandments1; the Magna Carta (in two frames); the Star-Spangled Banner; the National Motto "In God We Trust" and the Preamble to the Kentucky Constitution (one frame); the Bill of Rights; and Lady Justice.

After learning 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, the Mercer County Fiscal Court voted to allow Mr. Rousey to hang the display as described. Mr. Rousey paid for, framed, and hung the display on the courthouse walls himself.

Included in the display is a commentary page that contains an explanation for each of the nine items. The following is the explanation for the Ten Commandments:

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.

As the district court noted, "each frame in the display is the same size and no one item is displayed more prominently than the other." ACLU v. Mercer County, 219 F.Supp.2d 777, 779-80 (E.D.Ky.2002).

Shortly after Mr. Rousey erected the display, the American Civil Liberties Union of Kentucky, along with Bart McQueary, a member of the organization and a resident of Mercer County, brought suit on November 27, 2001 against Mercer County and Charles H. McGinnis, in his official capacity as Mercer County Judge Executive, seeking injunctive and declaratory relief. In the suit, the ACLU alleged that, because the display included a version of the Ten Commandments, it violated the Establishment Clause of the First Amendment. In support, the ACLU referenced a preliminary injunction issued against several other Kentucky counties for posting an identical display. See ACLU v. McCreary County, 145 F.Supp.2d 845 (E.D.Ky.2001). In its answer, Mercer County acknowledged its awareness of the injunctions.

Simultaneous with its suit, the ACLU sought preliminary injunction on the basis of the lower court's decision in McCreary County. Mercer County defended on the ground that McCreary County was distinguishable on the facts. The County also moved for summary judgment, in support of which it filed an affidavit of Judge-Executive McGinnis. In the affidavit, Judge McGinnis explained the County's decision, including Mr. Rousey's involvement and the Mercer County Fiscal Court's awareness of the Kentucky legislature's resolution authorizing such displays. He stated that the purpose for erecting the "Foundations" display was that "all of the documents, including the Ten Commandments, have played a role in the formation of our system of law and government. . . . [The] display is not intended [to], nor does it, endorse or promote religion. It simply acknowledges our history."

After a hearing, the district court denied the ACLU's motion for preliminary injunction, finding the ACLU had not proved a likelihood of success on the merits. Mercer County, 219 F.Supp.2d at 797. The district court applied the familiar three-prong test found in Lemon v. Kurtzman, 403 U.S. 602, 91 S.Ct. 2105, 29 L.Ed.2d 745 (1971).2 Mercer County, 219 F.Supp.2d at 781-82. As to the first prong, the court found Mercer County's stated secular purpose-recognition of the historical significance of the documents included in the display-was not a sham. Id. at 785. It also found that there was nothing in the legislative history indicating a religious purpose. Id. at 787. Thus, according to the district court, Mercer County had a secular purpose in erecting this display. Id. at 788.

As for the endorsement test, the district court found that "[t]he context and affidavit of Judge McGinnis convey that the Commandments are part of the city's [sic] celebration of its cultural and historical roots and not a promotion of religious faith." Id. at 794. According to the district court, the reasonable person would not view the display as an endorsement of religion. Id. Having concluded that the display survived the Lemon test, the court denied the ACLU's motion for preliminary injunction. At the same time, the district court denied Mercer County's motion for summary judgment without prejudice and granted the ACLU 120 days to conduct discovery on the issue of religious purpose. Id. at 798.

The discovery period lapsed without the ACLU's conducting or requesting any discovery. Mercer County subsequently refiled its motion for summary judgment. In its ruling on Mercer County's motion for summary judgment, the district court reincorporated the findings of fact and conclusions of law from its earlier opinion. ACLU v. Mercer County, 240 F.Supp.2d 623, 624 (E.D.Ky.2003). Because the ACLU failed to raise any genuine issue of material fact, the court granted the County's motion and dismissed the ACLU's claims with prejudice. Id. at 625-26.

The ACLU timely appealed to this Court. Following oral argument in this case, the Supreme Court granted a writ of certiorari in McCreary County. ___ U.S. ___, 125 S.Ct. 310, 160 L.Ed.2d 221 (2004) (No. 03-1693). After McCreary County was decided, we invited both parties to submit supplemental briefs addressing that case and another case involving the constitutionality of the public display of the Ten Commandments, Van Orden v. Perry, ___ U.S. ___, 125 S.Ct. 2854, 162 L.Ed.2d 607 (2005).


A district court's grant of summary judgment is reviewed de novo. Watkins v. City of Battle Creek, 273 F.3d 682, 685 (6th Cir.2001). Summary judgment is appropriate only if there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(c). This Court must consider the evidence and draw all reasonable inferences in favor of the non-moving party. Siggers-El v. Barlow, 412 F.3d 693, 699 (6th Cir.2005).


The First Amendment says that "Congress shall make no law respecting an establishment of religion." U.S. Const. amend. I. Its dictates have been incorporated to the states and their subdivisions through 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). The Establishment Clause represents one of our most cherished safeguards. It is also one of the most heavily litigated. See Karen T. White, The Court-Created Conflict of the First Amendment: Marginalizing Religion and Undermining the Law, 6 U. Fla. J.L. & Pub. Pol'y 181, 182 (1994).


In McCreary County, two Kentucky counties, McCreary and Pulaski Counties (collectively, "the Counties"),3 originally posted standalone copies of the Ten Commandments in their respective courthouses. 125 S.Ct. at 2728. The McCreary County legislative body required that the display be placed in "`a very high traffic area.'" Id. (quoting ACLU v. McCreary County, 96 F.Supp.2d 679, 684 (E.D.Ky.2000)). Both of the displays were "`readily visible'" and confronted "`citizens who use the courthouse to conduct their civic business, to obtain or renew driver's licenses. . . , to register cars, to pay local taxes, and to register to vote.'" Id. (quoting McCreary County, 96 F.Supp.2d at 684). The ...

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