Baker v. Adams County/Ohio Valley School Bd.

• Decision Date: 19 November 2002
• Docket Number: No. 02-3777.,02-3777.
• Citation: 310 F.3d 927
• Parties: Barry BAKER; Anonymous Plaintiff # 1, Plaintiffs-Appellees, v. ADAMS COUNTY/OHIO VALLEY SCHOOL BOARD, Defendant-Appellant, Christine Armstrong et al., Defendants, Kenneth W. Johnson et al., Intervening Defendants.
• Court: U.S. Court of Appeals — Sixth Circuit

310 F.3d 927

Barry BAKER; Anonymous Plaintiff # 1, Plaintiffs-Appellees, v. ADAMS COUNTY/OHIO VALLEY SCHOOL BOARD, Defendant-Appellant, Christine Armstrong et al., Defendants, Kenneth W. Johnson et al., Intervening Defendants.

No. 02-3777.

United States Court of Appeals, Sixth Circuit.

Filed: November 19, 2002.

William R. Jacobs, Strauss & Troy, Cincinnati, OH, Raymond Vasvari, Cleveland, OH, for Plaintiffs-Appellees.

Charles Bronston McCord, Ennis, Roberts & Fischer, Cincinnati, OH, Francis J. Manion, New Hope, KY, for Defendant-Appellant.

Before KEITH, KENNEDY, and MOORE, Circuit Judges.

PER CURIAM.

The defendant school board appeals the judgment finding that the display of the Ten Commandments on public school property violates the Establishment Clause of the First Amendment and ordering the removal of the Ten Commandments monuments from the "Foundations of American Law and Government" displays located on the property of four Adams County High Schools. The district court denied a motion for a stay of the judgment pending appeal, and the defendant now moves this court to stay the order requiring the removal of the Ten Commandments monuments. Alternatively, the defendant requests that the Ten Commandments monuments be covered rather than removed pending this appeal. The plaintiffs oppose the motion for a stay.

The court balances the traditional factors governing injunctive relief in ruling on motions to stay pending appeal. Thus, we consider (1) whether the defendant has a strong or substantial likelihood of success on the merits; (2) whether the defendant will suffer irreparable harm if the district court proceedings are not stayed; (3) whether staying the district court proceedings will substantially injure other interested parties; and (4) where the public interest lies. See Grutter v. Bollinger, 247 F.3d 631, 632 (6th Cir.2001) (order); Michigan Coalition of Radioactive Material Users, Inc. v. Griepentrog, 945 F.2d 150, 153 (6th Cir.1991). These factors are to be balanced. The strength of the likelihood of success on the merits that needs to be demonstrated is inversely proportional to the amount of irreparable harm that will be suffered if a stay does not issue. However, in order to justify a stay of the district court's ruling, the defendant must demonstrate at least serious questions going to the merits and irreparable harm that decidedly outweighs the harm that will be inflicted on others if a stay is granted. See In re DeLorean Motor Co., 755 F.2d 1223, 1229 (6th Cir.1985).

The First Amendment of the United States Constitution provides that "Congress shall make no law respecting an establishment of religion, nor prohibiting the free exercise thereof...." In determining whether the inclusion of the Ten Commandments in the Foundations of American Law and Government displays violates the Establishment Clause of the First Amendment, we consider the test set forth by the Supreme Court in Lemon v. Kurtzman, 403 U.S. 602, 91 S.Ct. 2105, 29 L.Ed.2d 745 (1971). Adland v. Russ, 307 F.3d 471, 479 (6th Cir.2002); American Civil Liberties Union of Ohio v. Capital Square Review & Advisory Bd., 243 F.3d 289, 305-308 (6th Cir.2001)(en banc). Under the Lemon test, a government-sponsored activity will not violate the Establishment Clause if (1) it has a secular purpose, (2) its principal or primary effect neither advances nor inhibits religion, and (3) it does not create an excessive entanglement of the government with religion. Lemon v. Kurtzman, 403 U.S. at 612-13, 91 S.Ct. 2105; see Adland, 307 F.3d at 479. The endorsement test, "which looks to whether a reasonable observer would believe that a particular action constitutes an endorsement of religion," should be treated "as a refinement of the second Lemon prong." Adland, 307 F.3d at 479.

Historically, displays on government property of the Ten Commandments alone have been found to be unconstitutional. See, e.g., Books v. City of Elkhart, 235 F.3d 292 (7th Cir.2000), cert. denied, 532 U.S. 1058, 121 S.Ct. 2209, 149 L.Ed.2d 1036 (2001) (holding municipal building's Ten Commandments monument unconstitutional); Indiana Civil Liberties Union v. O'Bannon, 259 F.3d 766 (7th Cir.2001), cert. denied, 534 U.S. 1162, 122 S.Ct. 1173, 152 L.Ed.2d 117 (2002) (upholding a preliminary injunction against a Ten Commandments monument erected on grounds of Indiana Statehouse); American Civil Liberties Union v. Ashbrook, 211 F.Supp.2d 873 (N.D.Ohio 2002) (enjoining the display of a framed poster of the Ten Commandments in a Common Pleas courtroom), appeal docketed, No. 02-3667 (6th Cir. June 17, 2002), stay pending appeal denied, (6th Cir. June 20, 2002) (unpublished order); American Civil Liberties Union v. Hamilton County, Tennessee, 202 F.Supp.2d 757, 767 (E.D.Tenn.2002) (declaring a display of the Ten Commandments at a courthouse unconstitutional). A governmental display of the Ten Commandments that is a part of a larger display of documents of legal or historical significance may be constitutional, depending on the context. See County of Allegheny v. American Civil Liberties Union, 492 U.S. 573, 613-620, 109 S.Ct. 3086, 106 L.Ed.2d 472 (1989) (Blackmun, J.); id. at 632-38, 109 S.Ct. 3086 (O'Connor, J., concurring). In the instant case, the Ten Commandments monuments were initially displayed alone. Only after the litigation was commenced were they incorporated into the larger Foundations of American Law and Government displays. The district court found that the alteration of the Ten Commandments displays to include four other nonreligious monuments was insufficient to support the defendant's avowed secular purpose in permitting the displays on school property. Although the defendant has not shown a strong or substantial likelihood of success on the merits, its challenge to the district court's ruling raises at least serious appellate issues.

However, the defendant has not demonstrated that it will suffer any significant irreparable harm if the Ten Commandments monuments must be removed from their current locations. The defendant argues that the monuments were intended to be permanent displays and are likely to be damaged if they must be removed. The district court found that the damage complained of by the defendant is monetary in nature. Unlike harms stemming from the placement of party affiliations on a ballot in a particular election, for example, see, e.g., Nader v. Blackwell, 230 F.3d 833, 834 (6th Cir.2000), potential monetary damage does not constitute irreparable harm. "Mere injuries, however substantial, in terms of money, time and energy necessarily expended in the absence of a stay, are not enough." Sampson v. Murray, 415 U.S. 61, 90, 94 S.Ct. 937, 39 L.Ed.2d 166 (1974) (quotation omitted). Indeed, especially when a party knew of the risk that it undertook when it undertook the enjoined activity, monetary losses from the complying with the injunction will seldom be irreparable. See Manakee Prof. Med. Trans. Serv., Inc. v. Shalala, 71 F.3d 574, 581 (6th Cir.1995). Any cost that is a result of the defendant's action during the course of this litigation of incorporating the Ten Commandments into a larger permanent display clearly could not be considered as part of the defendant's harm.

Moreover, the granting of a stay pending appeal will subject the high school students and others who frequent the schools to continuing violations of the Establishment Clause. The Supreme Court "has been particularly vigilant in monitoring compliance with the Establishment Clause in elementary and secondary schools," because "[i]n no activity of the State is it more vital to keep out divisive forces than in the schools." Edwards v. Aguillard, 482 U.S. 578, 583-84, 107 S.Ct. 2573, 96 L.Ed.2d 510 (1987) (quotation omitted). The Supreme Court has also made clear that a violation of First Amendment rights, even for a short time, causes irreparable harm. See Elrod v. Burns, 427 U.S. 347, 373, 96 S.Ct. 2673, 49 L.Ed.2d 547 (1976). When a public entity's religious display violates the Establishment Clause, the public entity sends a message indicating that the authority of the State stands behind a particular religious viewpoint. This message, whether subtle or overt, is impermissible.

The defendant moves, in the alternative, for an injunction permitting it to leave the Ten Commandments monuments in place but to cover them pending appeal. Analytically, this requires two separate steps: to grant the defendant the desired relief, we would have to stay the district court's judgment ordering that the monuments be removed and then issue an injunction ordering that the monuments be covered. As we have made clear, the defendant has failed to show any irreparable harm that would come from removing the monuments.

However, even if we were inclined to stay the judgment, ordering the construction and maintenance of a cover would be ill-advised. Not only...