Books & Suetkamp v. City of Elkhart, IN

• Decision Date: 13 December 2000
• Docket Number: No. 00-1114,00-1114
• Citation: 235 F.3d 292
• Parties: (7th Cir. 2000) WILLIAM A. BOOKS and MICHAEL SUETKAMP, Plaintiffs-Appellants, v. CITY OF ELKHART, INDIANA, Defendant-Appellee
• Court: U.S. Court of Appeals — Seventh Circuit

Page 292

235 F.3d 292 (7th Cir. 2000)

WILLIAM A. BOOKS and MICHAEL SUETKAMP, Plaintiffs-Appellants, v.CITY OF ELKHART, INDIANA, Defendant-Appellee.

No. 00-1114

In the United States Court of Appeals For the Seventh Circuit

ARGUED MAY 12, 2000

DECIDED DECEMBER 13, 2000

Appeal from the United States District Court for the Northern District of Indiana, South BendDivision. No. 98 C 230--Allen Sharp, Judge.[Copyrighted Material Omitted]Before RIPPLE, MANION and WILLIAMS, Circuit Judges.

RIPPLE, Circuit Judge.

On the lawn of the City of Elkhart's Municipal Building stands a monument inscribed with the Ten Commandments.William A. Books and Michael Suetkamp, residents of Elkhart, object to the display of this monument on government property.They brought this action in the district court, claiming that the display of the monument by the City of Elkhart violates the Establishment Clause of the First Amendment to the Constitution of the United States.The district court granted summary judgment for the City of Elkhart.For the reasons set forth in the following opinion, we reverse the judgment of the district court and remand for proceedings consistent with this opinion.

IBACKGROUND

A.Facts

A monument inscribed with the Ten Commandments is located on the lawn in front of the Municipal Building of the City of Elkhart("the City" or "Elkhart").The plaintiffs, residents of Elkhart, object to the presence of this monument in this location.We therefore must determine whether this presence of the monument violates the Establishment Clause of the Constitution of the United States, which has been made applicable to the states through the Fourteenth Amendment.¹This task requires that we examine the history of the monument's placement and maintenance as well as the physical characteristics of the monument and of the surrounding area.

1.

In the 1940s, a juvenile court judge in Minnesota, E. J. Ruegemer, inaugurated the Youth Guidance Program.Disheartened by the growing number of youths in trouble, he sought to provide them with a common code of conduct.He believed that the Ten Commandments might provide the necessary guidance.Judge Ruegemer originally planned to post paper copies of the Ten Commandments in juvenile courts, first in Minnesota and then across the country.To help fund his idea, he contacted the Fraternal Order of Eagles ("FOE"), a service organization dedicated to promoting liberty, truth, and justice.At first, FOE rejected Judge Ruegemer's idea because it feared that the program might seem coercive or sectarian.In response to these concerns, representatives of Judaism, Protestantism, and Catholicism developed what the individuals involved believed to be a nonsectarian version of the Ten Commandments because it could not be identified with any one religious group.After reviewing this version, FOE agreed to support Judge Ruegemer's program.

Around this same time, motion picture producer Cecil B. DeMille contacted Judge Ruegemer about the program.DeMille, who was working to produce the movie "The Ten Commandments," suggested that, rather than posting mere paper copies of the Ten Commandments, the program distribute bronze plaques.Judge Ruegemer replied that granite might be a more suitable material because the original Ten Commandments were written on granite.DeMille agreed with Judge Ruegemer's suggestion, and the judge thereafter worked with two Minnesota granite companies to produce granite monuments inscribed with the Ten Commandments.Local chapters of FOE financed these granite monuments and then, throughout the 1950s, donated them to their local communities.The Elkhart chapter of FOE donated its version of the Ten Commandments monument to the City of Elkhart in 1958.

Elkhart's newspaper, The Elkhart Truth, published an article about the dedication of the Ten Commandments monument to the City of Elkhart.SeeR.29, Ex.A, Ceremonies Pay Tribute in Memorial Day Rite;City Given Decalogue, The Elkhart Truth, May 31, 1958, at 1.The dedication was a part of the City's Memorial Day ceremonies, and the participants in the dedication included Robert Long, city controller; Mahlon Hull, past president of the Elkhart Chapter of FOE; Dale Swihart, lodge secretary for FOE; the Reverend William Gieranowski, assistant pastor of St. Vincent's Catholic Church; the Reverend W. W. Kenhell, outgoing president of the Elkhart Ministerial Association; and Rabbi M. E. Finkelstein of Temple Israel.

According to the newspaper, Reverend Kenhell spoke at the ceremony, imparting the message that "Americans have inherited moral power from the founding fathers of our country, . . . and if they will accept the precepts of the Ten Commandments, it will provide their redemption from today's strife and fear."Id.Father Gieranowski also spoke at the ceremony and stated that moral law does not change and that the Ten Commandments should be engraved not only in stone but in the hearts, minds, and consciences of everyone.Seeid.Finally, the newspaper noted, Rabbi Finkelstein explained that the dedication of the monument "should be an occasion for dedication of everyone to the high ideals inherent in the American way of life."Id.

2.

As we have noted earlier, Elkhart's Ten Commandments monument is located on the lawn in front of the City's Municipal Building.The Municipal Building, situated on the corners of Second and High Streets in downtown Elkhart, contains the mayor's office, the City's legal and human relations departments, the city court, the prosecutor's office, and the offices of the Common Council.Above the main entrance to the Municipal Building is a bas relief of an elk's head.Directly to the left of the elk's head is the word "DEDICATVM," and on the immediate right of the elk's head is the word "JVSTITIAM."²R.29 & 31, Ex.14-16.

The lot for the Municipal Building contains the building itself, sidewalks, and a parking area.Between the building and the sidewalks is a grass lawn that is approximately 25 feet wide.Within this lawn are three monuments.The City maintains this lawn surrounding the monuments but does not contribute any time, money, or effort to the maintenance of the monuments themselves.

On the southeast corner of the building's lot--the corner nearest the intersection--are the Revolutionary War Monument and the Freedom Monument.The Revolutionary War Monument, closest to the street, is a large stone, which bears a plaque and is surrounded by a bed of flowers.SeeR.29 & 31, Ex.23-24.The plaque explains that the monument was donated by the Daughters of the American Revolution in honor of the Revolutionary War soldiers buried in Elkhart County.Behind the Revolutionary War Monument is the Freedom Monument.The Freedom Monument is a brick pillar with a light on its top.A plaque on the pillar reads: "BEHOLD FRIEND, YOU ARE NOW ON HALLOWED GROUND FOR HERE BURNS FREEDOMS HOLY LIGHT." R.29 & 31, Ex.25.Collectively, the Revolutionary War Monument and the Freedom Monument are referred to as the War Memorial.

On the northeast corner of the lot is the Ten Commandments monument.³The Ten Commandments monument is made of granite and stands six feet high and three and one-half feet wide.The largest portion of the monument is consumed by the text of the Ten Commandments.The face of the monument reads as follows

The Ten Commandments

I AM the LORD thy God.

Thou shalt have no other gods before me.

Thou shalt not make to thyself any graven images.

Thou shalt not take the Name of the Lord thy God in vain.

Remember the Sabbath day, to keep it holy.

Honor thy father and thy mother, that thy days may be long upon the land which the Lord thy God giveth thee.

Thou shalt not kill.

Thou shalt not commit adultery.

Thou shalt not steal.

Thou shalt not bear false witness against thy neighbor.

Thou shalt not covet thy neighbor's house.

Thou shalt not covet thy neighbor's wife, nor his manservant, nor his maidservant, nor his cattle, nor anything that is thy neighbor's.

R.29 & 31, Ex.5.This text, as stated previously, is an amalgamation of Jewish, Protestant, and Catholic versions of the Ten Commandments.

At the top of the monument, there are two small tablets that contain ancient Hebrew script.Surrounding both of these tablets is a floral design, and between the two tablets is an eye within a pyramid--an all-seeing eye.⁴Immediately below the all-seeing eye is an American Eagle grasping the American flag.Below the text on the monument are two small Stars of David.In the center of the two stars is a similarly sized symbol representing Christ: two Greek letters, Chi and Rho, superimposed upon each other.At the base of the monument is a small scroll, which reads as follows

PRESENTED TO

THE CITY OF ELKHART, IND.

BY

ELKHART AERIE NO. 395

FRATERNAL ORDER OF EAGLES

MAY, 1958

Id.

Photos of the Ten Commandments monument and of the front of the Municipal Building were included in the trial record and are attached as appendices to this opinion.

3.

Insofar as this record shows, the presence of the Ten Commandments monument on the lawn of the Elkhart Municipal Building produced no controversy until 1998.In that year, the City's mayor was informed that, unless the monument was removed, a lawsuit would be filed.After this warning was received, the Common Council of the City of Elkhart convened on May 4, 1998, and adopted a resolution "regarding the display of the Ten Commandments on public property."R.29, Ex.B.According to this resolution, the monument and the symbols on its face recognize the historical and cultural significance of the Ten Commandments.The Common Council noted in its resolution that numerous other historical and cultural plaques are inside the Municipal Building.The Common Council further emphasized that "the Ten Commandments have had a significant impact on the development of the fundamental legal principles of Western Civilization."Id.Finally, the Common Council...