Card v. City of Everett

• Decision Date: 26 March 2008
• Docket Number: No. 05-35996.,05-35996.
• Citation: 520 F.3d 1009
• Parties: Jesse CARD, Plaintiff-Appellant, v. CITY OF EVERETT; Ray Stephanson, in his official capacity as Mayor of Everett, Washington, Defendants-Appellees.
• Court: U.S. Court of Appeals — Ninth Circuit

520 F.3d 1009

Jesse CARD, Plaintiff-Appellant, v. CITY OF EVERETT; Ray Stephanson, in his official capacity as Mayor of Everett, Washington, Defendants-Appellees.

No. 05-35996.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted July 11, 2007.

Filed March 26, 2008.

Marc D. Slonim of Ziontz, Chestnut, Varnell, Berley & Slonim, Seattle, WA, for the plaintiff-appellant.

David H. Remes and Benjamin C. Block of Covington & Burling, Washington, D.C., for the plaintiff-appellant.

Ayesha Khan of Americans United for Separation of Church and State, Washington, D.C., for the plaintiff-appellant.

Steven W. Fitschen of The National Legal Foundation, Virginia Beach, VA, for amicus curiae in support of the defendants-appellees.

Appeal from the United States District Court for the Western District of Washington; Robert S. Lasnik, District Judge, Presiding. D.C. No. CV-03-02385-RSL.

Before: ARTHUR L. ALARCÓN, FERDINAND F. FERNANDEZ, and KIM McLANE WARDLAW, Circuit Judges.

Opinion by Judge WARDLAW; Concurrence by Judge FERNANDEZ.

WARDLAW, Circuit Judge:

Jesse Card appeals the district court's award of summary judgment to the City of Everett on his claim that the City's display of a six-foot tall granite monument inscribed with the Ten Commandments on the grounds of the Everett Old City Hall violates the Establishment Clauses of the Constitutions of the United States and the State of Washington. In 2005, the Supreme Court issued decisions in 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), both of which addressed the issues presented here, and the former of which involved a monument of virtually identical design and origin to the monument at issue here. The Court concluded that the display on the grounds of the Texas State Capitol in Van Orden is constitutional, but struck down as unconstitutional the Kentucky monument display at issue in McCreary. Although the circumstances of the Ten Commandments' installation in the City of Everett vary slightly from those surrounding the Texas monument, we must agree with the district court that Van Orden, particularly Justice Breyer's concurring — and determinative — analysis, controls the decision here. We have jurisdiction pursuant to 28 U.S.C § 1291, and we affirm.

I. BACKGROUND

A. The Everett Monument

The monument at the heart of this dispute¹ was donated to the City of Everett in 1959 by the local aerie (chapter) of the Fraternal Order of Eagles, a national civic organization. It sits adjacent to Old City Hall on public land under the City's control. The Old City Hall building itself now houses only the police department. The monument, which is located along a sidewalk about forty feet north of the entrance to the building, is constructed of granite and stands about six feet tall. Its main feature is an inscription of a non-sectarian version of the Ten Commandments:

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.

The monument's design resembles two adjoined tablets with rounded tops. The upper portion of each larger tablet has a floral motif circling a smaller tablet bearing what appear to be ancient Phoenician characters. The all-seeing Eye of Providence is centered at the point where the two large tablets join; an eagle and United States flag lie directly below. Centered under the text of the Ten Commandments is a labarum² flanked by Stars of David. Finally, prominently carved at the base of the monument is the following dedication: "PRESENTED TO THE CITY OF EVERETT BY EVERETT AERIE NO. 13 FRATERNAL ORDER OF EAGLES DECEMBER, 1959."

The monument stood in a more conspicuous location at the corner of the Old City Hall building until 1988, when it was relocated approximately ten feet away to create space for a war memorial. The war memorial consists of three eight-foot tall black granite towers inscribed with the names of City residents who died in military service. Across the street, on Snohomish County property, there are several other monuments, including a September 11 memorial, a Medal of Honor memorial, a county war memorial, an Armed Forces monument and a monument to the common worker. Old City Hall also bears a plaque commemorating the rededication of the building in 1979.³

The events surrounding the conveyance of the monument from the Eagles to the City are clouded by the passage of time. Few contemporaneous records exist. The minutes of an October 29, 1959 Everett City Council meeting are the only relevant legislative record: "Moved by Johnson, seconded by Gebert to accept a six-foot high Granite Monolith of the Ten Commandments from the Everett Aerie No. 13, Fraternal Order of the Eagles." More details about the dedication of the monument are found in two articles published in the Everett Daily Herald newspaper. The first article, published on Thursday, December 17, 1959, reports that the Everett aerie had completed preparations for presentation of the monument to the City on the following Saturday. The article notes that "Judge Lawrence Leahy of Wenatchee, past grand president of the Eagles [would be] making the principal address." An invocation and benediction were to be performed, and several religious leaders were to give remarks. A follow-up article on Monday, December 21, indicated that "[a] granite monolith bearing the Ten Commandments was unveiled on the front lawn of city hall Saturday as local dignitaries, church leaders and Eagles representatives looked on," and that "Mayor George Culmback accepted the monolith on behalf of the citizens of Everett."

The monument's relocation twenty-nine years later was unaccompanied by any fanfare. In its, current location, the monument is shrouded by shrubberies and obscured from view unless one is standing close-by. In 1990, the City received its first letter challenging the constitutionality of the monument's display. The City took the position that the Establishment Clause did not require it to remove the monument. The record contains a total of seven such letters delivered during the 1990s, five written by two citizens and two letters written by the Americans United for Separation of Church and State. In each instance, the City responded by reiterating its view that the Establishment Clause did not bar the display of the Ten Commandments monument.

B. Judge Ruegemer, Cecil B. DeMille, and the Eagles

The Everett monument and over a hundred others were produced by the Eagles in Minnesota and distributed by local aeries. Distribution of the monuments was the brainchild of Minnesota Judge E.J. Ruegemer, a leader on the Eagles' Youth Guidance Committee.⁴ A primary goal of that committee was to "design a well-defined and simple program that would provide youngsters with a common set of values and a common code of conduct." Ruegemer's service in the juvenile courts between 1941 and 1947 led him to believe that "if troubled youths were exposed to one of mankind's earliest and long-lasting codes of conduct, those youths might be less inclined to break the law." He developed a plan to distribute copies of the Ten Commandments for posting in juvenile courtrooms nationwide, and approached the Eagles with his plan. Ruegemer claimed that "[a]t first, the Eagles were reluctant to fund the program because they were worried that the program might seem sectarian."

To allay these concerns, Ruegemer convened a committee of "fellow judges, lawyers, various city officials and clergy of several faiths from the St. Cloud area," and "developed a version of the Ten Commandments which was not identifiable to any particular religious group." The Eagles signed on to promote Ruegemer's plan of distributing copies of this credo. The plan germinated for some years, taking a turn for the grandiose when Hollywood showman Cecil B. DeMille became involved. He and Ruegemer decided that instead of paper copies of the Ten Commandments, they would distribute granite monoliths. Ruegemer and his committee designed the monuments, by which, he avers, they "intended ... to set forth a code of conduct, not an endorsement of any or one particular religion at all." The monuments were produced by two Minnesota granite companies. Local aeries interested in participating in the Ten Commandments project would raise the money to pay for a monument, then present it to their local community as a gift. Ruegemer estimates that between 140 and 150 monuments were distributed. The total number of monuments donated by aeries across the country is higher, however, because some aeries commissioned locally constructed versions modeled after those produced in Minnesota.

II. STANDARD OF REVIEW

"We review the grant of summary judgment de novo." Buono v. Norton, 371 F.3d 543, 545 (9th Cir.2004). "We must determine, viewing the evidence in the light most favorable to [Card], the nonmoving party, whether there are any genuine issues of material fact and whether the district court correctly applied the substantive law." Olsen v. Idaho State Bd. of Med., 363 F.3d 916, 922 (9th Cir.2004).

III. DISCUSSION

A. The Supreme Court's Establishment Clause Jurisprudence

"Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof."⁵ U.S. Const. amend. I. In 1971, the Supreme Court issued Lemon v....